author: Freedman, J.

text:
    Leonora Aldis, Resp’t, v. George Stewart, App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Breach of promise—Evidence.
    Evidence as to the property of defendant’s mother is inadmissible in an action for breach of promise, and its admission, where the jury may have been influenced thereby, is reversible error.
    Appeal from a judgment entered in favor of plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Charles F. Lydecker, for app’lt; Charles A. Flammer, for resp’t.
   Freedman, J.

The action was brought by plaintiff to recover damages from defendant for breach of promise to marry. At the trial sufficient evidence was given by the plaintiff to call for the submission of the case to the jury.

Among other things evidence was admitted to the effect that the mother of the defendant was possessed of property and of real estate. The evidence was objected to by the defendantas incompetent, irrelevant and immaterial. The objection was overruled, the evidence admitted, and defendant duly excepted.

The question as to the admissibility of evidence of this character in all actions for breach of promise to marry was considered by the supreme court of Michigan, on a writ of error to the Kalamazoo circuit, in Miller v. Rosier, 31 Mich., 475. The assignment of error was that the plaintiff was allowed to show the value of the farm belonging to the defendant’s father ’as something the jury might consider in estimating damages. The ground on which it was claimed that this evidence was admis•siblc was that from other evidence it had been shown that defendant had made statements to plaintiff that his property was invested in this farm. But Judge Cooley, in writing the opinion of the court for reversal, said: “ How much was thus invested he did not state, nor-was there any evidence tending to show that he then had any legal interest whatever in the farm, or if he had, that it was anything more than nominal. We think the court correctly held that evidence of defendant’s pecuniary circumstances might be put in by the plaintiff, but this evidence only went to show the father’s circumstances, which were wholly immaterial to the case on trial.”

And in Totten v. Read, 10 N. Y. Supp., 318; 32 St. Rep., 46, the general term of the court of common pleas reversed the judgment because the plaintiff had been allowed to give evidence of defendant’s declarations that he was the only heir of his uncle, who would leave him a large estate.

Under these decisions the admission in the case at bar of the evidence as to the property of the mother constituted error, and the error was of a substantial character. The case is entirely devoid of any sensational feature, and, aside from the defendant’s refusal to redeem his promise of marriage, the conduct of the defendant, according to plaintiff’s own testimony, was that of a gentleman. The plaintiff never earned but a small compensation, and the defendant was and is worth practically nothing in a pecuniary point of view. Under these circumstances the verdict of the jury, which was for the sum of $5,600, may be presumed to have been largely influenced by the fact that the plaintiff was permitted to prove that defendant’s mother owned property and real estate. The error could only be disregarded if it could be seen that the evidence illegally admitted did no harm. Jefferson v. N.Y. Elevated R. R. Co., 132 N. Y., 483; 44 St. Rep., 629. The burden of demonstrating that the illegal admission of the evidence did .no harm is on the plaintiff, and this she failed to do.

As long as the evidence may have affected the verdict, the general rule is that the error in its reception will not be cured by a direction to the jury to disregard it. Erben v. Lorillard, 19 N. Y., 299; O'Sullivan v. Roberts, 7 J. & S., 360; Newman v. Goddard, 3 Hun, 70; Allen v. James, 7 Daly, 13; Tabor v. Van Tassell, 86 N. Y., 642.

It is only where the evidence erroneously admitted is expressly withdrawn from the consideration of the jury, and the jury is speci fically and unqualifiedly instructed to disregard it, and there is other evidence sufficient to support the verdict, that it may be presumed that the instruction to the jury was complied with, and that the error was cured. Holmes v. Moffat, 120 N. Y., 159 ; 30 St Rep., 779.

In the case at bar there was no such specific and unqualified instruction to disregard. On the contrary, the trial judge refused to instruct thef jury to disregard the evidence altogether, and charged that the circumstances of the mother of the defendant might be considered as showing what the condition and station of the defendant in society might be. Moreover, it is quite doubtful whether there is other evidence sufficient to support the amount of the verdict

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

Gildersleeve, J., concurs.


source: Caselaw Access Project

author: McAdaat, J.

license: Public Domain

text:
    The Waverly Co., App’lt, v. The Worthington Co., Resp’t.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Attachment—Corporations.
    An order appointing a temporary receiver in proceedings for a voluntary dissolution of a corporation does not disable the corporation from moving to vacate an attachment against its property.
    Appeal from order vacating attachment against property.

      J. A. Arnold, for app’lt; J. R. Marvin and J. M. Fisk, for resp’t.
   McAdaat, J.

Every fact upon which the plaintiff relied to sustain the provisional remedy invoked was denied and disproved by the defendant’s officers, so that the court below, on the whole case, was called upon to determine whether the attachment should be continued or not. It decided upon the entire proofs that the attachment should be vacated and committed no error in reaching that conclusion. The order made by the supreme court January 26th, 1893, appointing a temporary receiver of the defendant’s property in proceedings for a voluntary dissolution of the corporation, did not disable the defendant from moving to vacate the attachment. See Parry v. Am. Opera Co., 12 CFiv. Pro., 194; Auburn Button Co. v. Sylvester, 52 St. Rep., 181. This upon the ground that a corporation so situated is like a debtor who makes a general assignment before or after the attachment; either may make a motion to vacate because of the residuary interest in the proceeds of the attached property after the creditors are paid. Brewer v. Tucker, 13 Abb. Pr., 76; Dickerson v. Benham, 20 How. Pr., 343; S. C. 10 Abb. Pr., 390; Gasherie v. Apple, 14 id., 64. It follows that the order appealed from must be affirmed, with costs.

Gildersleeve, J., concurs.


author: McAdam, J.

text:
    Alexander Filippini, App’lt, v. Charles M. Stead, Resp’t.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    1. Partnership—Notice of dissolution.
    A notice of dissolution of partnership which states that one partner had retired and that the other was thereafter to continue thebusiness on his own account, inferentially informs creditors to whom it is given that the remaining partner assumed existing liabilities of the firm, as such notice is sufficient to put the creditor on inquiry and charge him with knowledge such inquiry would have revealed.

      2. Same—Rights of retiring partner—Discharge of by new arrangement.
    Plaintiff purchased bonds through a firm of which defendant was a partner and deposited the same with the firm. Thereafter the firm dissolved and plaintiff retired, the other partner assuming the liabilities of the firm. Notice of the dissolution was given to plaintiff, who, two years thereafter, loaned the bonds to the remaining partner, taking security from him therefor. In an action to charge defendant with liability for a judgment recovered against the other partner for the value of the bonds, held, that the court properly directed a verdict for the defendant; that plaintiff, by the new arrangement, accepted the other partner as principal debtor and discharged defendant as surety.
    Appeal from judgment entered on verdict directed in favor of the defendant.
    Carter, Hughes & Kellogg (Frederic R. Kellogg, of counsel), for app’lt; Dillaway, Davenport & Leeds (John S. Davenport, of counsel), for resp’t.
   McAdam, J.

The action was to charge defendant with liability for a judgment of $9,332, obtained by default against the firm of Allen & Stead, composed of Harry Allen and the defendant, the latter not having been served with the summons in the-original action. Code, § 1937, et seq. It appears that prior to November 7, 1885, the firm of Allen & Stead purchased for and on account of the plaintiff seven first mortgage seven per cent bonds of the Utah Southern Extension Railroad Company, of the par value of $1,000 each, and the bonds were paid for by the plaintiff.

The bonds were thereafter deposited with the firm, which agreed to return them to the plaintiff whenever he demanded the same. The plaintiff alleges a demand upon the defendants for the bonds, their refusal to comply, and claims that by reason of such failure the defendants became indebted to the plaintiff for the value of the bonds, etc.

The main defense relied upon was, that the firm of Allen & Stead dissolved November 7, 1885; that the business was transferred to Allen, one of the copartners, who was to continue it on his individual account, and that he had assumed all the obligations of the firm. The defendant also alleged that the plaintiff had due notice of the dissolution and transfer, and thereafter gave credit to Allen individually, by agreement that Allen should hold the bonds instead of the late firm, and that in consequence the firm, and the defendant as its retired member, were discharged from all liability for said bonds.

The defense is founded on the familiar principle that under such, circumstances the retired partner becomes a mere surety upon the partnership obligation, and is entitled to the rights of a surety against any creditor of the firm who has notice of the dissolution and assumption of the debt by the remaining partner, to the extent that if the creditor enlarges the time of payment to such principal debtor, or makes any new contract with him respecting the obligation, the partner who’ retired is discharged from liability. Colgrove v. Tollman, 67 N. Y., 95; Millerd v. Thorn, 56 id., 402;

Calvo v. Davies, 73 id., 216; Palmer v. Purdy, 83 id., 147; Dodd v. Dreyfus, 17 Hun, 600. The defendant proved the dissolution of the firm, that all accounts between the partners were settled, that Stead paid into the firm about $20,000 on his retirement, and that Allen agreed to assume all the obligations of the firm.

It was undisputed that notice of the firm’s dissolution was duly and timely given to the plaintiff, but he seeks to avoid the effect of the decisions cited on the ground that the notice of dissolution did not inform him that Allen had assumed the existing liabilities of the firm. The notice given inferentially at least informed him of that fact, for it stated that Stead had retired from the firm, and that Allen was thereafter to continue the business on his own account The notice was sufficient to put the plaintiff upon his inquiry, and charge him with the knowledge such inquiries would have revealed. So construed, the notice was ample, and when the plaintiff knew of the changed relation between Allen & Stead he was bound to respect it Grow v. Garlock, 97 N. Y., 81.

It appeared throughout the case that in all the transactions the plaintiff regarded Allen (not the defendant) as his friend, and on September 13, 1887, he wrote Allen, making a claim on him for the bonds.

On October 4, 1887, the plaintiff made a new arrangement with Allen, which is expressed in a writing signed by the plaintiff under that date, wherein he certifies: “I have this day received from Harry Allen six certificates, representing 500 shares each of the ordinary shares of the Scottish Canadian Asbestos Company, Limited, which are to be held by me as a pledge for the loan to Harry Allen of seven bonds of $1,000 of the Utah Southern Railroad Company, and are to be returned to him upon the delivery to me of the last mentioned bonds.” These writings were signed and delivered nearly two years after the dissolution of the firm, and indicate that the plaintiff knew of the new relation and voluntarily assented to it, and looked to Allen as the only person responsible to him on the transaction. The question involved is not whether the plaintiff gave such an extension of time to Allen as disabled him for a stated period from suing, but whether the plaintiff did not, by his hew arrangement, accept Allen as the principal debtor and discharge Stead, the surety, by operation of law.

No effort was made to hold Stead until recently, the plaintiff acquiescing since the dissolution in the theory that Allen was his real and only debtor.

When the evidence closed, the trial judge directed the jury to find a verdict in favor of the defendant

The plaintiff excepted to the direction and asked to go to the jury “ as to the intention of the parties.” Assuming that permission to go to the jury was applied for in time, the plaintiff, having limited his request, waived the submission of all other questions but the one specified. Dounce v. Dow, 64 N. Y., 411. The only intention inferable from the acts of the parties here is, that they contemplated the legal consequences of their acts, and the trial judge held them to this construction ; the jury could have found no other.

The writings signed by the plaintiff constitute evidence controlling as to the facts. Boyd v. Colt, 20 How. Pr., 384: Lynch v. Pyne, 52 id., 435. Upon the entire case, therefore, the direction to find for the defendant was correct, and the judgment entered on the verdict must be affirmed, with costs. Gildersleeve, J., concurs.


text:
    Robert W. Milbank, Resp’t, v. Morgan Jones, App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Appeal—Abatement and bbyivob.
    An appeal from an order reviving an action will not be entertained where the action has since been tried and the judgment recovered therein affirmed by the general term, and an appeal to the court of appeals is pending, as the court will not decide mere abstract questions from the determination of which no practical result can follow.
    Motion to dismiss appeal from order reviving and continuing action.

      Booraem & Hamilton, for motion; J. M. Jones and J. Fettretch, opposed.
   McAdam, J.

The order appealed from was properly made, and would have been affirmed on the merits but for the motion made to dismiss the appeal, which must be granted. It appears that since said order was made the action has been tried and a verdict rendered in favor of the substituted plaintiff. The judgment entered thereon has been affirmed by the general term, and an appeal from such affirmance is now pending in the court of appeals. The order appealed from is now merged in and superseded by the judgment. As a decision on the merits can have no retrospective effect, the appeal should be dismissed. Grunberg v. Blumenlahl, 66 How. Pr., 62; Health Department v. O' Reilly, 49 N. Y. Superior Ct., 524; Fieldhouse v. Neville, 16 W. Dig., 472.

Courts will not decide mere abstract questions from the determination of which no practical result can follow. People v. Common Council, 82 N. Y., 575. The motion to dismiss the appeal must, therefore, be granted, with- costs.

Gildersleeve, J., concurs.


author: Gildersleeve, J.

text:
    William L. Heermance, Resp’t, v. Edward C. Bridgman, App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    .Negligence—Ovebelow fboji ttppeb apabtment—Evidence,
    In an action for damages to plaintiff’s goods resulting from the overflow of water in defendant's apartment, which was on an upper floor, defendant was permitted to testify that he directed his employe to notify defendant’s emploj'e to turn off the stop-cock, and that the message was delivered: but the court refused to admit evidence of the conversation between the two employes in the absence of the parties to the action. Meld, no error ; that the mere conversation of these two employes was not material.

      Appeal from judgment entered on verdict of a jury, and from an order denying defendant’s motion for a new trial.

      Lester W. Clark, for app’lt; Hunt & Rudd (James M. Hunt, of counsel), for resp’t.
   Gildersleeve, J.

The plaintiff and defendant were occupants building street, city York. The plaintiff occupied the lower or store floor, which he had fitted up for refrigeration by insulating the floors and running pipes in connection with machinery that cooled them offj and he had goods stored there. The defendant occupied the upper floor in the same building. In the month of November, 1890, the goods stored in the plaintiff's apartments were damaged by water coming from defendant’s apartments; and it is to recover damages for the injuries caused by such overflow of water that the plaintiff brought this suit. The questions of fact as to whether this injury was caused through the negligence of defendant, whether defendant omitted to exercise reasonable care to prevent such overflow, and as to whether there was any fault on the part of plaintiff, were properly submitted to the jury by the learned trial court. The jury, by their verdict, found that the overflow occurred through the negligence of defendant, without fault on the part of plaintiff; and they assessed the damages at $350. With this conclusion of the jury the general term will not interfere, as there is sufficient evidence to sustain the verdict.

There are no errors in the admission or exclusion of evidence of sufficient weight to warrant a reversal of the judgment. The court offered to allow defendant to prove that defendant had directed the witness Grady, an employe of defendant, to notify Lind, an employe of the plaintiff, to turn off the stop-coclc, and that Grady delivered the message; but the court was right in refusing to admit mere conversation on the subject between Grady and Lind, in the absence of both plaintiff and defendant. The witness Grady was allowed to testify that he was directed by defendant to tell Lind to shut off the stop-cock, and that he delivered the message to Lind. Any presumption of contributory negligence ou the part of plaintiff, arising from this testimony, was properly submitted to the jury. There was no error in the ruling of the court in this regard. It was only necessary for defendant to show that he had discharged his duty. Subsequently, the court refused to allow Grady to testify whether or not Lind had promised to turn the water off, but, as he had already testified that Lind had promised to do so, the defendant cannot be said to have been prejudiced by the ruling. The testimony is as follows: “Q. What did he (Lind) reply, if anything, when the notice was delivered to him? A. He replied that he would do it, and he also replied that he could not help doing it, because—” Here the witness was stopped by the court.

There are no other exceptions of sufficient importance to require discussion.

Judgment and order appealed from are affirmed, with costs.

Freedmah, J., concurs.


text:
    Frederick Booss et al., App’lts, v. Henry Mihan, Resp’t.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Bepebence—Action pob overpayments obtained by deceit.
    An action to recover overpayments for labor and services obtained by means of deceit and false representations is not referable, and that being so an answer cannot make it referable.
    Appeal by plaintiffs from an order vacating an order theretofore obtained by them by default, referring the issues to a referee to hear and determine the same.

      Henry Grasse, for app’lts; Stephen C. Baldwin, for resp’t.
   Freedman, J.

Upon their complaint the plaintiffs seek to recover from the defendant the amount of certain over-payments made by the plaintiffs to the defendant on account of labor and services rendered, and obtained by the defendant by means of deceit and false and fraudulent representations. The cause of action thus set forth is not referable, and that being so the defendant’s answer cannot make it referable. Moreover the reply shows that the counterclaim set up in the answer does not involve the examination of a long account.

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

drlLDERSLEEVE, J., Concurs.


author: McGown, J.

text:
    Rudolph Labowitz, Resp’t, v. Elias Frankfort el al., App’lts.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Bailment—Destruction op goods by pibe.
    Defendants delivered certain goods to plaintiff to be manufactured into garments. After a portion of them was completed a fire took place in plaintiff’s shop, and the goods, both manufactured and unmanufactured, were destroyed. In an action for the work done upon the completed goods, defendants counterclaimed for the value of the materials on the ground of a failure to deliver, but did not allege any want of care on plaintiff’s part. The evidence as to the terms of the contract, the mode of delivery and whether the work was completed at the time of the fire was conflicting. Held, that this was simply a case of bailment for the mutual benefit of the parties; that plaintiff was only bound to exercise ordinary care of the materials, and the burden of showing a want of such care was on the defendants, and as this was not shown and there was evidence to justify a verdict for plaintiff it would not be disturbed.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, on the 26th day of January, 1898, and from an order denying defendants’ motion for a new trial.
    The complaint is for work, labor and services of the fair and reasonable value, and at the agreed price of $133.57.
    The answer alleged the delivery by defendants of certain cloth and materials to be made up into garments, and when completed, to be delivered by plaintiff to defendants’ place of business; the work performed by plaintiff to be paid for when delivered; that plaintiff did not have such cloth made up into garments, and that he did not deliver same to defendants.

      And for a further defense and counterclaim, that plaintiff undertook said employment, and agreed to take good care of said cloth and materials, and to deliver same as aforesaid; that plaintiff failed to deliver same, to defendants’ damage of $208.03, being $780.99, the value of said cloth, etc., less $572.96, received by defendants for insurance on said goodt.

      Jacob Manheim, for resp’t; Sampter & Fleischman, for app’lts.
   McGown, J.

The plaintiff, a tailor, seeks to recover for work, labor and services performed by him in making up 453 pairs of pantaloons for defendants; all the materials to be made up having been furnished by the defendants.

The amount claimed by plaintiff for the work done by him upon that portion of the goods which was completed by him being the sum of $133.67.

The plaintiff was a contractor, taking cloth and other materials from the defendants and other dealers in clothing, to be made up into garments at his shop in Ckrvstie street, and employed a number of workmen, while the defendants were manufacturers and dealers in such garments.

There does not appear to be any contention as to the number of pairs of pantaloons received by plaintiff, or as to the price charged by him for his labor in manufacturing same.

While defendants’ goods were in plaintiff’s possession, on the 29th day of March, 1892, a fire occurred in the building where plaintiff kept his shop, and plaintiff’s work, or the portion of that claimed to have been completed by him, and for which he claims herein, and defendants’ goods, both manufactured and unmanufactured, were nearly, if not entirely destroyed.

The plaintiff testified that he had made up a portion of the pantaloons in question, and done all the work necessary to make them complete, and that the work done by him thereon was all complete and performed prior to the occurrence of the fire, while this is denied by the defendant Spero.

Plaintiff further testified, that by the terms of his agreement with the defendants, the defendants were to deliver the unmanufactured goods to his (plaintiff’s) shop by their expressman, and that said goods, when completed, were to be sent for and taken away by defendants’ expressman.

Defendant Spero testified, that by the terms of their agreement, plaintiff was to deliver the goods when completed by him at defendants’ place of business, to be examined by them, and, if not right, they were to be sent back to the plaintiff to be fixed, and that plaintiff was not to be paid until the work was approved by the defendants.

It also appeared that the defendants had their goods insured while in plaintiff’s possession.

Plaintiff further testified that he had a conversation with the defendant Spero shortly after the fire, and said to him, “ Mr. Spero, I was by your place yesterday, and I was all right; there was a fire in my place; I was burned out; I was not insured, nothing at all,” and Spero told me, “Never mind, I get paid from the insurance company, and I will pay you, and I will give you some other work to make it up, because I need those goods, and I sold those goods.”

This conversation was not denied, or contradicted, by the defendant Spero, on his examination.

The work done by the plaintiff was done on and with the materials furnished by the defendants, and such materials, although in plaintiff’s possession, continued to be the property of the defendants, and subject to their demand and control.

Defendants claim that the plaintiff should lose his labor, while the defendants, the owners, lose their property, and that the plaintiff cannot recover pro tanto for his labor, up to the time of the destruction of the goods by fire.

Parsons in his Law on Contracts, vol. 2, at page 131, says: “And from the authorities it might seem that the owner is also bound to pay pro tanto for the work and labor already expended upon it (where the contract does not provide otherwise). * *

We doubt, however, if the practice in this country be altogether so; it is certain that a distinct usage would control any such rule, and without asserting that there is any such established usage, we think that generally, where an owner leaves a chattel with a workman who is to labor upon it, and the chattel is accidentally destroyed when this labor has been partially performed, each loses what each had in the thing destroyed:”

There is no evidence herein of any such usage.

It was simply a case of bailment, for the mutual benefit of the plaintiff and defendants.

The plaintiff was only bound to exercise ordinary care of the materials; and the burden of proof was on the defendants to show want of ordinary care. There was no evidence offered by the defendants to prove such want of ordinary care.

Want of care was not set up in defendants’ answer, nor does the same appear to have been claimed upon the trial. See Stewart v. Stone, 127 N. Y., 500 ; 40 St. Rep., 314.

The terms of the contract, the mode of delivery of the work, and as to whether the work of the plaintiff was completed at the time of the fire, were questions of fact to be passed upon by the jury, upon the evidence.

The evidence offered on the part of the plaintiff, and on the part of the defendants, was contradictory, and was fully and fairly submitted to the jury by the trial justice in his charge, and no exceptions were taken thereto.

The jury passed upon those questions, and returned their verdict in favor of the plaintiff, upon all the issues submitted to them, for the amount claimed.

It is within their province to believe or disbelieve either the plaintiff or defendants or any of the witnesses who testified upon the trial; and to give such weight to the testimony of each of the witnesses as they thought proper.

There was sufficient evidence to justify the verdict rendered by them, and we see no reason why we should disturb it.

There being no merit in any of the exceptions taken by defendant’s attorneys to the rulings of the trial justice, the judgment and order appealed from must be affirmed, with costs to the respondent.

Fitzsimons, J., concurs.


text:
    Rudolph Labowitz, Resp’t, v. Joseph Solomon et al., App’lts.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, on the 10th day of January, 1893, and from an order denying defendants’ motion for a new trial.

      Jacob Manheim, for resp’t; Sampter & Fleishman, for app’lts.
   McGown, J.

The cause of action, pleadings and evidence herein, are almost identical with those in Labowitz v. Frankfort and Spero, and the same questions of fact and law arose upon the trial herein.

For the reasons stated in the opinion this day filed in Labowitz v. Frankfort and Spero, the judgment and order appealed from must be affirmed, with costs to the respondent.

Fitzsimons, J., concurs.


author: Fitzsimons, J.

text:
    Chaya Glovinsky, Resp’t, v. The Cunard Steamship Co., Limited, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    1. Cabbiebs—Reasonable amount of baggage fob tbaveleb.
    Wearing apparel and bedding to the amount of $285 is not an unreasonable amount of baggage for a woman and two children who are removing to this country, unless she is a pauper.

      2. Same—Limitation of liability.
    In such a case a provision in the transportation ticket limiting the carrier’s liability for loss of baggage to fifty dollars is invalid.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Owen, Gray & Sturges, for app’lt; Mashbir & Cukor, for resp’t.
   Fitzsimons, J.

The plaintiff engaged with defendant through its agent at Hamburg to take passage from there to this place. She had certain baggage which was lost on the way; hence this action. The jury returned a verdict for $283.

The baggage of defendant consisted of wearing apparel for herself and two children and some bed feathers and covering.

She had a right to bring with her suitable wearing apparel for herself and children of the kind, quality and quantity befitting her station in life, having also in view the object of her journey.

She, under the circumstances related herein, had a right to include as part of her baggage the bed-clothing and feathers which she had with her, as well as necessary wearing apparel, providing it was reasonable in value and quantity.

Surely" no fair man would be justified in saying. that wearing apparel and bedding for a woman and two children of the value of $285, unless she was a pauper, is unreasonable for her to carry as baggage.

Therefore, the provision in defendant’s transportation ticket limiting its liability for loss of baggage to fifty dollars is invalid providing it conflicts with the rule just stated.

The question whether it was a reasonable provision in this case or not was submitted to the jury.

Their finding that it was unreasonable is certainly right in this instance.

It was right for the trial justice to exclude the said transportation ticket, because what it contained was immaterial, and for the further reason that defendant failed to show due diligence to discover the original one. We find no error.

Judgment is affirmed, with costs.

Van Wtck, J„, concurs.


text:
    Diglia Cassiano, Resp’t, v. Salvatore Strano, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Verdict—Contradictory evidence.
    In an action for rent under an agreement between the parties, the answer alleged a subsequent agreement. Defendant and a notary public testified that plaintiff signed the last agreement, while she testified that she did not. The case was left to the jury under a charge instructing them to find for a specified amount if they found plaintiff signed said agreement and for a larger specified amount if they found she did not, and they found for the larger amount. Held, that it was the province of the jury to believe or disbelieve any of the witnesses, and to give such weight to their evidence as they thought proper, and that there being nothing to show that it was the result of passion, prejudice, partiality or corruption, the verdict should not be disturbed.
    Appeal from a judgment entered upon the verdict of a jury on the 24th day of January, 1893, in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.

      Robert Greenthal, for resp’t; E. Ellery Anderson, for app’lt.
   McGown, J.

The only exception taken by defendant’s counsel upon the trial was the exception taken to the ruling of the trial justice in denying defendant’s counsel’s motion for a new trial after the jury had returned their verdict

The only question, therefore, to be considered upon this appeal is that raised by the defendant’s counsel in his brief submitted, viz., whether the verdict herein was against the weight of evidence.

The plaintiff sought to recover the sum of $800, rent in ad-, vanee, being the sum of one hundred dollars ($100) per month, for the months of March to October 1892, both inclusive, under an agreement entered into between her and the defendant herein, bearing date and executed on the 11th day of July, 1888, and which said agreement was offered in evidence.

Such agreement, duly executed by plaintiff and defendant, was admitted in evidence and marked plaintiff’s exhibit Mo.'1, and the interest admitted to be the sum of §154.

Plaintiff rested her case.

Defendant’s counsel thereupon offered in evidence “ the front page of the contract had between plaintiff and defendant,” being the paper produced by plaintiff and already admitted in evidence, and marked plaintiff’s exhibit Mo. 1, which was also admitted in evidence, and marked defendant’s exhibit Mo. 1.

By consent of plaintiff’s counsel, defendant’s answer was amended by setting up a further agreement made in relation to the same matter between the same parties, which bears date July 12th, 1888.

Defendant’s counsel thereupon produced and presented, to Louis Canale, a notary public, a witness on the part of the defendant, a paper (and which paper bears date on the 12th day of July, 1888, and was subsequently admitted in evidence and marked defendant’s exhibit Mo. 12), who testified “That the paper was executed on the 12th day of July, 1888, at his office, 84 Centre street; and -that he saw the parties thereto execute the same. That Salvatore Strano subscribed his name, and Diglia Tuscano (the plaintiff herein), being unable to write, made her cross. ”

Salvatore Strano, the defendant, also testified that the plaintiff on the 12th day of July was present at the witness Canale’s office. That “ she (plaintiff) signed that in my presence, she put her hand to that paper.”

The plaintiff, after defendant had rested his case was called, and testified:

“ I was only once at Mr. Canale’s office. One paper was signed upon that day. I was there. That is the paper which is marked plaintiff’s exhibit Mo. 1, and dated the 11th day of July, 1888, that is my mark.

“ Q. Did you sign that paper upon the 12th day of July ? A. I never signed it only one time, I was never in Mr. Canale’s office the day after I signed the paper.”

At the close of the testimony, the trial justice in his charge to the jury instructed them:

“ That the plaintiff must have a verdict at your hands for at least two hundred and twenty dollars ($220), that is, if you find that the plaintiff executed this agreement on the 12th day of July, 1888, she will be entitled to $220 and no more.

“Before you believe that she did execute this agreement, you must find so, from a preponderance of evidence on the part of the defendant; and if there is an absence of such preponderance of evidence in the defendant’s favor upon that issue, your verdict must be in favor of the plaintiff for the whole amount.”

“ I repeat, if you believe that the plaintiff signed this paper of the 12th of July, your verdict for her can only be for $220; while, if you believe she did not sign it, your verdict must be for her for nine hundred and fifty-four dollars ($954.00).”

Mo exception was taken to the charge, and the-jury rendered their verdict for the plaintiff for $954.

The issues were thus presented to the jury upon contradictory evidence, and it was within the province of the jury to believe or disbelieve either the evidence of the plaintiff or of the defendant, or of any of the witnesses who testified therein, and to give such weight to the evidence of any of the witnesses as the jury in their judgment thought proper.

In rendering their verdict for the plaintiff they evidently believed her, and did not believe the defendant and his witness, Canale, as to her executing the paper marked defendant’s Exhibit No. 12.

If the verdict rendered by the jury may reasonably be presumed to have resulted from an honest and intelligent exercise of judgment upon their part, the court will not interfere with their conclusion.

And in an action of this kind a verdict will not be set aside as excessive, unless it manifestly appears to be the result of passion, partiality, prejudice or corruption.

We find no evidence of any such herein, and the judgment and order appealed from must be affirmed, with costs to the respondent.

Van Wyck, J., concurs.


author: McGrown, J.

text:
    Diglia Cassiano, Resp’t, v. Salvatore Strano, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    New trial—Surprise.
    In an action to recover a sum claimed to be due under an agreement the answer set up a subsequent agreement alleged to have been made between the parties under which plaintiff would be entitled to a smaller sum. Defendant and a witness testified to the execution of the second agreement by the parties, but plaintiff swore that she did not execute it. Defendant expressed no surprise at the trial, but insisted on proceeding. He now claims that there were two witnesses to the agreement whose testimony had they been present would have supported his. Held, that under these circumstances a new trial on the ground of surprise was properly denied.
    Appeal from an order made on the 1st day of April, 1893, denying defendant’s motion for a new trial on the ground of surprise.

      Robert Greenthal, for resp’t; E. Ellery Anderson, for app’lt.
   McGrown, J.

This action was tried before the court and 9 jury on the 20th day of January, 1893, and resulted in a verdict in favor of the plaintiff for the amount claimed, nine hundred and fifty-four ($954), and a judgment entered therein on the 24th day of January, 1893.

No exceptions were taken by the defendant during the whole of the trial, and the defendant’s case on appeal did not present any question of law.

The whole case depended upon the facts, and it was simply a question of fact for the jury.

The amount claimed by plaintiff was eight hundred dollars ($800) and interest, claimed to be due the plaintiff under an agreernent alleged in the complaint to have been made between the plaintiff and defendant, bearing date the 11th day of July, 1888, which was admitted in evidence on the part of the plaintiff (marked plaintiff’s exhibit No. 1).

The interest was admitted to be one hundred and fifty-four dollars.

By consent of plaintiff’s attorney the answer was amended upon the trial, by setting up that there was a further agreement made between the parties on July 12th, 1888.

The alleged surprise, which is now claimed by the appellant,, consists of the statement that defendant did not produce upon the trial two persons, who, it is now alleged, were witnesses to the-agreement alleged to have been made by the plaintiff and defendant on July 12th, 1688.

The defendant and his witness, Canale, testified as to the execution by the plaintiff of the agreement last referred to, while the plaintiff testified that she did not execute the agreement; and this was the only evidence as to the execution of such agreement, and upon which the jury passed, finding by their verdict that the plaintiff did not execute the paper referred to.

Defendant now claims that there were two witnesses to the agreement, whose testimony, had they been present in court, would have supported that of the defendant and his witness. Canale.

Defendant allowed the case to go to the jury, after the testimony had closed, upon the testimony; and claimed no surprise at any testimony offered on the part of the plaintiff, until he made his motion to set aside the verdict on the 9th day of February, 1893.

He did not ask for the withdrawal of a juror, or for the postponement of the trial, on the ground of surprise.

The trial justice states in his opinion that “when the testimony" was all in, it being about 6 P. M. he volunteered to adjourn the trial until the following morning, when, if desirable, defendant’s counsel could have on hand the other two witnesses. But at the urgent request of defendant’s counsel, seconded by • plaintiff’s consent, I consented to allow both counsel to sum up, and allowed each of them all the time they deemed proper. I then charged the jury, who retired and returned within a short time with a verdict in plaintiff’s favor." That then defendant’s counsel claimed no surprise, but simply made the usual motion for new trial, restricting the same to the ground set forth in § 999 of the Code, and moved for a stay, and time to serve a case on * appeal.

The trial justice charged the jury, that if the agreement of July 12th, 1888, “ was actually made by plaintiff, then her claim herein, because of certain facts disclosed at the trial, would be reduced to $220, and no greater verdict than for said amount, could be rendered.” No objection or exception was taken to the charge.

The evidence of these two witnesses would only be cumulative, as sustaining the evidence of the defendant and his witness Canale. Defendant, and his witness Canale, testified to all the matters that these two witnesses could have testified to; that is, as to the execution of the agreement of July 12th, 1888, by the plaintiff.

Defendant took his chances of success and the jury having found against him, and having, by their verdict, found that the plaintiff did not execute the agreement of July 12th, 1888, now asks to have another jury pass upon the same question.

The law bearing upon this question is well settled.

The plaintiff would have been entitled to a verdict upon the conceded facts for at least the sum of $220, and when a jury return their verdict upon the whole evidence for more than the amount conceded by defendant, courts should not interfere with ■such verdict, when the verdict is justified by the evidence.

In Messenger et al. v. The Fourth National Bank, 6 Daly, 190, a similar question arose as to the indorsement of a check by one Arthur, and in which a verdict was rendered for the defendant. Plaintiffs claimed that they were surprised at the testimony of one Rutherford as to said indorsement, and that one Dana,‘who had been defendant's witness on a former trial, and whose testimony on that trial was inconsistent with what was sworn to by Rutherford, had been prevented by the defendant from appearing as a witness.

The application for a new trial was denied.

Daly, Chief Justice, before whom the motion was made, in his opinion therein, says at page 193 : 11 The rule originally was, that if one of the plaintiffs was taken by surprise, his only remedy was to submit to a non-suit, citing Harrison v. Harrison, 9 Price, 89. “I have no doubt,’ said Baron Wood, in the case cited, 1 that the plaintiff was taken by surprise.’

“But he adds, ‘he should have requested to be non-suited, that he might have come better prepared for another action, but he chose, notwithstanding, to go on, and take the chances of a verdict by letting the case go to the jury, in the hopes, perhaps, that they would disbelieve the defendant’s witnesses.’

“ If would become a common course on all occasions of failures, if this were to be tolerated, for a plaintiff, instead of choosing to be non-suited, as he ought to have done in this case, for that is the only proper course, to try first what the jury will do for him, and if he should fail, he will then apply to the court for .a new trial. It is impossible to listen to such an application.”

On appeal to the general term from the order denying the motion for new trial, the order was affirmed by all the judges sitting at general term concurring.

Robinson, J., writing the opinion therein, adopts the rule as stated by Baron Wood, hereinbefore recited.

The order appealed from must be affirmed, with costs to the respondent.

Van Wyck, J., concurs.


author: Fitzsimons, J. Van Wyck, J.

text:
    David Seligman, Resp’t, v. Isaac Hahn, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Appeal—Case.
    Where the cage on appeal does not contain a certificate that it contains all the evidence given on the trial, the appellate court cannot review questions of fact.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      H. M. Whitehead, for app’lt; Epstein Brothers, for resp’t.
   Fitzsimons, J.

The appeal record does not contain the usual certificate, stating that it contains all the evidence given upon the trial; we must therefore decline to review questions of fact.

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

Van Wyck, J.

Under the contract set forth in the second paragraph of the complaint, and not denied by the answer, the plaintiff was not bound to first pursue the principal debtors to-judgment and executions as a condition precedent to his cause of action against defendant; moreover, if he was, the evidence alfolio 21 was sufficient to permit of a finding by the jury that the defendant had waived the condition as to certain of the debtors-whose debts aggregated $315.50, and it would seem that the jury had so found by returning a verdict for only $157.75, just one-half of such debts, as the plaintiff sought by pleading and evidence-to hold defendant liable for one-half of all of certain uncollectable debts aggregating $480.

This verdict cannot be reviewed here as regards the weight of evidence, because there is no certificate that the case on appeal contains all the evidence.

The judgment and order should be affirmed, with costs.


author: Lewis, J.

text:
    Albert A. Brock, App’lt, v. Joseph A. Aspenleiter, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Fox-suit—Sale.
    In an action for butter sold, the plaintiff, after testifying to the sale and' delivery, testified that when he first began to deal with defendant he asked him if he would take butter if plaintiff would take clothes, which was-agreed to, and that his understanding was that all the butter furnished waste be credited on account. The court drew the inference from this testimony that the butter was sold to be paid for in clothes, and that as no default on defendant’s part was shown there was a failure of proof, and granted a non suit, held, no error.
    Appeal from the judgment of the Monroe county court, affirming the judgment of the municipal court of the city of Rochester.,

      C. W. Allen, for app’lt; James L. Hotchkiss, for resp’t.
   Lewis, J.

This action was brought in the municipal court of Rochester to recover $70.78 for butter sold and delivered by the plaintiff to defendant.

The plaintiff was non-suited, and an appeal was taken to the county court of Monroe county from the judgment of non-suit on questions of law only ; the judgment was affirmed by that court and an appeal was taken to this court. All the evidence came from the plaintiff. He was a dealer in butter; the defendant was in the clothing business.

The plaintiff testified that lie first began to deal with the defendant in 1889. “I asked him (meaning the defendant) if he would take butter of mo if I would take clothes; it was to the effect that he wanted huttcr, and I told him if he could use butter it would help me, it would be as good as cash ; he said, all right. The butter and clothes were all part of our transaction.” “ I. have no memorandum oí the clothes I bought of him; I have never rendered to defendant a statement of my account, and have never demanded payment of that. My understanding of the talk I and this defendant had was, that all butter I furnished was to be credited on account.”

The trial judge drew the inference from this evidence that the butter was sold to be paid for in clothes, and there being an absence of any evidence that the defendant had failed to keep his part of the contract he concluded that the plaintiff had failed to make a case, and hence granted a non-suit, and we find no reason for disturbing the judgment.

The judgment appealed from should be affirmed, with costs.

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


text:
    Sidney B. Roby, Pl’ff, v. Arthur G. Yates, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Ejectment—Eminent domain—Abandonment.
    Certain land of plaintiff was acquired by a railroad for its use, which was subsequently leased by the railroad to defendant to be used as a coal yard, which lease contained a reservation of the use of the track by the railroad, and defendant erected sheds shutting out the plaintiff and the public from said strip. Held, that by giving such lease the railroad forfeited and surrendered all its rights and interest in the land and that plaintiff was entitled to the same.
    Motion by the defendant for a new trial upon exceptions directed to be heard at the general term in the first instance after verdict directed for the plaintiff at circuit.

      William F. Cogswell, for pl’ff; Albert H. Harris, for deft.
   Lewis, J.

This action was brought to recover from the defendant the possession of real estate in the city of Eochester,-which he held as tenant under a lease from the Hew York Central & Hudson Elver Eailroad Company.

The property is the same as that in question in an action brought ,b.y this plaintiff against said railroad company in which the plaintiff had judgment and which judgment was affirmed by this court, and which will be found reported in 48 St. Rep., 201.

The plaintiff concededly is the owner in fee of the land.

All the rights the defendant claims to have in the property he got by the lease from the railroad company mentioned.

All the interest the railroad company ever had in the premises was the right to their use for railroad purposes.

This court held in the action against the railroad company above mentioned, that it forfeited and surrendered all its rights and interest in the property to the plaintiff by giving to the defendant the lease under which lie now claims to hold the property.

The material evidence was the same in both cases, and the same question is presented for our decision as was presented in the railroad case. We do not see that the defendant’s case was in any way prejudiced by receiving in evidence the judgment roll in the railroad action, even if, as is contended by the defendant, it was not material evidence, for plaintiff had fully made out his case without that record.

The defendant's motion for a new trial should be denied, with costs, and judgment should be ordered for the plaintiff upon the verdict.

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


text:
    The People, Resp’ts, v. Charles H. Laurence, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Labceny—Obtaining goods by eeaud.
    Defendant, after executing in the name of a railroad equipment company a contract for the purchase of a street railroad with the avowed intention of converting it into an electric road, obtained possession of two of the cars by representing that he wished to send them to Buffalo to be altered, agreeing to return them when changed, but instead of doing so, sold them and shipped them out of the state, appropriating the proceeds to his own use, and declined to give any information concerning them. It also appeared that he had obtained possession of the rails previously and sold them, and had contracted to sell the remaining cars. Held, that these facts were sufficient to sustain a conviction of larceny in the first degree.
    Appeal from a judgment of the Miagara county court of sessions, convicting the defendant of the crime of grand larceny in in the first degree.

      Richard Crowley, for app’lt; P. F. King, district attorney, for resp’ts.
   Lewis, J.

The court of appeals has decided that the indictment charges the defendant with committing the crime of larceny.

There was evidence tending to show that the Lockport Street Eailroad Company was an incorporated company, that it owned the usual equipment of a street railroad, consisting of iron rails, street cars, etc. The company had operated the road for three years, and up till the 1st day of January, 1891, when the business, not having proved to be profitable, was suspended. The cars were operated by horse power. In the month of July thereafter the defendant entered into negotiations with the company with the avowed purpose of purchasing the franchise and the plant and converting it into an electric road. He claimed to represent a western construction company by the name of the United States Eailway Equipment & Construction Company. The negotiations resulted in the execution of a written contract, bearing date July 27, 1891. It was executed on the part of the construction company by the defendant, as general manager thereof, and by E„ M. Ashley and John Hodge for the Lockport company—Ashley and Hodge being at the time the owners of all the stock of the railroad company. The contract provided that the construction company should proceed within thirty days to effect the changes of the system of operating the road, and complete the same by the 1st day of January, 1892.

It further provided for the sale and transfer of the stock of the railroad company to the construction company upon the payment by the latter for the stock in a manner stated in the contract. It further provided that Hodge and Ashley should turn over to the construction company, at the time of the delivery of the stock, all the property of the company, consisting of its franchise, railway track, eight street cars, etc. The property was not to be delivered to the construction company until it was paid for as provided for in the agreement. From the time of executing the contract, the evidence tends to show that the defendant devoted his time and talents to obtaining by various devices possession of the property of the railway company without paying anything for it. Under the pretense that it would be necessary to exchange the rails for heavier ones, the defendant secured possession of them, and sold them for $2,800 or $2,900, and appropriated the principal part, if not all of the proceeds of the sale to his own use. He sold the rails at considerably less than their market value. He obtained possession of the two cars he is charged in the indictment with stealing by representing to Messrs Ashley and Hodge that he wished to send them to Buffalo to have them there transformed into electric cars, agreeing that when they were so changed he would return them to the possession of the company. He shipped the cars to Buffalo, and instead of arranging to have them changed, as stated, he at once sold them for $450, and shipped them to a firm in Marion, Ind., and appropriated the proceeds of the sale to his own use. All this was done without the knowledge or consent of the owner, and when inquired of by Messrs Hodge and Ashley as to what had become of the cars, he declined to give any information concerning them except to say they were all right. He contracted to sell the rest of the cars, six in number, to a Mr. Breckeuridge of Hew York city, receiving from him in payment therefor his note for the sum of $500. This trade fell through because the defendant was not able to obtain possession of the cars so as to deliver them to the purchaser.

Suffice it to say, -without rehearsing the evidence farther, the only inference which can he drawn from the facts as disclosed by the evidence is that the defendant got possession of the cars which he is charged in the indictment with stealing, for a special purpose, to wit, to have them changed into electric cars, as stated. The company allowed him to take possession of them for that purpose only. The pretenses were false, and were made with the intention, at the time, of appropriating the cars to his own use. The defendant probably from the very commencement of his negotiations intended, some fraudulent device or other, to cheat the out of its property; but if that was not his original intention, the evidence justified the jury in believing that he had that intention at the time he obtained possession of the cars. The evidence tended very strongly to prove the defendant guilty of the crime charged in the indictment." We find nothing in the defendant’s exceptions calling for a reversal of the conviction.

The judgment and conviction of the Niagara county sessions appealed from should be affirmed, and the case remitted to that court to proceed thereon.

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


author: Haight, J.

text:
    Jacob Guilfoos, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Contract—Parol to build fence does not bun with the land.
    A parol promise, made by a railroad when acquiring a right of way, to build and maintain a board fence is not an agreement that runs with the land.
    2. Railroad—Negligence—Barbed wire fences.
    Prior to the passage of chap. 367, Laws of 1891, plaintiff’s horse was injured by coming in contact with a barbed wire fence which separated the field in which it was from defendant’s road. The action was brought for breach of contract to build aboard fence, but a recovery was sustained by the court below on the ground that the action could be maintained as one for negligence. There was no evidence as to the nature of the lot where the horse was, or whether it had been previously used as a pasture or that defendant knew of such use. Held, error; that a barbed wire fence along a railroad track is not necessarily dangerous and a nuisance; whether if is or not depends on the circumstances.
    Appeal from a judgment of the Cayuga county court, affirming a judgment of a justice court taken upon questions of law only.

      J. W. Dunwell, for app’lt; James Wright, for resp’t.
   Haight, J.

This action was brought to recover damages for injuries received by the plaintiff’s mare in a barbed wire fence. The plaintiff in his complaint alleges that he is the owner of a farm adjoining the defendant’s railroad, “ that along the lands of the plaintiff said defendant constructed and put up a barbed wire fence and has continued to maintain the same until the grievance hereinafter alleged. That such barbed wire fence was put up and maintained against the express wish and consent of plaintiff and contrary to a contract made by and between said West Shore Company and plaintiff at time of going through the lands of plaintiff. That' about January 1st plaintiff had a certain mare in a pasture lot adjoining said West Shore Bailroad and she became entangled in said barbed wire fence above described, and cut, maimed, mutilated, and otherwise injured herself to the extent of forty dollars, and for medicine used to heal her ten dollars, including doctoring. Wherefore, by reason of the premises, plaintiff demands judgment against said defendant for the sum of fifty dollars.”

Upon the trial evidence was given tending to show that at the time the West Shore contemplated building its road, a man came tliere to buy the right of way through the farm in question and said that he would pay $200 per acre for the land, and would build a board fence and dig a ditch two feet deep and four feet ■wide. The plaintiff was not at this time the owner of the land, but lie subsequently became the owner. We do not understand that a parol promise to maintain a fence is an agreement that runs witli the land. See Pierce on Bailroads, 424, and authorities there cited.

It consequently does not become necessary to consider the evidence for the purpose of determining whether it is sufficient to sustain the alleged agreement to build a board fence, or the exceptions that have been taken to the admission of evidence upon the trial in an attempt to establish such an agreement. The county court, in its review, was of the opinion that the action could be maintained as one for negligence, and we have examined the case for the purpose of determining whether such a cause of action was established. The complaint, as we have seen, fails to allege any act of negligence on the part of the defendant. The only allegation bearing upon the question is “ That the defendant constructed and put up a barbed wire fence and has continued to maintain the same until the grievance hereinafter alleged.” It does not allege that such fence was dangerous. Unless, therefore, the court can say that a barbed wire fence is dangerous and a nuisance per se, the action cannot be maintained on the ground of negligence. But assuming that the complaint is sufficient to authorize a recovery upon that ground, there is an absolute failure of evidence to establish negligence. The only evidence given upon the subject is by the plaintiff himself, and is as follows : “ The fence is a barbed wire fence on the south and north side of the West Shore railroad. The fence where the mare was hurt is on the north side of the railroad. There are six or- seven acres in the field and the barbed wire fence is along the railroad. It is the same fence that the West Shore Company put up and has been there until now. It has six wires on wooden posts, about half an inch long.” In another place he testified that with barbes about six inches apart and sharp, and barbes are he put his horse in the field in June, 1889, to pasture. The nature of the lot, whether wild or cultivated, pasture or meadow, does not appear. Whether it had ever been used as a pasture before, or the defendant knew of such use, does not appear. We are ° not even informed as to how the mare came to be injured.

We do not understand that a barbed wire fence along a railroad track is necessarily dangerous and a nuisance. It may or it may not be, depending upon circumstances. If the lands which it enclosed were wild and uncultivated, and not used for the pasturing of horses, it could hardly be claimed that its construction and maintenance was negligence, and yet other circumstances might be disclosed showing that such a fence was an improper one. Rehler v. Western New York & Pennsylvania R. R. Company, 28 St. Rep. 311.

Under the evidence as we find it, it does not appear.that such a cause of action was established. It is very evident that the case was not tried upon this theory. The claim litigated was for a breach of contract, and it is hardly fair to the appellant, upon review, to permit the respondent to shift his claim of damages from a breach of contract to one for negligence. The injury complained of occurred before the passage of chap. 367, Laws of 1891, and consequently the prohibition of barbed wire fences in that act has no application to this case.

The judgment of the county court and that of the justice of the peace should be reversed, with costs to the respondent in this and the county court.

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


text:
    In the Matter of the Probate of the Will of Alice W. Bradley, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Will—Revocation of probate—Estoppel.
    A party is not estopped from presenting a petition for revocation of probate by the fact that on the return of the citation he filed objections to - probate and did not appear to substantiate them on the adjourned day.
    2. Same—Parties.
    Any of the “next.of kin ” may present the petition; it is not necessary that he be a legatee under the will.
    3. Same—Service of citation.
    It is not necessary that the citation be served within sixty days after presentation of the petition; but it must be served within sixty days after it is issued.
    4. Same—Supplemental citations.
    The surrogate’s court has power to issue a supplemental citation where there has been a failure to serve all the parties necessary, or where other persons are necessary parties to the proceeding, and such citation need not be marked “ supplemental.”
    Appeal by Merritt E. Bradley from a decree of the surrogate’s court of Wyoming county dismissing the appellant’s petition and ratifying and confirming the probate of the will.

      Johnson & Gharles, for app’lt; L. A. Hayward, for resp’ts.
   Haight, J.

On the 24th day of June, 1890, a paper purporting to be the last will and testament of Alice W. Bradley, deceased, was admitted to probate by the surrogate of Wyoming county. On the 22nd day of June, 1891, the appellant petitioned that court' for a decree revoking the probate, and for “ such other or further relief as may be just.” On the receipt of such petition the surrogate issued a citation directed to tiie legatees named in the will, citing them to appear at a surrogate's court to be held in that county on the 8th day of September, 1891, at ten o’clock A. M., then and there to show cause why the probate of such will should not be revoked. Most of the legatees being non-residents of the state, an order of publication was made, and the citation was duly published in a newspaper known as the Wyoming County Leader for six successive weeks; but, through a mistake of some of the employes of the Perry Herald, it was published in that paper but four weeks. On the return day of the citation it appeared that John E Bradley had not been served, and that the executor named in the will, L. A. Hayward, had not been made a party to the proceeding. The appellant thereupon applied to the surrogate to issue a supplemental citation including the name of Hayward as a party, which motion was granted; and that citation was regularly served. It was made returnable on the 9th day of November, 1891, at which time the respondents, through their attorney, moved that the proceedings be dismissed, upon the following grounds:

“1. The petition to revoke the probate is made by Merritt E. Bradley, who was a party to the proceedings under which the letters testamentary were issued, and was named in the citation as one of the next of kin of the deceased. On the return day of the citation, May 26, 1890, he appeared by his attorneys and filed his objections to the probate of the will. The objections were identical with those now presented as grounds for' revoking the probate. The case was adjourned upon his application to June 24, 1890, to give him time to support his objections by competent proof. On the adjourned day he did not appear, and the will was then admitted to probate. He has had his day in court, and is now estopped from further contest of the will upon the grounds urged before and settled by the decree.

“2. The petitioner in this case is not one of the persons authorized by the Code, (§ 2647,) to institute a proceeding of this kind, as he is not interested in the estate. The former statute from which this section is partly taken, allowed “ any of the next of kin ” to make the application. It is now necessary under the above section that the petitioner have a present pecuniary and existing interest in the estate. This petitioner has no interest whatever, not even a contingent one, as he gets nothing under the will.

“ 3. The surrogate had no power to issue a second citation that was not even supplemental to the original citation, but one wholly new. There is no statute authorizing the issuing of such a citation ninety-one days after filing the petition, as was done in this case. It is the duty of the surrogate at once on the presentation of the petition to issue the citation.

“4. This case comes under the definition of special proceedings, as given in §§ 3333-4 and § 3343, sub-division 20 of the Code ; and in a special proceeding § 2517 of the Code requires that service of a citation be made within sixty days after the presentation of the petition. The proof here shows that no service was made upon any of the parties and no publication of the citation was made until 100 days after. The surrogate lost jurisdiction of the case by the failure to make service within the time required by law.

“ 5. The jurisdiction of a surrogate relating to the revocation upon petition of the probate of a will is wholly statutory, and the statute must be strictly followed. It cannot be altered or disregarded.” , ■

This motion was granted, and from the decree entered thereon this appeal was taken.

Section 2647 of the Oode Civ. Pro. provides that: “A person interested in the estate of the decedent may, within the time specified in the next section, present to the surrogate’s court in which a will of personal property was proved, a written petition, duly verified, containing allegations against the validity of the will or the competency of the proof thereof, and praying that the probate thereof may be revoked, and that the persons enumerated in the next section but one may be cited to show cause why it should not be revoked. Upon the presentation of such a petition the surrogate must issue a citation accordingly.”

The next section provides that: The petition must be presented within one year after the recording of the decree admitting the will to probate.

It is claimed, as we have seen, that the appellant is estopped from presenting a petition under the provisions of the Code, for the reason that on the return of the citation issued upon the application to have the will admitted to probate he appeared and filed objections to such probate, and did not appear to substantiate the same upon the adjourned day thereafter. We do not so understand the Oode. The provision is broad. “ A person interested in the estate may present the petition within one year after the recording of the decree admitting the will to probate.” The evident purpose was to afford a safeguard against imposition or mistake, and to afford a means of relief in the case of the discovery of new evidence. This question has been fully considered in the Matter of the Probate of the Will of Gouraud, 95 N. Y., 256; 258, 259, and in Matter of the Will of Kellum, 50 id., 298, in which it was held that the petitioners had the right to have the whole question litigated and determined the same as if no adjudication had been had thereon. It is true that those cases arose under the revised statute, but in the former case the provisions of the Code were discussed and stated to be substantially to the same effect.

We cannot assent to the proposition that “a person interested in the estate ” must be a legatee under the will. Such a construction of the provision would virtually nullify the statute. It would deprive the next of kin who were not fortunate enough to be legatees of the right of the review given by the Code. Ordinarily the persons who receive the benefits under a will are interested in the maintaining of it. Under the revised statutes it was provided that any of the next of kin ” might present the petition. Under the Code “ a person interested ” may present it. The change in phraseology was doubtless made for a purpose, and was doubtless intended to give others than the next of kin, but who were interested in the estate, such as a widow for instance, the right to the petition.

The petition does not show that the appellant is “ a person interested ” under the provisions of the Code. It does allege that he is an heir at law. It does not state his relationship, or whether he is a next of kin. He may be an heir at law and not a next of kin. An heir at law may be entitled to take real estate by descent, and yet he may not be entitled to a share in the distribution of the personal estate. "Under the provisions of the Code, these proceedings are limited to wills of personal property. There may be a will disposing of both real and personal property, and the proceedings may be instituted as to such a will; but in such proceedings the devisees are not necessary parties, and the revocation, if made, would only extend to the personal property. Mattel' of the Will of Kellum, 50 N. Y., 298, 300; Matter of Hamilton, 2 Connoly, 268.

It does nob, therefore, appear from the allegations of the petition that the appellant is a person interested in the personal estate of the deceased. But a stipulation appears in the appeal book which we think cures this defect. It was stipulated “ that the appellant herein, Merritt E. Bradley, was a party to the proceedings under which letters testamentary were issued, and was named in the citation as one of the next of Join of deceased, but was not named in the said will either as legatee, devisee, executor or otherwise; that he is an heir at law and next of Jcin of said deceasedIt thus appears from the stipulation of the parties that the petitioner was a next of kin; and if a next of kin, under the statute of distribution he would be entitled to his portion of the personal property of the deceased not disposed of by will.

Section 2516 of the Code Civ. Pro. provides that: “Except in the case where it is otherwise especially prescribed by law, a special proceeding in a surrogate’s court must be commenced by the service of a citation issued upon the presentation of a petition. But upon the presentation of the petition the court acquires jurisdiction to do any act which may be done before actual service of citation.”

Section 2517 provides that: “The presentation of a petition is deemed the commencement of a special proceeding within the meaning of any provision of this act which limits the time for the commencement thereof; but in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition must within sixty days thereafter be served as prescribed in §2520 of this act,” etc.

It is claimed that the citation must be served within sixty days after the presentation of the petition. "We do not so understand the provision. It must, however, be served within sixty days after the citation is issued by the court. This is made clear by .the provision of §2519. But it is said that the citation issued in this case was not served within sixty days. It is true that the first citation was not properly served at all, and an amended, or supplemental, citation was issued, which was properly served within the statutory time. In the Matter of the Will of Gouraud, supra, the petition was presented but one day before the expiration of the year, but the citation thereon was not issued for over three months thereafter, move than ninety days after the proceedings had been commenced and the surrogate had acquired jurisdiction ; and yet it was held that the proceedings were regular.

Code Civ. Pro., § 2481, provides that: “ A surrogate in court or out of court, as the case requires, has power:

“1. To issue citations to parties in anjr matter within the jurisdiction of his court, and in a case prescribed by law to compel the attendance of a party. *

“2. To adjourn from time to time a hearing or other proceeding in his court; and where all persons who are necessary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty before proceeding further so to adjourn the same, and to -issue a supplemental citation or require the petitioners to give an additional notice, as may be necessary.”

Here we have express authority giving to the surrogate’s court the power to issue a supplemental citation where there has been a failure to serve all'the parties necessary, or where other persons are necessary parties to the proceeding. Such a citation was issued in this case. It was not necessary that it should be marked “supplemental.” The fact that it was issued after and in place of the other made it a supplemental citation, and it was served, or the-publication thereof commenced, within the sixty days after it was issued, as required by § 2517. Matter of the last will of Phalen, deceased, 51 Hun, 208; 21 St. Rep., 34; Matter of the will of Lid-dington, deceased, 20 St. Rep., 610, 615. The cases of Pryer v. Clapp, 1 Dem., 387; Fountain v. Carter, 2 id., 313, and In re Bonnett, 1 Connoly, 294, as to the questions herein discussed must be considered as overruled by the cases referred to.

The decree should be reversed and the proceedings remitted to the surrogate’s court of Wyoming county to proceed thereon the costs to abide the final award of costs.

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


text:
    Charles E. Stokes, Resp’t, v. Henry Weston et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Will—Woeds of contingency.
    The rule that where there is a devise to one person absolutely, and in case of his death to another the words of contingency refer to a death in the lifetime of testator, has no application when the first devisee takes a life estate.
    2. Same.
    By the will of a testator he gave his property to his wife for life and the remainder to his children, and then provided “ but in case of the death of my sons Alfred and Charles E., or either of them, without issue living at the time of his decease,” then his share was given to grandchildren. Held, that the words of contingency did not refer to a death in testator’s lifetime, and that the sons did not take a vested estate subject only to the life estate of their mother.
    Appeal from an interlocutory judgment, entered upon a decision of the Cayuga special term.

      Coburn & Hunter, for app’lts; Teller & Hunt, for resp’t.
   Haight, J.

This action was brought to partition real estate. The only question presented upon this appeal is as to the proper construction of the will of Samuel Stokes.

Samuel Stokes died on the 24th day of October, 1889, possessed of real and personal estate. He left him surviving his widow, Eliza Stokes, the plaintiff, Alfred Stokes and Clara McGee, his children, and Henry Weston and Porter Weston, his grandchildren, and the children of Clára McGee. He left a last will and testament which has been duly proved and admitted to probate, in which he first devised and bequeathed to his wife Eliza the use of all of his property for and during the term of her natural life. Second: “I give, bequeath and devise to my children, Alfred Stokes, Charles E. Stokes and Clara McGee, the rest, residue and remainder of my property in equal proportions; but in case of the death of my sons, Alfred and Charles E., or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren, Henry Weston and Porter Weston.” The trial court has construed this provision of the will to the effect that the death of the sons without issue meant their death during the life of the testator and that inasmuch as they had both survived him they each became vested with one-third of the estate, subject only to the life estate of their mother. The court in its opinion states that there is nothing ambiguous about this clause, its meaning and the intention of the testator are clearly expressed, and such intention to my mind was that his two sons should take an equal one-third share of his estate absolutely, provided they did leave issue, but in the contingency that either should die without issue living at the time of his death, whether that contingency arose before or after the death of the testator, then his share should go to the grandchildren, and the embarrassment which I labor under arises from the fact that I am unable to give effect to the language of the will according to its natural import without doing violence to well settled rules of construction.” We fully agree with the views expressed by the learned trial judge as to the meaning and intention of the testator, but we differ with him in what he considers to be “ well settled rules of construction.”

“But in case of the death of my sons, Alfred and Charles E., or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren,” etc. The pronoun “ his ” preceding the word decease must refer to the noun or nouns that precede it. In other words, “his ” refers to the nouns Alfred and Charles, and the meaning is the same as if the words Alfred and Charles were substituted in the place of the pronoun. This is the fair grammatical construction of the sentence. It is contended, however, that under the authorities the pronoun his refers to the testator, and that the time mentioned is that of the testator’s death instead of that of the sons, or either of them. Our reading of the cases does not sustain this construction. It is unquestionably a well settled rule of construction that where there is a devise to one person absolutely, and in case of his death to another, the words of contingency refer to a death in the lifetime of the testator. Clayton v. Low, 5 Barn. & Ald., 636; Doe v. Sparrow, 13 East, 359; Woodburne v. Woodburne, 23 L. J., Ch., 336; Gee v. Mayor, etc., 17 Adol. & Ell., N. S., 737; Livingston v. Greene, 52 N. Y., 118; Embury v. Sheldon, 68 id., 227; Quackenbos v. Kingsland, 102 id., 128; 1 St. Rep., 175.

But this rule has no application when the first devisee takes a life estate, and it is equally well settled that where there are words in the context indicating an intention on the part of the testator that the death of the devisee refers to some other time than that of the testator’s death, effect must be given to such intention. Buel v. Southwick, 70 N. Y., 581; Nellis v. Nellis, 99 id., 505; Vanderzee v. Slingerland, 103 id., 47; 2 St. Rep., 732 ; Matter of Van Zandt, 105 N. Y., 89; 6 St. Rep., 851; Fowler v. Ingersoll, 127 N. Y., 472; 40 St. Rep., 206; Mead v. Maben, 14 N. Y. Supp., 732; 38 St. Rep., 204, see dissenting opinion of Learned, P. J., page 737, S. C., reversed 131 N. Y., 255; 43 St. Rep., 167, in which the dissenting opinion in the court below was approved. Nelson v. Russell, 135 N. Y., 137; 48 St. Rep., 64; Matter of the judicial settlement of the accounts of Denton, 51 St. Rep., 60; Washbon v. Cope, 50 St. Rep., 821; Mullarky v. Sullivan, 49 id., 333-335.

In Mullarky v. Sullivan, supra, O’Brien, J., in speaking of the death within the life-time of the testator, says: “It is only in the case of an absolute devise or bequest to one and in case of his death to another, that the words are given such a meaning; and the rule has no application to a case where the first devisee or legatee takes a life estate.”

In Fowler v. Ingersoll, supra, Brown, J., says: “ The words of contingency are substitutionary merely and are intended to prevent a lapse in case the first devisee is not living at the death of the testator, and do not create an executory devise or remainder over upon the death at any time of the first taker. But this rule has no application when the first devisee or legatee takes a life estate, and is applied only when the prior gift is absolute and unrestricted. The reason assigned for the rule» is that as death is a certain event and time only is contingent, the words of contingency can only be satisfied by referring them to a death before some particular period, and none being mentioned the time referred to must be presumed to be the testator’s own death. But this reason fails in the case of a life estate; as in such a case the presumption would be that the words of contingency refer to the event which would determine the life estate.”

As we have seen, the will devised and bequeathed to the wife Eliza the use of all of the testator’s property for and during the term of her natural life. A life estate was thus created; it was the remainder only that was devised to the children; thus bringing the case within the rule stated.in the case above referred to.

Again, the will under consideration contains the phrase: “At the time of his decease,” which, used in the connection in which it appears, indicates that the time referred to and intended by the festator was that of the death of his sons Alfred and Charles, or either of them. A careful examination of the authorities fails to siiow a case in which the testator has so clearly expressed his intention where it has not been recognized and carried out.

The decision of this court, in the case of Tallmage, executor, -etc., partially reported in 20 N. Y. W. Dig., 69 is not in conflict with the views herein expressed. In that case the testator had given an estate to his daughters Elsie and Jane. He then provided that: “ In case of the decease of both of my said daugh-

ters Elsie and Jane and without any children them, surviving, then and tn such case I give and bequeath said shares of said property aforesaid to my sister Jane M. Tallmage, but in case of the death of either of my said daughters without children, then and in such case the survivor of either of them shall have and hold and be the owner of the whole of my said property.” Here was a provision that in the case of the death of either daughter the survivor should take absolutely the whole estate. The sister Jane M. Tallmage could not take unless the death of the daughters should occur simultaneously or unless the death of the daughters referred to a time preceding that of the testator. It was under these circumstances that we held that the death of the -daughters mentioned in the will referred to a time preceding the death of the testator.

Upon the trial the plaintiff stated in open court that he did not desire a partition of the property unless he obtained a construction of the testator’s will in conformity with the allegations and prayer of his complaint. Our views are adverse to his contention.

The judgment should, therefore, be reversed and the plaintiff’s complaint dismissed, with costs.

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


text:
    The People ex rel. Joshua Bradshaw, Resp’t, v. Charles Bidelman, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Election—Marked ballots.
    The casting of marked ballots at an election does not invalidate the election.

      '•% Same—Improper numbering.
    After a ballot which was improperly numbered is in the box, where its identity is lost, it must be counted. The provision of § 31 of the act has no application to the numbers upon the stub.
    8. Same—Town meeting—Irregularities.
    The facts that the poll list at a town meeting was not kept by the town clerk, but by poll clerks appointed for that purpose, and that voters were not required to return unvoted tickets, constitute irregularities merely, and do not affect the election.
    Appeal from a judgment entered upon a decision at the Orleans-circuit, trial by jury having been waived.

      I. S. Signor, for app’lt; C. J. Church, for resp’t.
   Haight, J.

This action was brought to determine the rights ■of the defendant to hold and exercise the functions of the office . of excise commissioner in the town of Albion, Orleans county.

At the town meeting held-in that town on the 8th day of March, 1892, there were cast 637 ballots for the relator and 655' for the defendant. The defendant having received the highest, number of votes was declared duly elected by the board of inspectors, and thereupon qualified and entered upon the discharge-of the duties of his office.

The trial court found as facts that the ballots cast for the defendant were properly numbered and indorsed, and that at least 100 of the ballots cast for the relator were not numbered consecutively so as to correspond with the numbers of the town tickets and the tickets voted for the defendant, but were of a much larger number..

Does this invalidate the election ?

Assuming that the ballots so deposited with high numbers are “ marked ballots,” we do not understand they operated to render void the ballots that were regular and in accordance with the provisions of the statute. Those cast for the defendant were numbered consecutively from one upwards; they were given out by the inspectors and voted in the order in which they were numbered. Tru'e, they could be distinguished from those cast for the relator, bearing the higher numbers; so could every regular ballot be distinguished from the “ marked ballots,” but the regular ballots are those which conform to the provisions of the statute, whilst the “marked ballots ” are those which are prohibited. A marked ballot voted with the intent that it shall afterwards be identified is void and of no effect. So says the statute. To hold that the casting of such a ballot renders void the regular ballots and invalidates the election would leave it within the power of a few evil-disposed persons to nullify our elections and deprive our citizens of their right of suffrage.

In this case it has been found that at least 100 ballots of the character described were cast for the relator, but the principle would have been the same had there been but five or six, or even ¿a less number, and it would thus be made easy to nullify any election. In the case of The People ex rel. Nichols v. The Board of Canvassers of Onondaga County, 129 N. Y., 395; 41 St. Rep., 713, the county clerk had sent the ballots containing the names of candidates nominated by one of the political parties to an election district other than that for which they were numbered, where they were given out by the inspectors of election and voted by the electors. They could be distinguished from the ballots cast by the electors of the other political party. It was held that such ballots should not be counted and that the ballots having the proper numbers and district on them should be.

But we do not understand that the ballots cast for the relator can be thrown out. The stubs having the improper numbers upon the ballots were removed when they were deposited in the ballot box, and there is now no way by which they can be identified. . The exact number of such ballots cast is not known; the trial court has found there were 100 or more.

The record does not disclose how the ballots for the relator came to be voted in the way stated. It is suggested that they were first given out to the voters in the regular order as the voters called for them, numbered from the unit upwards, and that thereafter, for the space of about an hour, the ballots containing the name of the relator were delivered to the voters bearing inuch higher numbers. The trial court has found, however, that the board of inspectors acted in good faith and without fraudulent intent. It must be conceded that the ballots deposited by the voters for the relator, during the time referred to, containing the high numbers, could readily be distinguished from those deposited for the defendant, which contained the low numbers, and to that extent the secrecy of the ballot was destroyed. The statute provides that “no inspector of election shall deposit in a ballot box, or permit any other person to deposit in a ballot box, on election day, any ballot which is not properly indorsed and numbered.” And further: “ Ho ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with the provisions of § 21 of this act. All ballots that are 1 defective’ shall be preserved and filed, as provided for in § 27 of of this act.” Laws of 1890, chap. 262, §§ 29-31, as amended by Laws of 1891, chap. 296.

By other provisions of the act the number is required to be printed upon the back of the stub, and the inspectors, after a ballot is returned to them by the voter, are required to remove the stub before placing it in the box. It will thus be seen that after the ballot is placed in the box there is no way to identify it or determine whether it did or did not have a stub with an improper number upon it. The statute, as we have seen, prohibits the inspectors from depositing a ballot in the box which is not properly numbered. Another provision of the statute makes it a misdemeanor, punishable by a fine and imprisonment, for every officer who violates this statute. But we find no provision which prohibits the counting of such a ballot when once in the box, where its identity is lost.

The indorsement is required to be printed upon the back of the ballot and not upon the stub. The indorsement remains after the .stub is removed, and if an improper one it serves to identify the ballot when taken from the box, hence the provisions that “no ballot that has not the printed official indorsement shall be ■counted, etc.” § 31. But this provision has no application to the numbers upon the stub.

It is contended that the statute does not require the ballots to be numbered from one upwards, and that for that reason the ballots cast, having the high numbers upon them, were regular. True, the statute does not in terms so provide. But it does provide that they shall be consecutively numbered. We think that it was intended that the ballots should be numbered from the unit upwards, that such is a fair and reasonable construction of the statute, but if this were not so, they are to be numbered consecutively, and this would not permit the commencement of the numbering at the unit and after a few numbers skip to 900, or .some other higher number.

There are some irregularities in the proceedings of the town board, acting as inspectors of election, at the town meeting in question. There were two poll clerks appointed, the town clerk was present at the meeting and kept the poll list until the two poll clerks were appointed; he then left, but was present at different times during the day and was present and assisted at the canvass of the votes. The poll clerks so appointed kept the poll books, one entered the names of the voters and the number of the town ballots as the same were voted, the other kept the names of the voters and the number of the tickets, and the two books so kept corresponded with names and numbers. The poll list should have been kept by the town clerk, or in his absence by such person as should be chosen by the inspectors present, and the duties of the poll clerks should have been performed by the members of the town board. During the meeting the officers did not require all the persons voting to return the tickets not. voted by them, and a number of such ballots and pasters were left in the booths. The tickets should have been returned to the inspectors and by them placed in the box kept for such ballots. But these we regard as irregularities merely, not operating to destroy the secrecy of the ballot or affecting the election. People v. Cook, 14 Barb., 259; affirmed 8 N. Y., 67; People ex rel. Noyes v. Board of Canvassers of Chemung County, 126 N. Y., 392 ; 37 St. Rep., 778.

The trial court found that the relator was elected commissioner for the town in 1889 for three years and entered upon the duties of his office and continued to exercise such duties until the town meeting in question; that the defendant was not elected, and that the relator holds over and is entitled to act as commissioner of excise.

Under the view taken by us the defendant was duly elected commissioner of excise, and it therefore becomes unnecessary to consider the question as to whether the relator would hold over in case there was no election.

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

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