author: Dayis, P. J.:

text:
    EDWIN M. FELT, Respondent, v. HENRY D. TIFFANY and others, Appellants.

      Action for legal services — when referable.

    An action by an attorney upon a retainer in a single action, for a gross sum in compensation of bis services, is not referable from tbe mere fact that the steps and proceedings in tbe prosecution of tbe action have been numerous, and that their value may, if be chooses, be proven either separately or in gross.
    Appeal from an order of the Special Term directing a reference of this action.

      Albert Bbiekmey, for the appellants.
    The authorities are uniform that the court has, in such a case as the present, no power to refer. (Brink v. RejoubMo Fi/re Ins. Oo., 2 Sup. Ct. [T. & C.], 550; Swift v. Wells, 2 How., 79 ; Yam Rensselaer v. Jewett, 6 Hill, 373; Thomas v. Read, 6 Wend., 503; Miller v. Hooker, 2 How., 171; MoOullough v. BrodAe, 13 id., 316; Freeman v. AtlamUo Mut. Ins. Oo., 13 Abb., 121; JDiokmson v. MitoheTl, 19 id., 286; Dittenhoeffer v. lewis, 5 Daly, 72; Foams v. Kalbfleiseh, 16 id. [N. S.], 13; Flamders v. Odell, id., 218.)

      Father R. Mamsh, for the respondent.
   Dayis, P. J.:

The complaint in this action alleges services rendered by the plaintiff and his copartner, on the retainer of the defendant, in the prosecution of an action in this court, and of appeals taken therein to the General Term and to the Court of Appeals. It is, therefore, an action on contract, and, so far as that fact goes, supplies one of the iequisites which constitute a referable action. Hnder the established rules of practice, in addition to being on contract, the action must, necessarily, involve the examination of a long account, and in this respect the action seems to us to fall short.

The plaintiff alleges a single cause of action. The services rendered are in a single suit, running through its various stages, for all of which he makes but a single charge in gross, to wit, the sum of $10,000. The bill of particulars accompanying the affidavit shows no separate charges for distinct items of service, hut only the various services and proceedings for which he charges the gross sum claimed in his action. In Bathgate v. Haskin (59 N. Y., 533) the court says, in speaking of a similar cause of action: The contract of the attorney is entire, and the service he is to render is essentially single, although it may require distinct steps and proceedings on his part before the purpose of the employment is fully accomplished. No right of action accrues for each successive service in the progress of the case, and the statute (of limitations) does not begin to run against his claim for compensation until his relation as attorney in the suit- has terminated. The client may terminate it at Ms pleasure, or the attorney may do so after reasonable notice; but in tbe absence of proof to tbe contrary, tbe presumption is that it continues until tbe litigation bas ended.” It is obvious that tbe demand of tbe jilaintiff in this action may be established in either of two modes: One by calling competent witnesses to testify to tbe value of bis services in gross, upon a statement of each particular service rendered; tbe other, by fixing special values upon particular items of service; but tbe fact that this latter mode of proof may be adopted does not change tbe demand into a long account within tbe meaning of tbe statute authorizing references of actions, where tbe trial will involve tbe examination of a long account.

In Brink v. Republic Fire Insurance Company (2 N. Y. S. C. [T. & C.], 550) tbe action was brought upon four' policies of insurance issued upon a single stock of goods. Tbe items of tbe stock of goods exceeded fifty in number, and upon tbe trial it would be necessary to prove tbe value of tbe stock as a whole, or of tbe items in detail. Tbe action was held in that case not to be referable, because it did not involve tbe examination of a long account.

Tbe excellent opinion pronounced by Robinson, J., in Martin v. Goulet, in tbe Court of Common Pleas in this city bas been furnished to us. That case was very strongly analogous to tbe present one, it being an action brought by attorneys to recover a gross sum of $75,000, for services rendered upon tbe retainer of tbe defendant. Tbe court held that tbe item of $75,000 was an aggregate charge for separate acts and services, which in themselves were matters of distinct estimate or valuation ; that it did not arise upon transactions in respect to which there were separate contracts, express or implied, such as would arise upon tbe purchase of distinct bills of goods, or an employment in separate matters of service which would constitute legally distinct items of charge, and tbe motion for a reference was denied.

In Thomas v. Reab (6 Wend., 503) Bronson, J., denied tbe motion to refer, on tbe, ground that one bill of goods containing fifty different items, delivered at tbe same time, was, in fact, but one item.

In Dickinson v. Mitchell (19 Abb., 286) which was an action for attorney’s services similar to that • at bar, tbe court said that “ tbe bill of particulars in this case is not an account in the ordinary legal sense- of the term.”

In Dittenhoeffer v. Lewis (5 Daly, 72), which was an action brought to recover for the services of the plaintiff as attorney and counselor, a bill of particulars having been served, containing many distinct items of service, the court said : “An. account is not involved because a number of items or distinct facts will have to be proved, and that is all there is in this case to constitute an account.” The order directing a reference was in that case reversed.

The cases bearing upon that question, directly or remotely, are numerous, but we think no more need be cited to establish, that, under the settled rules of practice, an action brought by an attorney upon a retainer in a single action, for a gross sum in compensation for his services, is not referable, from the mere fact that the steps and proceedings in the prosecution of the action have been numerous, and their value may, if he choses, be proven either separately or in gross.

But if this action were referable, the question of its reference , would be a purely discretionary one; and we think, upon the whole case as presented by the papers before us, the issue ought not in that point of view, to have been referred. It appears already, by the answer, to have been submitted to a very competent arbitrator, with whose determination, upon the question of the value of the services, the plaintiff seems not to have been contented. This fact, together with the amount demanded by the plaintiff, seems to bring the case within the suggestions made by this court in the case of Martin v. Windsor Hotel Company, lately decided and reported 10 Hun, 301, in which we regarded it as our duty to send an action of similar character to trial before a jury, instead of to a professional referee.

We think the order below should be reversed, with ten dollars costs besides disbursements, and the motion for reference denied, with ten dollars costs.

Daniels, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order reversed, with ten dollars costs, besides disbursements; motion for reference denied, with ten dollars costs.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    EDWARD H. MORAN, Respondent, v. CATHARINE McLARTY, Impleaded, etc., Appellant.

      Mutual mistake — refoi'maMon of contract.

    The plaintiff brought this action to have an assignment of a mortgage, executed by him, reformed by having a guarantee of the mortgage contained in such assignment stricken therefrom, upon the ground of mutual mistake. Upon the trial evidence was given tending to show that the clause was in the assignment when it was executed; that plaintiff read portions of the assignment, and had an opportunity to read it all; that it was dictated and written in his presence and with his consent. Plaintiff denied all knowledge of the existence of the guarantee prior to the time of the commencement of an action brought to enforce it. Meld, that a mutual mistake was not so clearly shown as to authorize a judgment directing a reformation of the assignment.
    Appeal from judgment in favor of tbe plaintiff entered upon a trial at Special Term.

      Thos. AlUson, for tbe appellant.

      Wm. A. Oowrsm, for tbe respondent.
   Davis, P. J.:

This action was brought to reform tbe assignment of a bond and mortgage made by respondent to appellant, by' striking therefrom a guarantee of payment of such bond and mortgage. Tbe respondent was tbe owner of an older bond and mortgage made by the defendants Hart to him to secure tbe sum of $3,500. This mortgage was overdue, and in order to pay off the same, tbe Harts arranged with one McKee, as attorney for the appellant, to sell to tbe appellant a bond and mortgage of $4,200, to be made by them to the respondent, and by the latter assigned to tbe appellant. Tbe $4,200 mortgage was made to tbe respondent, pursuant to this arrangement, and by him assigned to tbe appellant, who paid therefor the sum of $3,625, out of which the respondent satisfied his mortgage of $3,500, and interest, and paid a small balance to tbe Harts. Tbe instrument of assignment executed by the respondent contained a clause guaranteeing tbe payment of tbe $4,200 mortgage. The Harts failing to pay their mortgage at maturity, a foreclosure suit was commenced, to which the respondent was made a party by reason of his guarantee. He immediately brought this action, alleging, in substance, that the alleged guarantee was not in the instrument of assignment when executed by him, or that the same was inserted by mutual mistake.

On the trial, it appeared that the appellant, Mrs. McLarty, personally, had nothing to do with the transaction, the whole of the business on her part having been conducted by McKee, her attorney; and that after the $4,200 mortgage had been executed by the Harts and delivered to the respondents, he went to the office of McKee to get the money for the mortgage, and while there the assignment of the bond and mortgage and a satisfaction of the $3,500 mortgage were drawn up in his presence, and he signed the satisfaction-piece, and after looking over the assignment executed and acknowledged that instrument. He testified that not a word was said to him about guaranteeing the payment of the bond and mortgage, and that the first he knew that a guarantee was contained in the assignment was when he received the summons in the foreclosure suit. On cross-examination, he testified that he read the assignment partially over, and he supposed he had full opportunity to read the whole of it, and that he executed it after reading it partially.

On the part of the appellant, McKee her attorney testified that he acted on her behalf in the matter of buying the mortgage ; that the respondent came to his office, and brought the bond and mortgage and a satisfaction-piece of the other mortgage, and there executed the assignment. The assignment was drawn up while the respondent was present, and he talked with respondent about the security, and asked him if he would guarantee the mortgage. The respondent answered that he would, and said the security was ample; that he (McKee) then dictated the form of the guarantee, in the respondent’s presence, to Mr. Gallaudet, by whom it was drawn. Gallaudet was called as a witness, and testified that he was a clerk of McKee; that the written parts of the assignment of the mortgage were in his handwriting; that he saw the respondent execute it; that a written clause of guarantee was in it when it was executed ; that, at the time he was writing the assignment, he asked McKee, in the presence of the respondent, if the guarantee was to go in; that McKee said “ yes,” and dictated to Mm the terms in wMch the guarantee was written, and the respondent signed it on the same day.

The respondent was recalled on his own behalf, and testified that he did not tell McKee, or any one, that he would guarantee the mortgage; that he was never asked to guarantee it, and had no knowledge that there was a guarantee in the paper at the time he signed it. This is the substance of all the testimony on the questions of mistake or fraud. It seems not to have been disputed on the trial that the guarantee was, in fact, in the instrument of assignment when it was executed by the respondent; and the only question under the pleadings in the action is, whether it was there by mutual mistake of the parties.

The law governing such cases is very well established. It was said by Grover, J., in Jackson v. Andrews (59 N. Y., 244, 247): “ To entitle the plaintiff to a reformation of the contract, he must prove that it was the intention of both parties to make a contract, such as he sought to have established, and that this intention was frustrated either from some fraud, accident or the mutual mistake of the parties, and that it is not enough for him to show his own intention. He must further show that the sense and intention of the defendant concurred therein. He must prove that both parties understood the contract as he alleged it to have been, and as in fact it would have been but for the fraud or mistake.” The learned judge cites Nevius v. Dunlop (33 N. Y., 676) and Story v. Conger (36 id., 673).

In Nevius v. Dunlop, Brown, J., in delivering the opinion of the court, says: “ To entitle a party to the decree of a court of equity .reforming a written instrument, he must show, first, a plain mistake, clearly made out by satisfactory proofs. Whenever the evidence is loose, equivocal or contradictory, or is, in its texture, open to doubt or opposing presumptions, the relief will not be granted. This proposition is obvious, because the written instrument, carefully and deliberately prepared and executed, is evidence of the highest character, and will be presumed to express the intention of the parties to it until the contrary appears by clear, positive and unequivocal evidence. In the second place, he must show that the material stipulation which he claims should be omitted or inserted in the instrument was omitted or inserted contrary to the intention of both parties, and under a mutual mistake. It is not enough to show that he made a mistake himself — that through inadvertence and error on his part, he executed an instrumentrthe stipulations of which do not express what he intended. He must also show that the other contracting party labored under a similar delusion.” He cites Story’s Equity Jurisprudence (§§ 155, 15Y), and the opinion of the Court of Errors in Lyman v. Utica Insurance Company (17 Johns., 373), by Spencer, Ch, J.

The proof on the trial of this case failed altogether to establish the second of these requisites. The most that can be said of the evidence is, that it showed that the respondent had no intention of guaranteeing the payment of the bond and mortgage; and that when he executed the assignment he was not aware that it contained a covenant of guarantee. This fact, however, arose, according to his own testimony, from his negligence in failing to read fully the instrument which he executed, or from Ms inadvertence in not attending to what was said and done in the dictation of the guarantee, and in the conversation preceding it. The appellant was not present (she taking personally no part in the transaction), but a mistake or fraud on the part of her attorney would be as conclusive upon her as though she had been present. But the evidence altogether fails to show that there was such mistake or fraud. The attorney testifies that the respondent expressly agreed to guarantee the payment of the mortgage, declaring it to be a perfectly valid security; and that the covenant of guarantee was dictated by him to his clerk, in the presence of the respondent, and the clerk testifies to the fact of such dictation; that the covenant was written in the presence of the respondent; that it was in the instrument when it was executed, and that the execution took place after the drawing of the instrument was completed, in his presence.

Hpon this state of the evidence before the court, it was error, as it seems to us, to find that the clear’ case of mutual mistake required by the law was made out in such a manner as to entitle the respondent to the reformation sought. The evidence on the part of the appellant is supported by the written instrument, duly executed and acknowledged. The respondent’s own testimony is not necessarily in conflict with that instrument, because it goes no further than to show that he did not intend to guarantee the payment of the bond and mortgage, but, by his negligence, failed to observe that the covenant of guarantee was contained in the instrument.

The findings of the court below were erroneous, and the judgment based thereon must, therefore, we think, be reversed.

Judgment reversed, new trial ordered, costs to abide event.

Daniels, J., concurred.

Present — Davis, P. J., Brady, and Daniels, JJ.

Judgment reversed, new trial ordered, with costs, to abide event.


author: Davis, P. J.: Brady, J.:

text:
    JOHN GRAY and ROBERT J. GRAY, Respondents, v. THE CENTRAL RAILROAD COMPANY Of NEW JERSEY, Appellant.

      Conditional sale — a/rtiele sold to be satisfactory to purchaser — refusal to receive — Contract — by whom, it shad be construed.

      A entered into a contract with B and others, by which they agreed to purchase a steamboat for $15,000, “provided, upon trial, they are satisfied with the soundness of her machinery, boilers, etc.” In an action by A to recover damages for a breach of the contract, held, that no recovery could be had unless it were shown that the defendants were satisfied with the boat; whether or not they ought to have been satisfied is immaterial. (Brady, J., dissenting.)
    Upon the trial the court left it to the jury to decide what the letters “ etc,” at the close of the agreement, meant. Held, that this was error; that the construction of the contract belonged to the court and not to the jury.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiffs, and appeal from an order denying a motion for a new trial made by the defendant.
    The action was brought to recover damages for the breach of a contract alleged to have been made by the defendant for the purchase of a steamboat. The answer denied any agreement and alleged that the defendants had only made an offer to purchase provided they were satisfied with the soundness of the machinery, boilers, etc., of the boat; that they were not satisfied; that the vessel was not sound.
    The following paper, signed by the parties to the action, was the basis of the plaintiffs’ claim:
    “The Central Railroad Company of New Jersey offer to buy the steamboat John Adams from J. & R. I. Gray for the sum of $15,000 cash, provided upon trial they are satisfied with the soundness of her machinery, boilers, etc.; and the said J. & R. I. Gray agree to sell the above boat for the above price.
    JOHN TAYLOR JOHNSON, Pres.

    J. & R. I. GRAY.”
    On January 9, 1867, the plaintiffs notified the defendants that they would sell the boat on January twenty-second, at twelve o’clock, and would hold them liable for any loss. The boat was sold and was knocked down to the name of H. F. Hamill, though the sale was never consummated.
    On April 7, 1867, the plaintiffs sold the boat to Samuel Lapham, of Boston, for $8,000.
    There was much evidence on both sides as to the condition of the boat, whether she was or was not sound, and also as to whether, for their refusal to take her, the defendants did or did not assign the reason that she was unsound.

      P. W. De Forest and J. E. Pa/rsons, for the appellant.

      Edruo. N. Dickerson, for the respondents.
   Davis, P. J.:

There are several questions of minor importance on which a new trial must be ordered in this case. The auction sale was, upon the undisputed evidence given on the part of the. plaintiffs, no sale at all, and the court ought to have so ruled, and not have allowed the same to have gone to the consideration of the jury upon the question of damages. Nothing was ever paid upon that sale; no delivery of the property was made upon it; the plaintiffs remained in possession of the property as they had before done, and there was no sufficient evidence establishing a contract of sale between them and the purchaser at the auction which could have been enforced by either party. The court, upon the facts, ought to have ruled upon the validity of such sale as a question of law, and not have allowed the jury to give it any consideration whatever in estimating the damages. Aside from the auction sale, there was not sufficient evidence in the case to uphold the verdict in respect of the amount of damages. The sale made in the spring following, to the Boston purchaser, at .the sum of $8,000, was not sufficient evidence upon the question of value at the time defendants refused to take the boat, because it appeared, by the plaintiffs’ own showing, that she had during the interval depreciated in value to a considerable extent. The only evidence on the question of value at the time of the defendant’s refusal, was that given by one of the plaintiffs, who swore that he considered her then worth $16,000; which was $1,000 more than the contract-price. If this were so, in the absence of a valid sale at public auction, no verdict beyond nominal damages for the breach of the contract, could have been rendered. Exceptions were taken which raised these questions, and the rulings of the court upon such exceptions seem to us to have been erroneous.

But .the more serious question in the case arises upon the form of the instrument upon which the action is brought. It is in these words:

“December 17, 1866.
“ The Central Railroad Company of New Jersey offer to buy the steamboat John Adams, from J. & R. J. Gray, £or the sum of fifteen thousand dollars cash, provided upon trial they are satisfied with the soundness of her machinery boilers etc.; and the said J. & R. J. Gray agree to sell the above boat for the above price.
“JOHN TAYLOR JOHNSTON, Pres. “J. & R. J. GRAY.”

If we regard the instrument as any thing more on the part of the appellants than a mere offer to purchase at a stipulated price .upon specified conditions, and treat it as an obligatory agreement binding them to purehase on certain conditions, it is then important to inquire whether, upon the evidence in the case, there was any breach of the agreement shown. The condition of the agreement, treating it as such, is expressed in these words: “ Provided, upon trial they are satisfied with the soundness of her machinery, boilers, etc.” By this clause the agreement left it entirely for the defendants to determine whether or not they were satisfied. There is no reason in law why parties may not, if they think proper, make agreements of this kind. And in all cases where such agreements have been made, the determination of the party that he is not satisfied, and his refusal to accept and pay for the property, is conclusive and terminates the contract. In Ellis v. Mortimer (1B. & P., 257) the plaintiff offered for sale a horse, and agreed to take for him a stipulated price, provided, the defendant, after thirty days’ trial, should like the horse. Defendant took the horse for the purpose of trial, but within thirty days returned it, and refused to complete the purchase. It was held that there was no contract unless the defendant at the end of the period liked the horse; or in other words that the contract made him the sole arbiter of that question.

In McCarren v. McNulty (7 Gray, 139) the plaintiff agreed to make a book-case, in a good, strong, workmanlike manner, to the satisfaction of the president of the young men’s society. He showed that the book-case was made according to the agreement in every particular, and asked the court to rule that if the jury were satisfied that the work was done according to the contract and to the reasonable satisfaction of the president, that he should recover. The court ruled that the plaintiff must show that the work was actually satisfactory to, and accepted by, the president of the society, or he could not recover. On appeal, the court said : “ It may be that the plaintiff was injudicious in agreeing to work for a compensation, the payment of which was made dependent upon a contingency so hazardous or doubtful as the approval of a party in interest; but of that he was the sole judge. Against the consequences resulting from his own bargain the law can afford no relief.

To the same effect are Aiken v. Hyde (99 Mass., 183); Goodrich, v. Horwich (43 Ill., 336); Hunt v. Wyman (100 Mass., 198); Heron v. Davis (3 Bosw., 336).

"We are bound to regard this instrument as expressing precisely what both parties meant, which was nothing more than if the company on trial of the steamer, were satisfied with the soundness of her machinery, boilers, etc., they would purchase her for $15,000, and in that case the plaintiffs would take that price for her; but if they were not satisfied, there was to be no obligation on the company to take her, and consequently none on the part of the plaintiffs to sell her to them. The trial was made, and there seems to be no conflict whatever in the evidence that the defendants were not satisfied, and so notified the plaintiffs, and refused absolutely to complete the purchase. The attempt is now made to enforce the purchase by submitting to the jury the question whether the defendants ought not to have been satisfied on the trial; or, in other words, to show that the soundness of the machinery, boilers, etc., was such as made the contract obligatory as one of purchase, whether the defendants were satisfied or not. This is a different contract from that which the defendants made and to which the plaintiffs assented.

The court submitted to the jury the question, in substance, whether the declaration on the part of the defendants, that they were not satisfied, was made in good faith, saying to the jury: “The first question for you to consider is, whether or not the defendants were justified in their refusal to take the boat. They were not absolutely and beyond all dispute bound to take the boat — not by the terms of the contract — not bound absolutely and unconditionally to take the boat in any event. But their refusal will only exempt them from liability if it was based upon their dissatisfaction after the trial, with the soundness of her machinery, boilers, etc.” And he adds: “ After the examination and trial by the defendant’s agents, the president stated that Mr. Winants, who was the defendants engineer, and whom you will remember very well, had reported the boat as unsatisfactory in every respect. “You are to be satisfied, in order to justify the refusal of the defendants, that the boat was unsound in the respects indicated in the contract, and that the defendant’s dissatisfaction, from the trial, was based upon such unsoundness. The examination and trial of the boat by the defendants, and her condition, you are to determine from the evidence. You will recall the testimony of the witnesses, and from that you will determine whether or not that boat was unsound. The defendants were not bound to take an unsound boat, and you are to determine from the evidence whether the boat was unsound. The contract in question enables them to refuse the boat if they were dissatisfied with her on account of any unsoundness in her machinery, boilers, etc.” He further says, in another place: “ Allow me to ask you, upon this branch of the case, that you will give it a careful consideration, so as to determine the condition of the vessel when that contract for her pinchase was made by the defendants.”

These portions of the charge were excepted to. Their effect was to put the jury in the position in which the contract put the defendants themselves, and allow the jury to say whether the defendants ought to have been satisfied with the condition of the boat as to her soundness in respect of the machinery, boilers, etc., when it clearly appears that they themselves declared they were not satisfied and would not proceed with the contract.

We think these instructions were erroneous, because based upon a misapprehension of the true legal rights of the parties to the instrument. The evidence in the case tended very strongly to show that the boat was unsound in respect of the subjects mentioned in the contract, and that the verdict upon that question was against the weight of evidence; but we are not disposed to put the order for a new trial upon that ground.

It was left by the court to the jury to say what the abbreviation, “ etc.,” at the close of the condition of the agreement, meant. This, also, we think, was error. The form of the condition, as already given, is, “ provided, upon trial, they are satisfied with the soundness of her machinery, boilers, etc.” If it were difficult to settle what “etc.” meant in this connection, the solution of the difficulty belonged to the court as a question of law, and not to the jury as a question of fact. The term used is simply an abbreviation of the words “ et cetem,” which mean “ other things; ” and the contract should be read by the court as though it were written, “ the soundness of her machinery, boilers and other things.” These are not words of restriction, and do not limit the question of soundness to the machinery and boilers, but extend it beyond them. We think the true sense, in this connection, is “ other material parts of the boat; ” and that the defendants had a right to refuse to be satisfied, if the boat was unsound in any material and substantial portion of her hull or machinery.

The order denying the motion for new trial must be reversed, and the motion granted, with costs to abide the event.

Daniels, J., concurred.

Brady, J.:

The result arrived at may be correct on the whole case, but I do not agree to the proposition that the defendants had the right to declare arbitrarily that they were not satisfied with the soundness of the machinery, etc. Under such a contract as herein shown, if they should have been satisfied, they must he deemed to have unreasonably refused to complete the agreement.

Order denying motion for new trial reversed ; motion granted, with costs to abide event.


text:
    In the Matter of the Petition of ELLEN S. AUCHMUTY to Vacate an Assessment, etc.

      Local assessment in city of New York — cha/p. 580 of 1872 — cm'tijicate of commissioners —effect of — Nremd.
    Where the commission, appointed under chapter 580 of 1872, certifies as to a contract for local improvements in the city of New York, that no fraud has been perpetrated in relation to said contract or the performance thereof, such certificate is conclusive and the court will not go behind the same.
    A contract was made for setting curb and gutter stones and flagging First avenue, from Sixty-fifth to Eighty-sixth streets, no charge being made for flagging, but only for curbing and guttering. In making up the assessment roll no charge was made against these lots, in front of which the curbing and guttering, but not the flagging, had already been done; it nevertheless appeared that the commissioners had acted in entire good faith. Held, that although the assessment was erroneous, as the last mentioned lots should at least have been assessed for their just proportion of the rock excavation, and the expense of surveying and supervision, yet it was not fraudulent in such a sense as to authorize the vacation of the assessment under chapter 312 of 1874.

      In the Matter of Casey (5 Hun, 463) distinguished.
    A general notice that an assessment roll is completed, simply defining the territorial limits of the assessment, is not evidence of any fraudulent intent.
    Appeal from an order vacating an assessment.
    The petitioner, Ellen S. Anchmnty, in this case, among other things, alleged:

      “ That at the times hereinafter mentioned she was, and still is, the owner of the lots hereinafter described, and is the person aggrieved by the assessment hereinafter mentioned.
    “That, on the 20th of February, 1873, an assessment list was confirmed, whereby an assessment for setting curb and gutter stones, and flagging First avenue from Sixty-fifth to Eighty-sixth street, in the city of New York, was imposed upon certain lots, known and distinguished on said assessment list by the ward numbers, 1, 2, 3, 4, 47 and 48, in block 94.
    “ That said assessment is irregular and fraudulent and void for the following reasons:
    “ I. That the resolution and report of the committees of the common council, and the votes of the respective boards, recommending and authorizing said work, were not published in all the newspapers employed by the corporation, as required by section 7 of the amended charter of 1857.
    “ II. That the contract made for the performance of said work was entered into without having first advertised for proposals for the same, as required by the amended charter of 1857, and section 104 of chapter 137 of the Laws of 1870; nor was said contract founded on sealed bids or proposals, made in compliance with public notice, duly advertised in newspapers of the city.
    “ III. That opposite some of the lots on the line of said work curb, guttering and flagging was done; opposite other lots only curbing and guttering was done, and opposite other lots flagging alone was done.
    “ IY. That, in pursuance of section 1 of chapter 171 of the Laws of 1841, the board of assessors of the city of New York caused a notice to be published in the following words :
    “ Corporation Notice. — Public notice is hereby given to the owner or owners, occupant or occupants, of all houses and lots, improved or unimproved lands, affected thereby, that the following assessments have been completed, and are lodged in the office of the board of assessors for examination by all persons interested, viz.: * *.*
    “ 16. For curbing and flagging First avenue from Sixty-fifth to Eighty-sixth street. * * *
    “ The limits embraced by such assessment include all the several houses and lots of ground, vacant lots, pieces and parcels of land situated on * * *
    “ 16. Both sides of First avenue, from Sixty-fifth to Eighty-sixth street.
    “ That no other or further or different notice relating to said work was published by said board of assessors, pursuant to said act of 1841.
    “Y. That the petitioner was misled by such notice, and the same was fraudulent and false in the following respects, to wit: The following described lots are situated within the limits described by said notice, and work was done in front of the same, but no assessment was laid on any of said lots for the cost of said work, that is to say, lots described in said assessment list as ward numbers 23 to 30, inclusive, in block 199; maps numbers 153 to 160, inclusive; ward numbers 23, 24, 25, 26, 27, in block 201; ward numbers 1, 2, 3, 4, 48, 49, 50, block 102; numbers 47, 48, 49, 50, 4£, 4, 3, 2, 1, block 111; 1, 2, 4, 47, 48, 49, 5, block 110.
    “ YI. That the board of assessors have not made a just and equitable assessment of the expense of said work among the owners or occupants of all houses and lots benefited by said work, in proportion, as nearly as may be, to the advantage which each has acquired; on the contrary, the said lots last above described are benefited by said work, but are not assessed at all for the expense thereof; that many other lots within the limits described in said notice, opposite which only curbing and guttering was done, are assessed as much as other lots of the same front on the line of the work opposite which curb and gutter stones are set and flag stones laid.
    “ Therefore, the petitioner prayed that the assessment, so far as it affected the lots of the petitioner, be adjudged irregular and void, and be vacated and set aside, and the lien therefore cease and be canceled.”
    The petition was filed under chapter 338 of 1858, and chapter 312 of 1874.
    The contract in this case also appears to have contemplated certain rock excavation.

      J. A. Beall, for the appellant.

      T. F. F&oille, for the petitioner, respondent.
   Davis, P. J.:

The court below vacated the assessment, saying: “ This case seems to fall within the decision of the General Term in the case of Michael Gasey, and the assessment is therefore vacated.” In lie Gasey (a brief note of which is given in 5 Hun, 463), no reason whatever was shown for the omission to assess the block between Sixty-fifth and Sixty-sixth streets; and the court said: “No reason was given why that omission should have been made, and none can, from the papers before the court, be imagined consistent with the lawful discharge of the duties of the assessor. The omission of the expenses of making it (to wit, the expenses of setting curb and gutter stones between Sixty-fifth and Sixty-sixth streets) has not been presented, and, consequently, it must have been imposed on the other property through which the residue of the improvement extended.

“ That could hardly have been the result of accident or mistake. The omission of one entire block, and the assessment of the work done through it upon the other property benefited, was so important a matter as to be consistent with nothing less than a design to make it. If that had been otherwise, it should have been, but was not, shown ; and without any thing excusing or justifying it, the release of one block from its proportion of the expense, and the imposition of it upon others receiving little or no benefit from that part of the work, was a fraud upon the owners of the property assessed for it.”

The omission which led to the conclusion of the court in The Matter of Gasey is in this case fully supplied, for it is in this case shown by the papers now produced, that on the block between Sixty-fifth and Sixty-sixth streets the setting of curb and gutter stones and flagging were done by the property owners before the confirmation of the assessment; and the evidence of the chairman of the board of assessors shows that the contractor who did the work made no charge, except for the curbing and guttering; and that in front of many of the lots on the line of said improvement curbing and guttering had been done before the contractor had begun his work; that such curbing and guttering already laid was not interfered with in any way by the contractor; and that in laying the said assessment, the board of assessors imposed the assessment only upon those 'lots in front of which curbing and guttering were done under the contract.

These facts make an entirely different case from that presented in The Matter of Casey, and the court below erred, therefore, in supposing that The Matter of Casey was controlling of this case.

The petition in this case was not based upon any alleged repaving of the street. It proceeds altogether upon alleged fraud. Upon such a petition, as was said by Church, Ch. J., in The Matter of Mayer (50 N. Y., 504, 508), “the grounds for vacating assessments are restricted to actual fraud.”

It is claimed, on the part of the petitioner,- that there was fraud in the making of the contract for the wort done, which vitiates the assessment. But this contract had passed through the purifying process provided for by chapter 580 of the Laws of 1812, and the commissioners created by that act had certified that no fraud had been perpetrated in relation to said contract or agreement, or in the performance thereof.

It was held by this court, in The Matter of Peugnet (5 Hun, 434) and in The Matter of Casey (ubi supra), that the contract upon which such certificate had been given was ratified and confirmed by the provisions of the act as soon as the certificate was made. We are not, therefore, to go behind the certificate to inquire whether the “ balanced ” or irrational bids of the contractor were such as to render the contract fraudulent. It is not necessary to say what our conclusion would be if that question were an open one.

The only remaining question is, whether, upon the facts shown, the assessors were guilty of such fraud in mating the assessment as requires us to set it aside ? It would appear, from the testimony of the chairman of the board of assessors, that in laying the assessment the board imposed an assessment only upon those lots in front of which curbing and guttering were done under the contract; that is to say, they exempted from the assessment all the lots where the flagging, curbing and guttering had previously been done by the owners of the lots, and all where only the curbing and guttering had previously been done. Flagging was done, in front of the last-named lots. The latter exemption (to wit, in the case where curbing and guttering had been done, and flagging was done under the contract) was based upon the fact that no charge was made by the contractor, and none entered into the assessment, for the flagging so done, because by his contract he agreed to do all flagging without pay.

This, we think, was an erroneous mode of making the assessment, for certainly these lots should, at least, have been assessed for then1 just proportion of the rock excavation, and of the expense of surveying and supervision.

The whole amount of these items could not properly he imposed upon lots where guttering and curbing had not been done by the owners. But it is evident to us, from the papers before us, that the assessors acted in perfect good faith in making the assessment in this form, and under the belief that the lots in front of which no curbing and guttering was done, because the owners themselves had performed that work, were entitled not to be assessed, although flagging under the contract was done in front of them. This error was one which might have been corrected by a certiora/ri to review the action of the assessors ; but as it lacks the essential element of fraud, upon which alone the present peculiar form of proceeding can be upheld in such a case as this, we are not at liberty to declare the assessment wholly void. It is claimed, on the part of the petitioner, also, that the form of notice that the assessment roll was completed is in itself a fraud, upon which the order of the court below should be sustained. The notice ■ is in the ordinary form, and it is given to the owners and occupants of all houses and lots, improved and unimproved land, affected by the assessment; and the statement contained in such notice that the limits embraced by such assessment included all the several houses and vacant lots, pieces and parcels of land situate on both sides of First avenue from Sixty-fifth street to Eighty-sixth street, simply defines the territorial limits within which all the assessments for that particular improvement had been made.

This is a notice that puts everybody within the defined limits, upon inquiry as to the amount of his own assessment, and the purposes for which it was made, and is not, in our judgment, evidence of any fraudulent intent of the assessors to conceal any important fact.

We are of opinion, therefore, that the order of the court below should be reversed, with ten dollars costs and disbursements, and the proceedings remanded for a rehearing.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements; proceedings remanded for a rehearing.


text:
    ELLA KAUFFMAN and others, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Abduction — chap. 105 of 1848— Ohaste cha/mctm' of female — how proved— Oounis in indictment — joind&r of — Meation — when compelled.

    Upon the trial of an indictment, under chapter 105 of 1848, for inveigling, enticing or taking away " any unmarried female of previous chaste character, under the age of twenty-five years,” for the purpose of prostitution, the actual personal chastity of the female must he shown, and evidence as to her general reputation in that respect is inadmissihle.

      Quaere, whether a. count for inveigling and taking away an unmarried female of previous chaste character, etc., and a count for taking a woman unlawfully against her will and hy force to he defiled, can he united in one indictment, and whether, in such case, the district attorney should he made to elect under which count he will proceed.
    Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiff for the abduction of one Selma Betham.

      John 0. Mott, for the plaintiffs in error.
    The court committed an error in allowing the prosecution to give evidence of the character for chastity of the prosecutrix; no evidence having been offered to impeach the chastity of the prosecutrix by the defendants. {People v. Eulse, 3 Hill, 309-314-; People v. G'cuy, 7 N. Y., 378 ; S. C., 1 Parker [C. R], 308;' People v. Kenyon, 5 id., 254-285 ; People v. Kenyon, 26 N. Y., 203-207; Oowpenter v. People, 8 Barb. [S. C.], 603-607.) Evidence of general reputation of the girl’s want of chastity is inadmissible. Previous chaste character, in this statute, means actual personal virtue, not reputation; and can be impeached only by specific proof of lewdness. {Kenyon v. People, 26 N. Y-, 203-207; People v. Kenyon, 5 Park., 254-285; Carpenter v. People, 8 Barb., 603-607.) The court erred in not requiring the district attorney to elect upon which count in the indictment he claimed a conviction. The first count charges a felony, and the second a misdemeanor. {State v. Fowler, 8 Post. [N. EL], 184; State v. Lmeol/n, 49 N. EL, 465 ; 1 Bish. Cr. Pro., §§ 205-213 ; State v. Porter, 26 Mo., 201; Hampton v. State, 8 Humph. [Tenn.], 69; Mo Gregg v. State, 4 Blackf. [Ind.], 101; Baker v. State, 4 Pike [Ark.], 56; Kcme v. State, 8 Wend., 203 ; JJ. S. v. Pirates, 5 Wheat., 201; State v. Ccmterbwry, 28 N. H., 216; State v. Fly, 26 Me., 312; State v. Marvin, 35 N. H., 26; Whart. Cr. Law, 204-207; 1 Arch. Cr. PL, 95; Peg. v. Davis, 3 P. & P., 19; Bex v. Truemcm, 8 B. & C., 127; Peg. v. Ba/rry, 4 P. & P., 389; Peg. y. Bwreh, id., 407; In re Mwrphy, 8 C. & P., 297; Bex v. Bretton, 1 M. & B., 297; O’ CownelVs Case, 11 C. & P., 347; King v. Roberts, Carth., 226; King v. Olendon, 2 LcL Baym., 1572; 2 Str., 870 ; 2 Sess. Cas., 24; Rex v. Bmfield, 2 Burr.; Yotmg v. King, 3 T. B., 105; People ex rel. Tweed v. liseomb, 60 N. Y., 559.)

      Benj. K Phelps, for the defendants in error.
    The motion to require the prosecutor to elect is addressed to the discretion of the court, and not reviewable on error. {People v. Baker, 3 Hill, 159 ; Yotmg v. The King, 3 Term. B., 603; Kcme v. The People, 8 Wend., 211; People v. White, 55 Barb., 606.) But if it were reviewable, the refusal was correct. It was evident that the two counts referred to the same transaction, and were framed to meet the proof as it might be developed. In such a case the prosecutor should not be compelled to elect. {Kcme v. The People, supra ; People v. Wright, 9 Wend., 193 ; People v. Costello, 1 Denio, 83; People v. Rynders, 12 Wend., 425 ; People v. Baker, supra ; People v. Anderson, 2 Wheel. Cr. Cas., 361.) In this State there is no objection to a conviction for a misdemeanor upon an indictment for a felony, and therefore there can be no objection to a count for a misdemeanor. {People v. Jackson, 3 Hill, 92; People v. White, 22 Wend., 177; 1 Bish. Crim. Pr., § 446 ; 2 Colby’s Crim. Law, 122 ; Whart. Bee. of Indict., 13-195 ; ODecvry v. The People, 4 Park. Cr. Cas., 187.) At any rate the objection is not good to such an extent as to interfere with the verdict, for at most it addressed itself to the discretion of the court. (Oom/missioner v. MoRaughH/n^ 12 Cush., 612; State v. Sutton, 4 Gill, 494; Reg. v. Jones, 8 0. & P., 716 ; 2 Moody, 94; State v. Lmcoki, 49 N. H., 464.)
   Davis, P. J.:

The indictment in this case contained two counts. The first count was upon a section of the Revised Statutes as modified by chapter 212 of the Laws of 1865, which, so far as applicable to this case, is in these words :

§ 24. Every person who shall take any woman unlawfully against her will, and by force, menace or duress compel her * * * to be defiled, and shall be thereof duly convicted, shall be punished by imprisonment in the State prison not less than five nor more than twenty years. (2 R. S., 663 [Edm. ed.], § 24.)

The second count is upon the act to punish abduction as a crime (chap. 105 of the Laws of 1848, § 1), which is in these words: “Any person who shall inveigle, entice or take away any unmarried female of previous chaste character, under the age of twenty-five years, from her father’s house, or wherever else she may be, for the purpose of prostitution, at a house of ill-fame, assignation or elsewhere, and every person who shall aid or assist in such abduction for such purpose shall be guilty of a misdemeanor, and shall, upon conviction thereof, be punished by imprisonment in a State prison not exceeding two years, or by imprisonment in a county jail not exceeding one year; provided that no conviction shall be had under the provisions of this act, on the testimony of the female so inveigled or enticed away, unsupported by other evidence, nor unless an indictment shall be found within two years after the commission of the offense.”

The crime charged in the first count is a felony of very high grade, the least punishment of which on conviction is five years imprisonment in the State prison. The offense charged in the second count is declared by the statute itself to be a misdemeanor, and its punishment is imprisonment in the-State prison not exceeding two years, or imprisonment in the county jail not exceeding one year. These crimes are not only created by different statutes, but are obviously distinct and independent in their character. In this case both counts were based upon the same transaction, the object of the pleader being to so describe tbe same offense that a conviction might be had upon either of the counts which the jury should find to be sustained by the evidence.

At the close of the case on the part of the people, the counsel for the plaintiff in error moved the court that the district attorney should be put to an election upon which count he would ask for a conviction. This motion was denied, and the counsel for the plaintiffs in error excepted. At the close of the evidence on both sides, and before the summing up, the counsel again moved that the court direct the distinct attorney to elect upon which count he would ask for a conviction. This motion was also denied, and an exception taken. The case was submitted by the court to the jury on both counts, and the jury convicted the prisoner on the first count.

The essential elements of the two crimes charged in the indictments are entirely different in some material respects. TJnder the first count the woman must be shown to have been taken unlawfully, against her will, and by force, menace or duress compelled to be defiled. Under the second count the woman must be an unmarried female, of previous chaste chcwader, under the age of twenty-five years, and must be shown to have been inveigled, induced or taken away from her father’s house, or wherever else she may be, for the purpose of prostitution, at a- house of ill-fame, assignation or elsewhere ; and the proviso of the statute declares that no conviction shall be had on the testimony of the female so inveigled, unsupported by other evidence. The felony under the first count requires proof of an unlawful taking against the will, and, of course, involves some degree of force, used by means of personal violence or menace. It requires also compulsory defilement by force, menace or duress, and the punishment might have been under the statute when first enacted, for the full term of life. The second offense does not require any degree of force in the taking away, but simply inveiglement and enticement, which may be shown by proof of mere persuasion without violence. It requires •proof that the female so taken is under the age of twenty-five years and of previous chaste character, and that the taking was for the purpose of prostitution. No evidence of actual prostitution is necessary; and of course the elements of force, duress or menace, are not necessarily involved in the crime.

On the trial under this indictment, the people, to secure the conviction upon the second count, must necessarily have given evidence of the previous chaste character of the female. That evidence was altogether immaterial so far as relates to an element of the crime under the first count, and on the trial under that count such evidence could not be given unless the character of the woman had first been assailed by the defense. The people, for the purpose of sustaining the second count, sought to give evidence of the previous chaste character of the prosecutrix; and the question was put to a witness, what was her character for chastity ? ” This was objected to on the part of the plaintiff in error. The court ruled that the district attorney might ask the question, if the witness knew her general reputation for chastity ? The counsel for the plaintiffs in error objected; the court overruled the objection, and an exception was duly taken. The district attorney then asked the question in the form suggested by the court, and the witness testified, under further objection and exception, that it was very good. Another witness was called, to whom the question was put, do you know what her reputation and character was for chastity while she lived with you?” Prisoner’s counsel objected to the evidence as not competent. Objection overruled and the answer received. Prisoner’s counsel excepted.

In the case of Kenyon v. The People (26 N. Y., 208) the prisoner was indicted under the act to punish seduction as a crime. (Ohap. Ill of the Laws of 1848.) The language of that act is precisely the same as that of the act under consideration, to wit, “ of previous chaste character.” The prisoner’s counsel offered to prove that the character of the prosecutrix for chastity was, by general reputation among her neighbors, bad, which was objected to on the part of the people, and the court excluded the evidence, and the prisoner’s counsel excepted. The Court of Appeals held that the evidence was properly excluded, and that character, as the .term is used in the statute under which the prisoner was convicted, could not be proved by reputation. The court say: “ The statute is, any man who shall, under promise of marriage, seduce and have illicit connection with any unmarried female of previous chaste character, shall be- guilty of a misdemeanor. Character, as here used, means actual personal virtue, and not reputation. The female must be unmarried and chaste in fact when seduced. By the terms “ chaste character ” the legislature could only have meant personal qualities that made up the real character, and not public reputation, which is the estimate of character formed by the public. It could not have been intended to substitute reputation for character in this, its primary and true sense. The accused may, by proof of specific acts of lewdness on the part of the female, and not otherwise, show that she was in fact unchaste.” In the ease at bar the evidence on the part of the people to establish chaste character was, by the ruling of the court, directed exclusively to the question of reputation, and evidence tending to show actual character seems to have been excluded. The case of K&m/on v. The People is the leading one on this subject, and though to some extent in conflict with one or more cases in the inferior courts, yet it is in accordance with others of such cases. (Carpenter v. People, 8 Barb., 603 [607] ; People v. Gray, 1 Parker’s Cr. Pep., 308.) These cases appear to be directly decisive of the question, because it is impossible to suppose that the courts intended to hold that evidence of reputation of previous chaste character is competent for the people, and that evidence of previous unchaste character is not competent for the prisoner. The rule must be the same in respect to previous chaste character, as it affects both sides of the question.

It is clearly established that the people cannot offer evidence of the reputation of witnesses produced by them, for the purpose of corroborating or strengthening their testimony, unless the defense shall first have attacked their character. (People v. Hulse, 3 Hill, 309, and eases there cited.)

The evidence offered was, therefore, very clearly incompetent under the first count of the indictment, and if the prisoner had been on trial for the offense charged in that count, the evidence would doubtless have been excluded. But it is insisted that the prisoners, having been convicted on the first count only, they could not have been prejudiced by this evidence, which related entirely to the offense charged in the second count. The rule undoubtedly is, as laid down in Coleman, v. The People (58 N. Y., 555), that when a fact is conclusively proved by competent evidence so that the court could say that no prejudice or injury could possibly have resulted from the admission of incompetent evidence to prove the same fact, its admission will not be cause for interfering with the result or reversing tbe judgment. (Williams v. Fitch, 18 N. Y., 546; People v. White, 14 Wend., 211; Erban v. Lorillard, 19 N. Y., 299.) “ Tbe error must be shown conclusively to be innoxious.” (Vandevoort v. Gould, 36 N..Y., 639; People v. Fernandes, 35 id., 49.) The error-book in this case fails to show that any charge was given by the court to the jury; but enough appears, we think, to show that the case was submitted to them upon all the evidence, for the jury to find a verdict under either count, the court haying failed to direct an acquittal on either count, or to- require the district attorney to elect on which count he would claim a conviction, after the testimony was all in. The case shows that after these motions were passed upon, the prisoner’s counsel and the district attorney summed up the case, after which the people were allowed to put in some further evidence, and then the case states that the jury rendered a verdict of guilty under the first count of the indictment. We do not see how it' is possible to say that the jury in coming to their verdict were not affected by the incompetent testimony touching the reputation of the prosecutrix, which has already been considered ; and we cannot state in what degree it may have affected their minds in giving credit to her testimony upon the question of forcible taking against her will, and of the defilement by force, menace and duress. ■ Upon these questions hers was the only direct testimony. She was corroborated by some circumstantial evidence, but by no direct evidence of the actual occurrence. She was contradicted by the two prisoners called by the defense, whose evidence was in direct conflict with her own-in respect to the facts sworn to by her, and it is not improbable that the evidence of the reputation of previous chaste character, given on the part of the people, may have turned the scale against the prisoners. The court said, in Coleman v. The People, above cited: “It is not enough that the court sitting in review of the judgment may be of the opinion that the result ought and probably would have been the same if the .objectionable evidence had been excluded, and especially ought not such a presumption avail to cure an error upon a criminal trial.”

We are, therefore, constrained by the rule laid down in that case to hold that the error in admitting this evidence was a fatal one.

We refrain from discussing the question whether the counts of the indictment were properly joined. The better course, undoubtedly, would have been to have directed the district attorney to elect at the close of the case upon which count he would ask a conviction. But it is not necessary to pass upon the question whether the refusal so to direct was error.

The judgment and conviction must be reversed and a new trial granted.

Beady and Daniels, J.J., concurred.

Judgment and conviction reversed; new trial granted.


author: Davis, P. J.: Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM CONNORS v. BERNARD REILLEY, Sheriff, etc.

      Com't of Oyer and Terminer — power of, to issue writ of habeas corpus — Warrant of extradition issued by, of governor ■— not conclusive upon com't.

    One in the custody of a sheriff, by virtue of a warrant of extradition issued by the governor directing him to deliver such person to the designated agent of the State making the requisition, is not a “person detained in the common jail of any such county, upon any criminal charge,” within the meaning of section 27 of chapter 460 of 1847, authorizing a Court of Oyer and Terminer to issue a writ of habeas corpus.

    Such court has no power to issue said writ in the case first mentioned.

      Semble, that when an officer of this State, having authority so to do, issues a writ in such a case, the warrant of the governor is not conclusive upon him, but it is his duty, upon the return, to examine the affidavits presented to the governor, and determine whether any crime was properly or sufficiently charged therein against the prisoner. (Per Davis, P. J.)
    Oeetioeaei to the Court of Oyer and Terminer of the city and county of New York, to review an order dismissing a writ of habeas corpus suéd out by the relator.
    The relator was arrested and held by the sheriff by virtue of a mandate issued by the Governor of this State, upon the requisition of the Governor of Massachusetts. The crime with which he was charged was that of being accessory after the fact to a burglary in Massachusetts. Application was made to the Governor for copies of the affidavits upon which he had acted, and he declined to furnish them.
    Pending these proceedings, a second requisition was made by the Governor of Massachusetts, charging Connors with being an accessory before the fact to the same burglary, and a second mandate was received and introduced in evidence in the proceeding before the Court of Oyer and Terminer under the habeas corpus. The court held that it had no jurisdiction to inquire into the cause of the detention of the relator, further than to ascertain that he was the person intended by the Governor; that, as he was held under the two mandates, it appeared from these facts that the detention arose under the federal law, and was therefore exclusively cognizable in the federal tribunals.

      Chas. W. Brooke, for the relator.

      Clarence A. Seward, for the respondent.
    Where it has been established by competent evidence that the person arrested is the person intended by the Governor’s mandate, a State court cannot lawfully proceed further but must remand the prisoner. When new rights are conferred, and new duties and obligations created and imposed by positive federal statutes, jurisdiction in reference thereto cannot be so conferred upon the State courts as to make it obligatory upon them to exercise it. ■ (Dudleye v. Mayhew, 3 N. Y., 9; Valarvno v. Thompson, 1 id., 576 ; TJ. S. v. Lathrop, 17 Johns., 4; Parsons v. Barnard, 7 id., 144; Manhardt v. Soderstrom, 1 Bin., 138; Peck v. Jermess, 7 How. [H. S.], 612, 624; Martin v. Hunter, 1 Wheat., 354, 355-357; Stearns v. TJ. S., 2 Paine, 311.) Where the United States create a new power, to be exercised in a certain way by a designated authority, neither the lawfulness of the power, the manner of its exercise, or the acts of the designated authority are justiciable in the State courts. If - examinable at all, they are only examinable by the federal judiciary, for they present a question of purely federal law. Without the provisions of the Constitution of the United States and the acts of congress, there would be no right to demand or to return fugitives from justice. There being no conceded common-law right of extradition, the people created it, and by section 2 of article 4 of tbe United States Constitution, gave to every governor the right to demand the extradition, and made it obligatory on each State to comply with the demand. Congress has the exclusive power to legislate. It follows that, when congress has the exclusive power to legislate, the national courts have exclusive power to adjudicate; or, in other words, the right of exclusive legislation carries with it the right of exclusive jurisdiction. (U. S. v. Cornell, 2 Mason, 91; U. S. v. Ames, 1 W. & M., 76; U. S. v. Bailey, 9 Peters, 261; Osborne v. U. S. Bank, 9 Wheat., 818.) The State courts, therefore, like the State legislatures, have no jurisdiction over the question of inter-State extradition, save the single question of identity. It appears on the face of the return that the prisoner is held under the authority and color of the United States. The State cannot, therefore, proceed further. (In re Husted, 1 Johns. Cas., 136; In re Ferguson, 9 Johns., 239; Ableman v. Booth, 21 How., 506; Matter of Farrand, 1 Abb. [U. S.], 145; Matter of Spangler, 11 Mich., 311; Matter of Hopson, 40 Barb., 43; State v. Zulick, 5 Dutch., 409; U. S. v. Bull, 23 Int. Rev. Rec., 80.) If the court could go behind the mandate, what could it investigate? “The .question of his gtdlt or innocence is wholly irrelevant.” (People v. Brady, 56 N. Y., 187.) And so is every question and fact embraced therein, i. e., actual presence in Massachusetts. The mandate proves itself and its recitals.
   Davis, P. J.:

The return in this case is extremely defective. It does not contain the petition for the writ of habeas corpus, nor the writ of habeas corpus issued by the court, nor the return of the sheriff to such writ.

What appears in relation to them, is stated on the certified minutes of the court forming part of the return, from which it would seem that the writ of habeas corpus was returnable before the Court of Oyer and Terminer; that the relator was produced before that court by the sheriff of the city and county of New York, who returned that he held “ the prisoner in custody on a requisition from the Governor of Massachusetts, and a warrant of surrender by the Governor of the State of New York.”

A copy of the warrant, issued by the Governor of this State, is filed with the other papers. To this return the relator filed a traverse in writing, the substance of which is as follows:

I. He denied that he was the person mentioned in the requisition and warrant.

II. He alleged that he had not seen, nor heard read, any indictment, warrant, affidavit, or other process or proceeding necessary under the provisions of the Constitution of the Hnited States or the act of congress, in such case made and provided, as the basis of such proceeding of extradition; and he averred that such proceeding was irregular, illegal and informal, and prayed that the respondent may be put to proper and necessary proof thereof.

III. He denied that he was ever within the jurisdiction of the county of Hampshire, in the State of Massachusetts, and is not, nor has at any time been, a fugitive from the justice of said State, but is now, and has been for twelve years past, a citizen and resident of the city of New York.

Hpon this traverse, the court proceeded to take proofs on the. part of the respondent and the relator. Afterwards, and on an adjourned day, leave was given to the respondent to file an additional return to the writ of habeas corpus, whereupon the sheriff produced and filed another warrant of extradition issued by the Governor of this State, bearing date February 27, 1877; and thereupon the relator filed a supplemental traverse to the second return, in which, after denying his identity with the person named in the requisition and warrant, he denied that the requisition and warrant were made and issued upon any indictment, affidavit or proceeding made necessary by the Constitution of the Hnited States, and the legislative enactments thereunto referring, and demanded that the respondent be put to proof in relation thereto.

He denied, also, that he ever committed any offense in the State of Massachusetts, or ever fled therefrom; that he was ever in the county of Hampshire, in said State ; or that he then was, or ever had been, a fugitive from the justice of said State; and averred that he was a citizen and resident of the State of New York, and had continuously resided therein for the past twelve years. He also averred that the demand of the Governor of the State of Massachusetts theretofore made, and the warrant of extradition previously allowed by the Governor of New York, had exhausted and deterrninp,il their power and authority in the premises, and that the supplemental and additional return was void and of no effect; and he further averred several other matters of fact and legal conclusions not necessary to recite. On the filing of this supplemental traverse, the respondent demurred to each and every allegation in said traverse, except the allegation regarding the identity of the prisoner,” on which issue was joined.

The court then took proof on the issue joined upon the identity of the relator with the person sought to be extradited.

A stenographer’s minutes of the proceedings and evidence, in the Court of Oyer and Terminer, and a copy of the opinion of that court (which we shall assume were intended to be- a part of the return to the oertiora/ri), were handed up on the argument.

From these papers it appears, in substance, that the court below, after trial of the issue joined upon the question of the identity of the relator, found as matter of fact, that the relator was the same person named and intended to be named in the several warrants. This finding of fact is based upon sufficient evidence, and will be regarded by us as conclusive.

There was no impropriety, we think, in allowing the amended return, which the sheriff filed with the court, the second warrant of extradition issued by the Governor of the State ; and it was upon the effect of that warrant, as we gather from the opinion of the court, that the case was finally disposed of. The affidavits upon which that warrant was issued were not presented to the court; and it would seem that the Governor of the State had refused to produce the originals or to allow copies thereof to be taken for the purpose of using the same as evidence on the hearing. These affidavits were not, therefore, in evidence before the court.

After disposing of the question of identity as one of fact, the court below dismissed the writ and remanded the relator, on the ground that it had no jurisdiction to entertain or determine any other question, but that jurisdiction of all other questions belonged exclusively to the federal courts. This was in effect sustaining the demurrer of the respondents to the supplemental traverse of the relator, and, so far as the allegations of the traverse are well pleaded, deciding them adversely to the relator.

The decision of the court, in this respect, seems to us to be in direct conflict with, that of the Court of Appeals in The People ex rel. Lawrence v. Brady (56 N. Y., 182). In that case the Court of Appeals held, that it was/ competent to go behind the warrant of the Governor, and examine the affidavits presented to him, for the purpose of determining whether any crime was properly or sufficiently charged therein, against the relator; or, in other words, that the decision of the Governor upon that question under the act of congress, was not conclusive, but was open for review, by any court or officer having authority to issue the writ of habeas corpus. Whether we regal’d that decision, or the reasonings of the court in support of it, as sound and satisfactory, is not important. We are controlled by the decision, so far as it disposes of the question presented by the case then before the court. And we are therefore constrained, of necessity, to hold that the jurisdiction of the court of Oyer and Terminer (if it had any whatever in the case) was not restricted to the mere question of the identity of the relator with the person named in the warrants.

The traverse of the relator distinctly denied that the requisition was made by the Governor of the .State of Massachusetts, or the warrant of extradition issued by the Governor of New York, “upon any indictment, affidavit or proceeding made necessary by the Constitution and the legislative enactments thereunder.” This traverse was bad pleading in form, but it was not disposed of on any such ground; and we must regard it as substantially averring that no sufficient facts were presented to the executives named.

•This brings the decision of the court below sharply in conflict with that of the Court of Appeals, in the case above cited; and while that decision stands as the law of the State we must necessarily regal’d ourselves as being bound by it.

But we think the decision of the Court of Oyer and Terminer which dismissed the writ, and remanded the relator, may properly be sustained upon another ground. The only jurisdiction which the Court of Oyer and Terminer has, either to issue any writ of habeas corpus (except the writ ad testificandum,, power to issue which is given to every court of record), or to hear the same upon the return thereto, is derived from section 27 of chapter 460 of the Laws of 1847 (Session Laws of 1847, p. 599), which is in these words :

Section 27. After the Court of Oyer and Terminer shall com-

menee it sittings in any county, no prisoner detained in the common jail of any such county, upon any criminal charge, shall be removed therefrom by any writ of habeas corpus, unless such writ shall have been issued by such court of Oyer and Terminer, or shall be made returnable before it.” The habeas corpus act, which gives this writ for the purpose of inquiring into the cause of detention (2 R. S., 563, 564, § 23), distinctly provides to what courts and officers application for such writ may be made, and courts 'of Oyer and Terminer are not among the number. The Court of Oyer and Terminer has no original jurisdiction to issue the writ, or to hear the proceedings upon the return thereof; and we know of no statute which confers such power upon that court, except that contained in the- act of 1847. That act relates expressly to persons detained in the common jail of the county upon any criminal charge while the Oyer and Terminer is in actual session. The return in this case, as stated in the minutes of the court, shows that the relator was detained in the custody of the sheriff, by virtue of a warrant of extradition issued by the Governor of this State upon a requisition issued by the Governor of Massachusetts; and the warrant of the governor of this State shows that the authority of the sheriff was to arrest and deliver the relator to the designated agent of the State of Massachusetts. He was not a prisoner detained in the common jail of the county of New York upon any criminal charge, within the meaning of the twenty-seventh section of the act of 1847 above quoted, and the Court of Oyer and Terminer had, therefore, no power, as such court, to issue the writ, or to hear and determine the issue joined upon the return. The justice of the Supreme Court who presided at the Oyer and Terminer had, of course, under the Revised Statutes, as such justice, the most ample authority, but he did not sit or act in his capacity of such justice. The whole proceeding, as appears by the return and record before us, was in and before the Court of Oyer and Terminer. The return is made by the clerk of the coxut under its seal; and we cannot go outside of it for the purpose of contradicting its verity.

That court had no authority to do any thing further than dismiss the writ for want of jurisdiction, and remand the relator; for this reason the writ was properly dismissed, and the relator remanded to tbe custody of tbe sberifE, and tbe order tbus disposing of tbe proceedings should be affirmed.

Tbis question was not raised upon tbe argument before us, nor was it suggested in tbe court below; but tbe want of jurisdiction in that court appears so palpably upon tbe face of tbe record, that we think it our duty to dispose of tbe case by dismissing tbe writ of cerbiora/ri and tbe writ of habeas corpus, and directing that tbe relator be remanded to tbe custody of tbe sberifE.

Daniels, J.:

Tbe writ of habeas corpus appears, upon inspection of it, to have been allowed by, and made returnable before, Mr. Justice Brady, as one of tbe justices of tbe Supreme Court; and all tbe indorsements made upon it, and upon tbe return made to it, indicate that be acted throughout only in that capacity, and tbe writ of cerbiora/ri does not seem to bare been served upon him, neither has any return been made to it by him.

Tbe only proceeding returned is that certified by tbe clerk of the Court of Oyer and Terminer, before which that instituted by tbe habeas corpus was not pending.

I accordingly concur in tbe direction that tbe writ of certiorari should be dismissed.

Present — Davis, P. J., Brady and Daniels, JJ.

Qerbiora/ri and habeas corpus dismissed; relator remanded.


author: Daniels, J.:

text:
    In the Matter of THE SECURITY LIFE INSURANCE AND ANNUITY COMPANY.

      Insolvent life insurance company — distribution of assets of — Pm'UcipaUon in profits —policyholders, not made members of the company by.

    The petitioner, for whose benefit a policy of $6,000 had been issued upon the life of her husband, presented to the company, on the seventh of December, notice and proof of his death. The company, which was a stock company, was at that time insolvent, and on the fourteenth of December a receiver thereof was appointed. Petitioner applied to have her claim paid out of the assets in full. PLeld, that her claim was not entitled to priority over the claims of the policyholders for a return of a proportionate amount of their premiums as provided by section 86 of 3 Revised Statutes (5th ed.), 771, notwithstanding the fact that the policyholders were entitled to participate in the earnings of the company, such participation not having the effect of rendering them members of the company so as to make them liable for its losses.
    Appeal by Rebecca L. Miller, petitioner, from an order denying an application for tbe payment of a loss arising upon a policy of life insurance.
    The petition of Rebecca L. Miller stated, among other things, that she was insured in the said Security Life Insurance and Annuity Company in the sum of $6,000 upon the life of her late husband, James L. Miller.
    That the said James L. Miller died in the city of New York on the 26th day of November, 1876.
    That on the 7th day of December, 1876, the petitioner presented to the said The Security Life Insurance and Annuity Company due notice and satisfactory evidence of the death of thé said James L. Miller and complied with the requirements of said policy in respect thereto, and that said company duly accepted and received such notice and evidence on the day last aforesaid.
    That the said The Security Life Insurance and Annuity Company became insolvent on the 11th day of December, 1876, and that on the said day, in the above entitled proceedings, William H. Wick-ham was duly appointed the receiver of said company.
    That the assets of the said The Security Life Insurance and Annuity Company are wholly insufficient to meet its liabilities for matured claims and to provide for the reinsurance of its subsisting policies or return the surrender value thereof. That such deficiency exceeds $2,000,000, but that the amount of such assets exceeds the amount of its matxu-ed claims of all classes, which do not amount in the aggregate to more than $300,000 or $350,000, exclusive of the claims of the holders of subsisting policies.
    That the whole amount of the claims due or becoming due for losses by death prior to the said 11th day of December, 1876, is $223,239.15, and that the cash assets (independent of the real estate, bonds and mortgages, premium notes and loans) which have come into the hands of the said receiver, and are now in his possession, are more than sufficient to pay said death claims in full.
    That the said receiver has refused, and still does refuse, to recognize the preference or priority of payment in full of the said death claims over the claims of other creditors and over the claims of policyholders of subsisting policies of said company.
    The charter of the company contained the following provisions:
    Section 19. The company, within sixty days next after the expiration of three years from the 1st day of December, 1861, and within the first sixty days next after the expiration of every subsequent period of three years, shall cause a general statement to be made and a balance to be struck of the affairs of the company, which shall exhibit the amount of surplus or net profits of the company for such periods, respectively, as near as the same can be ascertained after deducting losses and expenses, and a sufficient amount to reinsure all outstanding policies and to meet the engagements of the company in annuities and otherwise.
    Immediately after the striking of each of the aforesaid balances the net profits or surplus for the next preceding period of three years, ascertained as above provided, shall be apportioned, divided and accredited as follows, viz.:
    Twenty per cent thereof to the account of the stockholders of the company, payable pro rata, in scrip, at such times as the board of directors shall provide, and the remaining eighty per cent thereof to the policyholders and amiuitants who participate in the profits.
    Such scrip shall draw interest from its date, payable annually at the rate of six per cent per annum. The annuitants’ proportion shall be divided equally, by way of addition to their annuities, among the holders of annuities issued by the company, according to the amounts of the same, and the ages of the parties to be made out by the actuary of the company, which annuities shall have been in existence for one year previous, and which shall be unexpired.

      Wm. D. Booth and Robert Sewell, for the appellant.

      Hamilton Cole, for the receiver, respondent.

      WilUam Barnes, for other policyholders.
   Daniels, J.:

The Security Life Insurance and Annuity Company was incorporated as a stock company for the transaction of the business of life insurance and dealing in annuities, under the Laws of 1853. (2 R. S.

[5th ed.], 767.) It commenced its business in the year 1861, and issued a life insurance policy to the petitioner, Rebecca L. Miller, for the sum of $6,000, on the life of her husband, James L. Miller. He died on the 26th day of November, 1876, while the policy was in full force. On the 7th of December, 1876, she presented to the company notice and proof of his death, as that was required to be done by the terms of the policy. The company was at that time insolvent, and on the fourteenth of that month the Hon. William H. Wickham was appointed its receiver. The petitioner applied to the court for an order directing the payment of the amount of the loss out of the assets of the company in his hands. It was shown that they amounted to about the sum of $250,000, and that the net value of different classes of policies in force, unpaid endowment claims, and certain small items, amounted to the aggregate sum of $3,8J2,600. For the reason that these different claims were considered to be entitled to participate in the distribution of the assets, the application made for the payment out of them of this particular loss was denied. That has been objected to as erroneous, chiefly for the reason that the holders of policies were entitled to participate in, and be benefited by, the earnings of the company. But that did not have the effect of rendering them members of the company in any such sense as to subject them to direct or indirect liability for its losses. Its only result was to diminish the premiums actually payable upon their policies, and to graduate their amount according to the prosperity and pecuniary success of the company. The persons holding them were still entitled to the full benefit of their policies according to their terms, and had the unqualified right to resort to the company for their indemnity. The plan was adopted for the purpose of returning what should be received, by way of premiums, beyond what could be required to pay the expenses and meet the obligations of the corporation, and in no event did it amount to any thing but a mere abatement, by way of returning the excess of payments, secured by the collection of the premiums.

The act under which the company was incorporated provided that it should be subject to all the provisions of the Revised Statutes in relation to corporations, so far as the same were applicable, except that requiring annual statements and other matters specially provided for. (2 R. S. [5th ed.], 770, § 73.) And by one of the provisions so applied to it, open and subsisting engagements or contracts, in the nature of insurances or contingent undertakings of any kind, are to be regarded as obligations existing against the corporation, and with the consent of the parties holding them, they can be canceled and discharged by the receiver refunding so much of the premium paid as shall be in the same proportion to the time which shall remain of the risk assumed as the whole premium will bear to the whole term of the risk. (3 R. S. [5th ed.], 771, § 86.) To that extent the other policyholders, under this provision, became creditors of the corporation, at the time when the receiver was appointed; and it defined the principle adopted for the adjustment of their demands, and the cancellation of their contracts of insurance. And under it they can legally make their respective claims to the receiver for payment. The only source from which payment can be made by him, is that of the assets of the insolvent corporation, and persons whose claims for losses had matured when he was appointed, have not, in terms, been given any priority over the other class of demands.

The appointment of the receiver was made under the provisions of the statute prescribing the proceedings which should be taken in equity for the settlement of the affairs of insolvent corporations. (3 R. S. [5th ed.], 761.) They were rendered applicable to this corporation by the section of the act already referred to under which it was created, and by one of them it was declared that a just and fair distribution of the property of such corporation and of the proceeds thereof ” should be “ made among its fair and honest creditors, in the order and in the proportions prescribed by this title in the case of a voluntary dissolution of a corporation.” (Id., 766, § 57.) And that by the provisions referred to, after giving a preference to debts entitled to it which should be owing to the United States, and judgments, so far as they might be liens, on the corporate property, declared that all other creditors should be paid in proportion to their respective demands, without giving any preference to debts due on specialties.” (Id., 771, § 90, sub. 3.) This very clearly placed all demands against the corporation on the foundation of equality, except such as were entitled to be preferred in payment under the laws of the United States, or were liens by virtue of judgments recovered upon the property of the corporation, and it was so construed and applied in the cases of Lowene v. American Fwe Ins. Co. (6 Paige, 482) and De Peyster v. Same (id., 486). The policy of the statute, as it was the prevailing principle in ecprity, was to apply the doctrine of equality, as far as that could be practically done, to the adjustment of all the obligations of the insolvent corporation, and it accordingly, in terms, was made expressive of that intention. For that reason, the claim held by the applicant was not entitled to be paid out of the assets in the receiver’s hands, in preference to those of the policyholders for their proportionate return of premiums. The utmost that can be secured for it, will be to place it, as the statute seems to have required, on the same footing of equitable equality. That and all other bona fide claims, not entitled to preference because of the exceptions declared, will participate proportionately in the proceeds of the assets held by the receiver. Beyond that it cannot be extended, and for that reason the application made was properly denied. The order appealed from should be affirmed, with ten dollars costs, besides disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


text:
    JAMES DRISCOLL, Administrator, etc., of MARY DRISCOLL, Deceased, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Contributory negligence — question for the jury.

    The plaintiff’s wife on the 21st of August, 1871, and for several years prior thereto, resided on the north-east corner of Thames and Greenwich streets, New York. On the south-east corner of said streets a hole had existed in the sidewalk for several years. About seven o’clock in the evening of that day she left her home on business, fell into the hole, and received injuries from which she died soon after. In an action to recover damages therefor, the defendant claimed that her mind was engrossed by business, and that she fell into the hole from her failure to give her attention to it. Held,, that whether or not her failure to direct her attention to the existence of the hole on account of her mind being engrossed in business was such contributory negligence as prevented a recovery, was properly left to the jury.

      Burkin v. City of Troy (61 Barb., 437) distinguished.

      Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new-trial made upon the minutes of the justice before whom the action was tried.

      Chas. P. Miller, for the appellant.

      B. F. Emstei/n, for the respondent.
   Daniels, J.:

The plaintiff, as the administrator of his deceased wife, recovered a verdict of $1,000 for the pecuniary loss sustained by her next of kin in consequence of her death, which it was found was caused by the negligence of the defendant. She resided with her husband and family on the north-east corner of Thames and Greenwich streets; and on the south-east corner of the same streets a hole had existed in the sidewalk for several years before 1871. It was near the curb stone, and had been caused by the breaking of one of the flag stones, and the falling away of the curb. It was three qr four inches deep, and about, or over, a foot square. The intestate had resided on the corner of the streets for several years before the 21st of August, 1871, and was undoubtedly aware of the fact that the hole had existed as it has been described. TJpon the evening of that day, about seven o’clock, she left her residence to attend to some of her family dnties, and while so engaged she stepped into this hole, and was thrown down by means of it, and so seriously injured by the fall that she soon afterwards died.

It has not been seriously contended that the city authorities had not been culpably negligent for omitting to fill up and repair this hole in the walk. But it was its duty to keep the walk in a reasonably safe condition; and it had failed so long in its observance, in this instance, as to be justly chargeable with negligence. The objection to the recovery has been chiefly placed upon the asserted negligence of the deceased, in not avoiding this defective part of the walk. That she knew of its existence is reasonably free from doubt; and if she had, at the time, her mind npon it, the accident would probably have been avoided; but it is probable, from the evidence, that her attention was engrossed by the business she had left her resideuce to transact, and, without, at the time, thinking of this hole, accidentally stepped into it, and from the fall produced by doing so received the injury of which she died. Her instinctive inclination to protect herself against the risk of injury would have induced her to have avoided this place if she had noticed it, as she was approaching its vicinity; for that reason, it may be assumed that her mind was otherwise employed, and upon that circumstance the charge of negligence must be predicated, if it can be sustained at all. It’was the duty of the defendant to keep the walks in such a condition that they could be safely used by persons reasonably engrossed in their own pursuits. Even the most prudent wilj sometimes be incapable, by the pressure of their cares, from avoiding that condition. Indeed, it is quite common to find careful people in just that state of mind. It naturally results from the subjects employing their attention, and then confidence in their ability at the same time to secure their safety, and cannot be held to be unequivocal evidence of the want of care. There are many causes which will often divert the attention from objects of danger, ordinarily known to be near at hand, without rendering the individual injured chargeable with neglect; and as that is the case, the question of the existence of negligence must, in most cases, be a subject for the decision of a jury. It is an inference to be deduced from circumstances, and for that reason within the province of that body. Under a certain state of facts, it might be properly held that a person was careless for allowing the attention to be diverted away from a source of danger by any demand that might be made upon it, while in others, the danger itself would not be so apparent as to justify the same conclusion. The deceased probably apprehended no risk, and for that reason allowed her thoughts to be employed with other subjects. That may have been an act of negligence, and if the jury had found it to be so, their verdict would not have been disturbed, but they found otherwise, upon facts that were consistent with the accuracy of that conclusion.

The case is different from that of Durkin, v. City of Troy (61 Barb., 437), for the plaintiff was cautioned by his wife, just before the accident, concerning the ice which caused his fall. It was a present object of attention with him; but there was no circumstance in this case from which that fact could have been properly inferred. The case was within the principle of that of Mosey v. City of Troy (61 Barb., 581), where it was held that there was no such manifest negligence as to justify the court in ordering a non-suit. The question of contributory negligence must, under ordinary circumstances, be decided by the jury. Its existence is one of inference usually, and the facts were sufficient to give it that character in this instance.

The judgment and order should, -therefore, be affirmed.

Present — Davis, P. J., Brady and Daniels, JJ.

Judgment and order affirmed.