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

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    1. Vessels—Collision— Signals.
    Rule of navigation No. 21 does not apply, where a vessel has signalled her intention to another vessel, and the latter has signaled back her assent.
    2. Trial—Charge.
    Requests to charge certain propositions of law are rightly refused, where some of them are improper to be presented to the jury.
    3. Same.
    Refusal to charge requests, which have not the slightest particle of evidence to sustain them, is not error.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      0. B. Adams, for app’lt; James M. Gifford, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages occurring to a steamboat, the J. G. Emmons, of which the plaintiff was the owner, and which was in collision with the ferry* boat Pavonia, belonging to the defendant. It appeared from the-evidence that on the morning of the 27th of October, 1884, theEmmons started from a pier in the North river, at the foot of King street, quite a distance above the place of collision, for Castle Garden. She proceeded down the river about 300 feet from the head of the docks. When she reached Harrison street, her engineer, having found that she needed water, sent word to the master that there was a hydrant at Harrison street, where he could get it. The boat was turned off shore to go into Harrison street,, her wheel being ported, and she going to the right. There is* some dispute in the testimony as to how far down the river theEmmons went iñ turning to get back to Harrison street. The testimony upon the part of the plaintiff was to the effect that she commenced to turn abreast of the Harrison street pier, kept on the swing, and went down the river far enough to open the Erie" ferry slip between piers 20 and 21; but that she did not go below or to the slip of the passenger ferry, which was the opening between the piers next below. On the part of the defendant evidence was offered tending to show that the pilot of the Pavonia, saw the Emmons between. Harrison and Jay streets (Jay street being the street below Harrison), proceeding down the river, and that she had gotten so far down that her stern was between the piers of the slip above the ferry; and that the pilot, supposing that she was going on, paid no further attention to her. The: next thing he saw was that the wheel of the Emmons was put. hard a-port, and she came right around; and he swore that, even at that time there was nothing to indicate that the Emmons was going to attempt to turn up the river again, and cross his bow; and that the first intimation he had that the Emmons intended to cross his bow was that a whistle was blown,, and he immediately signaled the engineer to reverse his engine, and back the boat; at the same time he gave one whistle; and that his boat, being backed, and had almost lost her way before she came in collision with the Emmons, and, after hearing the whistle, his wheel ran amidships, and stayed there until the collision. On the.other hand, upon the part of the plaintiff the evidence was that the Emmons never got below the opening between the piers above the ferry, and that she rounded to. The Pavonia was coming diagonally across the river from .Pavonia ferry, and, after the Emmons had made three-quarters of the swing to 'the northward, she blew one whistle to the Pavonia, indicating that she intended to go to the right. At this time the Emmons was about 400 feet from the shore, and the Pavonia 800 or 1,000 feet away from the Emmons, on ¿her way to her ferry. Not getting an answer to this signal, but seeing that the Pavonia kept on her course, she blew another similar blast, when she was about 500 feet away." The Pavonia then answered distinctly with one whistle. The Emmons’ helm was still hard aport. After this whistle the Pavonia’s wheel was put to starboard, thus throwing the Pavonia directly towards the Emmons. The Emmons at the time was going at full speed, and after the second whistle a bell was rung to the engineer for extra speed. The Pavón ia’s engine was stopped at the time of the collision, and the Pavonia’s port bow struck the Emmons' port wheel.

Upon this state of the evidence it is claimed lipón this appeal that the court erred in not dismissing the complaint at the close of the plaintiff’s testimony upon the ground that when the Emmons failed to get an answer to her first whistle she should have stopped, and reversed at once ; attention being called to the twenty-first rule of navigation, which was in force at the time, and which provided that every steam vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse. In the presentation of this question it seems to us that the learned counsel for the appellant does not give the proper import to the answering by the Pavonia of the whistle heard from the Emmons. It is claimed— and that seems to be the foundation of most of the arguments presented here—that all that the answering by the Pavonia meant was: “All right. I hear your whistle. I will do the best I can to aid your maneuver.” We do not understand such to be the intimation conveyed by the Pavonia to the Emmons by its an-. swering whistle. It was an indication as to how and in what way the Pavonia was going to aid the maneuver of the Emmons getting around in safety in view of the advance of the Pavonia. This indication was that the pilot of the Pavonia would port his wheel, throwing his boat to the right, and it was this maneuver the pilot of the Emmons had a right to rely on the Pavonia doing. But, instead of this, there was evidence that the pilot of the Pavonia put his helm to starboard, directly throwing the Pavonia into the Emmons. At best, the evidence upon the part of the defendant is that the helm was amidships, and nothing was done to change her course. Such being the condition of the evidence, the jury had a right to determine as to whether this failure to handle his boat properly upon the part of the pilot of the Pavonia was not the cause of the accident, and, if this had been done, no-collision would have occurred. Under such circumstances the rule which has been invoked has no application.

• It is further claimed as a ground for the dismissal of the complaint that the Emmons was proceeding in violation of common prudence and of a legal obligation to keep away from the ferry slips. There was no evidence in this case tending to show that that had anything to do with the collision. The Emmons was out in the stream, several hundred feet from the head of the ■ piers. She was not interfered with by a boat coming out of the slip which could not see her, but the collision occurred with a boat which had the Emmons in full sight during all the time in which this swinging of the boat took place. Therefore this point urged upon the part -of the appellant does not seem to be at all applicable.

The learned court charged the jury that—

“it was the tug’s duty to signal her intention by a single blast ■of lier whistle before she attempted to cross the ferry boat’s bow the second time; and, if she did not get a single blast of the ferry boat’s whistle in reply in time to accomplish the maneuver in ■safety, it was her duty to check her speed, and reduce it down to steerage-way ; and, if yqu believe she did not do so, the verdict must be for the defendant”

-—-And it is urged that the verdict is contrary to this charge. It is true that the Emmons did not. get a single blast from the Pavonia in reply to her first whistle, nor did' she reduce her speed, and that a collision occurred. But the jury had a right to find that the collision was not the result of any of these circumstances. Upon her giving the second blast she got a reply indicating a certain course of conduct upon the part of the ferry boat, which they may have found was not-taken, and that that was the cause of the collision.

• It is further urged that the court erred in charging inspectors’ rule 1 and navigation rule 18 as applicable to the case, which rules apply to the conduct of vessels approaching each other head on, or nearly so. The court charged what the law was under these ■circumstances, and left it to the jury to determine as to whether these rules were applicable in view of the condition of the vessels, there being a dispute in regárd to their relative positions, and evidence from which the jury might find that at the time of the ■whistle the vessels were head on, or nearly so. It is- true that the Emmons was swinging all the time, and that she had swung past the line of “head on” was shown by the manner of the collision. But it cannot be said that simply because her position was changing in consequence of her helm being hard a-port she had no right to give a signal at the time it was given. The Emmons had her helm hard a-port. Her pilot knew that under the. circumstances the pilot of the Pavonia, upon hearing the whistle and giving the reply, ought to put his helm hard a-port; and the jury had a right to find that, if he had followed that course, the collision would not have occurred.

It is further urged upon the part of the appellant that the court erred in refusing to charge certain proportions of law as requested by the defendant, but it will be sehn upon an examination of these requests that numerous propositions were involved therein which it would have been improper to have presented to the jury.

The court was asked to charge the jury that—

“Ho excuse is permitted for the failure of a vessel to have a lookout, and -the absence of one is evidence of fault. The only way the owners of such a vessel can escape from the legal liability for a collision with another vessel in such a case is to show that the presence of such a lookout, vigilantly attending to his duties, would not have enabled the vessel to avoid the collision. Every doubt as to the performance of the duty and the effect of the nonperformance should be resolved against the owners of the vessel without a competent lookout, until they vindicate themselves by testimony.conclusive to the effect that absence of a lookout made no difference in the result. Therefore, unless you believe that the evidence conclusively establishes that such absence made no difference, your verdict must be for the defendant.”

Here rules of law are invoked which do not obtain. Every doubt is not required to be resolved iu favor of either of the parties to a civil action, nor is it necessary to establish any proposition by conclusive testimony. And, furthermore, the court had charged that it was the duty of the Emmons to have a competent lookout, and that the rule was that lookouts must be persons of suitable experience, properly stationed on the vessel, and actively and vigilantly employed in the performance of their duty." But there is no rule which requires that a person may not be engaged as a lookout who at other times may have other duties to perform on the vessel; and the jury was instructed that a failure upon the part of the plaintiff to have some person' acting as lookout would be some evidence of negligence, but that the evidence in the case was that there were two persons in the pilot house of the Emmons acting as lookout, and that they saw the Pavonia both before and after the Emmons attempted to go about; and he left it to the jury to say whether or not there was a competent lookout, and whether or not the absence of a lookout contributed to the accident. The proposition submitted upon the part of the appellant went far beyond anything which any rule of law could possibly sanction in reference to the conclusiveness of evidence. The court, having already charged the jury as to the lookout, was entirely correct in refusing so erroneous a proposition as that which was submitted. Even if, as claimed by the appellant, the charge left too much to the jury, and did not instruct them with' sufficient particularity, the appellant’s proposition gave an absolutely erroneous rule for the guidance of the jury, and in no way tended to call the attention of the court to any omission upon its part if any such existed.

The next request which it is claimed was error upon the part of the court to refuse was as follows :

“ The rules of navigation require that the vessel which has the other on her own starboard (right) hand shall keep out of the way of the other. In this case, having passed the course of the ferry boat in conformity with such rule, it was the duty of the tug to keep her course, and not attempt to cross the ferry boat’s bow again, unless there was ample room for her to do so without danger of collision. Even the ferry boat’s consent to an improper maneuver would not relieve the tug of the fault of attempting it when a disastrous result ensued. Therefore, if you believe there was not sufficient room for the tug to cross the bow of the ferry boat again, the tug was guilty of fault, and the verdict must be for the defendant."

In this proposition are assumptions which are also contained in the statement of facts by the counsel for the appellant which have not the slightest particle of evidence to sustain them. They are that the Emmons, before she commenced to turn, had passed the course of the ferry boat, and had once crossed the boat’s bows : when the evidence upon the part of the plaintiff was that she had not reached, and never did reach, the ferry slip; and the most that can be said of the evidence upon the part of the defendant is that her stern had gotten to the pier of the ferry slip, but that she did not cross the course of the ferry boat, nor did she cross her bows; so that when she, attempted to turn it was not an attempt to cross the Pavonia’s bows again.

Without proceeding to analyze the other requests in detail, it is sufficient to say that they are all affected by the same class of error, or they assume the presehtation to the jury of other propositions which had been refused. Upon an examination of the whole record, we see no reason for disturbing the conclusion reached by the jury.- There was a conflict of evidence as to the position of these boats, and as to -what was done as they were approaching each other, and the jury were justified, if the version of the conduct of those in charge of the Pavonia was as described' by the plaintiff’s witnesses, that the collision was caused by the management of that boat,"and not by any fault of the Emmons.

The judgment and order should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    The People, Resp’t, v. Hyman Lesser, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Appeal—Insufficient evidence.
    A judgment of conviction, resting solely upon the circumstantial evidence 1 of the complainant, which is offset by the positive denial of the defendant, whose good character and honesty are vouched for by two witnesses, is not warranted by the evidence.
    " Appeal from a judgment of conviction of grand larceny in the second degree.

      Alexander Rosenthal, for app’lt; George G. Battle, for people.
   O’Brien, J.

The defendant, a Pole,- who, at the time of his arrest, was 29 years of age, was employed by one Samuel Etreich as a canvasser for crayon pictures. On October 2, 1893, he called at the apartments of complainant, one Mrs. Foster, and endeavored to obtain an order from her for a crayon picture. She stated “ that she did not want anything more to do with picture people; that they were frauds.” Instead, however, of permitting him to go, she continued the conversation about the picture business, and finally invited him into the sitting room, to show him some pictures which she had bought from some other firm, and for which she claimed she had been charged an excessive price. This was between 10 and 11 o'clock in the morning. She testified that her watch was on the mantelpiece, where she had placed it, after winding it, about 15 minutes before the defendant came in. While he was in the sitting room, she left to go into the dining room, to get her receipt, to show defendant how she had been, as she claimed, defrauded on the pictures she had previously bought; and, after remaining out five or ten minutes, she returned, with the statement that she could not find the receipt; and then, after some further conversation, in which the defendant urged her to purchase a frame, he left the apartments, after giving her his address. Some five minutes after-wards the complainant claims to have missed the watch, and two days thereafter she caused the defendant’s arrest, upon the charge of stealing it. The complainant said she did not see defendant take the watch, but testified that no other person, between the ,, time when she wound the watch and placed it on the mantelpiece and the time when she missed it, had entered her apartments, and that no other person, therefore, had an opportunity to take it. The defendant denied that he had seen or taken the watch, or that he knew anything about it; and, in addition, he produced two witnesses who testified as to his good character. The jury found a verdict of guilty; and the sole question presented is whether, upon this evidence, the motion made on behalf of the defendant, that the court advise the jury to acquit him, upon the ground that the evidence was insufficient, should not have been granted.

Although, under certain systems of jurisprudence, a conviction could not be had where the testimony of the complainant is directly contradicted and offset by the testimony of a defendant, this rule has never prevailed at common law, which permits a conviction, in the face of a denial of guilt by the accused, on the testimony of a single witness. Where the testimony is direct, this rule is not likely to work injustice, because there will always arise or be present circumstances which will be corroborative of such witness. Thus, if, in this case, the complainant had seen the defendant take, the watch, she would naturally have made some outcry, or taken some action which would have brought about the immediate apprehension of the prisoner; and this would result either in showing that, with the consciousness of guilt, and to avoid arrest, the defendant fled, or, if he remained, in finding the property in his possession. In the instance cited, the chances of error or injustice being done, or of one being wrongfully accused, would be slight. Where, however, the evidence, as here, is purely circumstantial, depending, at best, upon an opportunity to take the watch, assuming it was, as stated by complainant, on the mantelpiece, little or no chance is given to one accused of demonstrating his innocence, except, as was done in this case, by denial of the accusation, and by presenting evidence of good character, which, in such a case, is entitled to considerable weight. It may be that the complainant was positive of the time when she last saw the watch prior to the defendant entering her apartments, and she may be quite certain about the fact of winding it 15 minutes before he entered; and still we know that the memory is fallible, and mistakes as to the placing of articles in one place rather than in another, or in assuming with respect to an object we are accustomed to see daily that, at a particular time, we saw it in a particular place are not infrequent. That it was possible for the complainant to be mistaken about the placing of articles is shown by the fact of her unsuccessful search for the receipt in the dining room. As against the circumstantial evidence, therefore, in this case, we have the fact that the defendant lawfully, and upon the invitation of the complainant, entered her apartments ; and his conduct therein, 'and his leaving his address, when departing, are slight facts weighing in his favor. With these in mind, we have, then, the circumstantial evidence of the complainant, offset by the positive denial of the defendant, which is supplemented by the proof of two witnesses as to his good character and honesty; and yet, without any proof as to her standing or character, (which, however, is presumptively all right,) the complainant is permitted, on her uncorroborated statement to secure the conviction of the defendant.

When we recall the presumption, that the law always indulges in as to the innocence of one accused, the necessity of establishing the guilt of a prisoner beyond a reasonable doubt, and the force and effect which, in a pase of this kind, should have been given to evidence of good character, we think it would have been a proper exercise of-the power vested in the trial court to have advised the acquittal of the prisoner, upon the ground that the evidence was insufficient. Assuming the defendant was innocent, we fajl to see how he could háve met the charge in any other way than by the evidence that was presented ; nor are we able to find a single incriminating circumstance in his manner of entering or leaving the apartments, or in his subsequent conduct, which corroborates the complainant’s story. At the time the watch is said to have been stolen, the prisoner was engaged in honestly earning a living, and, prior to the charge made, had never been guilty of any crime, and his character for honesty was supported by those by whom, he had been employed, one of whom had known him from boyhood. • In our opinion, it would be destroying the presumption which arises in favor of the innocence of the accused, and permitting the subversion of- the rule which requires the establishment of guilt beyond a reasonable doubt, to allow this conviction to stand. It is the province of this court to order a new trial, if satisfied that the verdict against the prisoner was against the weight of evidence or against the law, or that justice requires a new trial, whether exceptions shall have been taken or not in the court below, (Code Cr. Proc. § 527 ;) and we think that in this case an instance is preM sented where the danger of mistake and injustice requires that, upon testimony so slight and insufficient as was here given to support the charge, the prisoner should have another opportunity to vindicate his innocence, or the complainant to produce stronger evidence of his guilt.

The judgment, therefore, should be reversed, and a new trial ordered.

All concur.


text:
    James Shields, Resp’t, v. John Bush et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)
    Replevin—Sale.
    On the sale of a cab in exchange for an old one and balance in notes, with reservation of title until such notes are paid, the vendor cannot, upon injury to the old cab, seize and sell the new cab against the vendee’s protest, after the payment of said notes.

      Appeal from a judgment entered on’ a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      George S. Hastings, for app'lts; Henry T. Terry, for resp’t.
   O’Brien, J.

The action was brought for the recovery of a hansom cab, of the alleged value of $400, or the value thereof in case delivery could not be had. The plaintiff had arranged for the purchase of the carriage in question from a carriage manufacturer doing business under the name of M. Armstrong & Co., and by the terms of the contract was to pay the sum of $600. In part payment plaintiff gave Armstrong & Co. a bill of sale of an old cab which he owned, at an agreed valuation of $260, and, in addition, gave notes to the amount of $340. These were in the sum of $25 each, and payable from month to month; spread over a period of fourteen months. Plaintiff took from Armstrong & Go. a bill of sale of the new cab, which by its terms provided that this should remain the property of Armstrong & Co. until the notes were paid. It is conceded that plaintiff paid in cash the sum of $361-55,which was equal to the $340 covered by the notes, with interest for deferred payments. It appeared upon the trial that the old cab, which by the bill of sale was to be subject to the order of Armstrong & Co., remained with the plaintiff, and was not delivered, because not called for, until after it was accidently broken by a person who, wishing to purchase it, had taken it from the stable. Though repaired at the plaintiff’s expense, the defendants refused to receive it; and the real question in this case grew out of the dispute between the parties as to what action was to be taken in view of the claim of Armstrong & Co. that the injury to the old carriage had lessened its value. Armstrong & Co. claimed that in this situation of affairs, upon their refusal to take possession of the old cab, anew agreement or arrangement was entered into1 between that firm and the plaintiff, by which plaintiff agreed to keep the old cab and pay the $260, the amount agreed upon as its value; and that in the mean time the payments made by plaintiff would be applicable to reducing this indebtedness, deferring the payment of the notes until this amount was paid, subject to Armstrong’ & Co.’s right to take the new hansom and sell it if plaintiff should not pay the notes. Plaintiff denied the making of any such agreement, and insisted that the payments were made upon the notes, and not to cover the price allowed for the old cab. The questions as to whether any such agreement was made, andas to the rule relating to the appropriation of payments, were fully and clearly presented by the trial judge in his charge, to which no exception was taken; the only exceptions in the case being to the refusal of defendant’s motion to dismiss the complaint, and the denial of the motion to set aside the verdict and for a new trial. The question whether any new or substituted agreement was made between the parties was properly, upon conflicting evidence, presented to the jury, and the refusal to dismiss the complaint was therefore correct. The burden was upon the defendants of showing such new agreement; and it is conceded that, unless it was proven, the defendants had unlawfully wrested the new hansom, which plaintiff had purchased and fully paid for, from his possession. Under the original agreement, Armstrong & Co. were vested with the title to the old cab, and such title was not affected by their failure to take actual possession thereof. If, before they took such actual possession, it was injured through plaintiff’s fault, their remedy would be for damages—and not by seizing the new cab and selling it—against the protest of plaintiff, who, by the terms of the bill of sale, became the owner upon tne payment of his notes. The jury having resolved this conflict in plaintiff’s favor, we see no reason for interfering with their conclusion.

The only serious question presented upon this appeal is as to the amount fixed as the value of the new cab, in the absence of any very certain or definite testimony as to its value at the time of seizure. Upon this question of value it was-shown that the cab was purchased from Armstrong & Co., under whom defendants' acted, for $600, and that this was about $50 less than its original price ; that it was almost new when purchased by plaintiff, who thereafter spent $25 in improving it; that it had but ordinary use, had met with no accident, and, though 20 months had elapsed between the date of the purchase and the time of seizure, it was in good repair when taken from plaintiff, who statqd that it was substantially as good as when he bought it. On the other hand, it was shown that the cab, when sold at auction after seizure, realized only $120. The jury fixed the value at $340. Al- ■ though we think the evidence in support of the value fixed by the jury was slight, still is not so insufficient that the verdict can be regarded as excessive, or without some basis of support. The history of the carriage, its use, and its condition, were before the jury; and, considering the evidence given by the plaintiff as to value, and the knowledge which ordinarily is possessed by jurymen about carriages, we do not think that, where the plaintiff has presented the best evidence which was in his possession, we should disturb their verdict.

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

All concur.


author: Van Brunt, P. J.

text:
    John Schween, Pl’ff, v. Mendel W. Greenberg, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Vendob and pubckaseb—Title.
    Where, owing to the failure to make the children and grandchildren of a living daughter of the devisor of the premises parties to a partition suit, the vendor’s title is not so free from reasonable doubt as to be marketable, he cannot compel a vendee to accept such title.
    -Controversy submitted on an agreed statement of facts.

      S. Campbell, for pl’ff; M Mandel, for def’t.
   Van Brunt, P. J.

David Sherwood, in March, 1843, died seized of the premises in question, leaving a last will and testament, which was duly admitted to probate in the surrogate’s court of the county of New York. By this will he devised the premises in question to his son "William, for life, and after his death to his children equally, their heirs and assigns, forever, and then provided :

‘Item. In the event of any or either of my said sons or daughters departing this life without leaving lawful issue him or her surviving, I do hereby order and direct that the said estate hereby given and bequeathed to such son or daughter so dying without lawful issue shall thereupon become the property of, and I do hereby give, devise and bequeath the same to, such of my said sons and daughters as may then be living, and to the lawful issues of such of them as may be deceased ; it being my will and intention that my said sons and daughters should take and hold their shares and proportions of the estate in this article of my will mentioned for and during their natural lives, and upon their, or any or either of their, decease, the same shall descend to and be had, shared and divided by and between his or her lawful issue in equal proportions, share and share alike, and their heirs and assigns forever.”

At his death David Sherwood left him surviving his widow, who •died many years ago, and six children, all of whom died prior to William, except Clarissa Ann McCoy. Those who had died prior to William all left issue. Clarissa A. McCoy is still living, and had, at the death of William, three living children and one grand child, the son of a deceased daughter. In July, 1879, William Sherwood died intestate, unmarried and without issue. In August, 1873, a suit in partition in this court was commenced by W. H. H. Sherwood, the son of Samuel J. Sherwood, and grandson of said testator, David Sherwood, against Susan A. Sherwood, widow of Samuel J. Sherwood, and others, which went to judgment and sale, and on the 18th of May, 1881, said property was sold under said judgment to the plaintiff, who took a deed thereof on or about the 23d of July, 1881, and went into possession, and has ever since remained in undisturbed possession thereof. Clarissa A. McCoy was made a party 'defendant to said ppartition suit, and duly appeared therein, but neither her children nor the grandchild were made parties. All other persons having an interest in said property were made parties, and were served or appeared. On the 16th of August, 1892, the plaintiff entered into a contract whereby he agreed to convey the land in question .to the defendant. The defendant refused to take, upon the ground that the children and grandchild of Clarissa A. McCoy were necessary parties to the partition suit, and the question is whether the plaintiff can give a marketable title, and one free from reasonable doubt. There would be no question in regard to the construction to be placed upon this will had it not been for the statement contained- in the devise over by the testator that it was his will and intention that his said sons and daughters should take and hold their shares of his estate in this article mentioned for and during their natural life, and -upon their or either of their decease the same shall be had, shared and divided by and between his and her lawful issue, share and share alike, and their heirs and assigns, forever. Here is the expressed will of the testator that, in case all his, sons and daughters shall die without issue, their share-shall go to the surviving sons and daughters, which they shall hold for and during their natural lives, and then follows a devise-over to their issue. It spems to have been the intention of the testator, as above observed, to give only a life estate to the surviving sons and daughters; and the claim urged upon the part of the plaintiff that where the testator in the devise over made use of the term “ estate ” he meant the “ property” does not seem to render the-construction less certain. We do not think that the construction, claimed by the plaintiff' is so free from reasonable doubt that the title which he proposes to give can be said to be a. marketable one. Kilpatrick v. Barron, 125 N. Y. 751; 36 St. Rep., 15. The defendant should have judgment, with costs.

All concur.


author: Per Curiam.

text:
    Daniel H. Donovan, Pl’ff, v. Margaret Clark, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Appeal—Undertaking—Form.
    Where the undertaking on appeal to secure the costs and damages is joint and several, the undertaking to secure the payment of, the judgment, though joint in form, will he held to he joint and several. ‘
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.

      John I). Kernan, for pl’ff; L. Laflin Kellogg, for deft.
   Per Curiam.

This action was brought to recover upon an undertaking given on appeal pursuant to §§ 1326, 1327 and 1334 of the Code of Civil Procedure. It is conceded that the undertaking to secure the costs was joint and several, but the question is whether that part of the undertaking given to- secure the payment of the judgment was joint or joint and several. In the part-of the undertaking whicli relates to the payments of costs and damages, it is provided that the principals “ do jointly and severally, pursuant to the statute in such case made and provided, undertake,” etc. And the clause relating to the payment provides: “And do also undertake that, if the judgment so appealed from, or any part thereof, is affirmed,” etc. We think this undertaking is joint and several in both of its parts and the words, “ and do alsd undertake,” undoubtedly refer to the character of the obligation entered into by the sureties. This construction is enforced, not only from the position of the words quoted in the undertaking itself, but also by the evident intent to give an undertaking , pursuant to the statute, which required that the undertaking should be joint and several; and the presumption must be indulged in that the parties intended to give such an undertaking as the statute requires. Again, the plea in abatement is not sufficient in law. It is not averred that the co-obligor is living,, and within the jurisdiction of the court. Exceptions overruled and judgment ordered on verdict, with costs.


text:
    Anderson Price, Resp’t, v. Mary Yost Wood, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Mortgage—Security—Interest clause.
    Where an indemnity mortgage is given to secure future advances and services, it is not the intent of the parties that the usual interest clause therein should ever become operative.
    Appeal from a judgment in favor of plaintiff.

      E. E. Baldwin, for app’lt; Anderson Price, in pro. per.
   Van Brunt, P. J.

In October, 1892, the defendant, being embarrassed for money to meet certain obligations, employed the plaintiff, who was an attorney and counsellor, as her attorney and agent, and an agreement was entered into between them, bearing date October 22, 1892, which, after reciting the execution of her bond and mortgage in the sum of $11,000, and the conveyance as further collateral security of certain lots in 129th street, provided that the agreement was to declare the intention and purpose for which said mortgage was executed, to wit, that the Cranston West Point Hotel Company had become liable for the payment of certain debts and incumbrances mentioned in a schedule attached to said agreement, and for some of which defendant had become liable, etc., and that it was the desire and intention of the defendant to secure the services of the plaintiff in the payment, reduction, settlement and adjustment of said debts, in which the plaintiff was to use his best judgment, and the defendant, to and by further indorsements, etc. By the said agreement the defendant then agreed that the proper charges for the services of the plaintiff, in addition to all payments made by him in settlement, etc., of debts, shall be allowed as part of the sum of $11,000, for which said mortgage was given, and also all other expenses. The agreement then provides that the plaintiff shall keep an account of all said services, payments and expenses, and which said account shall be rendered to the defendant on demand, and all payments and services and expenses shall draw interest from the date rendered, ■ made and incurred and shall constitute, and be a part of the sum of $11,000, for the securing of which the said mortgage was given. The agreement then provides that plaintiff may refuse to make any further advances in case the condition of affairs of the company renders it imprudent, notice of which was to be given to defendant in writing ; and that, in case the defendant desires to secure other sums than the amount represented in said mortgage, other and additional security should bé furnished by defendant. Annexed to said agreement was a schedule of liabilities. The defendant, pursuant to the provisions of said agreement, and simultaneously with its execution, executed to the plaintiff the bond and mortgage mentioned in the complaint to secure $11,000 with semi-annual interest, bearing date October 22, 1892, and payable October 22, 1893, with an interest cause providing that, in case semi-annual interest remains unpaid for thirty days, the whole principal sum’ should become due and payable. This bond and mortgage was-executed to secure future advances and services; no part of the consideration being advanced by the plaintiff at or before the execution thereof. Before the execution of the bond .and mortgage, the defendant objected to the interest clause therein, because it did not comply with the agreement and thereupon the plaintiff assured the defendant that interest would accrue and would be computed according to the agreement, and that the interest clause was merely formal, and that the terms of the agreement should control; and, relying upon such representations, the defendant executed said bond and mortgage. The plaintiff subsequently made advances and performed services under the agreement, and also in respect to matters outside of the agreement. Upon four separate occasions between February 1 and April 20, 1893, the defendant demanded of plaintiff an itemized account of his advances made and services rendered; and in the latter part of March, 1893, the defendant requested the plaintiff to furnish her with an itemized account of his services, disbursements and interest; and again on May 8d, up to which time the plaintiff was acting as agent and attorney of the defendant; and the referee has failed to find that any such' account was rendered, and the evidence shows that it was not. The plaintiff furnished statements of amounts paid, not simply payments made under the agreement, but including others, and no account whatever as to services rendered until May 2, 1893, when he rendered a bill for nearly $10,<000. The defendant, not having tendered any interest on the 22d day of April, 1893, on May 23d this action of foreclosure was commenced, the plaintiff claiming the sum of $8,750, with interest from October 22, 1892, the.date of the mortgage, to lie due thereon. The defendant answered, and, a reference being had, the referee reported in favor of the plaintiff for $7,575.30 advances, with interest to be added, and $1,500 as value of services, and gave judgment of foreclosure and sale, and from such judgment this appeal is taken.

It is to be borne in mind, in the determination of the rights of the parties to this litigation, that the relation of attorney and client existed between the plaintiff and defendant at the time of the execution of these papers, and that, therefore, the transactions of the plaintiff with the defendant are to be scrutinized. It appears that the bond and mortgage in suit and the agreement were executed at one and the same time, and that they are to be read together, and, unless the plaintiff has performed all his obligations under the agreement, he cannot enforce the obligation of the bond and mortgagé. It further appears that the defendant, before executing the bond and mortgage, objected to this interest clause, and only executed it relying upon the representations of the plaintiff, her counsel, that the clause was merely formal, and that the terms of .the agreement must control. Under these circumstances, how is it possible for the plaintiff to establish a forfeiture for- the failure to comply with this merely formal provision ? There was nothing in the agreement about forfeiture. There was nothing in the > agreement by which the amount secured by the bond and mortgage could be augmented by interest, and it clearly shows that the $11,000 was a lump sum, in which was to be included the interest upon advances, services, etc. There is nothing in the agreement to which the interest clause in the bond and mortgage could possibly attach until the amounts secured were liquidated. Furthermore, the plaintiff, in the agreement, upon demand, agreed to render to the defendant an account of services, payments and expenses, and it appears that, although frequently demanded, no such account was ever pretended to be rendered until May 2, 1893 ; and even then the account contained items not chargeable to the bond and mortgage, and a charge of nearly $10,000 for services, which services as chargeable against this mortgage, the referee found to be worth $1,500 ¡ and this was also after the plaintiff claims that the defendant was in default for nonpayment of interest. It is difficult to see how the defendant could be in default for nonpayment of interest when the amount due had not been liquidated, and when a charge for services is made against her many times greater than their value. The fact is that at the time of the execution of this bond and mortgage neither party supposed that any liability would or could arise from that interest clause until the amounts under the agreement had been liquidated. The rights of the parties rested upon the agreement, and the bond and mortgage were held as security for what should be due under the agreement. There is no provision for any payment whatever by the agreement, and it probably was never expected that it would be necessary for the plaintiff to resort to the bond and mortgage for payments of the amounts due under the agreement They were taken simply to insure the plaintiff from final loss in case other sources of .payment should fail. It is undoubtedly true that the plaintiff advanced moneys far beyond what he was called upon to do by the agreement, but these friendly acts on his part cannot enlarge the plain intent and meaning of the agreement and bond and mortgage now under consideration. We are of opinion that it was not the intent of the parties that the interest clause in the bond and mortgage should ever become operative ; that there being no means of determining what amount of interest should be at any time due and payable, the parties intended to be governed • by the agreement, and that the bond and mortgage should only be enforced after its due date, and in case other means of payment were not provided. The judgment appealed from must, therefore, be reversed, and a new trial had before a referee to be appointed in the order to be entered thereon, with costs to the appellant to abide the event.

All concur.


text:
    John T. Elliot, as Administrator, etc., App’lt, v. Mutual Benefit Life Association of America, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    1. Evidence—Life insurance.
    Where, in an action on a life policy, a defense of false statement as to declination of application is interposed, an application by the insured to another company, indorsed “declined” by its medical director, is admissible if shown to he a rejection.

      3. Insurance—Life—Warranty.
    An untrue statement, if warranted in the application to be true, is a ' breach of warranty, whether or not the insured knew that it. was untrue.
    3. Same—Limitation.
    An effort by plaintiff, within a year before suit, to effect a compromise does not alone amount to a waiver by the company of the contract limitation of action,
    Appeal from a judgment dismissing the complaint.

      Henry G. Atwater, for app’lt; K T. Lovait, for resp’t.
   O’Brien, J.

The action was brought to recover on a policy of insurance for $5,000, delivered by defendant to one Charles C. Blummer on August 1, 1887, and assigned to one Charles H. Elliot. Blummer died January 8, 1890, and Elliot-on June 9, 1891, and thereafter letters of administration were taken out by the appellant. - The defenses to the action were that the defeádant was imposed upon by Blummer by the suppression of facts which he should have divulged, and by false and fraudulent statements and misrepresentations, which constituted breaches of warranty, and that the claim was barred by a special contract limitation of one'year. The policy provided that “if any misrepresentations, or fraudulent or untrue answers or statements, shall have been made, or if any facts which should have been stated to the association have been suppressed, * * * then this agreement shall become null and voidand in the written statement made to the medical examiners the assured warranted the answers made by him to be true. In his application the assured stated that no company had ever declined to grant insurance on his life; and, insupport of the view that this was a false statement, an application made by the assured in 1883 to the Equitable Life Assurance Society was produced and offered in evidence, which showed that it had been declined by that company! In laying the foundation for this testimony, the defense called the doctor who made the examination of Blummer, and he testified that, having concluded that it was a-doubtful risk he declined to recommend that a policy be issued, placing his declination on the application, and forwarded it to the Equitable Company in New York. In addition to the medical examiner, two other doctors, employed by or connected with the Equitable Company, were examined, one of whom testified that before the report was sent to the home office he signed his name to it, apd the other that, after being received at1¡he home office, he indorsed upon it, “ Declined by examiner,” over his initials. And to show what action was taken by the company, this witness further said that the report, with these indorsements,' was in the nature of a, recommendation by the medical director to the executive officers not to issue the policy. “ From us it goes to the executive department, and from there it goes to the executive officers, who would give the final transmission to the company, that of Dr. George W. Phillips.” And, in response to the question whether it was Dr. Phillips’ action that made the rejection, he answered, “ Yes.” Thereupon the paper was offered in evidence. The defendant then offered in evidence a memorandum made by Dr. Phillips on the application, stating that the application was declined, the indorsement being in these words: “ Declined by Ex. G-. W. P.” . . . ’

. . . The objection to this paper being received with the memorandum of Dr. Phillips upon it was that it was the declaration of a third party, and it is now insisted that the failure to call Dr. Phillips, and prove what his action was, was fatal to the admissibility of the paper ; the argument being based upon the rule that a mere memorandum is not evidence against third parties, except when made in the regular course of business, and when it is shown that the party who made it is dead. In this argument, however, the counsel overlooks the fact that it was not sought to show what action had been taken by Dr. Phillips, but rather what was the action of the company ; and, there being no objection taken, and no point made but that the indorsement was in the handwriting of Dr. Phillips on the original application, the question is presented whether this is competent evidence of the action of the company. If such action had been by a resolution of the board of directors, upon proving the authenticity of such resolution by the minutes of the company, a proper foundation would have been laid for the admission of the minutes in evidence to prove the action of the company. We-think the same principle is applicable where, as here, the action of the company is to be determined, not by reference to resolutions in its minutes, but by what was done by the person authorized to state the company’s action. As shown, the person upon whom this office and duty devolved was Dr. Phillips ; and there would be as much force in the suggestion that, after the minutes of a board had been properly proved, before they would be admissible it would be necessary in all cases to produce the secretary who wrote them, as in this case to insist that before the action of the company could be shown it would be necessary to call Dr. -Phillips, who was acting for the company, and whose memorandum was made, not for himself, but for the company, as evidence of the action it had taken.

The other argument against the force to be given to this evidence — that, although the application was declined, there was no proof . that such declination was known to the assured—we regard as equally unsound. It is true, as suggested by the appellant, that t.he verb “ decline” has two meanings; but in its ordinary acceptation it meant j ust what it said, in connection with the language used in the question, and which could not have been misunderstood by the assured. It required him to state whether he had made any previous application to another company, and whether such application had or had not been declined. Having warranted his answer, whether he knew or not was immaterial, because by reason of such warranty he was bound to know whether it was true or not; and having taken the risk of that, even though he had no actual knowledge, and no proof was offered to show that it was a willful falsehood, it was sufficient for the defendant to show as a inatter of fact that the answer was false. He had applied in August, 1883, for p policy in the Equitable Life, and when he made his application to the respondent four years later, in 1887, he knew that none had been granted ; and yet he warranted the answer which he made, that.an application had not been made by him to any other company and declined.

The assured also stated-that he was not addicted with any. disease or disorder; that he had not had any serious illness, local disorder, or personal injury, tending to shorten life ; that he had never had dizziness, or disease of the bladder or urinary organs. He was asked to give the name and residence of his usual medical attendant, and he stated that he had not consulted one. To show that these statements were not true, the uncontradicted evidence given by Dr. Baldwin,who examined Blummer in 1883, was that upon an examination of the urine of the assured he found it contained sugar, from which he concluded that it indicated diabetes ; and, in addition, the son of the assured in his testimony says that he heard his father speak of the fact of having trouble with his kidneys, and that he was accustomed, prior to his death, to use test tubes for the purpose of ascertaining about his kidney trouble or urinary trouble, and that he had, at different times before his death, at least three physicians who attended him for a number of years and up to his last illness. The plaintiff presented no evidence to destroy the force and effect of this testimony, and therefore there was no conflict which required that the learned trial judge should submit the question to the jury.

In addition to the defenses thus considered, there is another, which we regard as equally fatal to the plaintiff’s right to recover upon the evidence as it stood, and which justified the dismissal of the complaint. The policy provided that the by-laws and regulations of the association were to be considered as part of the contract between the assurer and the assured. These contained the provision that, in any suit upon a certificate of membership or claim thereunder, after the expiration of one year next after the death of a member, the lapse of time should be taken and deemed conclusive evidence against the validity of the claim thereby so attempted to be enforced, any statute of limitations of any state or government to the contrary notwithstanding. It appears, therefore, from the date already given of the death of Blummer, and the time when the action commenced, that this suit was not brought within a year ; and, under the authorities which permit the parties by contract to fix a different statute of limitations from that provided by law, this was fatal to a recovery, unless there was some evidence in the case sufficient to submit to the jury tending to show that the defendant had waived this condition. For that purpose we have examined the record but find no such evidence. It does appear that those representing the plaintiff endeavored, within the year prior to the beginning of the suit, to effect a compromise, but there was nothing done by the association which could be construed into a waiver of its right to insist upon the condition as to the time of bringing the suit. It is claimed, however, that the proof offered by the by-laws was not conclusive,-for the reason that, although by-laws of the defendant which contained this provision were offered in evidence, it was not shown that they were the by-laws which were in existence at the time the policy or certificate of membership was taken out The answer to this, how ever, we think, is to be found in the fact that, in the' first place," the bill of particulars calls attention to this by-law of the defendant as contained in the contract between the parties, and stated that it was adopted January 12, 1885, and that a copy of the same was attached and incorporated and made apart of the bill of particulars. In this state of the pleadings, the counsel for defendant offered the by-laws in evidence, and they were admitted and marked as an exhibit, without any objection being taken thereto, and without the point now sought to be availed of having been made. In the bill of particulars referred to, it was stated that “ the said by law is evidenced by the minutes, and the book in which the same are kept, of the defendantand, in the absence of any objection, we are to assume that the minutes and the book in which they are kept were the testimony offered, and that the extract, which is one of the exhibits in the case, was taken therefrom. We cannot assume for the purpose of interfering with the judgment, and in the absence of any objection or exception, that incompetent proof of such by-laws was offered; but we think, in view of what is' stated in the bill of particulars, that the reasonable and fair inference to be drawn from the manner in which the by-laws were admitted is that they were properly proven, and by competent evidence were shown to be the by-laws in force at the time the policy was taken out by the assured.

We think that, upon any of the grounds to which' we have referred, the ruling of the trial judge was right, and that, upon the whole case, the judgment should be affirmed, with costs.

Parker, J., concurs; Van Brunt, P. J., concurs in result,


text:
    Louise Meise, Resp’t, v. Harry Newman, Impleaded, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February, 16, 1894.)

    1. Bills and notes—Protest. '
    To hold the indorser, demand must he made and indorser notified of maker’s failure to pay.
    2. Evidence—Bills and notes—Notary’s certificate.
    In absence of compliance with § 923 of Code, notary’s certificate is presumptive evidence of facts certified.
    3. Same.
    Such presumption may be rebutted.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      J. H. Hull, for app’lts; J. J. Flammer, for resp’t.
   Van Brunt, P. J.

This action was brought to recover upon a promissory note alleged to have been made by a firm doing business in the city of Brooklyn under the name of Doscher &Co., and indorsed by the defendant and appellant, Newman. The complaint alleged presentation of the note when due, and protest and notice to the appellant. . The answer set up a general denial. Upon the trial the note was proved, and evidence was given as to protest and the circumstances of the indorsement; and the question as to whether the appellant had indorsed the note to give credit to the same was submitted to the jury, who found a verdict in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

Upon the termination' of the plaintiff’s case, the defendant’s counsel moved to dismiss on the ground, among others, that there was no proof of presentment. This was the only question reserved for consideration upon the argument of this appeal. We think this objection is fatal to the judgment. It is undoubtedly true ¿hat a bill of exchange or promissory note made and payable in this state is not required to be protested, in order to hold the indorser. All that is necessary is that a demand should be made, and the indorser notified of the failure of the maker to pay. But it is absolutely necessary that such demand should be made, and notice given, in order that the indorser may be held. It is also true that, by § 923 of the Code, it is provided that unless a defendant alleged to have been an indorser upon a promissory note, with his answer, or within 10 days after the service of the same, serves an original affidavit to the effect that he has not received notice of nonacceptance or of nonpayment of the bill or note, the certificate of a notary public of the state, under his hand and seal of office, of the presentment by him for acceptance or payment or of the protest for non acceptance, or nonpayment, or of the service of notice thereof on a party to the note or bill, specifying the mode of giving the notice, and the reputed place of residence of the party to whom it was given, and the post office nearest thereto, is presumptive evidence of the facts certified. But such certificate is only presumptive evidence, and although the certificate of the notary was offered in evidence in regard to this note,—that it was duly presented for payment, which was duly demanded and refused,—yet, upon an examination of the notary, it appeared that such presentment had not been made by him, and that he had no personal knowledge of its having been presented. He was told that it had been presented, and then protested the note and mailed notices. This was clearly insufficient. It showed that he had no knowledge of the verity*of this certificate, and the presumption of its accuracy was rebutted. We think this difficulty is fatal to the judgment, and that it must be reversed, and a new trial granted, with costs to appellant to abide the event.

All concur.


author: Pratt, J. Dykman, J.,

text:
    Thomas J. Burke, as Overseer, etc., Resp’t, v. Peter Burpo, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Bastardy—Weight op evidence.
    An order oí filiation will fie reversed, where the testimony of the complainant is contradictory, unreasonable and not corroborated, in any particular, by a disinterested witness.
    Appeal from an order of the court of sessions affirming an order of filiation and maintenance against defendant, made by two magistrates of the town.

      Stephen J. Stilwell, for app’lt; Michael J. Tierney, for resp’t.
   Pratt, J.

This is a bastardy proceeding brought by appeal from the judgment and order of the court of sessions of Westchester county affirming an order of filiation and maintenance made against the defendant by two magistrates of the town of New Rochelle. The child in controversy was born on the 8th of January, 1893. Assuming the child was carried the full time, which is 280 days (as to which there is no proof to the contrary), conception must have taken place on the 3d or 4th of April, 1892. The girl, mother of the child, fixes the time of the intercourse in the first part of April, 1892 ; says it was about the second week in April, the first time it took place, the second time a couple of weeks later, and the third time about five weeks after the second time. It is undoubtedly true that the intercourse which made her pregnant took place in the first week in April. She also testifies positively it was not on a Sunday nor a rainy day. The latter we might also reasonably assume, as she says it took place in an open lot upon the ground. To meet this serious charge, the defendant positively swears it is not true, and produces a witness for whom lie worked every day, except Sundays and rainy days, from morning until night, from the 23d of March until the 16tli of April, 1892. There could be no mistake about this testimony, as the witness produced his time book, upon which he paid the defendant his wages. The same witness also says he went for the defendant in the morning at 7 o’clock, and took him to his work. The girl fixes the time of day, each time, as between 9 and 10 o’clock in the forenoon. It is clear that this testimony cannot be true. The girl tells two very different stories about the connection. In the court of sessions she says it took place each time at the same place, and about the same time of day, while in her complaint to the magistrate she says “that when she went to the woods back of father’s house for anything, he would follow her, and force connection with him.” In the same complaint she claimed force was used, but it is apparent from her own story that no force was ever used. This may not be very material, except to throw light upon the manner in which the charge was} made up and maintained. It is plain from her own story that she is a weak-minded girl, easily influenced by others, and a fit subject to be made the dupe of any designing person. The testimony of the girl, while contradictory and unreasonable, can not be said to be corroborated in any particular by a disinterested witness. The father and mother testify to nothing material which is not emphatically denied by defendant, and the father is contradicted by Mrs. Archer, an entirely disinterested witness. It is not at all reasonable that on four different occasions, in broad daylight, the girl met and had intercourse with the defendant in open lots and lanes, in plain view of several houses, and no one ever saw them together; besides, the fear of detection would have selected some other time and place for such a meeting. There seems to be some discrepancy about the age of the girl. The parents seem desirous of making her as young as possible, but the census clerk had her age rendered as twenty years old. Here is a girl, weak minded, allowed to stroll about .at will, in the habit of going berrying and walking about the fields, going to the store evenings, living in a thickly-settled neighborhood, who, according to her own story, was so complaisant as to permit an old man to have connection with her for the first time in her life. Such a detail is incredible. But against this is the oath and character and blameless life of an old man who for forty years had lived in the same community without reproach. It is difficult to give credence to this girl’s story that the first time in her life she yielded to the defendant’s embraces without any inducement whatever, or that she was so ignorant as not to know what he was doing. The charge is one so easily made, and difficult to defend against, that the courts ought to be sedulous to examine the testimony carefully before finding a defendant guilty. We are not satisfied that the evidence in this case warrants the conviction.

Order reversed.

Culler, J., concurs.

Dykman, J.,

(concurring.)-This is a proceeding in bastardy, instituted by one of the o'verseers of the poor of the town of New Rochelle. After the hearing before two justices of the peace, the defendant was declared to be the father of the bastard child, and an order of affiliation was made against him. From that order the defendant appealed to the court of sessions of Westchester county, where the order was affirmed by a divided court, the county judge being in favor of reversal. Now the defendant has appealed to this court.

Before any testimony was taken upon the trial in the court of sessions, the defendant’s attorney moved to dismiss the case on the ground that the town of New Rochelle does not support its own poor, and the proceeding is brought and prosecuted, without proper authority, by one overseer of the poor of said town. Upon that motion the decision was reversed. But the motion should have been granted. When there are two or more town officers of the same kind, they constitute a board, and they can adopt' no measures, or institute any proceedings, requiring the exercise of judgment or discretion, except when duly convened and acting as a board. There can be no delegation of official power, and whether a public prosecution shall be instituted, or an application shall be made to a judge or justice of the peace, in a given case, requires the exercise of judgment and discretion, which can only he exercised by the board when regularly convened and -acting as such. People v. Davis, 15 Hun, 211; Powell v. Tuttle, 3 N. Y. 401. Special authority must be pursued strictly. “ The rule seems to be well established that in the exercise of a public, as' well as a private, authority, whether it be ministerial or judicial, all the persons to whom it is committed must confer and act together, unless,there be a provision that a less number may proceed.” Downing v. Rugar, 21 Wend. 178. Such being the rule of law, the justice who issued the warrant for the arrest of the defendant acted without jurisdiction, because no proper application was made to him to authorize him to act. People v. Davis, supra.

The order must therefore be reversed, the proceedings dismissed, and the defendant discharged.


author: Pratt, J.

text:
    The People, App’lt, v. Patrick J. Gleason, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Criminal Law—Indictment.
    An indictment for auditing a false claim against a city is defective, if it fails to state that it was the duty of defendant to audit such bills.
    Appeal from an order sustaining a demurrer to the indictment.

      John Fleming, Dist. A tty., for people; Francis H. VanVechten, for resp’t.
   Pratt, J.

This is an appeal from an order sustaining a demurrer to an indictment. It is not necessary to notice the motion to dismiss this appeal, as we think the decision below was right upon the merits. The power to purchase neither grants nor implies the power to audit bills against Long Island City, but that power is expressly delegated to and vested in the common council of said city. 1 Laws 1871, p. 904. The indictment is defective in that it fails to state it was the duty of the defendant to audit bills against Long Island City. The object of the statute is to punish for a breach or duty, and, if the person owed no duty, there could be no breach. It is an essential ingredient of the statutory crime that the public officer owed a duty which he violated, and, unless such fact is alleged, the case does not fall within the purview of the statute. The act of 1890, giving the commissioners power to buy, does not repeal all parts of the charter of Long Island City that devolve upon the common council the duty of auditing such bills, as it is not inconsistent therewith ; and even if it did repeal the charter, it would be necessary to allege in an indictment that it was the duty of the defendant to audit, in order to charge a crime. The allegation of power to purchase cannot be construed to mean a duty to audit. There is but-one point in this matter, as the learned district attorney concedes that, if the allegation of power to purchase does not sufficiently allege a duty to audit, then the indictment is bad. We are of opinion it does not.

Order affirmed.

All concur.


author: Pratt, J. Cullen, J.

text:
    Mary L. Van Slooten, Resp’t, v. Charles H. Wheeler, as Executor, etc., App’lt

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Executor, etc—Disputed Claim.
    A claimant, where she, at the request of the executor and his statement that the ring should be inventoried in the estate, handed it to him, may prosecute her claim therefor against him in his representative capacity.

      Appeal from a judgment in favor of the claimánt.

      Hubbard & Rushmore and John D. Pray, for app’lt; Merritt PS. Haviland, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered in favor of the claimant, for the delivery of a ring by defendant, as executor, said judgment having been entered on the report of the referee. This matter has been twice before the general term on appeals from judgments entered on the reports of referees in favor of defendant, and has been twice sent back, the general term reversing the judgments on the facts. There 'can be no question that the findings of fact by the referee are amply sustained by the evidence taken before him, which was práctically the same as was taken before the former referees.

The only question we need to consider is one of law, which is raised by the defendant, to wit, should the claim herein have been made against the defendant personally, and not against him as executor of the estate of the deceased ? The defendant contends that the taking of the ring by him was an individual act on his part, and not an act of his as executor. The defendant executor produced the ring on the trial, and it was one of the findings of fact, which was supported by the evidence, that he had inventoried the ring as an asset of the estate of the deceased. The evidence shows, beyond any question, that the ring was given to claimant by the deceased some two or three weeks before his death, and that she wore it from that time on, and had' it in her possession at the time of, and after, the death of the deceased. Upon the request of the defendant executor, and his statement that the ring should be inventoried in the estate, she handed it to him. There was no proof whatever of any intention on her part to make a gift of this ring to the estate. Merely handing it to him, on his claim that it should be inventoried among the assets of the estate, did not work a transfer of the title. The ring never has belonged to the estate of the deceased, and no harm can be done by the executor delivering it back to the plaintiff. It is undoubtedly true, as defendant contends, that the executor cannot bind his. estate on contract; but.this is not a claim on a contract, nor is it a claim for damages. It is simply a claim, for the restoration of the ring to the claimant. It seems to us that the principle laid down in the case of Wall v. Kellogg's Ex'rs, 16 N. Y. 385, controls this case. So, too, Story, Eq. Jur. § 796; Woodcock v. Bennet, 1 Cow. DeValengin's Adm'rs v. Duffy, 14 Pet. 282 (decided in the supreme court of the United States); Conger v. Atwood, 28 Ohio St. 140; Simpson v. Snyder, 54 Iowa, 568 : and Barry v. Lambert, 98 N. Y. 300—seem also, to us, to sustain the contention of the claimant (respondent). In 2 Williams, Ex’rs, 1509, the following principle is laid down :

“ The plaintiff may, in many cases, have an advantage in proceedings against the assets, rather than against the executor personally. The executor, in his individual capacity, may be insolvent. In his character as executor, he may have assets adequate to answer any claim.. And, when the money is paid to his use, justice seems to require that the person who has made payment should have the liberty of looking to the fund which the executor has, in that character.”

In Steele v. McDowell, 9 Smedes & M. 193, it is held that:

“It is but just and right that the person making payment should have the right to look to the fund which the executor holds, and recover it under an account for money paid to the use of defendant as executor.”

The judgment should be affirmed, with costs.

Dykman, J., concurs.

Cullen, J.

(dissenting).—This is an appeal from a judgment confirming the report of a referee on a reference of a disputed claim against the estate of a deceased person. We are of opinion that the respondent established no valid claim against the deceased and that the judgment cannot stand. The claim of the respondent is that she was the owner of a diamond ring given her by appellant’s testator; that after his decease the appellant obtained the ring from her, refused to return it, and afterwards inventoried it as part of the estate. The judgment is that she recover of the defendant, as executor, the ring, and $641 costs. As stated by the plaintiff, this was simply a personal tort of the defendant, for which, concededly, an action could be maintained against him individually. This is a special proceeding; and the authority for its maintenance and conduct, statutory. Eldred v. Eames, 115 N. Y. 401; 26 St. Rep. 277; Mowry v. Peet, 88 N. Y. 453; Roe v. Boyle, 81 N. Y. 305. The statutory provisions on the subject are 2 Rev. St. pp. 8, 9, §§ 34-39. By § 34, notice is to be published to “ creditors of deceased ” to present “ claims against the deceased ” within a specified time. Section 35 provides that, on a claim being presented against the deceased, the executor may require proof and vouchers. The subsequent sections provide for the reference of disputed claims, and the proceedings thereon. These provisions seem solely to relate to matters that were—or would have been, had he survived—claims against the deceased. This was so held in Godding v. Porter, 17 Abb. Pr. 374, and we can find no reported case where a claim of this character has been the subject of reference under the statute. In Francisco v. Fitch, 25 Barb. 130, cited by respondent, it was held that the object of the statute was to allow a reference of all claims against an estate, whether legal or equitable, which the executor was competent to settle or adjust. But in that case the liability it was sought to enforce arose out of the acts of the testator, not from those of the executor, and the language used must be limited to such claims. In no proper sense of the term did this claim arise out of a transaction with testator. The claimant’s title to the ring came from the testator, but the claim arose from the act of the executor, and the claimant might have proved title proceeding from any other source. If it were conceded that the statutory reference could take cognizance of claims against executors, to the same extent that an action in equity could be maintained, we still think that a case .for an equitable action is not made out. There is no pretense of the insolvency of the defendant, and the judgment is for the recovery of specific property. If the defendant has the property, there seems to be no reason why an action in replevin would not be efficacious. The law is settled in this state that " the contracts of executors cannot increase the liability of the estate. Stanton v. King, (unreported; see 76 N. Y. 585); Ferrin v. Myrich, 41 N. Y. 315; Schmittler v. Simon, 101 N. Y. 554; Cary v. Gregory, 38 N. Y. Super. Ct. 127. A fortiori, the liability cannot be increased by their tort. The case of Wall v. Kellogg’s Ex’rs, 16 N. Y. 385, is to be distinguished. There the testator held the title to land in fact merely as trustee. The executors, under a power of sale contained in a will, sold the lands, and the proceeds went into the estate. Their liability sprang directly from the relations of the testator to his property. The sale was made by them as executgrs; otherwise, they, could have passed no title. So, in De Valengin’s Adm'rs v. Duffy, 14 Pet. 285, the moneys were received by the defendants as executors; and their liability sprang out of the act of their testator, who had presented the claim in his own name, and would have been, as to the proceeds he might receive, a trustee for the plaintiff. In the opinion, the court limited the right to such personal representatives to cases where they had lawfully received moneys in that character.

It is argued that no harm is done the estate by this judgment, as it directs the return of the property in specie. But it also imposes upon the estate costs amounting to several hundred dollars, the propriety of which imposition could properly be determined only when the executor sought indemnity for his expenses from the estate. The judgment should be reversed, and, as the notice of claim, on its face, sets forth a claim not falling within the statute, the order of reference should be vacated, and all proceedings thereon set aside, without costs .to either party, as against the other.


author: Cullen, J.

text:
    In the Matter of the New Hamburg and Poughkeepsie Connecting Railroad Company.

      (Supreme Court, General Term, Second Department,

      Filed, February 12, 1894.)
    Railroads—Certificate.
    The mode in proceeding, under § 59 of the general railroad law, indicates that the general term is to treat the application to compel the issue of the certificate as in the nature of a review of the decision of a subordinate tribunal, and not as it would an original application made to it in , the first instance.

      Homer F. Briggs, for directors.
   Cullen, J.

This is an application, under section 59 of the general railroad law, for an order directing the state board of railroad commissioners, to issue a certificate that public convenience and necessity require the construction of petitioner’s railroad as proposed in its articles of association. By the section referred to, a change has been made in the public policy of this state as to railroads. Formerly, it was within the power of any body of persons sufficiently numerous, and possessing the requisite capital, to construct a railroad at any time, between any termini they might select, the route of the road being subject to judicial review or determination, and they consent of the municipal authority being necessary to obtain a location in a city. Now it is necessary that a certificate shall be granted by the railroad commission that public convenience and necessity require the construction of the road. If that is refused, an application may be made to the general term of this court for an order directing the issue of the certificate, which, if granted, must state the reasons therefor. This mode of proceeding, while it grants the court power to review the action of the commissioners, plainly indicates that the court is to treat the application as in the nature of a review of the decision of a subordinate tribunal, and not as it would an original application made to it in the first instance. The burden rests upon the petitioner to show affirmatively that the commissioners erred in their determination, and the commissioners should be credited with some technical knowledge which this court is not presumed to possess. The petitioner’s road is to run from New Hamburg, through Wappinger’s Falls, to the city of Poughkeepsie. The village of Wappinger’s Falls is the seat of some large factories, and it can be assumed that its direct connection with the coal roads passing through Poughkeepsie, as well as with the city itself, would be a substantial convenience to its inhabitans, and also an advantage to the city. The objection made to the road on behalf of the city is that it will cross several of the principal streets at grade; and it was stated before the commission, on behalf of the petitioner, that it was not possible to construct the road otherwise than with such grade crossings. It may-be that none is practicable in this state, where the conditions of its territory vary so much, from the greatest city in the country to what is almost a wilderness ; but it is plain that grade crossings should not be allowed in the cities or in densely populated territory unless the necessity be paramount. It is not necessary to lay down any rule on the subject. It is sufficient to say that it was a consideration the commissioners might well weigh in determining whether to grant the application; and in their determination, based on this consideration, we cannot say that the commissioners erred. It is still within the power of the petitioner, if the topography of the country does not forbid, to modify its location or terminus so as to obviate this objection, and to renew its application, in which case there would seem no valid ground for refusing it. The application should be denied, with $10 costs.

All concur.


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    Bernard Flood, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Damages—Elevated Railway.
    In an action against an elevated railway for past damages, the effect of the verdict on the question of fee damages, then pending in condemnation proceedings, is irrelevant.

      2. Evidence—Elevated hailway—Noise.
    Evidence as to noise is admissible in an action against an elevated railway for past damages.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Stephen M. Hoye, for app’lts; Hoadly, Lauterbach & Johnson, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the plaintiff entered on the verdict of the jury. The action was for damages to plaintiff’s property by the construction and operation of defendants’ railroad. The rule of damages was correctly charged by the court, and to the charge no exception, in this respect, was. taken. There was the usual conflict of testimony that is found in this class of cases. It would not be profitable to discuss the evidence at length. We think it was sufficient to sustain the verdict, and the judgment must stand, unless error was committed on the trial.

Two alleged errors are claimed. The court refused to instruct the juryito consider the effect of their verdict on the question of fee damages then pending in condemnation proceedings. If it could, the jury were to render a verdict in the matters submitted to them on the evidence presented, regardless of consequences. Another error claimed is the admission of certain evidence, which, it is contended, affected only the fee value. We think that the evidence also affected the usable or rental value. It is also urged that the court erred in admitting the evidence as to noise. This was admissible in an action of this character, though not in one for fee damages. Kane v. N. Y. El. Railroad Co., 125 N. Y. 164; 34 St. Rep. 876.

The judgment and order denying new trial should be affirmed,, with costs.

All concur.


text:
    Norfolk and New Brunswick Hosiery Company, Resp’t, v. Anna Arnold, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Injunction—Contract.
    Where the validity of a continuous contract has been established by a recovery of some of its installments, an action to recover the subsequent installments, as they become due, will not be enjoined.
    Appeal from an order temporarily staying an action.

      Blackwell Bros., {Frank E. Blackwell, of counsel,) for app’lt; Walter D. Edmonds and John Hunter, Jr., for resp’t.
   Pratt, J.

Defendant, Arnold, has recovered in this court a judgment against this plaintiff upon several installments of a continuous contract, from which judgment an appeal is pending. Since the first action was begun, further installments have become due,'to recover which this defendant brings an action in New York common pleas. The plaintiff now brings this suit, praying that defendant be restrained from prosecuting the action in Now York common pleas, and from bringing any subsequent action to enforce the contract. The effect of the judgment recovered was to establish the validity of the contract. The affirmative relief against it, sought in the first action by the present plaintiff, having been denied, and the contract declared valid, the court could not, in that action, have restrained the successful party from proceeding to enforce the contract Spears v. Mathews, 66 N. Y. 127. We are at loss to see that the court has, in the present action, any better right to restrain the successful party from exercising the rights to which it has been declared entitled than it had in the previous action. Waring v. Yale, 1 Hun, 492. This defendant, in bringing suit upon a contract declared to be valid, cannot be said to be acting vexatiously or oppressively; on the contrary, she is availing herself af a clear legal right. Cushman v. Leland, 93 N. Y. 652, does not affofd authority for this action. There, a trustee in a mortgage to secure a general issue of bonds has brought an action to foreclose the mortgage. The holder of one of the bonds, who was a party to the first action, and had therein set up his rights and submitted them to the court, was restrained from prosecuting a separate action for his individual benefit. That was a clear case of multiplicity of suits. The prosecution of the individual action, was in no sense requisite to protect the plaintiff’s rights, which could be fully protected in the action brought by the trustee. The order granting an injunction must be reversed with costs.


text:
    Charles A. Lucas, App’lt, v. S. G. Thompson et al., as Executors, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Evidence—Account books.
    In an action for services, entries in testator’s book, to which plaintiff had free access and in which he made charges and credits, are admissible against him.
    Appeal from a judgment in favor of defendants.

      Timothy M. Oriffing, for app’lt; Thos. F. Bisgood, for resp’ts.
   Pratt, J.

This judgment might well be affirmed on the opinion of the able referee before whom the case was tried. He saw the witnesses, and heard them testify, and had a better opportunity to judge of their credibility than an appellate court can have from reading the testimony. It is very clear, from reading the case, that there is no such preponderance of evidence in favor of the plaintiff as will authorize a reversal of the judgment. ¡¡Neither are there any exceptions disclosing error to the prejudice of the plaintiff. Indeed, the fair inference from the ledger is that plaintiff was fully paid for his labor, and this was the most reliable evidence there was in the case. The plaintiff neither established the amount of his wages, nor the time that he worked.

The evidence of declarations made by the deceased father of the plaintiff was properly excluded, as they had no relevancy in proving a contract, or any amount due to the plaintiff. The same may be said of the exclusion of the question to Anna Lucas as to whether “Mr. Buck assisted in the furniture business.”

Another objection related to charges on the book for'payments of taxes, etc.,— that no order or authority from the plaintiff was shown for such payments. It is to be noticed that the book was one that was mainly kept by the-plaintiff; was one to which he at all times had free access, and in which he made charges and credits. This fact also answers the exception to the admission of the book in evidence to show the state of plaintiff’s account.

We are unable to discover any error of law or fact in the report of the referee. Judgment affirmed, with costs.

All concur.


text:
    George H. Maynard, App’lt, v. Angeline Vanderwerker, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Appeal—Evidence.
    A judgment, where the decided weight of evidence upon a material issue is adverse to it, will be reversed.
    Appeal from a judgment dismissing the complaint.

      Sidney Williams, (K B. Barnum, of counsel,) for app’lt; Thomas JB Pearsal, for resp’t. -
   Pratt, J.

This case was clearly decided* at special term in accordance with an overwhelming weight of evidence upon all the issues except one, to wit, whether or not the defendant was made a beneficiary of the certificate in question under an agreement that it should be issued to her, and she should thereafter pay all the assessments levied thereon. It is not without much hesitation that I am constrained to disagree with the conclusion reached by the learned judge who tried the case with the greatest care and circumspection, with the advantage of seeing the witnesses and hearing them testify; but a careful reading of the evidence has impressed me so strongly that, upon the one issue above stated, the decided weight of evidence is so much against the contention of the defendant, that I feel constrained to write for a reversal. Nay, more, I am of opinion that this defense is an afterthought, born of a failure to make out any case on the ground of incapacity, fraud, or undue influence.

In the first place, there is no sufficient evidence that such an agreement was ever made. The principal witness for defendant upon this point is her husband, who is interested in the result, but he fails to testify to any agreement. Besides, what he did say was made to appear unreasonable and incredible on a cross-examination. He nowhere states that the defendant agreed to accept the policy or pay the assessments. A Mrs. Tams is the next witness in importance. She testifies to nothing as regards such a contract, except to certain alleged declarations made by Ray Smalley, the insured, before she was married to the plaintiff. The only matter testified to by Mrs. Tams that looks like an agreement is the state-merit that Eay said, “ My aunt agreed, when I insured, to pay the assessments, and I agreed that it should always be hers.” It is to be observed that this is evidence of declarations given long after they were made, which should always be scrutinized with great care. For my part, I do not believe that Eay Smalley ever made such a declaration. It is unreasonable that such an agreement would be entered into by a person of years with a young person like Eay Smalley, but what makes it more unreasonable is that it is inconsistent with the whole conduct of all the parties. Besides, the cross-examination of this witness showed either that her story was unreasonable, or her memory sadly at fault. The most charitable construction that, in view of all the circumstances, can be placed upon her testimony, is that she has talked so much about this matter with the defendant and others that she has got matters mixed in her mind. But the evidence, I think plainly shows that the defendant never paid any assessments on this policy, and never had rightful possession of it after the marriage of Eay Smalley. It is even doubtful if she ever had it before that time. Here the husband of defendant again says that upon one occasion he saw his wife band Eay some money to pay an assessment. That might have been a loan, as the balance of the conversation was not given; but what stamps this assessment theory is the fact that on one occasion, in the presence of Mr. Livingston, a disinterested witness, Eay asked the defendant to lend her a small sum to make up enough to pay an assessment. The defendant did so, and said: “I will lend it to you. Be sure and pay me back,”—which is utterly inconsistent with the theory that she was paying the assessments. There is not a scintilla of proof by any officer of the company, or by a receipt, that defendant ever paid an assessment, except one receipt, which was proved to be a forgery. The fact that defendant had a few receipts was explained by the fact that Eay kept them in her trunk or box which was left at the house of defendant, to which she had access, and of the contents whereof she admits she took possession. Neither do I think there is much doubt that the defendant took the policy from the trunk, and afterwards stated to Eay it had been lost. Eay Smalley certainly wanted it in order to effect a transfer to her husband, and went to defendant, who told her it was lost, which was untrue, as proved by the declarations of the defendant to Mrs. Livingston. The whole conduct of defendant is inconsistent with her claim. If there was such an agreement, and she had paid the assessments, would she have told Eay Smalley it was lost? Would she not rather have told her she had it, and owned it by virtue of the agreement? Again, the conversation with Mrs. Livingston is remarkable. She does not say, “I took it out of the trunk because it was mine,” or because she had agreed to pay assessments on it, but she gives as a reason that it was made out in her name. It is to be noticed that at no time during the life of the insured did the defendant lay any claim to the policy. There cannot be any doubt of the policy being taken from the trunk, as two disinterested witnesses testify to defendant’s admissions in regard to it. Again, in writing to the supreme secretary, stating her claim, after she had time to consider all the matters, she writes: “Mr. Maynard could have had the policy at any time, if he desired.” Also, in a conversation with Mr. Livingston a short time before the trial, she stated “that, if Ray or Mr. Maynard had asked me for the certificate, I would have given it to them willingly.” Are these statements at all reconcilable with her claim of absolute ownership? Further, can there be any doubt but that Ray did call on her for the certificate, in order to make the change, and was told it was lost, and on the strength of that statement made oath of its loss to effect the transfer ? It is a significant fact that the claim of a vested interest in the certificate appears for the first time in the amended answer. In the whole history of the case, no claim is made of vested ownership until this amended answer is filed, although it was asserted in an affidavit and letter that she had paid some assessments, but not that she had ever agreed to pay assessments. It is clear that she paid no assessments after the marriage, and there is no proof, worthy of belief, that she paid any before that event.

In writing this opinion, I have assumed that the evidence of Mrs. Tams and defendant’s husband, of the declarations of Ray Smalley, were competent to prove the contention of defendant; but it is in the nature of the declarations of an assignor, after an assignment, to impeach the title of a subsequent assignee from same assignor. Assuming, however, that this evidence was properly admitted and considered, I think the case on part of the defendant utterly fails. Much might be said of the contradiction and inconsistencies of the evidence offered by defendant, but enough has been said to show the effect the evidence has had upon my mind. It may be added, however, that the fact that plaintiff became the beneficiary in good faith, and supposed he was rightfully vested with such interest, is shown by his changing his policies in favor of his wife, the deceased.

Judgment reversed, and new trial granted; costs to abide the event.

Dykman, J., concurs; Cullen, J., dissents.


text:
    In the Matter of Charles S. Whitney et al.

      (Supreme Courts General Term, Second Department,

      Filed February 12, 1894.)

    Assembly districts —Division.
    In dividing the county into assembly districts, it is impossible to have an exact mathematical equality, and the law does not require it.
    Application by the Board of Supervisors to require respondents to divide the county of Kings into assembly districts, as re-" quired by law.

      Jesse Johnson and Frederick F. Barnard, for app’lts; John B. Meyenlorg, for resp’ts. '
   Pratt, J.

It is not necessary to discuss the questions raised in this case, as they are involved in the case of Baird and others against the same defendants now before the court. 59 St. Rep. The only point in this case not raised in the Baird Case is as to whether the defendants were bound to divide the county into 18 assembly districts, equally, in reference to citizen population, as near as attainable. Assuming such to be the construction of the law, it does not appear that there is any such material discrepancy in this case as will justify setting aside the apportionment. It would be impossible to have an exact mathematical equality, and the law does not require it. The court below has found that that makes no difference, as the citizen population practically bears the' same relation to the alien population in all the assembly districts, and we are forced to the same conclusion. Order affirmed, with costs.

All concur.


text:
    Daniel E. Christie, Resp’t, v. Robert Bowne, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Trial—Verdict.
    That the verdict is received in a room different from that, in which the trial was had, does not invalidate it.
    Appeal from an order denying a motion to set aside a verdict in favor of plaintiff and the judgment entered thereon and all proceedings taken thereunder, and for a new trial on the ground of the alleged invalidity and irregularity of said verdict.

      Oliarles Strauss, for app’lt; Henry L. Brant, for resp’t.
   Pratt, J.

The affidavits in support of the motion allege that the verdict was received in a private room, which is contradicted by the opposing affidavits. The court have personal knowledge that the room described is a public room occupied by this court for many years for the hearing of motions and the trial of causes. The facts resolve themselves to this: '’I'hat the trial was begun in one room, and finished in another, across the hall from the first. This did not prej udice any right of the defendant. Besides, it was the defendant’s fault that the verdict was taken in his absence. It was his duty to remain with the judge, and not the judge’s duty to keep the jury in waiting until defendant’s attorney arrived, especially as he left no word with the judge that he should be sent for when the jury came in. Again, we think, if the defendant had any merit in this matter, he waived it by not moving nt once, and by making other motions not consistent with his ■claim upon this motion. Order affirmed, with costs.