text:
    NATHAN O. GREENFIELD, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Witness — contradiction of — when allowed— Challenges — review of decision as to — evidence upon — Impression as to guilt — when it does not rendevr ajioror incompetent.

    A witness may be contradicted not only as to his testimony in chief, but also as to matters drawn out on bis cross-examination, material to tbe issue, especially when tbe contradictory statements tend to discredit, vary, modify or explain tbe testimony given by him on bis direct-examination.
    In reviewing tbe decision of a trial court upon a challenge to tbe favor, tbe appellate court has the power, and it is its duty, to pass upon tbe facts de novo, from tbe evidence adduced before tbe court below.
    Since tbe passage of tbe act of 1873, by which challenges both for principal cause and for favor are to be tried by the court, it is not necessary to reiterate, upon tbe challenge for favor, tbe evidence taken upon a challenge for principal cause on tbe same ground; but tbe court is to decide upon tbe testimony given on both challenges.

      Where, upon a challenge for favor, it appeared that the person challenged had a preconceived impression as to the guilt of the accused, based upon statements which he had read in an account of a former trial, which statements might or might not be supported by the evidence, but he believed he could, if sitting as a juror, render a fair and impartial verdict on the evidence, notwithstanding such impression, held, that the challenge was properly overruled.
    Writ of error to the Court of Oyer and Terminer, held in the county of Oswego, to review the conviction and sentence of the plaintiff in error for murder in the first degree.

      S. G. H%mtington, for the plaintiff in error.

      J. J. Lamoree, district attorney, for the defendant.
   Smith, J.:

The record in this case returned to the writ of error, presents a conviction of the plaintiff in error for murder in the first degree committed upon his wife, Alice Greenfield, at Orwell, in the county of Oswego, in October, 1875. The bill of exceptions contains numerous exceptions (over three hundred it was said on the argument), taken on behalf of the prisoner to rulings of the court on questions of the admissibility of evidence. We have examined them all carefully, and are constrained to say that in our judgment they are without merit. Many of them are exceptions taken to rulings of the court admitting certain questions put to the prisoner’s witnesses, Richard Greenfield, the prisoner’s father, Betsey Ann Greenfield, his mother, and Ezra Greenfield, his brother, on cross-examination, for the purpose of laying the foundation for proving statements made by them contradictory of their testimony. . Another large class of the exceptions taken by the prisoner’s counsel, relates to rulings of the court admitting questions put to witnesses called by the prosecution, for the purpose of making the proof of contradictory statements, the foundation of which had been laid as above stated. The ground taken by the counsel for the plaintiff in error, in support of both of the classes of exceptions above referred to; is that the questions admitted by the rulings excepted to, related to new, immaterial and irrelevant matters, in respect to which the witnesses could not be contradicted or impeached. Without taking up the questions separately, it is enough to say, that in view of the testimony given by the prisoner’s witnesses above named, on their direct examination, and in view of the circumstances of the case as shown by the testimony received before the prosecution rested, the matters to which the questions objected to related, were not collateral, but bore with some degree of weight upon the main issue. The bearing of some of them, indeed, was slight, but our attention has not been called to a single one which in our judgment did not relate with more or less directness to some circumstance which, either as a part of the res gestas, or as showing the position of the witnesses, or their opportunities for observation, or their bias or want of recollection, tended to throw light upon the transactions which constituted the essential elements of the case. Whatever tends to contradict or qualify some previous part of the testimony of the witness to whom the question is put is not collateral. (2 Phil, on Ev. [4th Am. ed.], with Cow. & Hill’s notes, p. 970, citing 1 Exch. R., 102, per Alderson, B.)

It is further objected, however, by the counsel for the plaintiff in error, that in some instances the matters in respect to which evidence of contradictory statements was received, were elicited on the cross-examination of the witnesses sought to be contradicted, and not on their examination in chief. Such was the fact, but we do not understand that any rule of evidence was violated thereby, the matters as to which the witnesses were contradicted being pertinent to the issue. A witness may be contradicted not only as to his testimony in chief, but, also, as to matters drawn out on his cross-examination, material to the issue, especially where the contradictory statements tend to discredit, vary, modify or explain the testimony given by him on his direct-examination. The rule here stated is not new. It is laid down in Wharton’s Law of Evidence (§ 552,) and authorities are there cited in support of it. To those may be added the case of Thomas v. David (7 Carr. & Payne, 350), cited by Phillips in his treatise on evidence (vol. 2 [4th Am. ed.], with Cow. & Hill’s notes, p. 971).

It is further urged by the counsel for the prisoner that his client was prejudiced by the fact that numerous questions were allowed to be put by the counsel for the prosecution to witnesses called for the defense, as to what they had said or sworn to out of court, concerning new and collateral matters, in respect to which no attempt was made to contradict them. As to all such questions, the answers of the witnesses were conclusive ; the extent to which a cross-examination on collateral matters shall be allowed is véry much within the discretion of the court, and there does not appear to have been an abuse of discretion in this case.

Exceptions were taken by the prisoner’s counsel to' rulings of the court upon challenges to two of the jurors, which remain to be considered.

Augustus H. Betts, a juror, was challenged by the prisoner for principal cause, as having formed and expressed an opinion in relation to the guilt of the prisoner, 'and after having testified in substance that he had formed and then had an opinion or impression as to the guilt or innocence of the prisoner, and also, that notwithstanding such opinion or impression, he could take the case and decide it fairly according to the evidence, the challenge was overruled. The juror was then challenged to the favor, and on his being further examined, that challenge also was overruled by the court. The testimony given by the juror on the trial of the challenges will be more fully stated presently.

It is enacted by chapter 475, of the Laws of 1872, that the previous formation or expression of an opinion or impression in reference to the circumstances upon which any criminal action at law is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto, shall not be a sufficient ground of challenge for principal cause, to any person who is otherwise legally qualified to serve as a juror upon the trial of such action, provided, the person proposed as a juror, who may have formed or expressed or has such opinion or impression as aforesaid, shall declare on oath that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial, and that such previously formed opinion or impression will not bias or influence his verdict, and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror. The proposed juror, in this case, swore substantially in compliance with the statute, thus rendering himself a competent juror, so far as the challenge for principal cause was concerned, provided the court was satisfied as. in the statute is required. We think in this state of the case no exception can be well taken to the overruling of the challenge for principal cause, that is, that the.proposed juror was not legally disqualified from sitting as a juror in the case.

Upon a challenge to the favor another question arises, and that is, whether the juror in fact stands indifferent between the parties and is not the subject of any bias or prejudice in relation to the guilt or innocence of the prisoner which may interfere to any extent with his deliberations in the jury box. The act of 1872 has no reference to challenges to the favor, but in the following year, an act was passed (Laws of 1873, ch. 427), which provides that “ all challenges of jurors, both in civil and criminal cases, shall be tried and determined by the court only. Either party may except to such determination, and upon a writ of error or certiorari, the court may review any such decision the same as other questions arising upon the trial.” Before the passage of that act, a challenge to the favor was to be determined by triers, unless both parties consented that it be tried by the court, and the decision of the. triers, or of the court, as the case might be, was conclusive and could not be reviewed. Now, however, a challenge to the favor as well as a challenge for principal cause must be tried by the court, and the determination of the court thereon may be reviewed.

In reviewing the decision of the trial court, upon a challenge to the favor, the appellate- court probably has the power, and it is its duty, to pass upon the facts, de now, from the evidence. The Court of Appeals has recently said in a civil case, that the rule that when there is conflicting evidence, and when there is any evidence to sustain the finding, it is error in the appellate court to reverse the judgment, is not applicable in any case where the appellate court has a right to review the facts. (Godfrey v. Moser, 66 N. Y., 250, 252.) But the court was careful to guard and limit the rule there laid down, by the further remark that, in reviewing the facts, proper deference should be awarded to the judgment of the referee ” (or court) “ in cases of serious doubt, upon conflicting evidence, especially when it is probable that the appearance of the witnesses, or their manner of testifying, was, or might have been, controlling in determining the questions; but,” continues the court, “ these cases are rare, and, in general, it is the duty of the appellate court to take the responsibility of examining the evidence and determing the facts for itself.” The remarks above quoted, although made in a civil case, are.pertinent to the present inquiry, since the act of 1873 relates to civil and criminal cases alike. But the ease of a challenge to the favor is peculiarly one in which the appearance and manner of the witness, especially if, as in this case, the only witness is the juror himself, always may be, and frequently is, controlling in determining the question to be tried. It is competent for him to testify as to his impressions and opinions, the degree of their strength, and his ability to lay them aside, and to render an impartial verdict upon the evidence ; and, when the challenge is submitted upon his testimony alone, I venture the opinion, in which I think all who have had experience in presiding at jury trials will concur, that a careful observation of the appearance and manner of the proposed juror, under the scrutiny to which he is subjected, is of very great importance, and may frequently furnish evidence respecting his indifferency, quite as satisfactory as the words uttered by him on the stand. The wisdom of the legislature, in transferring the grave responsibility of determining challenges to the favor, from laymen to experienced judges, is not to be discussed in the courts. While the statute stands, the proper administration of justice, and the due enforcement of the law, in criminal cases, requires that the determination of a trial court, upon a challenge to the favor, shall not be reversed upon any thing short of a reasonable conviction upon the part of the appellate court, grounded upon the evidence, that the determination was erroneous.

The answers given by the proposed juror, Betts, upon the challenge for principal cause, as well as those given upon the challenge to the favor, were before the court when the latter challenge was decided, and, in our opinion, are to be considered by us upon this review. Before the act of 1873, when challenges for principal cause were decided by the court, and those for favor by triers, there was an obvious reason for holding that testimony addressed to one tribunal could not be considered by the other (Cancemi v. The People, 16 N. Y., 501, 505), unless-by consent, as seems to have been the case in Friery v. The People (2 Abb. Ct. Ap. Dec., 215 ; S. C., 2 Keyes, 424). Now, however, both challenges being tried by the court, it would be a mere waste of time to reiterate upon the challenge for favor, the testimony taken on the challenge for principal cause; and we think it is to be presumed that the challenge for favor, being taken' subsequently to tbe challenge for principal cause, was determined upon the testimony given on both challenges, when, as in this ease, it does not appear that any objection was taken to that course, or that a different course was adopted, and counsel on both sides have argued before us the question relating to the challenge for favor, on all the testimony of the juror.

It appears from the bill of exceptions that the juror Betts testified, in substance, that, at the time of a former trial of the case, he read a newspaper account of the evidence given by the prosecution, or a part of it, and he heard the matter considerably discussed by others; that, from what he heard and read, he formed an impression as to the guilt of the prisoner, which he still retained; that such inrpression was founded upon the assumption that the statements which he read were true; and that notwithstanding such impression, he believed that if he should sit in the case he could render a fair and impartial verdict upon the evidence. If that were all of his testimony, it could not be doubted that the determination of the trial court upon the challenge for favor, as well as the challenge for principal cause, was well warranted, and should be affirmed.

But the counsel for the plaintiff in error contends that, in view of other statements made by the juror during his examination, the court erred in holding him tobe indifferent. After the juror had stated the formation of the impression above mentioned, he was asked, “ Have you any impression or opinion now ? ” He answered, “ I think I have.” Q. “And you have such inrpression, opinion or belief as to his guilt that it would take evidence to remove it, have you not?” A. “Yes.” Q. “So you would not stand indifferent or unbiased as between the parties ? ” A. “ I don’t know how that would be.” Having testified, in reply to questions by the district attorney, that the effect formed on his mind was an impression and nothing more, and that he believed, notwithstanding the impression, lie could render an impartial verdict upon the evidence, he was asked by the jirisoner’s counsel, “ What you mean by that is this, isn’t it: that if you were sworn as a juror, you would endeavor to weigh the testimony impartially and render a verdict accordingly ? ” A. “Yes.” Q. “That is all you mean by that?” A. “That is all I mean, yes.” Q. “ But you do not mean to take back what you have already said, that you would enter upon your duties as a juror, if sworn, with an impression or belief as to his guilt ? ” A. “ I should have the impression, as I said before.” Q. “ And that would require evidence to remove?” A. “Yes.” Subsequently, the court put to the juror this question : “ Do you think that your previously formed opinion or impression would not bias or influence your verdict at all ? ” A. “ I think it would not.” Q. “You could take the case and decide it fairly according to the testimony, without reference at all to any opinion you might have had?” A. “Yes.”

It seems to us that these answers properly considered in connection with all the testimony of _ the proposed juror, do not substantially vary what he had previously stated. He nowhere says that he had formed an opinion. Lie had formed an impression, but it was hypothetical, based upon the assumption that the statements he had read were true. "When he speaks of an impression which it would require evidence to remove, the natural import of his language is that if the statements on which his impression was based should be borne out by the evidence, further evidence would then be required to remove the impression. His uncertainty as to whether he would stand indifferent, was simply that arising from the doubt whether the evidence would bear out the statements on which his impression was based. His answer upon that point showed very clearly that he had no fixed opinion. (Stout v. The People, 4 Park. Cr. R., 132, per T. R. Strong, J., 137.)

In short, the substance and import of his testimony was that he had a preconceived impression, based upon statements which might or might not be supported by the evidence, but that he believed he could, if sitting as a juror, render a fair and impartial verdict on the evidence, notwithstanding such impression. It is not to be forgotten that the juror was a layman, and presumably not acquainted with the technical legal signification which has been given to some of the words used in the questions put to him. His language is to be construed as it would ordinarily be understood by laymen of common intelligence sitting as triers. And I cannot forbear to quote an eminently wise and practical remark made by Justice E. Darwin Smith in the case of The People v. Stout (4 Park. Cr. R., 71, 124), which, although uttered on the review of a determination of a challenge for principal cause, is entirely pertinent to the present case : Human, language,” said the learned judge, “ is so imperfect at best as a representative of thought, and written language so much more liable to misrepresentation and misconstruction, when considered and reviewed by itself remote from the time and occasion when it was used, and there is also such a liability to misunderstand or misquote a witness or juror, that it is altogether more safe and just to the juror and the cause of truth, to trust to the impression made at the time by the testimony upon those who heard it, noticed the manner, tone, appearance and personal peculiarities of the juror while under examination and subjected to the watchful scrutiny of the court, counsel and jury in the court room, than to any written or reported statement of his testimony afterwards.”

Before the act of 1873, although the determination of the triers on a challenge for favor was conclusive and could not be reviewed, cases frequently came up for review, upon exceptions to rulings of the court on questions of evidence before the triers. In such cases, when the appellate court had before them all the evidence submitted to the triers, they sometimes expressed an opinion as to the correctness of the decision of the triers upon the question of indifferency. In repeated instances the courts have expressed an opinion as to what kind and degree of evidence will properly sustain a challenge, and it may be profitable to refer to some of them.

A marked case of that description is The People v. Honeyman (3 Den., 121), in which the former Supreme Court took occasion to explain what they had said on the subject of challenges to jurors in The People v. Bodine (1 id., 281). In Honeyman’s case the court, after adverting to their language in the Bodine case, proceeded as follows : “ If we have -not been sufficiently explicit already, recent events render it proper to add, that although evidence which tends to show a bias on the mind of the juror must be received, it by no means follows that the juror should be set aside by the trier for slight causes. If, for example, the juror has heard, or has read in a newspaper, that the prisoner is guilty of the crime laid to his charge, and has given credit to the statement, the evidence of those facts must be received; and the triers must not be instructed, as matter of law, that they are not at liberty to reject the juror. Still, it would not be a wise or judicious act on their part to set aside the juror, unless they found that he had such a settled opinion concerning the prisoner’s guilt that lie could not disregard wbat be bad beard or read out of court, and render his verdict on tbe evidence alone.” * * * “ It is well known that jury duty in tbe city of New York ” (tbe original venue in Bodine’s case), “is somewhat burdensome; and persons summoned as jurors for a trial which is likely to occupy a good deal of time, will be very willing to say, if it can be done truly, that they have beard or read statements, and formed opinions concerning tbe prisoner’s guilt. But a little sifting would probably show, and well-instructed triers would undoubtedly find, that they were not disqualified to sit as jurors. Intelligent and right-minded men, when they enter tbe jury-box, know bow to lay aside wbat they have beard and read out of doors, and pronounce their verdict upon tbe evidence, and upon that alone.”

Another instructive case is that of The People v. Lohman (2 Barb., 216, 222). One Cortelyou, called as a juror, was challenged to tbe favor by tbe defendant’s counsel. On bis examination he stated that be bad an opinion unfavorable to tbe general character of .the defendant, and that be bad formed and still retained an impression that if wbat be bad read in tbe papers was true, she bad committed tbe act charged. He was then asked by tbe counsel for tbe people, on bis cross-examination, against an objection and exception by tbe defendant, whether, if be should be sworn as a juror, be would disregard wbat be bad heard or read out of court, and render a verdict on tbe evidence. The juror answered that be would endeavor to do so to tbe best of bis ability. Tbe triers decided against tbe challenge, and the juror was then sworn. Tbe defendant was convicted, and on error to tbe Supreme Court, tbe exception above stated was passed upon and tbe court asid, “ It is not, in general, sufficient to justify tbe triers in setting aside a juror, as not indifferent, that be has formed an unfavorable opinion of tbe character of tbe accused. If it should be, notorious offenders could not be tried at all. Whether it would be a valid objection that be bad read a report of tbe facts in tbe public papers, and bad thereby imbibed an impression against tbe accused, must, of course, depend upon tbe strength of such impression. If that should be weak, it would not ■ disqualify the juror. If, however, it should be so strong that it would have any influence in forming bis opinion on the trial, then, he would not stand indifferent, and should be rejected. The juror should, be able to decide on the evidence alone. Now, there is no one better acquainted with the strength of the impression upon the mind of the juror than himself. Indeed, all the information given to the triers upon the challenge, is generally from the juror. He was in this case, the sole witness. The question to which objection was made, was proper to test the strength of the juror’s impression against the defendant. The answer was such as any honest man would have made, and could not have operated to the defendant’s prejudice. The triers were bound to give it such weight as they thought right, and they very properly decided that the challenge was not true.”

In O’Brien v. The People (36 N. Y., 276, 278), there was a conviction for murder in the first degree. A juror, Bleekdorn, was challenged for favor, and the challenge having been tried by the court, without objection, and overruled, the defendant’s counsel argued, on review, that the challenge was improperly overruled. The Court of Appeals passed upon the question. Bocees, J., delivering the opinion of the court, said, The juror was called and challenged to the favor; on being examined, he stated that he had a faint recollection of hearing of the occurrence through the newspapers at the time, but formed no opinion or positive decision as to the guilt of the prisoner; that the newspaper statement left no particular impression on his mind as to the guilt of the person named, except as a newspaper statement; that he believed a homicide had been committed, and by the person named. This is the substance and import of his examination. It is plain that the challenge was not supported. It did not appear that the juror was prejudiced against the prisoner, or had formed an opinion as to his guilt or innocence from what he had heard or read, and he was clearly competent, unless general impressions obtained from reading newspaper accounts of the daily events occurring in our midst will disqualify the reader from judging impartially of them when brought under examination on sworn evidence in a court of justice. It has been often held that impressions so made do not disqualify a person from sitting as a juror. (2 Barb., 222; 1 Park., 302; 2 id., 16 ; 4 id., 132, 135-37; 5 id., 414, 423-25.) Were a different rule to obtain, the most intelligent and upright portion of community would be generally excluded from tbe jury-box, leaving cases of tbe highest importance to individuals and to community to be determined by the most ignorant and least competent.”

In the cases cited, the evidence in support of the challenge was' quite as strong, to say the least, as in this case. In the present case the trial court undoubtedly came to the conclusion that, although the juror had formed an impression as to the guilt of the prisoner from what he had heard and read, the impression was hypothetical merely, and the juror was able, notwithstanding its existence, to decide the case fairly and impartially upon the evidence, and upon that alone. Looking at all the testimony given by the juror, and the apparent intelligence and candor evinced by his answers, and considering the fact that the trial court had the opportunity of observing his manner and appearance on the stand, we are of the opinion, in the light of the judicial opinions above referred to, that the determination of the trial court upon the challenge to the juror for favor cannot be said to have been erroneous. To hold otherwise would be to adopt a rule for the application of the statute of 1873, which would virtually annul its provisions, and continue the mischiefs they were intended to prevent, by excluding from the jury-box the fittest to serve, and by admitting to its grave responsibilities and duties those only who are found to be unbiased and neutral, mainly because they cannot or do not read.

A like exception, was taken by the prisoner’s counsel to the overruling of the challenge for favor, to the juror Jennings. The evidence in his case is so similar to that in the case of Betts, that it is unnecessary to consider it separately. We are of the opinion the ruling upon that challenge, also, was not erroneous.

The conviction and judgment should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment and conviction affirmed, and proceedings remitted to Oswego Oyer and Terminer to carry sentence into execution.


source: Caselaw Access Project

author: Mtjllin, P. J.:

license: Public Domain

text:
    WARREN BEVIER, Plaintiff, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Defendants.

      Vire stm-ted hy spm-hs from engine — identification of engine — duty of railroad as to condition of engine —Negligence on the part of the plaintiff — duty of, as to putting out fire.

    In an action to recover damages for the burning of woodland, by a fire started hy the negligence of a railroad company in allowing sparks and coals to escape from its engines, the plaintiff is not required to prove which one of the defendant’s engines set the fire.
    Where he is unable to identify the engine that set the fire, by name or number, or by any other designation, if he prove either by the manner in which it was operated or by the extent to which it scattered fire that it was so far out of repair as to charge the company with negligence, it is sufficient.
    The counsel for the defendant requested the court to charge that the defendants were not bound to use any other appliances than such as are known in practical use. The court so charged, adding: “that is, the known and recognized means for preventing the escape of sparks from a locomotive, and such as are best adapted to that purpose.” Held, that the qualification added by the court was proper.
    The court charged that the plaintiff was not bound to use extraordinary means to extinguish or prevent the spread of the fire. Held, that this was proper.
    The defendant’s counsel requested the court to charge that, if the plaintiff allowed dry limbs, brush, grass and other combustible matter to lie and accumulate on his premises adjacent to the line of the railroad, and that if such accumulation contributed to produce the fire, by means of which the premises were burned over, he was not entitled to recover. Held, that the request was properly refused; that, whether or not the plaintiff had been guilty of negligence contributing to the injury, was a question for the jury; it was not the province of the court to instruct the jury that certain specified acts or omissions constitute negligence.
    Motion for a new trial on'a case and exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff. The action was brought to recover damages occasioned by defendants’ alleged negligence in setting fire to, and destroying plaintiff’s woodland.

      Mieha/rds & Sessions, for the plaintiff.

      Henry Smyth, for tlie defendants.
    The court erred in declining to charge as requested, “that the defendants were not bound to use any other appliances than such as are in known practical use.” This is the law, and they had a right to have it charged without qualification. The qualification, “such as are best adapted to that purpose,” imposed too severe a rule. (Lackawanna cmd B. B. B. Co. v. Doak, 52 Penn. St., 379; Myer v. Clark, 45 N. Y., 285; Kra/nkfort and B. B. B. Co. v. Phila. and T. B. B. Co., 54 Penn. St., 345.) The plaintiff was bound to use all reasonable care and diligence to protect himself from damage from the fire, and it was erroneous to state to the jury that plaintiff’s duty was limited to a case “ when it was practical for him readily and easily to have stopped the fire.” (Keese v. Chi. cmd N. W. B. B. Co., 30 Iowa, 78 ; Kellogg v. Chi. cmd W. W. B. B. Co., 26 Wis., 223 ; Shearman & R. on Negligence, § 335.)
   Mtjllin, P. J.:

This action is brought to recover damages for negligently setting fire to the woodland of the plaintiff, and destroying part of the wood growing thereon and injuring another part. The defendant’s railroad extends from Albany to Binghamton, and passes through the farm of the plaintiff. On the 24th of May, 1871, an engine of the defendant passed over the road, scattering fire from the smokestack and fire-pan in large quantities, and soon thereafter fire appeared in a pile of brush on defendant’s side of the fence.. It extended from thence into a pile of brush on plaintiff’s side of the fence and then extended into the plaintiff’s woodland, and thus caused the injury complained of. The jury rendered a verdict in favor of the plaintiff for $298.47. A motion was made for a néw trial, which was denied. Time was given to the defendant to prepare and serve exceptions, and they were ordered to be heard in the General Term in the first instance. The General Term in the third department ordered the case to be heard in this department, two of the judges assigned to hold the General Term not being permitted by law to sit in the case.

The case will be most easily disposed of, by considering the exceptions of the defendant in the order they are set out in the points. The first exception is, that the court erred in allowing the evidence that the defendant changed the stack of the engine Unadilla after the fire. The plaintiff gave evidence, by several witnesses, tending to prove that the fire was set by the engine Unadilla (No. 26), and that its apparatus for preventing the escape of the fire was defective. The defendant called a number of witnesses, who testified that the apparatus of the Unadilla, for preventing the escape of fire, was in perfect order, having been recently put in thorough repair, and that No. 26 did not leave Binghamton the afternoon of the fire, until after the fire was shown to have been set. This evidence made it necessary for the plaintiff to prove, if he could, that it was some other engine of the defendant that caused the fire. Proof was then given that engine No. 13 passed only a short time before the fire appeared upon the side of the railroad adjacent to plaintiff’s woodland.

Thomas Seally was called as a witness on the pai’t of the plaintiff, and described the smoke-stack, etc., of the Unadilla, and what repairs, etc., had been made upon it. Iiis evidence tended to prove that it was in good order and not liable to scatter fire. On cross-examination by plaintiff’s counsel, the witness stated that shortly after the fire he removed the smoke-stack from No. 26 and put on a different one, different in shape and general outline. The plaintiff’s counsel then put the following question to the witness: Why did you go to the expense of taking one off and putting another on this particular engine ? ” The defendant’s counsel objected to the question, on the ground that the case is to be determined upon the condition of the engine at the time, and that no act of theirs, made even with the object of adding security against fire afterwards, is legitimate to be considered in this case. The objection was overruled and the defendant’s counsel excepted. Had this question been put to a witness on the part of the plaintiff, it might be assumed that the object of the question was to prove that the defendant knew the engine to be defective and made the repairs for that reason; such evidence would be clearly incompetent. The question, however, was put to defendant’s witness on cross-examination and was competent to test the accuracy of the witness as to the condition of the engine. If it had been repaired as extensively as he represented, the question would be a very natural one why, if that was true, was another smoke-stack put on so soon after the fire % The question was competent on cross-examination. If the question was incompetent it was not answered. The reason for tbe change was giren subsequently by the witness, but in answer to another and different question, and the question does not appear to hare been objected to. The next exception is to the charge of the judge, that the jury were at liberty to find that the fire may hare -come from the engine No. 13, as to the condition of which there was no proof; and it was claimed that he also erred in refusing to charge, as the fact was, that “ the undisputed proof in the case is, that locomotire No. 13 left Binghamton at 10.50 and reached Oneonta at 5.45 that day, and that it was impossible for her to hare been here on the afternoon of the eleventh. It was certainly improper for the judge to hare said what he did as to No. 13, in his charge, if as he says, speaking of the proof as to her, “ I do not know what it is myself.”

The plaintiff was not bound to prove which one of the defendant’s engines set the fire. To require such proof would, in many instances, deprive the plaintiff of relief. A railroad company is not bound to name or number its engines, and if not named or numbered, or in some other way distinguished from other engines of the company, it would be impossible for the injured party to establish a right to recover. It is incumbent on the plaintiff to prove in an action for injury to property from fire from an engine, that an engine of defendant scattered from its fire-pan or smoke-stack, fire in such quantity and in coals of such size as might kindle a fire and as could not be thrown off from an engine whose smoke-stack, etc., were in proper repair. Upon the evidence the jury had the right to find that engine No. 13, which passed only a short time before, set the fire. (Bedell v. Long Island R. R. Co., 44 N. Y., 367, 369.) If a plaintiff cannot identify the engine, that sets a fire by which he is injured, by name or number or other designation, he must make out his case by showing either by the manner in which it was operated, or the extent to which it scattered fire, that it was so far out of repair as. to charge the company with negligence.

The court properly refused to chai’ge that the evidence stated in the offer was undisputed, or that it was impossible, for the reasons assigned, for engine No. 13 to be at the place where the fire was set on the afternoon of the eleventh. It was for the jury to say whether there is any dispute as to matter testified to by the witnesses, and it not unfrequently happens that before such a charge could be properly made, that the judge would be obliged to read over the whole or a considerable part of the evidence. This would lead to unnecessary delay without any corresponding benefit. The remark of the judge, which the counsel complains of, illustrates the impropriety of requiring the judge to assume to pass upon the extent and weight of the evidence in the cause.

The counsel excepted to the refusal to charge as requested, that the defendants were not bound to use any other ap2>liances than such as are in known practical use, and claimed that the court had no right to qualify it by adding the words “ such as are best adapted to that purpose.”

Eolger, J., in Steinweg v. The Erie Railway (43 N. Y., 126), held it to be negligence in a carrier of passengers, if it did not adopt the most ap23roved modes of construction and machinery in known use in the business, and the best precautions in known practical use for securing safety. (2 Redf. on Railways, 189.) The learned judge in his charge did not enlarge this rule. The “ most approved spark arresters or smoke-stacks,” are those best adapted to the purposes to which they are to be applied. To require the company merely to use such apparatus as is in common use, would be a mere evasion of the rule, and in practice exempt carriers in a large number of cases from all liability, as it is known that they sometimes use machines very defective in construction and not well calculated for the use to which they are to be applied, when it is notorious that machines much better fitted for use are in 23i’actieal use by other railroad companies. The qualification added by the judge, to the charge, was entirely proper, and was a correct application of the rule above-mentioned, laid down by the Court of Appeals.

The defendants’ counsel requested the court to charge the jury that defendants’ authority to use a steam engine upon the railroad, is an authority to emit sparks therefrom, and if the most approved means, which science and skill have invented and ap23lied to prevent sparks from causing injuries, are employed by the companies charged with negligence, the defendants are not hable in ease damages are occasioned by fire communicated from its engine. The learned judge said in rejsly, I have already charged that defendants would not be liable for fire caused from sparks which came from the smoke-stack, when that smoke-stack was properly protected by the most approved means which science and skill have invented, and experience has shown necessary to prevent the passage of sparks therefrom, and those means were used with skill and care.

The counsel, in his fourth point, says it was not proper to confine the rule to the smoke-stack, after what he had said as to the fire-box, in his charge, nor was it proper to add that the appliances must be such as experience had shown necessary to prevent the passage of the sparks. It was the duty of the counsel to call- the attention of the judge to the omission, in the part of the charge under consideration, of the ash-pan when speaking of the smoke-stack.

It is quite apparent that it was inadvertence if it was of any materiality in the case. No reason is perceived or suggested why the court should have repeated its remarks as to the smoke-stack and omitted to refer to the ash-pan. It is too late now to complain of the omission. It is equally obvious that the learned judge did not intend to charge that the smoke-stack and other appliances must be such as to arrest all sparks; nor is the language, when taken in connection with the whole charge, fairly susceptible of such a construction.

The defendant’s counsel excepted to the part of the charge, in which the court told the jury that plaintiff’s duty in striving to prevent the spread of the fire was limited to a case where it was practical, readily and easily to have stopped the fire. The court in its charge did use the language which the counsel has incorporated in the exceptions. But when the counsel excepted to that clause of the charge the judge said that what he intended to charge was that he was not bound to use' extraordinary means to accomplish that end. The charge, as thus modified and explained, was correct.

The defendant’s counsel requested the court to charge, that if the. plaintiff suffered dry limbs and brush and grass and other combustible matter to lie or accumulate on his premises adjacent to the line of the railroad and that contributed to produce the fire, by means of which the premises were burned over, he is. not entitled to recover. The court refused so to charge and defendant’s counsel excepted. It is not the province of the court to instruct a jury that certain specified acts or omissions constitute negligence. That question is for them to pass upon under proper instructions from the court. If the court could give such an instruction the jury would be bound by it, and thus the court would assume the province of the jury and determine the facts as well as the law.

The defendant’s counsel excepts to the rejection by the court of evidence as to how much plaintiff’s woodland was depreciated in value by the fire, and how much less it was worth by reason of its having been burned. The measure of the damages the plaintiff was entitled to recover was the difference in value of the timber land as it was before and as it was after the fire. (Van Deusen v. Young, 29 N. Y., 36; Morehouse v. Mathews, 2 Comst., 514.) The evidence offered did not tend to establish this measure of damages and was, therefore, properly rejected.

The counsel excepted to the rejection of evidence, as to how much the timber was damaged. The evidence was properly rejected for the reason assigned in disposing of the last preceding exception. The counsel refers to the case of Whitbeck v. New York Central Railroad Company (36 Barb., 644). That case was decided in 1862, and if the case is in conflict with that of Van Deusen v. Young (supra) then it is overruled by that case. The property injured, in the case in 36 Barbour (supra) was fruit trees, and the same rule of damages cannot be applied to them as to woodland.

The motion for a new trial must be denied and judgment ordered for plaintiff on the verdict.

Present — Mullin, P. J., Talcott and Smith, JJ.

Motion for new trial denied, and judgment ordered for plaintiff on the verdict.


author: Mullin, P. J.:

text:
    CHARLES A. COYKENDALL and others, as Commissioners of Highways of the Town of Livonia, v. ADELBERT W. DURKEE.

      Gommissionei's of highways — power of, to enjoin pw'presture.

    Tlie commissioners of highways of a town have no power to bring an action to enjoin the construction of a permanent obstruction in the highway.
    Motion for a new trial on a case and exceptions, after a judgment dismissing the complaint.

      This action was brought to restrain the defendant, by injunction, from erecting a building in, and thus obstructing a highway in the town of Livonia, Livingston county, N. Y. The plaintiffs are highway commissioners of said town, and as such bring this action. The defendant was threatening, and had determined to erect a building in the highway known as G-rove street, in said town. The plaintiffs thereupon immediately commenced this action. A temporary injunction was granted, which injunction is still in force. Issue was joined by the service of the defendants’ answer, and the cause came on to be tried at the Livingston county Special Term on the 19th day of June, 1876, Justice James O. Smith presiding. At the opening of plaintiffs’ case the defendant moved that the complaint be dismissed, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and that the plaintiffs as highway commissioners had no power or authority to bring or maintain this action. The court granted said motion and dismissed the complaint, and the plaintiffs excepted to said ruling and decision.

      D. W. Noyes for the appellant.
    The only question involved in this case is, have highway commissioners power, under any circumstances, to maintain an action for an injunction to restrain the erection of a permanent obstruction in a public highway % The defendant threatened to create a public nuisance. (Dazois v. The Mayor, ete., of N Y., 11 N. Y., 506, 521; The People v. Kerr, 27 id., 188,193; Han’t y. Mayor of Albany, etc., 9 Wend., 571; People v. Vamderbelt, 38 Barb., 282; People v. Qunnimgham, 1 Den., 521; Wetmore v. Tracy, 11 Wend., 250.) An action will lie by the people to restrain and abate a nuisance upon a public highway or prevent injury to public property. (The People v. Horton, 61 N. Y., 610, 616 ; The People v. Vamderbelt, 38 Barb., 282, 287; The People v. Kerr, 27 N. Y., 188,193.) Any unlawful interference with, or obstruction of, a public highway is a public nuisance, whose commission may be punished or prevented either at the suit of the public or of individuals who are damnified. (The People v. Kerr et dl., 27 N. Y., 188, 193; The Attorney-General v. Oohoes Go., 6 Paige, 133, 135; Code of Procedure, § 219, sub. 1.) The statute gives the plaintiffs power to maintain the action. (Edmonds’ B. S., vol. 2, pp. 191, 195, § 92; Hill v. Bd. 8vprs. of Livimgston Go., 12 N. Y., 52; Bartlett v. Crozier, 17 Johns., 439, 449 ; Edm. R. S., vol. 1, p. 460, § 1.) It is a breach of duty in highway commissioners to allow a public highway to be devoted to a mere private use. (Wendell v. Mayor, ete., of Troy, 39 Barb., 329, 336.) The plaintiffs as commissioners of highways had power to bring this action at common law. (Supr. of Gal/way v. Stinson, 4 Hill, 136 ; Overseers of Pittston v. Overseers of Plattsburgh, 18 Johns., 407; Todd v. Birdsall, 1 Cow., 260, 261, and note a.) Among other remedies for an obstruction of a public highway, courts of equity will grant an injunction to prevent a threatened or attempted obstruction. (The People v. Vanderbelt, 38 Barb., 282,287; Attorney-General v. Johnson, 2 Wils. Ch. 87; Lane v. Newdigate, 10 Yes., 192; Damis v. Mayor of H. Y., 14 N. Y, 506, 526 ; Corning v. Lowerre, 6 Johns. Oh., 439 ; Attorney-General v. Cohoes Co., 6 Paige, 133; Story’s Eq., §§ 921, 922.) It is no defense to this action to say that the plaintiffs have a remedy against a public nuisance by indictment and to punish the offender. (Story’s Eq., § 923, et seg. ¡ Attorney-General v. Cohoes Co., 9 Paige, 133.)

      C. W. Stanton and S. Hubbard, for the respondent.
    The decision of the court was correct and shortld be sustained. (Cornell <& Clark v. The Butternuts and Oxford Tpke. Co., 25 Wend., 365; Cornell <& Clark v. The Town of Guilford, 11)en., 510; Shipley and others v. The T. and B. R. JR. Co., 9 How., 83.)
   Mullin, P. J.:

I entertain no doubt but that there are cases in which an injunction will issue to prevent a purpresture in a public highway. It is so laid down in 2 Story’s Equity Jurisprudence (section 922), and in sundry cases cited by him, and in Angel on Highways (sections 280 to 283). The difficult question is, who can maintain the action ?

The statutes relating to laying out and repairing highways clothes the commissioners of highways with all the powers that are necessary to enable them to perform all the duties that are imposed upon them, and should a case arise in which their powers are not adequate to a proper and efficient protection of the public rights, it is possible that the attorney-general might pi-oceed in equity. In cities where the fee of the land over which a highway is laid out, the corporation will obtain relief in equity when it would not be given to a party having no interest in the land, except naked easement or right of passage. (Angel on Highways, § 282.)

The court below was correct in holding that plaintiff could not maintain the action, and the judgment must be affirmed with costs.

Present — Mullin, P. J., and Talcott, J.; Smith, J., not sitting.

Judgment affirmed with costs.


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

      Oonspi/i'acy — statements of one conspirator — when admissible against his coaonspirator.

    Upon the trial of an indictment against several persons for a conspiracy to cheat and defraud, depositions of one conspirator, taken upon his examination before a justice of the peace after his arrest for the alleged conspiracy, and several months after the accused had ceased to act together in furtherance of the conspiracy, are inadmissible as evidence against a coconspirator.
    Writ of error to the Court of General Sessions of the county of Orleans, to review the conviction of the plaintiffs in error of a conspiracy to cheat and defraud.

      S. JE. JFilkwbs, for the plaintiffs in error.

      JEL. A. Childs, for the defendants in error.
   Mullin, P. J.:

The defendants were indicted in the Orleans Oyer and Terminer for a conspiracy to cheat and defraud Marcia A. Mcllrath. The indictment was sent to the Sessions of that county and the prisoners were tried therein in November, 1876. The case made by the evidence on the part of the prosecution is this: In 1875, Mrs. Mcllrath was engaged in the manufacture of cigars in Erie, Penn., and employed the prisoner, Stone, to go east and buy tobacco for her; he went, and on his return told her that he could get Black’s tobacco at fifteen cents per pound. She told him to go back and take Black’s whole crop at that price, provided Black would give credit for part. Afterwards Stone wrote her that the price of tobacco had gone up to twenty cents per pound and that be had bought the tobacco at that price. She then sent Black a draft for $510, the price of 2,550 pounds of the tobacco that was first delivered and received. Stone went to Erie and saw plaintiff and told her that Black would wait four months for the balance of the price of the tobacco, if she would give him her note for $100j to be foiv feited if she did not take the balance of the tobacco ; she gave the note and finally received and paid for the balance of the tobacco at twenty cents per pound. The business with Black was finally closed on the 10th of November, 1875. Black informed Mrs. Mcllrath in the winter of 1875-6, that Stone had charged her more for the tobacco than he had paid, and that he (Black) had paid Stone eighty dollars out of the money received from her. He had agreed to pay Stone $110 out of the money received for the tobacco if he should sell it for twenty cents per pound. It was only demanded because he had to wait longer for his money than it was understood he should do. Stone bought of Black 2,550 pounds at fifteen cents Black claiming it was worth more, told Stone he would make it all right with him, if he (Stone) should get more for it. Stone told him all he wanted was his traveling expenses; if he (Black) would give him forty or fifty dollars for the 2,550 pounds he would give him twenty cents per pound and fifteen for the residue. He told Mrs. Mcllrath that she could have the rest of the tobacco at twenty cents. Black said to Stone, that he (Stone) had got to have something out of it as well as him (Black).

The first point of the counsel for the plaintiff in error is, that it is not alleged in the indictment, that the plaintiffs in error conspired together, to get from Mrs. Mcllrath more than the’ tobacco was worth, nor that it was not worth twenty cents per pound. Stone agreed for the purchase of the tobacco at fifteen cents per pound; Mrs. Mcllrath was entitled to receive it at that price, but Stone and Black confederated together to get from her five cents per pound more, and to divide that amount between them. It was of no consequence what the tobacco was worth, honesty and fair dealing required that Mrs. Mcllrath should have the tobacco for the price agreed upon. The indictment contains the only allegation required to describe the offense.

The prosecution, in order to prove that the plaintiffs conspired together to defraud Mrs. Mcllrath, offered in evidence the minutes of a justice of the peace before whom Stone was examined, after his arrest for the conspiracy of the plaintiffs in error to defraud Mrs. Mcllrath.

The examination was had in February, 1876, and the transaction in reference to the tobacco was closed before the 10th of November, 1875, as at that time the whole of this tobacco was paid for by Mrs. Mcllrath. The counsel for the plaintiffs in error objected to the reception of this evidence, on the ground that the statements offered were not a part of the res gestee and therefore the deposition of Black was not evidence against Stone, nor that of Stone against Black, the objection was overruled and the counsel excepted.

Without the deposition of Stone, Black, the plaintiff in error, could not have been convicted. By Black’s own evidence it was proved that he did not know that Stone was purchasing for another, and he made a bargain with him to pay him one-half the difference between fifteen and twenty cents per pound, if he should effect a sale of it at twenty cents, and he denied that he sold the tobacco for fifteen cents.

The deposition of Stone was incompetent as evidence against Black. (1 Cow. & Hill’s Notes, 177, 179 ; 1 Greenleaf Ev., §§ 110, 111; The People v. Davis, 56 N. Y., 95.) The evidence was given long after the plaintiffs in error had ceased to act in furtherance of the purposes of the conspiracy. For the same reasons the deposition of Black was not evidence against Stone.

It is unnecessary to examine any other of the exceptions taken on the tidal. Judgment must be reversed because of the admission of the depositions. Judgment reversed and new trial granted in the Orleans Sessions, to which court the proceedings are remitted.

Present — Mullin, P. J., Talcott and Smith, JJ.

Conviction and judgment reversed, and new trial ordered in Orleans County Sessions, and proceedings remitted to that court.


text:
    MARY HINMAN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Court of Genw'al Sessions — absence of two justices —power of county judge to receive a, vm'dict.

    The plaintiff in error was tried at a Court of General Sessions for grand larceny. After the jury had retired to consider their verdict both of the justices sitting with the county judge left the court room, and one of them, left the building. While they were absent the jury came in and the county judge received their verdict of guilty. The jury were polled at the request of the prisoner’s counsel, without any objection on his part to the reception of the verdict, in the absence of the two justices.

      Held, that the county judge had no power to receive the verdict and that the conviction or sentence must be set aside.
    Writ of error to tbe Court of General Sessions of tbe county of Ontario to review tbe conviction and sentence of tbe plaintiff in error for grand larceny.

      E. W. Qctrcfoier, for tbe plaintiff in error.

      Fra/rik Rice, for tbe defendants in error.
   Mullin, P. J.:

Tbe plaintiff in error was indicted in tbe Ontario Oyer and Terminer for grand larceny. Tbe indictment was sent for trial to tbe Sessions of that county, and tbe case came on for trial at a term of that court beld in June last. After tbe charge by tbe court, tbe jury retired to consider tbeir verdict and tbe county judge commenced tbe trial of a civil cause. Tbe justices of Sessions, wbo were members of tbe court during tbe trial, left tbe court room, one of tbem going into tbe ball on tbe lower floor of tbe courthouse, and tbe other went into tbe street. While the justices were absent from tbe court room, tbe jury came in and announced that they bad agreed on a verdict. The county judge in tbe absence of tbe justices of Sessions received tbe verdict. Tbe jury was polled at tbe request of tbe counsel for tbe plaintiff in error, and the verdict of guilty was entered by the clerk. Subsequently the plaintiff’s counsel made a motion in arrest of judgment, upon the ground that the verdict was improperly received and entered, and upon other grounds not deemed material to be "considered on this writ of error. The motion was denied and the prisoner sentenced to imprisonment in the Monroe penitentiary for one year.

The rule is too well settled to be departed from or modified that a verdict must be delivered in. open court. It cannot be received privately nor by the clerk or other person in the absence of the court, not even by agreement of counsel. (1 Chitty’s Or. L., 636.) To permit verdicts to be received otherwise than in open court, would lead to the greatest abuses. The people or the prisoner might be grossly wronged without any means of redress, or the administration of the law brought into contempt or subjected to suspicion.

The Court of Appeals in Blend v. The People (41 N. Y., 604,) decided that the conviction' of the plaintiff in error should be reversed, because one of the justices of Sessions left the bench during the trial, and the county judge appointed another justice of the peace to fill his place, and the trial proceeded before the court thus organized. The learned judge who delivered the opinion of the court, says, when Elwood abandoned the trial the court was disorganized so far as this trial was concerned. This is not the case when members of the court leave the bench for a few moments intending to return, and do return, but is a total abandonment of the trial in consequence of which one-third of the court is changed.

In the case of The People v. Dohring (59 N. Y., 374), it was held that a Court of Sessions was not disorganized because one of the justices of Sessions left the bench during the trial, went on to the witness stand and was examined as a witness in the cause. Eolger, J., assigns as a reason why the irregularity of the justice leaving the bench and being examined as a witness, did not disorganize the court: That the justice did not leave the court room while the trial was progressing; he did not abandon the trial; he left the bench for a space, intending soon to return to it, and did return.” The ruling in the case last cited followed that in Tuttle v. The People (36 N. Y., 431), The People v. Reagle (60 Barb., 527).

The case now in hand does not come within the principles laid down in the last two cases cited. In this case the justices of Sessions left, not the court room only, but one of them left the court house. When the verdict was received the court was held by the county judge only, and he cannot, under the Constitution, hold a Court of Sessions. The conviction was, therefore, illegal and must be reversed. The case of The People v. Shaw (63 N. Y., 36) is directly in point and decisive of the case. It was suggested by the district attorney on the argument, that the plaintiff in error lost the right to insist upon the defective organization of the court when the verdict was received, because her counsel did not object at the time of the reception of the verdict, on the ground that there was not a court authorized to receive it. I do not supj>ose it would be seriously urged that the plaintiff has lost her right to' insist upon the objection to the organization of the court, if the county judge had alone proceeded to try her for the crime alleged in the indictment. It would be no more a court than, if it was held by any respectable gentleman in Ontario county. Silence does not confer jurisdiction over the subject-matter in .a civil or criminal action or proceeding. Receiving the verdict was one, if not the most important of the proceedings during the trial. It must be received by the court before which the trial was had, and if not the verdict is a nullity, and not authority for the sentence. The conviction must be reversed and a new trial had in the Ontario Sessions, to which court the proceedings are remitted. The question can be there considered whether the former trial prevents a second one.

The district attorney has not considered it on his points, and we cannot consider it without he has an opportunity to be heard.

Present — Mmlltn, P. J., Talcott and Smith, JJ.

Conviction reversed and new trial granted in Ontario Sessions, to which proceedings are remitted.


text:
    CHARLES E. UPTON, Appellant, v. THE NEW YORK AND ERIE BANK, GEORGE S. HAZARD, Receiver of said bank, THE ERIE COUNTY SAVINGS BANK and THE BUFFALO SAVINGS BANK, Respondents.

      Chap. 371 of 1875 —priority given to deposits made by savings bank with othei' banks — applies to deposits made prior to 1875, and, interest then'eon.

    Section 48 of chapter 371 of the Laws of 1875, providing that the assets of insolvent bank shall, after payment of its circulating notes, be applied to payment of any sums that may have been deposited with it by any savings corporations, applies to deposits made by savings corporations prior to, as well as to those made after the passage of the said act.
    An agreement was made between the New York and Erie Bank and a savings bank, by which the former agreed in consideration that the said savings bank would deposit its moneys with it, that it would pay all such deposits as 'had been or should thereafter be made on call, and in such sums as said savings bank might require, with six per cent interest. The president and cashier of the bank individually guaranteed the performance of the contract. Deposits were accordingly made in pursuance of said agreement, and a pass book similar to those given to ordinary depositors was given to the savings bank.

      Held, that this was not a loan of the money to the bank, but a deposit within the meaning of that term as used in the aforesaid act.

      Payne v. Gardiner (39 N. Y., 146), followed.
    The preference given to the deposits themselves also extends to the interest due upon them.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbis action by tbe court without a juay.
    Tbe New York and Erie Bank was incorporated under tbe general banking law of tbis State, passed in 1849, having all tbe powers conferred by that act on corporations created under it. It was located and did business in tbe city of Buffalo until tbe 6th of September, 1815, when it became insolvent, and tbe defendant Hazard was appointed its receiver. Tbe Erie County Savings Bank and tbe Buffalo Savings Bank were duly incorporated and doing business in Buffalo, and bad been for several years'prior to tbe commencement of tbis action.
    On tbe 20th of May, 1868, an arrangement was entered into between tbe New York and Erie Bank of Buffalo and tbe Erie County Savings Bank, by which the former agreed, in consideration that the said savings bank would deposit its moneys with the latter, it would pay all deposits which it had made or should thereafter make on call, and in such sums as said savings bank might require, with six per cent interest. The president and cashier of the New York and Erie Bank, in their individual capacities, guaranteed to the savings bank the performance of the agreement of the New York and Erie Bank.
    On the 4th of September, 1866, the New York and Erie Bank entered into substantially the same arrangement with the Buffalo Savings Bank, and the performance of that agreement was guaranteed by its president and cashier, in their individual capacities, in writing under their hands and seals.
    Both savings banks made deposits with the New York and Erie Bank subsequent to their respective agreements down to the 7th of May, 1875. On that day the New York and Erie Bank was indebted to the Erie County Savings Bank in the sum of $20,000, for money deposited with it. And it was indebted on the same day to the Buffalo Savings Bank in the sum of $20,000. On the day last mentioned the legislature passed an act to conform the charters of all savings banks to a uniformity of powers, etc., and to provide for the organization of savings banks and for other purposes.
    By the twenty-seventh section of said act the trustees of savings banks were authorized to deposit a certain portion of the moneys deposited with them, in any bank or banking association in this State organized under any law of the State.
    By the forty-eighth section it is provided that all the assets of any bank or banking association that shall become insolvent shall, after providing for the payment of its circulating notes, be applied by its officers or receivers, in the first place, to the payment in full of any sums deposited therewith by any savings corporation, not exceeding the amount that the savings bank is by law authorized to invest in banks or banking associations.
    Prior to the 7th day of September, 1875, the Erie Savings Bank had reduced its deposit to the sum of $16,300. The amount due from the New York and Erie Bank to the Buffalo Savings Bank was not reduced between the 17th of May and 6th of September, 1875, but was increased by the accumulation of interest to that date. The Savings Bank received from the New York and Erie Bank pass books snch as were delivered by it to its other depositors. No deposits were made by either savings banks after the 19th of May, 1875. On the 6th of September, 1875, the firm of Delano & Oo. were creditors of the New York and Erie Bank in the sum of $14,605.85. On the 17th of May, 1875, Delano & Co. were creditors of the New York and Erie Bank in the sum of $4,164.82 ; and between that date and the sixth of September, they had deposited the sum of $38,939,02, and had drawn out $29,839.10; and on the 8th of June they had a balance to their credit of $1,632.02. On the 11th of May, 1876, Delano & Oo. recovered a judgment against the New York and Erie Bank for $14,685.85, damages and costs, and on the same day assigned the same to the plaintifi.
    The savings banks claim and insist that they are entitled to receive from the assets of the New York and Erie Bank, the whole balance due them as depositors in said bank, with interest, till the date of such payment. The plaintiff and other creditors of the New York and Erie Bank, of whom there is a large number, claim and insist that the savings banks are not entitled to a preference in payment for moneys deposited before the passage of the act of 1875, but are entitled to a pro rata share with. the other creditors of the insolvent bank. The receiver not yielding to the claim of the plaintiff, this action was brought in order to obtain the judgment of the court that the receiver shall not allow the claim of the savings banks to a preference for the whole amount of their indebtedness, and directing him to pay, as claimed by the plaintiff, to said banks and the other creditors of said insolvent bank as above stated.
    After hearing the parties, the court at Special Term ordered judgment, that the receiver pay to the savings banks the amounts- due to them with interest, in preference to all other claims, and dismissed plaintiff’s complaint with costs.
    The plaintiff appeals.

      A. G. Hicei for the appellant.

      G. W. Olimton, for the Erie County Savings Bank, respondent.

      O. H. Marshall and Spencer Clinton, for the Buffalo Savings Bank, respondent.
   Mullin, P. J.:

In order to arrive at a satisfactory solution of tbe questions arising on this appeal, it is necessary to determine whether the delivery of the money by the savings banks to the New York and Erie Bank was by way of loan or deposit, as if it was the former, the banks are not entitled to a preference in payment by the receiver. (Rosenback v. The Manufacturers and Builders' Bank, 17 N. Y. S. C. [10 Hun], 148.)

It will be seen that the New York and Erie Bank and the savings banks entered into an agreément for deposits by the latter in the former. Loans are not mentioned, nor does it appear that they were contemplated. Pass books such as were given to all other depositors were delivered to, and used by, the savings banks. The parties obviously understood that the moneys of the savings banks were left with the New York and Erie Bank as deposits, and not otherwise. I had occasion in the case of Payne v. Gardiner (29 N. Y., 146) to attempt to draw the distinction between a loan and a deposit, and I came to the conclusion that such a distinction exists, and it is unnecessary to repeat the views there expressed; and within the principles decided in that case, the transactions between the New York and Erie Bank and the two savings banks were deposits and not loans.

It is urged by the appellant’s counsel that under the provisions of the act of 1875, the savings banks are not entitled to a preference for any deposits made prior to its passage. The act makes no such distinction. Preference is given for all sums deposited without regard to the time of making the deposit. It is urged, however, that in construing the statute it must be held to operate prospectively and not retrospectively, and hence all deposits made prior to its passage must be held not entitled to a preference under it. The act was intended to, and in terms does apply to all existing savings banks, and to all that should thereafter be created. It alters existing charters; it brings all savings banks under one uniform system, and requires all to conform to the new conditions and provisions. There is not a particle of evidence in the act, that all or any of the provisions of it should not operate tqjon all existing banks and upon all their operations. It was within the power of- the legislature to give the savings banks the preference ; it violated no contract; it disturbed no vested right. It had the power to alter and amend the charters of these institutions at pleasure, and as it was competent for the New York and Erie Bank to give to the savings banks this preference, the legislature could authorize and compel the insolvent bank or its receiver to give the preference.

The savings banks are entitled to have a preference for the interest upon the deposits. The interest is an incident of the debts, grows out of them, and, when due, is a part of them. No reason is perceived why a distinction should be made between them.

The judgment must be affirmed with costs.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed with costs.


author: AEullin, P. J.:

text:
    JOHN C. DERBY, on behalf of himself and all other creditors interested under the assignment of TIMOTHY CHAPMAN, Appellant, v. JUSTUS YALE, CALEB B. CORSER, as Administrator, etc., of FRANCIS E. CHAPMAN, JOHN CHAPMAN and TIMOTHY CHAPMAN, Respondents.

      Action for an account —formen' accounting must be pleaded, to be a ban• to — not a ban' unless judgment was entered — “ Stale demands ” —power of court to refuse to enforce — Action brought by one creditin' in behalf of himself and others — who bound by.

    This action was brought by a judgment creditor of one Timothy Chapman, in behalf of himself and of all other creditors who might join therein, to compel the assignees of said Chapman to render an account. Upon a hearing before a referee the counsel for the defendants insisted that the action could not be maintained, for the reason that a former accounting had been had between the creditors of the said Chapman and the assignees.

      Held, that such former proceedings should have been set up in the answer, and ' that, not having been pleaded, they could not be proved in bar of the present action.
    The referee had made his report in the former action and the same had been filed, but no judgment had been entered thereon. Held, that until a judgment had been entered the former action could not be pleaded as a bar to the present one.
    Although, in former times, courts of equity have refused to enforce “stale demands,” yet since the adoption of the Code prescribing limitations for both legal and equitable actions no court can refuse to entertain an action on account of tbe staleness of tbe demand, providing it be brought within the time prescribed by tbe statute.
    Where an action is brought by some of the creditors of a debtor, in behalf of themselves and all others similarly situated who shall come in and contribute to the expenses of the action, none but the plaintiffs therein acquire any vested interest in such an action, or are bound thereby, until a final judgment has been entered therein.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The action was brought by the plaintiff, a judgment creditor of one Timothy Chapman, in behalf of himself and all others similarly situated, to compel the assignees of the said Chapman to render an account, and also to set aside certain conveyances of portions of the assignor’s property, alleged to have been fraudulently conveyed to one John Chapman by said assignees.

      H. E. Woockocurd and J. O. Cochrane, for the appellant.

      George F. Ea/nforth, for the respondents.
   AEullin, P. J.:

The plaintiff brought this action in behalf of himself and such others of the creditors of Timothy Chapman, as should come in and contribute to the expenses of the suit to compel the defendants, Justus Yale and Caleb B. Corser, as administrators of Francis E. Chapman, to account for moneys received by said Chapman, Yale and one James C. Campbell, as the assignees of one Timothy Chapman, and to compel the defendant John Chapman to deliver to a receiver for the benefit of the plaintiffs and other creditors of said Timothy, property that belonged to the said assignees and which had been fraudulently transferred to him.

Timothy Chapman, in August, 1853, was a merchant residing and doing business in Rochester, and being largely indebted and unable to pay his debts in full, did, on the tenth day of that month, make an assignment of his property for the benefit of his creditors. The assignees accepted the trust, sold the assigned property and realized therefrom some $60,000. The plaintiff holds by assignment several judgments against Timothy Chapman, and it is to obtain payment of those judgments that this action was brought.

It is alleged in the complaint that the assignees failed to apply the assets received under the assignment to the payments provided in the assignment, and that a large sum, to wit, $20,000, was in the hands of Chapman, one of the assignees, which he neglected to apply to the payments of the creditors of said Timothy Chapman, but on the contrary, fraudulently transferred the samé to the defendant John Chapman.

Campbell, another of said assignees, was' dead when the action was commenced and his estate is insolvent, and Chapman, another of said assignees is dead, and his estate is said to be insolvent; but the referee says in his report, that the insolvency of his estate is not proved before him. Yale and the administrator of Francis E. Chapman, the only persons who appear claiming to represent the assignees, deny that they neglected to pay the creditors provided for in the assignment to the extent of the means realized from the assigned property, and insist that they paid some of the creditors out of their individual property.

It is claimed, by way of defense, by the defendant Yale, that, in 1856, Daniel Craves, a creditor of said Timothy Chapman, the assignor, in behalf of himself and other creditors of Timothy Chapman, commenced an action in this court against the assignees for an accounting and payment of their debts out of the assets in the hands of said assignees ; that Craves subsequently died and one Blossom was substituted in place of Craves as plaintiff, and that Yale and Francis E. Chapman appeared in the action and such proceedings were had that it was referred to a referee to state the account between the assignees and the creditors; and the parties appeared before him and were heard by counsel, and the referee made a report, by which he found that the defendants, the assignees above named were liable to the plaintiff in that action, to the amount of the claim held by him, by reason of said assignees having paid that sum to creditors in a class of creditors, whose debts were, by the assignment, not to be paid until after the payment of the class in which such claimant’s debt was included.

After this report was made and delivered, an agreement was entered into between Blossom, Yale and Clark, the assignees of a judgment that Martin had recovered against Yale, and one Stewart, the assignee of a judgment against Timothy Chapman, in favor of one Ohancey, whereby it was agreed that Yale should pay $2,000 and the costs of the suit, and Yale was to be discharged from liability as assignee; the arrangement was not to discharge the liability of the other assignee, nor was it to operate as a discontinuance of the action of Blossom. Blossom, Stewart and Clark executed under their hands and seals a release in accordance with the above agreement to Yale, and delivered the same to him.

• While the action was- pending before the referee he issued a summons underwritten, notifying the creditors of Timothy Chapman of the pendency of the matter before him, and of the time and place at which he would hear the parties. No judgment was entered on the report of the referee, nor has any thing been done in the action since the report was made.

The defendant, John Chapman, denies having any property, belonging under the assignment, obtained fraudulently. After the recovery of the judgment held by the plaintiff in this action, an agreement was entered into between him and Timothy Chapman, by which the plaintiff agreed to advance money to Timothy, to be used by him in buying up judgments recovered against Timothy, to be assigned when purchased to the plaintiff to be held and enforced by him; and what should remain of the avails, after paying to plaintiff the money advanced by him, and a debt due to him from Timothy and a certain amount for compensation for his services under said agreement, should be paid to said Timothy. The judgments held by plaintiff and to enforce payment of which this action is brought, were transferred pursuant to this agreement.

The referee to whom the issues in this action were referred for trial, finds among other things, that transfers of property by Francis E. Chapman to John Chapman, were made for a valuable consideration. The referee finds that there was an accounting in the action brought by Blossom, and that Y ale was released by all the creditors of Timothy Chapman who appeared in that action, with the knowledge and consent of said Timothy. The books and papers relating to the assignment have been accidentally destroyed. The referee says in his report that it does not appear by the proofs before him that any moneys have been received by either of the assignees since the accounting, nor that any property belonging under the assignment, has come to their hands since that time, nor that either of the assignees have retained any money belonging to the assigned estate, nor that they have been requested to render a new account, nor that Yale is insolvent, nor that Campbell, the other assignee, died insolvent or intestate, or that execution had been issued on either of the plaintiff’s judgments, or that any one of the conveyances or transfers was fraudulent or made with any fraudulent intent. The referee held that plaintiffs were not entitled to another accounting.

The accounting demanded in the complaint in this action is resisted on the ground, hereinbefore stated, that there was an accounting in the former action between the creditors of Timothy Chapman and his assignees, and that the creditors are thereby precluded from having another. If such former accounting is a bar, it should have been pleaded, and not being pleaded, the defendants are not entitled to prove such action and accounting in bar of the present suit. (1 Wait’s L. and P., 948.) But such former accounting is not a bar, no judgment was entered in it, and without a judgment it cannot be a bar to a subsequent action. (1 Chitty P. [11 ed.], 582, 544, 478 ; note e, 636,' 637.) Except in courts that do not possess the power of setting aside their own judgments or of granting new trials, no evidence will be received to establish a former judgment except the record itself. (Croswell v. Byrnes, 9 Johns., 287, 290.)

The respondent’s counsel seeks to avoid the effect of the rule requiring proof of a judgment, in order to defeat a recovery in this suit, by suggesting, first, that the demands of the plaintiff are stale demands and ought not to be enforced in a court of equity. The Court of Chancery in this State, prior to the adoption of the Revised Statutes, in 1829, did refuse relief to persons seeking to enforce stale claims, as they were called, but at that time there was no statute of limitations requiring suits in that court to be brought within a certain limited number of years from the time the right of action accrued, unless a limitation may have been applied in a few cases. By the Code, a limitation is provided for both legal and equitable causes of action; and it is not competent for any court to refuse a party the benefit of such limitations. To do it would be to repeal or alter the statutes by judicial legislation.

Second. The counsel says the relief prayed for ought not to be granted, because the plaintiff is joint owner of the judgments sought to be enforced, with Timothy Chapman, the assignor in the assignment mentioned in the complaint, and that plaintiff: ought not therefore be permitted to have an accounting. I am not prepared to say that the arrangement referred to is unlawful; it would seem to be a roundabout way for compromising Chapman’s debts. The creditors received for their claims, which they assigned to plaintiff, an amount with which they were satisfied at the time, and neither the assignees of Chapman, nor other creditors, have any right to complain. But, should there be another accounting, the question whether the whole or only part of plaintiff’s claim can be allowed, will properly arise, and can then be determined, after a fuller examination of it than it has received on the argument of this appeal.

Third. It is further insisted that the plaintiff, or those he represents, are bound by the former accounting, because the referee issued a summons requiring Timothy Chapman’s creditors to appear before him at a time and place named, and that the creditors were thereby made parties to the action. I do not understand the law as stated by the counsel. On the contrary, it is held in Duffy v. Duncan (32 Barb., 587), that in order to bind persons not parties, by a judgment in an action brought by the plaintiff in his own behalf, and of such others as should come in and contribute toward the costs, they must make themselves parties by proving their debts, or in some other way, in conformity to the practice applicable to such cases; and in the same case, on appeal to the Court of Appeals (35 N. Y., 187), Leonard, J., said there had been no final decree, and of course no accounting.

It was held in Mattison v. Demarest (1 Robt., 717) that no other creditors of a debtor acquire any vested interest in any action brought by some of his creditors against him and others, on behalf of themselves and all others similarly situated who shall come in and contribute to the expenses of such action, except those by whom such action shall be instituted, until after judgment in the action. No judgment being entered in the former action, no one except those who were named in the complaint as plaintiffs, were parties to it or bound by it.

In O’Brien v. Browning (19 How. Pr. Rep., 110), it is held that until an order or judgment has been entered in the action brought by plaintiff in behalf of themselves and all others who come in, under which they can come in and prove their debts, no creditors other than the plaintiff in the action are authorized to interfere in the suit. If this proposition be law, then the plaintiff was never a party to the action nor bound by the proceedings before the referee.

In Innes v. Lansing (7 Paige, 583), the chancellor held that until a decree in an action brought in behalf of plaintiff and others, the plaintiff could discontinue the suit and the defendant could compel a discontinuance on satisfying the claim of the plaintiff, and, in such a case, until decree, any other creditor may commence an action. (See, to same effect, Tremain v. Guardian Mutual Ins. Co., 11 Hun, 286.)

Fourth. It is further suggested that no accounting should be ordered, because two of the assignees are dead, and the books and papers pertaining to the assignment are lost or destroyed-If it rested in the discretion of the court whether an accounting should' be ordered, we might, in view of the lapse of time and the embarrassments surrounding the case, deny an accounting, but the right is a legal one and the court has no power to refuse to order it, if a case for it is established on the part of the plaintiff. No reason is produced why resort was had to a second action to obtain an accounting by the assignees. The former suit has never been discontinued ; on the contrary, it was expressly provided in the agreement between Yale and the plaintiff and the other creditors of Chapman, the assignor, that the settlement with Yale and the agreeement to release him, should not operate as a discontinuance of the suit. If a new referee was appointed in that suit, 'and the case referred back to him to state the account between the creditors of Chapman and the assignees and to find and report how much has been paid, to whom, and how much money is due to creditors who have not been paid, in full, pursuant to the provisions of the assignment, creditors who have not been paid could then come in, and those who did not come in might be precluded from obtaining any share of the assets of the assigned property, and thus the rights of all parties be protected. This would seem to me to be the best way out of the embarrassments under which both parties to the suit are now laboring. But whether it is practicable, counsel, who are more familiar with the case than I can be, are much better able to determine.

If it shall turn out that, by reason of the death .of two of the assignees and the loss of the.books and papers, a proper accounting cannot be had, the referee, should one be appointed, will be able to ascertain the fact, and the court, on the coming in of his report, can make such order as will be just between the parties. Until an accounting is had, the question whether the plaintiff is entitled to a judgment against the defendant Hall cannot be entertained. The amount to which plaintiff is entitled out of the assets of the assigned property, if any, in the hands of the assignees, should be first ascertained; and if any thing shall then remain due, the remedy, if any, against Hall, may be resorted to.

The judgment must be reversed and a new trial granted before another referee, costs to abide event.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment reversed and new trial ordered before another referee, costs to abide event.


text:
    JOSEPH P. SAMPSON, Respondent, v. THE BUFFALO, NEW YORK AND PHILADELPHIA RAILWAY COMPANY, Appellant.

      Notice of lien by laborers and material-men against railroad conypany —what must be shown to establish lien — Qluvp. 402 of 1854 and 529 of 1870.
    One Robertson entered into a contract with the defendant, a railroad company, to construct forty-seven miles of its road, and thereafter entered into a contract with one McGraw, by which the latter agreed to construct a portion thereof. Subsequently, McGraw having failed to pay his laborers and others who had furnished materials, the latter filed notices as provided by section 4 of chapter 402 of the Laws of 1854, as amended by section 1 of chapter 529 of 1870, and to foreclose these this action was brought against the company and McGraw. At the time the notices were filed nothing was due to McGraw.

      Held, that as nothing was due to McGraw at the time the notices were filed, the company were not liable to pay the amounts therein set forth.
    That, to render the company liable, it must also be shown that it was, at the time of the filing of the notices, indebted to Robertson on its contract with him.

      Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      Shermcm 8. Rogers, for the appellant.
    . Leverett Spring and Thomas Corbett, for the respondent.
   Mullin, P. J.:

On the 4th of August, 1870, the Buffalo, New York and" Philadelphia Railway Company, entered into a contract with one David Robertson, to furnish the materials and build and complete said company’s road from South Wales to Olean, a distance of forty-seven miles, according to specifications annexed to said contract, the work to be completed prior to the 1st September, 1871, for which said company agreed to pay $19,500 per mile, to be paid monthly, between the first and tenth of each month, after the commencement of the work, for the work done in the preceding month, less ten per cent, which the company had the right to retain until the completion of the work; but the right to retain the ten per cent terminated when the amount reserved amounted to $25,000.

On the 30th March, 1871, Robertson entered into a sub-contract with the defendant McGraw, for the construction of a section of said road about two and a-half miles in length, the work to be finished by July 1, 1871. Within the portion of the road to be made by McGraw there was a bridge to be built across the Cattaraugus creek, with the necessary embankments. McGraw entered upon the performance of the work and employed sundry persons to aid in building the bridge. On the 11th of December, 1871, he was indebted to some of them in divers sums of money, and on the sixteenth of December of the same year, and on the 5th, 10th and 22d of January, 1872, he was indebted to divers other persons for work on said bridge and materials furnished therefor. At the dates last above mentioned the persons, so doing work and furnishing materials, filed in the office of the town clerk of the town in which the bridge was situated, the notices required by section 4 of chapter 402 of the Laws of 1854, as amended by .section 1 of chapter 529 of the Laws of 1870, setting forth, that McGraw was indebted to each of them for the amount by them severally stated, for work done and materials furnished in building said bridge. The claims were all assigned to the plaintiff and by him owned when this action was commenced. This action is brought to enforce such claims.

McGraw owed the debts for which liens were sought, and it was from the money due' to him that they could require payment. The railroad company owed McGraw ^nothing; they had made no contract with him to build the road or furnish the materials for it or any ¡Dart of it. The company’s contract was with Robertson, and Robertson was liable over to McGraw. It does not appear that Robertson owed McGraw any sum whatever at the time the notices of liens were filed, nor what amount of work McGraw had done on, or what amount of materials he had furnished for, the bridge or the railway.- The claimants could have no lien on either the bridge or railway unless money was due from Robertson to McGraw. That factwas not proved, and the failure to prove is fatal to the judgment.

Again, on the facts stated in the case, it appears that when the notices of liens were filed the defendant owed nothing to Robertson ; on the contrary, he had been largely overpaid for what he had done under the contract up to that time. On the 1st December, 1871, the amount of the work, etc., done, was $596,060.34; on the 1st January, 1872, $631,925.56 ; on the 13thMay, 1872, $696,488.01. On and prior to the thirteenth May, he had been paid by the defendant $971,165.27, or $274,667.26 more than all the work done and material furnished by him came to. On the 13th May, 1872, Robertson abandoned the contract and the defendant proceeded to finish the work. Between the time of filing the notices of liens and the time Robertson abandoned the contract some $40,000 were paid to Robertson, but in the absence of all evidence repelling the inference necessarily arising from the overpayment to Robertson by defendants the plaintiff is not entitled to benefit from the payments between the time of filing the notices and the abandonment by Robertson of the contract. The payments thus made must be deemed to be advances to Robertson and not as jjayments of a debt actually due. It is quite probable that there was evidence before the referee showing that the money thus paid was paid in satisfaction of a debt, but as it stands the defendants had paid more than all it was owing to Robertson before the notices were filed and, hence, the claimants acquired no lien on the bridge or railway.

It is due to the parties that the case should be again tried when their real or apparent difficulties can be removed. The receipts given to the defendant by Robertson would seem to show that the $10,000 was paid him for work, etc., but the overpayment is established by equally conclusive, if not more conclusive, evidence that Robertson was largely overpaid. The plaintiffs counsel gave no proof in explanation of this conflict in the evidence, and it should be ascertained which of the propositions thus apparently proved is the correct one.

New trial granted before another referee, costs to abide event.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment reversed and new trial granted before another referee, costs to abide event.


author: Smith, J.;

text:
    IRA SEYMOUR, Respondent, v. ALEXANDER McKINSTRY, Jr., and others, Appellants.

      Settlement of issues — discretionary with court— order dk'ecling, is not appealable.

    Appeal from an order of a Special Term in Onondaga county-settling issues to be tried by a jury, in an action brought to foreclose a vendor’s lien and for other equitable relief.
    The court at General Term said, “ The granting of issues is not a matter of course, but is now, as formerly, discretionary with the court. In an equity case (except a suit for a divorce), a jury trial is not a matter of right. The judge may try all the issues, or he may, either upon the application of counsel, or upon his own motion, send any question upon which he prefers the judgment of a jury, to that tribunal. From an order settling issues in an action of that character, no ajipeal lies. (Wood v. The Mayor, etc., of Mew York, 4 Abb. [N. S.], 152; S. C., 3 id., 467.) If either party desires to question the form of the issues, he may d'o so by presenting a petition for a rehearing of the decree or order directing them. (White v. Lisle, 3 Swanst., 351 ; 2 Dan. Oh. Pr., 757; 1 Barb. Oh. Pr. [2d ed.], 456.) The petition should be presented to the Special Term.”
    Ruger. & Jemvy, for the appellants, McKinstry and Sabey. Wm. W. Teall, for the ajipellants, W. W. and Sarah M. Teall. Eugene Forman, for the respondent.
   Opinion by

Smith, J.;

Mullin, P. J., and Taloott, J., concurred.

Appeal dismissed, with ten dollars costs and disbursements.


text:
    SAMUEL W. JOHNSON and others, Executors, etc., Respondents, v. THE CITY OF ROCHESTER, Appellant.

      Tempoi'a/ry injunction — when granted to restrain trespasses.

    Appeal from an order of the Special Term in Monroe county denying a motion to dissolve a temporary injunction. The motion was made upon the papers upon which the injunction was granted, including the verified .complaint. The complaint alleges that the plaintiffs are, and since July, 1876, have been in possession of certain lands in the city of Rochester, on which is a building known as Jones’ cotton factory, claiming an interest therein and the right of possession, and carrying on the business of manufacturing cloth in said premises, and that in April last, while plaintiffs were so in possession, the defendant, a municipal corporation, by its agents and servants, and without any right or authority, and against the will of the plaintiffs, wrongfully entered upon said premises, and removed and destroyed plaintiffs’ fence, gate and inclosure erected thereon ; and wrongfully drove defendant’s team and wagons upon and across a portion thereof, and is now using the same as a passageway upon which to carry .dirt and filth, and threatens to continue to use the same for that and other purposes; that the conduct of the defendant, if continued, will lead to a multiplicity of suits, and that any remedy by actions for damages will be inadequate.
    The court at General Term said : “ Although the general rule is that an injunction will not be granted to restrain a mere trespass, without special equitable features in the case, it is well settled that such equitable features exist when there is vexation from repeated or continued trespass in the nature of a nuisance, or when the wrongful acts, continued or threatened to be continued, might become the foundation of adverse rights, and would occasion a multiplicity of suits to recover damages. (See Moha/wh cmd Hudson R. R. Go. v. Artcher (6 Paige, 83); Williams v. N. 7. O. R. R. Go. (16 N. Y., 97.) The present case is within the rule above stated. It does not differ in principle from the case of Rioe v. Gannon, decided by us at the last term, in which we affirmed an order refusing to vacate an injunction.”

      J. Yam, YoorMs, for appellant. W. F. Oogswell, for respondents.
   Opinion by

Smith, J.;

Mullin, P. J., and Talcott, J., concurred.

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