author: MeewiN, J. :

text:
    CHARLES CLEVELAND, Respondent, v. THE NEW JERSEY STEAMBOAT COMPANY, Appellant.

      Carrier of passengers — negligence — miseonchict of third persons — evidence.
    The defendant was accustomed to close an opening in the side of one of its boats, at the gangway, by inserting a gate resting in staples, and secured on the outside by stanchions, and on the top by a rail. After the boat had left the dock the gate was inserted; and after it had proceeded about .twenty feet, and before the stanchions, which were used to prevent its swinging outward, or the top rail had been put in their places, the plaintiff was pushed, by a rush of the passengers, through the gate and into the river. Held, that the defendant was guilty of negligence in allowing the boat to leave the dock before the gate was properly secured.
    Negligence of a third person, contributing to the injury, is no excuse for the negligence of the person sued.
    Upon the trial the defendant asked: “Is it customary on the Hudson river, on passenger boats leaving a dock at New York, to wait for the departure until the gates at the gangway entrance are put in; ” which question was objected to and ruled out. Held, that its rejection was proper; that the offer was, in effect, to show, as an excuse for defendant’s negligence, a custom of others to be equally negligent.
    Statements of a patient to his physician as to the former’s condition, held competent evidence.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought against the defendant, as a common carrier of passengers, to recover damages for alleged negligence. The facts, as found by the referee, were as follows:
    That the defendant was a corporation, as alleged in the complaint; that in the month of September, 1873, defendant owned and ran the steamer £ St. John,’ between the cities of New York and Albany, for the conveying of passengers, and that plaintiff, on the eighth of said September, went on board the said ‘ St. John,’ intending to take passage on her to the city of Albany.
    That the gangway opening on the starboard side of said boat, was about nine feet wide, and when closed, was closed by a gate resting at each end in a staple driven into a stanchion or upright at each side of the opening, and prevented from swinging outward by the bearing on the staples, and by two upright stanchions outside of the gate, let into the deck some ten inches. That the top rail when in its place was secured there by slides of iron. That the opening of the said gangway was, when the gate, stanchions and top rail were in their places and the fastenings were in their places, properly and sufficiently closed, and that such gate, stanchions, top rail and fastenings, when in their places, were, in construction and quality, sufficient for the protection of passengers.
    That at the time of the starting of the said ‘ St. John,’ on the said eighth of September, and until the said plaintiff was thrust overboard, he was standing four or five feet from the outside of the steamer, and in a line about two feet forward of the gangway opening. That at the time of the starting of said boat, the gangway gate on the starboard side was put in its place; that the two stanchions necessary to prevent said gate being pushed ■ out, and the top rail to secure said gate in its place, had not been put in their places at the time of the starting of the said boat; nor were they put in their places when the said steamer had moved forward from its starting place some twenty feet, and was, at point of gangway opening, out from the pier some six' to ten feet.
    That after said steamer had left its starting place, on said eighth day of September, and before the two stanchions and the top rail had been put in their proper places, to fully guard the starboard gangway opening, the said plaintiff, by a sudden rush and crowd of the passengers, was thrust overboard through the starboard gangway opening. That the said gangway opening was negligently and carelessly left without the full and proper protection provided on said boat, after the £ St. John ’ had commenced its departure and at the time plaintiff was thrust overboard, and that by such negligence and carelessness on the part of the officers and crew of the said steamer, the agents of said defendant, the plaintiff was thi’ust and crowded overboard.
    That the said plaintiff did not contribute, by any negligence on his part, to his being thrust overboard, as above stated. That the said plaintiff received damage in consequence of being thrust overboard, as aforesaid, in the sum of $1,000.”
    The referee also found, in pursuance of rule 41, that the man who put in the gate, stepped to it to put it in, and ordered the passengers to step aside, but no order to passengers to stand out of the gangway was .heard by plaintiff:; that the gate was put properly in its place before the plaintiff fell overboard, and the mate was about to put the top rail on, and had turned to take it in his hands for that purpose, when the plaintiff was pushed overboard by the other passengers; that some one passed' through the forward end of the gate on to the wearing piece after the boat started; that the gate was not broken on the occasion; -that the plaintiff left the dock, after he was picked up, with a friend, took tea with him, went off to Albany by cars, looked up a friend there, who went on board the boat with him, and with him took the train to Utica the next morning; that the plaintiff had a bad cold when he reached Albany, and caught it the night of the accident.
    The referee ordered judgment for plaintiff for $1,000.

      H. R. Selden, for the appellant,
    Risley, Stoddard d¿¡ Matteson, for the respondent.
   MeewiN, J. :

The plaintiff cannot recover unless the injury was caused by the negligence of the defendant; nor even then, if he had so far contributed to the accident, by want of ordinary care, that, but for that, the accident would not have happened. (Eedfield on Carriers, § 378.) Negligence is not actionable unless it is the proximate cause of the injury. It may, however, be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant’s negligence concurred with some other event, other than plaintiff’s fault, to produce the plaintiff’s injury, so that it clearly appears that, but for such negligence, the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time. (Shearman & Kedfleld on Negligence, § 10.) A carrier of passengers is not an insurer; nor is he bound to take every possible precaution against danger, but he is bound to use the utmost care which is consistent with the nature and extent of the business in which he is engaged, in the providing of safe and. suitable means of transportation, as well as in the management of the same, and in making such reasonable arrangements as a prudent man would make to guard against all dangers, from whatever source arising, which pray naturally, and according to the usual course of things, be expected to occur. (Simmons v. New Bedford Company, 91 Mass., 361, 368.) Any violence must be provided against, which might reasonably be anticipated, or naturally be expected to occur, in view of all the circumstances. (AlleN, J., in the Putnam Case, 55 N. Y., 114, approving Shipman, J., in Flint v. Norwich and N. Y. Trans. Co. (34 Conn., 554.) In Bowen v. N. Y. Central R. R. Co. (18 N. Y., 408), it is said that the precautions to be taken must be such as would be dictated by the utmost care and prudence of a very cautious person, and this rule has been since reiterated. (Deyo v. N. Y. C. R. R. Co., 34 N. Y., 11; Maverick v. Eighth Ave. R. R. Co., 36 id., 381.) That the negligence or misconduct of a third party contributed to the injury, is no excuse. The results of such acts that can reasonably be anticipated, must be guarded against as much as those of any other cause. (Eaton v. Boston and Lowell R. R. Co., 11 Allen, 500; McElroy v. Nashua and L. R. R. Co., 4 Cush., 400; Pittsburgh, etc., R. R. Co. v. Hinds, 53 Penn., 512.) In the case in 97 Mass, {supra), the injury was occasioned by the fall of a small boat, which was suspended over a portion of the deck where it was proper for passengers to be. The fall was occasioned, in part at least, by the carelessness of the people in the boat. In the present case, the negligence complained of consisted in starting the boat before the barrier at the gangway was properly secured. The passage-way was about nine feet wide, and the provision made by the company for its closing, was a portable gate, resting at each end on the top in a staple, and at the outside at each end were placed stanchions, which prevent swinging, and on the top of the whole was placed a top rail, secured by slides of iron. When the gates, stanchions, and top rail were all in their places, and secured as provided to be secured, there is no doubt about their sufficiency. When the boat started, the gate was set in its place, but the stanchions, which at each end prevented its swinging outward, were not put in: nor was the top rail put on, which would keep the gate and stanchions in their places, and prevent the gate being lifted out, or pressed out by bending. In this condition the boat proceeded about twenty feet, being, at the point of the passageway, from six to ten feet from the pier, when, by a sudden rush or crowd of the passengers, the gate was thrown or pressed open, and the plaintiff thrust into the water. From this brief statement of the occurrence and the condition of the barrier, it 'is clear to me that the officers of the defendant were guilty of negligence. No one would say they were not negligent, if the gate had not been placed in at all. Is it varied much by saying it was placed in, in a defective or deceptive manner ? I think not. But it may be suggested that the sudden crowd or rush was not reasonably to be anticipated, aud therefore the company not liable for not providing for it. The very object of banders of this kind is to prevent the results of such commotions.' Vessels are liable to be crowded, especially at gangways, at the time of starting. The fact that the company provided barriers of such character, shows that they anticipated their necessity and use, and appreciated the importance of a strong, well secured gate. The failure to use the appliances provided, seems to me a reckless disregard of the safety of the passengers.

In the Dougan Case (56 N. Y., 1), cited by defendant’s counsel, the proof of negligence was the omission to inclose the space between the rail and the deck, so as to preclude the possibility of slipping under it. Such an accident was not likely to occur, and never had before, and there was no evidence that such danger would be apprehended by a reasonable, prudent person, and the boat had been run as it was for a number of years. On these grounds the court held there was no proof of negligence to go to the jury. In the Crocheron Case (56 N. Y., 656, not fully reported), it appears that upon each step of the main stairway of the boat, was put a brass plate, or covering, which was corrugated save where it turned over the edge of the step, and there it was left smooth and slippery. Upon this the plaintiff slipped and'was injured. The stairs were so fixed on the best boats. They had been long in use on defendant’s boat, and no injury was ever caused before, and there was evidence that that was the best covering in use. Held; no negligence. Such injury evidently could not have been reasonably expected. In the Cornman Case (4 Hurl. & Nor., 781), the defendant, a railway company, bad on its platform, standing against a pillar wbicb passengers passed in going to and from the trains, a portable weighing machine, used for weighing passengers’ baggage, and the foot of which projected about six inches above the level of the platform. It was unfenced, and had stood in the same position without accident for about five years. The plaintiff, being at the station on Christmas day inquiring for a parcel, was driven by the crowd against the machine, caught his foot in it and fell over it. Held, no evidence of negligence, the machine being in a situation where it might be seen, and the accident being one'which could not have been reasonably anticipated. In the Brown Case (58 Me., 384), a child, nine years' old, jumped on to a draw-bridge while it was being closed. A nonsuit was granted on the ground of contributory negligence of plaintiff.' This was affirmed, the court saying there was no negligence on the part of defendant, although there was no one there to keep people off till the closing of the draw, it being in the daytime. In the Grafter Oase (L. K. [1 C. P.], 300), the staircase leading from a railway station to a highway, had, at the edge of each step, a strip of brass, which had originally been roughened, but had become, from constant use, worn and slippery. The staircase was about six feet wide, a wall on each side, but no hand-rail. It was otherwise unobjectionable. The plaintiff, a frequent traveler, in ascending from the station, slipped and fell. Held, no evidence of negligence against the company, the staircase having been long used without accident, and there being nothing unusual or improper in the construction ; nothing to cause danger to a person walking with ordinary circumspection.

These cases are relied on by defendant’s counsel, but I do not think they lay down any rule that would prevent a recovery here. The questions here are simply these: Was the accident in question one that could have been reasonably anticipated, and if so, could it have been avoided by the best of care ? Both of these questions I answer in the affirmative. It could have been reasonably anticipated, for provision had in fact been made against it. It could have been avoided by even ordinary care, for the use of the means actually provided' would have prevented it. The direct cause of the accident was an act whose occurrence was contemplated, and which the company was bound to provide against. Nor can I see bow the plaintiff was guilty of any contributory neg-ligence. A large number of passengers was passing on board. They remained, and were so allowed by the officers of the boat, near the gangway. The ticket office was also near there. The plaintiff, as he comes on, steps several feet within the rail and stops a moment to wave his handkerchief; the boat starts; the crowd press to the gate, which gives way, and the plaintiff is pushed overboard. The whole happens very quickly. I do not see how the plaintiff can be charged with any negligence. lie had a right to be where he was, and had reason to suppose he was safe, and, for aught that appears, would have been, if the gate had been properly secured.

Upon the trial, the defendant asked the question: Is it customary on the Hudson river, on passenger boats leaving.a dock at New York, to wait for departure until the gates at the gangway entrance are put in?” This was objected to by plaintiff and ruled out. No case is cited by defendant’s counsel broad enough to sustain this question. Evidence of the character of a structure, either generally or as compared with similar structures used by others, and evidence of whether accidents of that kind have ever happened before, have been sometimes admitted. But that does not reach the present point. It is, in effect, an offer to show, as an excuse for its negligence, a custom of others to be equally negligent. I know of no principle to sustain it.

The defendant also offered to show by a witness, his opinion whether or not the plaintiff stood in a safe and proper place. This was ruled out, and I think correctly. Plaintiff’s negligence must be proven by facts, not by opinions. Evidence was also offered by defendant, of opinions whether or not the gate in question was properly constructed, and a safe and proper one. No question was made by plaintiff but that it was, and the evidence was properly ruled out as immaterial.

One of the physicians called by plaintiff testified that when he first saw plaintiff, he. complained that he was restless nights.. This the defendant moved to strike out, and the referee denied the motion. The evidence was competent within the rule in Caldwell v. Murphy (11 N. Y., 416, 419).

The damages allowed by the referee were not excessive. There is no evidence sufficient to show that the injury was aggravated by the act or misconduct of the plaintiff.

I think the judgment should be affirmed.

Present — SMITH, P. J., Gilbeet and Meewin, JJ.

GilbeRt, J., dissented.

Judgment affirmed.


source: Caselaw Access Project

author: MerwiN, J.:

license: Public Domain

text:
    MARY ANN JACKSON, Respondent, v. BARNEY L. BROOKINS, LEVI SNIDER and ROSWELL MINARD, Appellants.

      Cimil damage act, chaplet' 646 o/1873— who mag bring action under — who may be joined, as defenda/nts.

    Any person may maintain an action, under chapter 646 of 1873, against tlie persons therein named, who is injured in person, property or means of support by any intoxicated person, or in consequence of such intoxication.
    Where several persons become intoxicated and engage in an affray, in which one of them is killed, his widow may maintain an action against the persons who sold the liquor which caused the intoxication, to recover the damages sustained by her from the death of her husband.

      Under the act (chap. 646 of 1873) a joint action may be maintained against a landlord and his tenant.
    A joint action will not lie, however, against two or more persons who, separately, at different times and at different places, have sold liquor to the same person, each quantity of liquor sold having contributed to produce the intoxication that caused the injury.
    Appeal from an order of the Allegany Special Term, overruling the demurrer of defendants to the complaint.
    The action was brought under the “ civil damage act,” so called. (Chap. 646 of 1813.)
    The complaint alleges that plaintiff was married to Charles Jackson, on June 13,1866, and continued his wife until March 18, 1814, and is now his widow; that on the 17th of March, 1874, at Fillmore, in Allegany county, the defendant, Minard, sold and gave away strong and spirituous liquors to said Charles Jackson, William Cary, David Cary, and others, in consequence whereof they all became intoxicated, and while so intoxicated, the defendant Snider, on said seventeenth of March, at Fillmore, sold and gave away strong and spirituous liquors to said Charles Jackson, the Carys, and others, which contributed in part to their intoxication; that the defendant Snider was the tenant of the defendant Brookins, who rented to said Snider the premises on which said strong and spirituous liquors were sold by Snider, knowing that the same were to be used for the sale of intoxicating liquors, and that Brook-ins did permit the sale of intoxicating liquors thereon. That while said Charles Jackson and others were intoxicated, as aforesaid, they engaged in an affray, and while so engaged, Jackson received from the hands of "Williatn or David Cary, or both, mortal wounds, from which he died, on the 18th of March, 18J4. That during coverture said Charles provided for the support and maintenance of plaintiff, and she was entirely dependent on him therefor; and in consequence of his death she is destitute of means of support. That in consequence of the selling and giving away of the strong and spirituous liquors by the defendants, as aforesaid, and the permitting thereof by Brookins, the plaintiff, has been injured in means of support to the amount of $5,000.
    The defendants separately demurred, on the grounds, substantially, that the complaint did not state facts sufficient to constitute a cause of action against the defendants, jointly or separately; that several causes of action had been improperly united; that either 'defendant could not be sued jointly with the others, or with either of them.

      Hamilton Ward, for the appellants.

      G. W. Harding, for the respondent.

       See Hayes v. Phelan, 4 Hun, 733. — [Rep.

   MerwiN, J.:

The appellants claim in this ease : First, that the cause of action does not survive to the widow ; second, that the statute does not .cover damages arising from the death of a party; third, that Minard is not responsible for what Snider and Brookins did, or Snider and Brookins for what Minard did, and therefore a mis-joinder of causes of action.

The statute says, every husband, wife, or other person, who shall be injured, shall have a right of action. The test is not whether plaintiff is wife or widow, or in any other particular capacity or relation, but whether she is injured in her person, property, or means of support. That being alleged, the pleading in that regard is good.

But it is said the complaint claims no damages, except such as are consequent, upon the death of Charles Jackson; that by the common law no action was given for causing the death of a person, and that by the present statute it is not given by express terms or necessary implication. It is true the statute does not, in express terms, give the right of action upon the cause of death. It does not define the injuries "meant to be covered, or enumerate them. It says, generally, “-injuries to person, property, or means of support, in consequence of the intoxication of any person.” If death ensues, as the natural and legitimate result of the intoxication, it is covered by the language of the statute. All injuries are covered-that are consequent upon the intoxication. If death were excluded, then the minor and temporary injuries would be provided for, while .the greatest and most permanent of all would be excluded. The statute should not be so construed. It admits of the other construction, and that is more consonant with its benign" purposes. Its main object was to provide a remedy for cases, before remediless. Had it been confined to injuries to person and property, it might have been said, with some force, that only •those injuries were meant to be covered, for which there was before then a remedy against the intoxicated person. (Hayes v. Phelan, 4 Hun, 733.) But when it provided for injuries to means of-support, it made actionable a new class of injuries, without remedy at the common law, and unprovided for by any previous statute. The wrong consisted in the fact that the sellers of liquor shut their eyes to the condition, in person or family, of those to whom they sold. They dealt out an article which, under certain circumstances often liable to exist and to be known to the seller, would, without fail produce injury, and, perhaps, death. Carelessness and neglects morally criminal, were shielded under the license law. For this wrong, the statute under consideration provided a remedy. Notice the classes of persons especially endowed with a right of action: husband, wife, child, parent, guardian. When the statute provided that any of them might have a right of action for any injury to his or her means of support, in consequence of the intoxication of any one, is it reasonable that the legislature only meant to provide for such causes of action as, before then, already existed against the intoxicated person? It seems to me not; but that the main object was to provide a remedy for an evil entirely without remedy before. The law does not provide how the injury to the means of support must be produced, in order to be actionable, when it is in consequence of intoxication. It is therefore without limit in that respect. Can we, therefore, in the face of an allegation, as in this ease; that the plaintiff has entirely lost her means of support in consequence of the intoxication, say that the statute should be construed to read as if it excepted cases of total- loss by death? The propriety of making vendors of liquor liable to that extent, we do not consider; but the question is: What does the statute mean ? The amount of damages recoverable, depends upon the circumstances and degree of criminality in each case, and will be determined, it is to be presumed, justly by the trial court. Neither is it an action, in any respect, by the representatives of a deceased person; but the question is: Has the plaintiff herself been injured in her means of support, in consequence of the intoxication ? The manner of the injury is entirely immaterial, except as it may affect the question of damages.

As to the third point of the defense, we must first consider whether it can be raised by demurrer. The plaintiff' insists it is a defect of parties, not within the remedy of demurrer by section 144 of the Code. Yery likely it is not within subdivision 4, of that section, providing for the case of a defect of parties. But I think subdivision 5, providing that defendant may demur when several causes of action have been improperly united, is broad enough for' the present case. (Hess v. Buffalo and Niagara Falls R. R. Co., 29 Barb., 391; see also, Baggott v. Boulger, 2 Duer, 160; Colegrove v. N. Y. and Harlem R. R. Co., 6 id., 382; Wright v. Storrs, 6 Bosw., 600; Stannard v. Mattice, 7 How., 4; Fosgate v. Manuf. Co., 2 Kern., 680.)

We then come to the question, whether there is a misjoinder of causes of action. It must be conceded that a joint action will lie against Brookins and Snider, tbe landlord and tbe tenant. There isnot room for argument against this. They are considered as one for tbe purposes of suit, if tbe plaintiff so elects. The landlord cannot complain, for he can protect himself when he leases. But will a joint action lie against two or more persons, who, separately, at different times and different places, have sold liquor to the same person, each quantity of liquor contributing to produce the intoxication that caused the injury?

The complaint alleges the sale at different times, though on the same day, and at different places, for the one sale was alleged on premises of Brookins; and in the absence of such allegation as to Minard, we must assume the places different. The act does not, in terms, say a joint action will lie. It says, in substance, that every person injured in consequence of- the intoxication, habitual or otherwise, of any one, shall have a right of action against any person or persons who shall cause the intoxication in whole or in part, for all damages sustained. It is claimed on the one side, that but one right of action is given for the whole aggregate intoxication, and that the design of the legislature was to make all persons who had contributed to the result, liable jointly and severally for all the damages, like the case of a tort, or of a crime where principals before the fact were equally liable with principals at the fact. On the other hand it may be said, that such a rule would work great injusticethat different sellers would act under different circumstances, and that each should be judged by the circumstances attending his own act, and not be responsible for the iniquity of others; that there is no way under the act to apportion the damages, and a comparatively innocent party would have to pay the exemplary damages justly imposed on some other defendant; that a man in one locality might be liable, without remedy or means of defense, for the act of some one else in a different locality.

We are cited to no reported case in point on either side. A manuscript opinion of Justice LamoNT is handed up,' in case of Culver v. Boyne et al., decided at Niagara Special Term, in December, 1874, holding, in a similar case, that there was a mis-joinder.

The act is open to both constructions, and in order, by construction, to ascertain the meaning of the act, we may consider the ob-jeet sought to be attained, as well as the consequences of either construction.

In 1855 a prohibitory law was passed. This was repealed 1857, and an act passed to regulate the sale of liquors (chapter 628 of 1857.) This was amended in 1870, still, however, authorizing and regulating the sale. So that, in 1873, when the present act was passed, it was legal to sell liquor by license, or in larger quantities without license. Then the present act came in, not prohibiting the sale, but providing that sellers must look out for the consequences of their acts. As is said in Baker v. Pope (2 Hun, 557), the seller became bound bylaw to exercise judgment and discretion in making his sales, and if he failed in this respect he became liable for the consequences. The law said to dealers: You can legally sell, but if what you sell produces intoxication, in whole or in part, and consequent damage, you must pay; if you sell to anyone who is intoxicated, or who will use it to become so, you must take the risk of damage; you can do the legal act, but you must do it in a proper manner. There is nothing to indicate that it was designed to have one dealer guarantee the acts of others. If this were so, no prudent man would sell at all, and this, beneficently perhaps, would amount to prohibition. The legislature, however, did not intend that. They provided for a joint action against the landlord and tenant, but failed to so provide in terms as against the others. If a joint action lies, then a party in Buffalo, who sells liquor with the exercise of due judgment and discretion, is liable for the acts of strangers in Albany and New York, who sell without such judgment, or even maliciously. I don’t think the legislature intended any such result. But they did intend that each man or concern who sold liquor, should be liable for his own acts. The act of sale is the basis of the action ; that is first to be proven; then the consequent intoxication and damage. If the original act is joint, then a joint action follows. The act which controls the form, of the suit is the original act; that is the only thing done by the defendant, from which the obligation flows. In the collision cases, cited by plaintiff’s counsel (Colegrove v. N. Y. and N. H. R. R. Co., 20 N. Y., 492; Barrett v. Third Ave. R. R. Co., 45 id., 628; Webster v. Hud. Riv. R. R. Co., 38 id., 260), the tortious act causing the injury was joint, and the parties to it liable both jointly and severally. These do not reach plaintiff’s case.

My conclusion is, a joint action will not lie upon the facts stated in the complaint; that a cause of action is stated against Minard alone, and another against Snider and Brookins, and that they cannot be joined. "Whether more than one action will lie in favor of plaintiff, we are not called on to decide.

The order should be reversed, and the demurrer sustained.

Present — Smith, P. J., Gilbert and Merwin, JJ.

So ordered, with leave to plaintiff to amend, on payment of costs.


author: MerwtN, J. :

text:
    DAVID S. BENNETT and HARRIET A. BENNETT, Plaintiffs, v. LAVINIA H. AUSTIN, Impleaded with TRUMAN G. AVERY, Defendant.

      Code, § 399 — party cannot testify in behalf of co-plaintiff — New trial — when not granted, for admission of improper evidence.

    Section 399 of tlie Code prohibits the examination of a party to the action in the cases therein specified, not only when such party is called to testify in his own behalf, but also when called in behalf of a co-plaintiff or co-defendant.

      Genet v. Lawyer (61 Barb., 211) followed.
    A new trial will not be granted for the improper admission of evidence, when it is of doubtful or slight materiality, or when the preponderance of the legal evidence is so strongly in favor of the verdict, as that the appellate court can, with reason, say that the improper evidence has not influenced the result.
    MotioN by defendant for a new trial, under section 268 of the Code.
    This was an action to have a deed, given by plaintiffs and Truman G. Avery and wife to Stephen G. Austin, dated January 28, 1870, on property, in Buffalo, declared a mortgage, and for redemption. It was tried at the Erie Special Term, in June, 1874, and the relief asked for granted. The defendant moves for a new trial under section .268 of the Code.
    On and prior to January 28th, 1870, David S. Bennett and Truman G. Avery were partners, as commission merchants, at Buffalo, under the name of Bennett & Avery. They then occupied the Bennett and Union elevators, so called, and certain other real estate, called the Triangle, and thirty-four acres of land situate on Best street. Stephen G. Austin then owned one-third of the Bennett elevator property, by deed from Mr. and Mrs. Bennett and Mr. Avery, dated February 25, 1869. Of the balance of said property, Mrs. Bennett owned, in her own right, two-thirds of the Triangle, a third of one of the five lots covered by the Bennett elevator, and the balance of the property was owned by Bennett & Avery in different proportions.
    On the 28th of January, 1870, Mr. and Mrs. Bennett and Mr. Avery and wife gave to Austin a quit-claim deed of all their interest in the above described property, for the consideration, as therein expressed, of §50,000. Bennett & Avery were at this time much in need of money, and had applied to Austin for a loan; and it was a question of fact whether or not the deed was intended as an absolute conveyance, or as a security for a loan. The Special Term found it a security. Austin was a man of large means and the father-in-law of Avery. lie immediately took possession and received large amounts of rents in 1870, 1871 and 1872, §nd died June 19, 1872, devising this real estate to the defendant Lavinia H. Austin, who has since been in possession. The whole property was worth from §250,000 to $400,000, and was incumbered to about $150,000 prior, to the deed of January, 1870. The interest held by Avery in the property had been bought by him of Mr. and Mrs. Bennett, but the purchase-price was not paid, and is the subject of other litigation. On the 21st of October, 1869, Mr. and Mrs. Bennett and Avery executed to Bobert Stewart and others, a mortgage of $50,000 on their interest in the Bennett and Union elevators, with an assignment of the rents; and the Special Term found that Austin agreed to advance money to pay this mortgage. He knew of the assignment of the rents, and after he took possession disregarded it and received the rents himself to a large amount; and afterward, on the foreclosure of the Stewart mortgage, bid in the property and took a deed dated December 10, 1870. Mrs. Bennett joined in the deed of January, 1870, as surety for Bennett and Avery.
    The consideration, as stated in the deed from Mr. and Mrs. Bennett and Avery, to Austin, February 25,1869, was $80,933.33. Of this, it was claimed by plaintiffs, that about $20,000 had never been paid by Austin, and was still due from Austin or his estate; and the court so found.
    Judgment was ordered, declaring the deed a mortgage; that plaintiff's, jointly or separately, might redeem; that they were entitled to an accounting for the rents and profits of the property conveyed, including the part conveyed by Avery; that Austin did not perfect his title by the purchase under the Stewart foreclosure ; that, on the accounting, the plaintiffs should be credited with the $20,000 item, balance of purchase-money of deed of February, 1869.
    On the trial, Mr. Bennett- was offered as a witness on behalf of Mrs. Bennett, to testify to certain transactions between him and Austin, and the defendant objected that such evidence was not admissible under section 399 of the Code. The objection was overruled. Defendant excepted.

      Wm. H. Greene, for the plaintiffs.

      Shermcm 8. Rogers, for the defendant.
   MerwtN, J. :

The first question to be determined is, whether or not Mr. Bennett could testify on behalf of his co-plaintiff, Mrs. Bennett, as against the defendant, Mrs. Austin, who is the devisee of Stephen G. Austin, deceased, as to any personal transaction or communication between such witness and Mr. Austin. Section 399 of the Code provides that no party to any action or proceeding shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination deceased, against the devisee of such deceased person. Mr. Bennett is a party plaintiff; Mrs. Austin, the devisee of the deceased person, Mr. Austin, is the party defendant against whom the evidence is offered ; and the transaction was a personal one between the witness and the deceased. So that, in terms, - the inhibition of the statute applies, unless there is some other provision that relieves it. The section does not say, no party to any action or proceeding when called in his own behalf, but it says, absolutely, no party. And the question is, whether we can construe the section as if it read, no party, when called in bis own behalf, shall testify. By section 397, which stands now as it was passed in 1852, it is provided that a party may be examined on behalf of his co-plaintiff or co-defendant, as to any matter in which he is not jointly interested or liable with such co-party, and as to which a separate judgment can be rendered. In 1869, section 398 was so amended as to provide that no person offered as a witness should be excluded by reason of his interest in the event of the action, or because he was a party thereto, except as provided in section 399; and the latter section was at the same time amended as -it now stands. It will be seen that the amendment of section 398, in 1869, made section 397 entirely inoperative. (Dwight, J., in Card v. Card, 39 N. Y., 317.) All parties were allowed to testify, except as limited in section 399, and that is the only provision, now in force, applicable to cases where one party to the transaction is dead. This department, in Genet v. Lawyer (61 Barb., 211), passed upon this precise question. That was, where the action was by an executor against the maker and indorsers of a note. The maker was served with process, but made default. The indorsers offered him as a witness on their behalf, to prove a transaction between him and the testator of the plaintiff. This was objected to and rejected, and the court affirmed the ruling. Section 399 of the Code then stood substantially as now, as far as this question is concerned. It follows that the Special Term erred in admitting the testimony.

But it is suggested that though improper evidence was admitted, a new trial will not be granted on that' ground, provided there is enough competent evidence in the case to justify the relief given. In Forrest v. Forrest (25 N. Y., 510), it is said by Judge Weight, that courts of law, on an application for a new trial, judge for themselves of the materiality of evidence found to have been improperly admitted or rejected, and when satisfied that no injustice has been done, and that the verdict would have been the same with or without such evidence, they have refused a new trial. This is approved by Daly, J., in Lamb v. Camden, etc., R. R. (2 Daly, 475), and in Clark v. Brooks (2 Abb. Pr. [N. S.], 390). In the Court of Common Pleas, in England, the rule is, not to grant a new trial for error in' admitting evidence, if, without such evidence, there- is enough to warrant the finding of the jury. (Horford v. Wilson, 1 Taunt., 12; Doe v. Tyler, 6 Bing., 561; Grah. & Water, on New Trials, 246.) The case in Bingham was ejectment. In this State the rule has not been applied so strongly. Where the evidence admitted is of doubtful or slight materiality, or when the preponderance of the legal evidence is so strongly in favor of the verdict that the appellate court can with reason say that the improper evidence has not influenced the result, the error should be disregarded.

In the present case the Special Term decided that Mr. Bennett, as well as Mrs. Bennett, had the right to redeem. The evidence of Mr. Bennett was not, in terms, offered or received in his own behalf. Mrs. Bennett gave some evidence in behalf of her husband, but of no material bearing on this question, so that, theoretically at least, the court at Special Term, without the evidence of Mr. Bennett, found the existence of the necessary facts to authorize redemption. That is, with the evidence of Mr. Bennett, it decreed redemption in behalf of Mrs. Bennett; and without such evidence it decreed it in favor of Mr. Bennett. The logical conclusion would be, that the result would have been the same, had the evidence of Mr. Bennett been excluded. • That evidence was very material and pertinent; was the most direct given on the part of plaintiffs; and the question with me is, whether it did not necessarily have an effect, in the whole case, in favor of Mr. Bennett, as well as of his wife. Had the evidence been excluded, and the finding the same as to the character of the deed, I think we should not have disturbed it. The competent evidence would, it seems to me, cleai’ly sustain such a finding. The evidence of Stewart, as to the interviews in February and May after the deed; the stipulation in the Stewart foreclosure suit; the $40,000 receipt of November 2d, 1870 ; the evidence of Sherwood and Seth Olark; the excess of value over incumbrances; the probabilities of the case; would justify the holding the deed a mortgage. There was, however, direct evidence to the contrary, and how much weight the admitted evidence of Bennett had, in overbalancing the direct evidence on the other side, I cannot say. I do not think it would be a safe rule for us to adopt, to disregard an error in admitting a party to give direct and very material evide'nce in opposition to evidence as direct and material (Williams v. Fitch, 18 N. Y., 546), unless it can be substantially demonstrated that the error did not in fact affect the result. Such demonstration I do not think exists in this case.

There is another part of the case which it may become important to consider. The court below, in authorizing a redemption, directed that there should be allowed to plaintiffs, in the accounting, the sum of about $23,000, balance due from Austin on the purchase of a third of the Bennett elevator in February, 1869. It will be remembered that the deed in suit was given January 28th, 1810, when Bennett and Avery were in great need of money, and they, as well as Firs. Bennett, were very anxious to raise it. Between February 18th, and May 1th, 1869, Bennett had paid on the purchase-price of the third, divers sums, amounting to about what the price was, as claimed by the defendants. Nothing was paid after May seventh. In the summer and fall following, Bennett and Avery were in want of money; they mortgaged to Stewart, in October, 1869, for $.10,000, and then in January came the hard pressure; and during the negotiations at that time, in which Mr. and Mrs. Bennett and Avery and Austin took part, not a word was said by any one about any balance due from Austin on the former purchase. Austin was a m^n of large means, and could have paid the debt any time. Silence at that time, under the then existing circumstances, can be accounted for only on two grounds: First, that the purchase in February, 1869, was a security for moneys advanced — in fact, a mortgage; or, second, that the price had been fully paid, and there was no debt. It is not claimed by either party that that deed was a mortgage, and the other conclusion must follow. It seems to me absolutely incredible, that a debt of that amount should then exist. ,.,It is no answer to say that it was understood to belong to Mrs. Bennett, for she was then as anxious as any one to raise money, and was ready to' and did place in Austin’s hands all her property, in order to meet the emergency. Besides, if the evidence of Mr. Bennett was incompetent, there is no evidence to sustain the debt. In allowing this item, I think the court below clearly erred.

A new trial should be granted.

Present — Smith, P. J., Gilbert and MerwiN, JJ.

New trial granted, costs to abide event.


text:
    JAMES GIBSON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Punishment for second offense — Poi'mer conviction, etc. — when sufficiently alleged in indictment — 2 B. 8., 699, § 8.
    Where an indictment sets out in proper form the former conviction of the plaintiff in error of the crime of grand larceny, and his sentence, and “that the said James G-ihson having been so convicted of the crime of grand larceny aforesaid, and having been duly discharged and remitted of such judgment and conviction, afterward,” etc., and then alleges a subsequent petit larceny : held, that it sufficiently alleges his discharge, “ either upon being pardoned or upon the expiration of his sentence,” to authorize the additional sentence imposed by 2 Revised Statutes, 699, section 8.

      Wood v. People (53 N. Y., 511) distinguished.
    Writ of error to the Court of Sessions of Niagara county, to review the judgment of that court on a plea of guilty.
    The indictment set out, in proper form, the former conviction of James Gibson of the crime of grand larceny, and his sentence to state prison, and then proceeded as follows: “ That the said James Gibson having been so convicted of the crime of grand larceny aforesaid, and having been duly discharged and remitted of such judgment and conviction, afterward,” etc., alleging a subsequent petit larceny. The defendant pleaded guilty; and, being brought up for judgment, claimed that he was only indicted for petit larceny; that no greater offense was charged against him, and that he should only be punished for that, as a first offense. This objection was overruled, and defendant was sentenced to State prison for one year and three months.

      Hansom <& Joyce, for the plaintiff in error.

      F. Brundage, for the defendants in error. '
   MerwiN, J.:

The statute (2 R. S., 699, § 8) provides that “ if any person, convicted of any offense punishable by imprisonment in a State prison, shall be discharged, either upon bei/ng pa/rdoned or upon the expi ration of his sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished,” etc., stating the manner. In the case at bar, the allegation in the indictment is, “ having leen duly discharged cmd remitted of such judgment and conviction.” The question is, is the allegation sufficiently broad or definite to bring the case within the provisions of the statute ?

In Wood v. People (53 N. Y., 511), the phraseology of the indictment was exactly similar to this. Proof was given of former conviction and sentence, but none of imprisonment thereunder, or of a discharge, and the point was, whether it was necessary for the people to show a discharge from imprisonment, either by pardon or by the expiration of his term. The Court of Appeals held it was, and reversed the judgment and ordered a new trial. AllbN, J., in giving the opinion, says the indictment was defective in not alleging in terms a discharge either upon pardon or the expiration of the sentence. This point was not in the case, but the opinion is entitled to much weight, as that of an able and upright judge. If the allegation were simply that the defendant had been duly discharged,” there would be much force in the reasoning that it was defective. For, under that allegation, a discharge might have occurred through an arrest or reversal of judgment, or upon habeas corpus, as well as upon the expiration of the sentence; and the defendant could well say he had the right to know what was alleged against him in that behalf. But the allegation in this case is more: duly discharged and remitted of such judgment and conviction.” The word duly means, in a proper way, or regularly, or according to law. (People v. Walker, 23 Barb., 304; Fryatt v. Lindo, 3 Edwards Ch., 239; Burns v. People, 59 Barb., 531.) The word remitted, as applicable to a crime, means pardoned. (Webster’s Dictionary.) The allegation would then read, has been duly or according to law discharged and pardoned of such judgment and conviction. The statute, in one alternative, is, shall be discharged upon being pardoned. The statute, of course, means pardoned according to law. Why, then, does not the allegation that he has been according to law discharged and pardoned, substantially meet the statute ? A plea of guilty is the highest kind of conviction (1 Chit. Or. Law, 428), and no intend-ments should be beld in the defendant’s favor, except such as have a substantial basis. No proceedings on an indictment -shall be affected by reason of any defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant. (2 R. S., 728, § 52.) The charge in the indictment should be so alleged as to be intelligible in its legal requisites, and inform the defendant of what he has to meet. (Edmonds, J., in Biggs v. People, 8 Barb., 551.) All formal defects should be disregarded that do not prejudice the defendant. (Tuttle v. People, 36 N. Y., 436; Burns v. People, 59 Barb., 531; People v. Tredway, 3 id., 470; People v. Powers, 2 Seld., 50; 5 Park. Cr., 31; 3 id., 330.) There is no doubt that the defects, if any, in this case, did not prejudice the defendant, and I think they were entirely formal.

Judgment should be affirmed.

Present— Shith, P. J., Gilbert and Merwin, JJ.

Judgment affirmed.


author: Mebwiít, J.:

text:
    WILLIAM H. SLATER, Plaintiff, v. ALANSON J. FOX, and others, Defendants.

      1Ymigable right of riparian ovmer to restore bank when washed (may — Injury to opposite bunk.

      Any person interested in the use of a navigable river may, with the assent oí the riparian owner, erect upon the land of such owner a structure to restore the injured bank of the river at that point, such restoration being necessary for the proper navigation of the river, even though it cause the current of the stream to wash away the bank on the opposite side, which belongs to a third person.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.
    This was an action to recover damages for unlawfully obstructing and turning upon plaintiff, the waters of Tioga river.
    The Tioga river was declared a public highway in 1813. In 1868 the plaintiff owned a piece of land on the easterly side of the river, which there had a north-easterly course. One Erwin owned a farm on the opposite side of the river. In the spring of 1868, the defendants, who were manufacturers of lumber, and had previously used the stream in transporting logs and lumber, bililt a dam or breakwater on Erwin’s land, part way across the river as it there ran. The plaintiff claimed this operated to throw the water on to him, to his damage. There was some evidence to show that this dam did no more than to restore the original bank of the river on Erwin’s land. The defendants offered to show that this dam was erected with the assent of Erwin. This was ruled out, and defendants excepted.
    The court, in the course of its charge, said: “You may charge to the erection of the dam the washing of this [plaintiff’s] front, which had occurred since the erection of the dam, except so far as you may find other causes to which you may reasonably attribute the washing since that time, unless you shall find the evidence in this case shows that it is not possible that the washing of this front should have been affected at all by the erection of this dam.” To this the defendants excepted; and the defendants requested the court to charge the jury, that if they found that the defendants, in erecting this structure, did no more than to restore the original bank of the river at the place where it was located, and that such structure was necesssary for the proper navigation of the river, the plaintiff could not recover. The court declined to so charge, and the defendants excepted. The jury found a verdict for the plaintiff of $100.

      J. W. Dinwmy, for the plaintiff.

      Geo. B. Bradley, for the defendants.
   Mebwiít, J.:

That part of the charge excepted to, as above noted, did it stand alone, would very likely mislead the jury, as it substantially throws the burden on the defendants to prove that they did not do the damage. But the charge, taken as a whole is not, I think, open to this objection. Taking it altogether, I think the jury would clearly understand that the plaintiff was to recover what damages were shown to have been done by the structure erected by the defendant.

By the other exceptions in the case, the question is presented, whether or not the defendants, who are interested in the use of the Tioga river as a public highway-, have the right, as against an opposite owner, to restore the original bank at a place where such restoration was necessary for the proper navigation of the river, the same being done with the assent of the owner of the land where done. In other words, can the plaintiff complain, if nothing more has been done than to restore the bank to its original position %

The public have a right of way in every stream which is capable, in its natural state and in its ordinary volume of water, of transporting, in a condition lit for market, the products of the forests or' mines, or of the tillage of the soil, upon its banks (Morgan v. King, 35 N. Y., 454; Browne v. Scofield, 8 Barb., 239); and it is said that the public claim to such use should be liberally supported. A riparian proprietor has the right, by erecting barriers, to confine the waters within their original channel, and he is not responsible for any damage to his neighbor, unless the barriers prevent the water from running in its accustomed channel, and with its usual force. He may not make a different bank, but can repair or rebuild a broken one. (Pierce v. Kinney, 59 Barb., 56, affirmed in Court of Appeals; Angelí on Water-courses, §§ 333, 334; Washburn on Easements, chap. 3, § 3, par. 47.) This being so, can the defendants, for their own benefit, with the assent of the riparian owner, do what such owner could legally have done ? The plaintiff could not complain, if the owner had done the act in question. Has the plaintiff any better rights against the defendants, who are also interested parties and entitled to enjoy a privilege that should be liberally supported ? The extent of the right of plaintiff was to have the river run in its accustomed channel; and, in order to recover, he must show an infringement-of this right. The question is not whether the defendants have trespassed upon somebody else, or trespassed generally, but whether they have trespassed upon plaintiff. In this view, I do not see how to avoid the conclusion that the court below erred in refusing to hold that if the defendants did no more than to restore the original bank, they were not liable. They were legally upon the river, and entitled to it use. They had the right, in case of necessity, to make use of the bank for certain purposes. (Washburn on Easements, chap. 3, § 9, par. 16.) In case of a break or diversion of the stream by the action of the elements, to their injury, they had the right to repair, interfering with no right as it stood before the break or diversion. This, it seems to me, is fair and just, and the correct basis for both parties to stand upon.

I think, therefore, the question should have been submitted to the jury, whether or not the defendants did any more than to restore the bank to its original position.

A new trial should be granted, costs to abide event.

Present — Smith, P. J., Gilbert and Meewbt, JJ.

Gilbekt, J., dissented.

New trial granted, costs to abide event.


author: MeewiN, J.: •

text:
    FRANKLIN W. PECK, Appellant, v. AARON F. ROOT, Respondent.

      Action — what allegations in complaint show it to he in tort.

    Where the summons was for relief, and the complaint alleged that the defendant, with the intent to deceive and defraud the plaintiff by inducing him to take his (defendant’s) note for $132 for money lent to him by plaintiff, falsely and - fraudulently represented that he owned certain property, specifying it, by which representation plaintiff was induced to take the note; that it was not paid ; that the representation was false, was known to be so by the defendant, and was made with intent to deceive and defraud the plaintiff: held, that the action was in tort, and not on contract.

      Ross v. Mather (51 N. Y., 108) followed.
    Appeal from a judgment entered upon the verdict of a jury. The case was tried at the Monroe Circuit, in March, 1875. The summons was for relief, and the complaint was as follows:

      “ The above named plaintiff,5 by Thomas and Dean, his attorneys, complains against Aaron F. Root, defendant in this action, and for a cause of complaint respectfully shows to this court, that on the 29th day of October, 1872, at Brockport, in said county, the said defendant, with intent to deceive and defraud this plaintiff by inducing the said plaintiff to take, receive and accept the promissory note of him, said defendant, for $132, money lent and advanced' said defendant by said plaintiff, falsely, fraudulently represented to him, said plaintiff: I am worth $12,000; I own three teams that I am going to take west, and I own the farm on which I now live, in my own name, and I am worth as much as I ever was; that this plaintiff trusting, confiding in the truth of defendant’s said representations, and relying upon the truth of the same, was induced to take and did receive the promissory note of said defendant, in the words and figures following, that is to say:
    $132. BkooKpobt, N. Y., October %Qth, 1872.
    Sixty days after date, I promise to pay to the order of F. W. Peck, or bearer, one hundred and thirty-two dollars, at the banking-house of J. D. Decker, Brockport, N. Y., value received, with interest.
    No. 4,294 A. F. ROOT.
    That said note was given for so much money theretofore lent and advanced by said plaintiff to defendant, and which he was ready and willing to pay said plaintiff, but defendant requested the further forbearance thereof for said sixty days as aforesaid, aud that he would take said note as aforesaid, and said representations aforesaid were made by defendant as aforesaid for that purpose.
    That plaintiff duly indorsed said note, and transferred the same to said banking-house aforesaid, where the same became due and payable, and the same was duly protested for non-payment; and plaintiff was compelled to and did pay and take up the same, and he is now the lawful holder and owner thereof-, and the same is wholly unpaid, and defendant wholly refuses to pay the same.
    That ■ said representations were wholly false in each and every part thereof, and were well known to be so by said defendant at the time they were made, and were made with the intent of deceiving and defrauding said plaintiff, as aforesaid.
    Wherefore, by reason of the premises, the plaintiff demands judgment against defendant for $132, with interest thereon from ■October 29th, 1872, with $1.57, fees of notary for. protest, with costs of this action.”
    The answer was a general denial and a waut of consideration for the note.' On the trial evidence was given by plaintiff upon all the allegations of the complaint. The defendant admitted the debt and contested the other allegations. The court charged that, as the case stood, it was an action to recover for the fraud. To this the plaintiff excepted, and asked the court to charge, that if the plaintiff failed to satisfy the j ury of the alleged fraud, he was still entitled to recover for his debt, notwithstanding the allegations of fraud were in the complaint, and that they might be rejected as redundant and surplusage. The court refused to so charge, and plaintiff excepted. The jury found for defendant.

      Horace J. Thomas, for the appellant.

      Angus McDonald, for the respondent.
   MeewiN, J.: •

If the complaint in this action is in tort, the court below ruled correctly. (Walter v. Bennett, 16 N. Y., 250; Degraw v. Elmore, 50 id., 1.) It is established by authority, that when fraud is the basis of the complaint, there can be no recovery as for a breach of contract. Whatever doubt was thrown upon this proposition by the case of Conaughty v. Nichols (42 N. Y., 83), was removed by the case of Ross v. Mather (51 N. Y., 108). In the case of Ledwich v. McKim (53 N. Y., 308), which was an action to recover back the purchase-money of certain bonds, on the ground of failure of title, it is said that the presence of an averment of false representations would not make the action one ex delicto, the summons being for money. From the case, it is evident that the basis of the action was the breach of an implied warranty of title, and as it does not in terms, I shall assume it does not in fact, interfere with the proposition laid down in Ross v. Mather. The latter was an action to recover damages on the sale of a horse. . The summons was for relief. The complaint alleged the sale; that on the sale the defendant warranted, and falsely and fraudulently represented, certain things as to the animal; that the plaintiff, relying on the warranty and representations, and believing them true, purchased the horse; that the defendant knew their falsity; that, by means of the premises, the defendant falsely and fraudulently deceived him, to his damage. The court, while admitting that the complaint contained all that was necessary to authorize a recovery upon contract, held that the gravamen of the action was fraud. This case is approved in Dudley v. Scranton (57 N. Y., 428).

In the present case the summons is for relief, thereby, as is said in Elwood v. Gardner (45 N. Y., 349), by Church, Ch. J. (p. 354), showing an intention not to commence an action upon the note. The complaint alleges that the defendant, with intent to deceive and defraud the plaintiff, by inducing him to take his note for $132, money lent and advanced defendant by plaintiff, falsely and fraudulently represented he owned certain property, stating it; that plaintiff, relying on and believing these representations, was induced to and did take the note of defendant (describing it), and sets out the consideration, and that it is not paid; that the representations were false, and so known to defendant, and were made with intent to deceive and defraud plaintiff; that by reason of the premises, plaintiff demands judgment for $132 and interest.

It is clear to me that this complaint is framed so much like the one in Ross v. Mather, that the ruling in that case is in point here. Besides, the basis of the action was clearly in fraud, and so understood by the pleader, and by all parties, to the close of the trial. The allegations of fraud are the prominent and leading ones, and' would naturally lead the defendant to treat it as an action for the fraud. Those were the sole issues tried. The plaintiff having chosen his ground, and the defendant having there met and beaten him, the plaintiff should not now be permitted to change his base. Pleadings are to be construed most strongly against the pleader. If the facts constituting a cause of arrest are not the same as those constituting the cause of action, they should not appear in the complaint. (1 Moak PI. [3d ed.], 250, and cases cited.) If such facts are in the complaint, the pleader cannot find fault if we assume such facts are correctly pleaded there, as constituting his cause of action. It does not follow that the verdict here is in any way a bar to an action on the note.

The general objection taken by plaintiff to defendant’s proving the consideration of the note, is not available to plaintiff here. That subject had been gone into by plaintiff, and the defendant had a right to rebut it.

Judgment should be affirmed.

Present —Smith, P. J., Gilbbbt and MisbwiN, JJ.

Smith, P. J., dissented.

Judgment affirmed.

       See Graves v. Waite, 59 N. Y., 156. — [Rep.


author: MbewxN, J.:

text:
    LUCIEN L. WOODWORTH, Respondent, v. OREN C. PAYNE, Appellant.

      Gorweyance for chvn'ch purposes — condition that seats be free — when not broleen by conveyance by church.

    L. 0. Selleek conveyed to a religions corporation, its successors and assigns, a lot of ground, tlie conveyance containing the following clause: “The above described land being designed for church purposes, it is understood and agreed that the seats therein shall be forever free for the use of any and all persons to occupy in the capacity of worship; but if the seats of the church to be erected thereon, or any other church thereon, shall be rented or sold, then the said above described premises shall revert to the said party of the first part or her heirs.”
    Subsequently, the corporation being in debt sold the land, in pursuance of an order of the court, and conveyed it, by a deed containing the same condition, to the defendant, the minister of the church, who thereafter held service therein, the seats being at all times free. In an action to recover the land for breach of condition, held (l),that the deed did not restrict the power of the corporation to convey, so long as its conveyance contained the condition as to the seals remaining free; (2), that the sale to the defendant was not a sale of the seats within the meaning of the condition.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action before the court without a jury.
    Prior to November 15th, 1861, there existed in Eredonia, N. Y., a religious incorporation, organized under the laws of this State, under the name of the Methodist Protestant Church of Fredonia;' and at that date, Laura C. Selleek, being the- owner of certain real estate in Eredonia, conveyed it to said corporation, its successors and assigns. Immediately following the description, was the following clause: lc The above described land being designed for church purposes, it is understood and agreed that the seats therein shall be forever free for the use of any and all persons to occupy in the capacity of worship, but if the seats of the church to be erected thereon, or any other church thereon, shall be rented or sold, then the said above described premises shall revert to the said party of the first part, or her heirs.” The corporation went into possession, and, in 1862-1868, erected a church thereon for the purpose of holding public worship; and from thence until June, 1873, so occupied it. In June, 1873, the society, having become indebted to the defendant, procured from the County Court of said county authority to sell said premises to the defendant, for the purpose of paying its debt, and on the 17th of June, 1873, a deed to the defendant was executed by'the- proper officers, and he took possession. The deed contained the same condition as the one to the society. The defendant was a minister of the Methodist Church, had been the pastor of the society, and, after his purchase, he held religious services in the church, himself officiating, and on such occasions the pews and seats have been free. The building remains in the same condition as before the sale. The defendant claims to own the fee, and has offered to sell and convey the same. Mrs. Selleck is dead, and the plaintiff is her only heir at law.

      M. T. Jenkins, for the appellant.

      L. Morris, for the respondent.
   MbewxN, J.:

The plaintiff claims that the condition in the deed from Selleck to the society, was forfeited by the conveyance to the defendant; that such conveyance operated as a breach, and the title reverted to the plaintiff. This proposition is placed on two grounds: First, that by the terms of the original grant, the fee of the land passed to the grantee, limited, however, to the sole use of said Methodist Protestant Church for worship, and when the said grantee ceased so to use the land, or alienated the same, the land reverted; second, that the sale of the church operated as a sale of the seats, within the meaning of the condition, and therefore constituted a breach.

The deed does not, in terms, limit the use to that particular corporation, or to that particular denomination of Christians, or even to church purposes. As matter of recital, it is said to be designed for church purposes, and then it is provided that the seats therein shall be free. An agreement is made as to the free use of the seats, but none as to what corporation shall control, or what doctrine ■ shall be promulgated. Conditions in grants are not favored in law, and hence must be clearly expressed. (Craig v. Wells, 11 N. Y., 315.) They are construed strictly (4 Kent, 130), and must not depend upon inference or recital. (2 Bacon’s Abridgment, 280.)

In the present case the grant is to the party of the second part, their successors and assigns. This, together with the absence of any words in terms restricting a conveyance, leads me to conclude that there is no restriction upon the conveyance by the society of their interest in the land. If, however, they did convey, it must be upon the same condition as to free seats as they held it. Their deed to the defendant does in fact contain the condition. The defendant stands simply in the place of the corporation. Neither they nor he has sold or leased the pews as such.

The plaintiff claims, however, that the conveyance of the property to defendant is tantamount to a sale of the pews, and therefore a forfeiture. This might perhaps be so, if the sale had not been subject to the same condition. As it was so expressly made subject, I cannot see how the object of the condition was expressly or impliedly destroyed. Thus far, nothing has been done to prevent the free occupancy of the seats, or to convert the property to some other use. There is nothing in the deed to prevent an individual from owning the fee, and there is nothing in the law to prevent an individual from owning a church and carrying on public worship. The original grantor, by her own act, separated the ownership of the fee from the free use of the pews, and I cannot see how a subsequent conveyance in the same form will merge them and destroy the effect of the condition. The pews could be leased and used entirely separate from the fee. (Trustees v. Bigelow, 16 Wendell, 28; Shaw v. Beveridge, 3 Hill, 26.) The doctrine of reversion on abandonment by corporations, does not apply here. The society had the fee, subject to the condition, and it could convey the same that it held, although, upon a dissolution before conveyance, there might have been a reverter. (Nicoll v. N. Y. and Erie R. R. Co., 12 N. Y., 121, 129.)

My opinion therefore is, that no breach of the condition was shown.

Judgment should be reversed, and a new trial granted, costs to abide event.

Present — Smith, P. J., Gilbert and MerwiN, JJ.

Ordered accordingly.


author: Smith, P. J.

text:
    WILLIAM C. CUMMINS, Plaintiff, v. THE AGRICULTURAL INSURANCE COMPANY, Defendant.

      Policy of insurance — prommn for forfeiture when dwelling unoccupied — “ Vacated” —meaning of.

    Plaintiff insured with the defendant a dwelling-house owned by him, and at the time occupied by his son and Ms family, the policy providing that ‘1 if the dwelling-house or houses hereby insured become vacated by the removal of the owner or occupant, or be unoccupied at the time of effecting the insurance, and not so stated in the application; then, and in every such case, and in either of said events, this policy shall be null and void, until the written consent of the company at the home office is obtained.”
    After the issue of the policy, and about May first, the son and his family removed ■ to plaintiff’s house to assist in the work on his farm, taking a bed and some other furniture and leaving the residue, intending to return at some future period. While the house was thus unoccupied, and on the tenth of August following, it was destroyed by fire. Held, that the abandonment of the house for so long a period was, under the circumstances of the case, a removal within the spirit and intent of the policy, and that it avoided the same.

      Paine v. Agr. Ins. Co. (5 N. Y. S. C. [T. & C.], 619) followed.
    The provision, “ vacated by the removal of the owner or occupant,” means an abandonment of the house as an actual place of residence, permanently or temporarily. A mere temporary absence of the family from the house for a night or a day, would not be such a removal.
    MotioN fora now trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed by the court.
    The action was brought upon a policy of insurance issued by the defendant upon a dwelling-house belonging to the plaintiff.

      Geo. B. Bradley, for plaintiff. Bradley Winslow for defendant.
   Opinion by

Smith, P. J.

Present — Smith, P. J., Gilbebt and Merwin, JJ.

Motion denied.


author: Meewin, J.

text:
    LUCIAN R. BAILEY, Respondent, v. JOHN H. BERGEN, Executor, etc., Appellant.

      Costs against executor — referee cannot allow.

    A referee lias no power to allow costs against an executor or administrator, to be levied on bis property or on that of the deceased. Such costs can only be allowed by the court, on motion, after trial. (2 R. S., 90, § 41; Rowe v. Lloyd, 2 Lans., 835.)
    Appeal from a judgment, in favor of tbe plaintiff, entered upon the report of a referee.
    This case has already been before the General Term upon a former appeal, the decision being reported in 9 Supreme Court (2 Hun), 520.

      Moses Taggart, for appellant. Geo. Bowen, for respondent.
   Opinion by

Meewin, J.

Present — Smith, P. J., GilbeRT and MeewiN, JJ.

Judgment affirmed, except as to the costs, which were stricken out of the judgment without prejudice to an application by plaintiff for costs, in the manner allowed by law, without costs to either party on this appeal.


text:
    JAMES CURTIS, Plaintiff, v. NOAH W. GOKEY, Defendant.

      Covencmt in restraint of trade — Submission to arbitrators — arnan'd — when void.

    An agreement by one not to carry on a retail trade in boots and shoes while another person remains in said trade, being without .limit as to locality, is void.
    The parties to this action submitted to arbitration the question, whether or not ■ the defendant had made a verbal agreement with the plaintiff not to engage in the retail trade in boots and shoes. The award 'was, that the defendant did verbally agree with the plaintiff not to enter into the retail trade in boots and shoes again, in Addison, during the time that the plaintiff was engaged in such trade. Reid, that the award was not authorized by the submission, and was void. (1 Bac. Abr.,323 [ed. of 1854]; 2 Pars, on Con., 201; Butl&rv. Mayor of N. T., 7 Hill, 829.)

      MotioN for a new trial on exceptions ordered to be beard in tbe first instance at the General Term, after a verdict in favor of the plaintiff directed by the court.

      Geo. B. Bradley, for plaintiff. Geo. T. Spencer, for defendant.
   Opinion by

Meewin, J.

Present — Smith, P. J., Gilbeet and Meewin, JJ.

New trial granted, costs to abide event.


author: Gilbeet, J.

text:
    JOSEPH W. CLARK, Respondent, v. THE FLINT AND PERE MARQUETTE RAILWAY COMPANY, Appellant.

      Trustees — right to purchase obligations of cestui que trust.

    There is no rule of law or equity that incapacitates a trustee from purchasing the obligations of his cestui que trust which have become legally vested in a third person. If they are valid obligations they may be sold and transferred to any one, and such transfer will pass a good title to them.

      Quaere, whether, in such case, the trustee will be permitted to enforce them for any greater sum than he paid for them.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      H. 0. Chesebro, for appellant. E. W. Gardner, for respondent.
   Opinion by

Gilbeet, J.

Present • — • Smith, P. J., Gilbeet and Meewin, J J.

Judgment affirmed, with costs.


text:
    HARRISON O. COWING, Appellant, v. ABRAHAM ALTMAN, Respondent.

      Assignee in bankruptcy — cannot take extra compensation — section 45 of bankrupt act.

    One EL, at the request of several of the creditors of a bankrupt, consented to act as assignee, on condition that they would pay to him the sum of $2,000 in addition to his legal fees. Subsequently the defendant bought up the claims against the bankrupt, agreeing with the creditors to pay the said sum to H., and in pursuance of this agreement he subsequently gave a check for that amount, upon which this action was brought. Held, that the agreements were illegal, under section 45 of the bankrupt act, and that as they were still unexecuted, this court would not enforce them.
    Appeal from an order made at tbe Special Term, granting a motion for a' new trial, made upon tbe minutes of tbe justice before whom the case was tried.
    This action has already been before the General Term, tbe decision being reported in 1 New York Supreme Court (T. & C.), 494.

      Shermcm S. Rogers, for appellant. Edward R. Bacon, for respondent.
   Opinion by

Gilbeet, J.

Present — Shith, P. J., Gilbeet and Meewin, JJ.

Order affirmed.


text:
    MARY JANE FOSTER, Respondent, v. BURTON FOSTER, Appellant.

      Post-nuptial agreement — Release of dow&r — sufficient consideration to support a promise.

    Post-nuptial agreements between husband and wife, though void in law, will be sustained and enforced in equity to the extent of the actual consideration thereof. (Shepard v. Shepaa’d, 7 Johns. Oh., 57; Story’s Eq. Jur.,§§1368 to 1376.)
    Accordingly, where a-husband, in order to induce his wife to relinquish her right of dower in certain real estate which he wished to sell, agreed to give her seventy dollars a year during his life, held, that the release by the wife of her inchoate right of dower was a valuable and sufficient consideration for the promise (G-arliehY. Strong, 3 Paige, 440; Simar v. Ganaday, 53 N. Y., 298), and that the husband should be compelled to perform the agreement on his part.
    Appeal from an order made at tbe Special Term, overruling a demurrer to tbe complaint.

      J. Welling, for appellant. Charles Me Louth, for respondent.
   Opinion by

Gilbeet, J.

Present — Smith, P. J., Gilbeet and Meewin, JJ.

Order affirmed.


text:
    HATTIE I. ROBERTS, Respondent, v. MICHAEL BOWER, Appellant.
    3 B. 8. (5th ed), 467, § 16 — effect of giving instructions to jury on Sunday.

    Upon the trial of this action the case was submitted to the jury and they retired on Saturday. On Sunday they came into court, said they had not agreed, and requested the court to instruct them as to the law on a point of evidence. The court then charged and instructed them as requested, no objection being-made by the defendant. The jury then retired and agreed on their verdict. The defendant claimed that the charge and instruction given to the jury on Sunday were a violation of the provisions of 3 Revised Statutes (5th ed.), 467, section 16, which provides that no court shall be opened or transact any business on Sunday, unless it be for the purpose of receiving a verdict or discharging a jury; and that the verdict should be set aside. Held, that the charge to the jury was like any other unauthorized communication, and that the parties, by consenting to it, waived any objections thereto.
    Appeal from an order made at the Special Term, denying a motion for a new trial made upon a case and exceptions.

      Wakeman c& Watson, for appellant. II. D. Tucker, for respondent.
   Opinion by

Meewin, J.

Present • — ■ Smith, P. J., Gilbeet and Meewin, JJ.

Order affirmed.


author: MeewiN, J.

text:
    HORACE M. DAKE, Appellant, v. GEORGE G. PATTERSON, Respondent.

      Ooni/raci for advertising — notice to terminate — effect of taking pa/per containing advertisement — Illegal agreement.

    A contract for the publication of an advertisement in a newspaper, for a specified time, needs no notice to terminate it.
    If the publisher continue to insert the advertisement after that time, he cannot recover compensation unless the original agreement has been extended or a new one made; nor can the mere fact that the paper is taken by the person for whose benefit it is inserted, be construed into a promise to pay therefor, even if the advertisement be brought to his knowledge.
    Where one litigant approaches the attorney of the other, and for a money consideration hires him to be unfaithful to his client, and the attorney receives the money, agreeing to return it on the happening of a certain event, the courts will not lend their aid to enforce such corrupt and illegal agreement, even if such event do occur.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      J. Van Voorhis, for appellant. Geo. W. Daggett, for respondent.
   Opinion by

MeewiN, J.

Present —■ Smith, P. J., Gtlbekt and MeewiN, JJ.

Judgment reversed and new trial ordered, without costs of appeal to either party.


text:
    JACOB CUYLER, Appellant, v. HASTINGS MERRIFIELD, Impleaded, etc., Respondent.

      Agent com/not depart from instructions — ratification.

    The defendant’s son, a minor, being desirous of purchasing an organ, defendant authorized his wife to write his name on the hack of his son’s note, but said he would not he a maker, or sign a joint note. In his absence his wife signed his name as a joint maker with the son. Held, that she had no authority to do so, and that he was not hound thereby. (Dunlap’s Paley Agency [4th Am. ed.],202; Parsons on Bills, 107; Fenny. Ha/rrison, 3 Term, 757; 7 Taunt., 455;'9 Bing-ham,*19.)
    After the maturity of the note, defendant wrote to the holder of it, stating that he had agreed to put his name on the hack of the note, and that, in his absence, it was put on the face of it; that his son was good, and that as soon as he (the son) could dispose of a crop he had in hand, they would do exactly the right thing. Held, that this did not amount to a ratification of the unauthorized act of his wife. (Commercial Bank of Buffalo v. Warren, 15 FT. Y., 577; Story on Ag., § 253.)
    Appeal from a judgment entered on the report of a referee dismissing the complaint.

      Jacob B. Decker, for appellant. Sedgwick, Kennedy & Tracy, for respondent.
   Opinion by

MeewiN, J.

Present — Smith, P. J., Gilbeet and MeewiN, JJ.

Judgment affirmed.


text:
    JASON LATHROP, and others, Appellants, v. WILLIAM BORDEN, ANDREW BORDEN and others, Respondents.

      Monomaniac — when may not malee will.

    A monomaniac cannot make a valid will if tlie delusion, which affects the general soundness of his mind, relates to the subject or objects of the will, or to the persons who would otherwise be likely, ordinarily, to be the recipients of his bounty, or where the provisions of the will are connected with, and influenced by, the particular delusion. (Stanton v. Wetherwaai, 16 Barb., 263; The Seamen’s Friends Society v. Hopper, 33 N. Y., 624.)
    Appeal from a decree of tbe surrogate of the county of Wyoming, refusing probate .to an instrument purporting to be the will of John Borden, deceased, on the ground that he was not of sound mind at the date of its execution.
    The General Term affirmed the decree, holding that the deceased was a monomaniac on the subject of Eree Masonry, believing that the Masons intended to kill and rob him, and that his friends and relatives, especially his two brothers, were connected with them.

      Geo. F. Danforth, for appellants. Harlow L. Comstocki, for respondents.
   Opinion by

Smith, P. J.

Present — Smith, P. J., Gilbert and MerwiN, JJ.

Judgment and decree affirmed, without costs of appeal to either party.


author: Gilbert, J.

text:
    RALPH BURDIN, Respondent v. SALLIE WILLIAMSON, Appellant.

      Effect of charging lo purchaser goods sold — when undisclosed principal may he cha/rged.

    The fact that goods sold are charged to the purchaser, shows, unless explained, that the credit is given to such person. (Buck v. Amidon, 4 Daly, 126.)
    Although, if a person selling goods to another on the supposition that he is dealing with him as principal, subsequently discovers that such person is but an agent, he may resort lo his principal, even if he had personally charged them to the agent; yet, if at the time he knows who the principal is, and still voluntarily and without fraud selects the agent as his debtor, he cannot afterward resort to the principal.

      . Appeal from a judgment of the County Court of Allegany county, affirming the judgment of a justice of the peace, in favor of the plaintiff.

      D. L. Benton, for appellant. Wm. Spargur, for respondent. •
   Opinion by

Gilbert, J.

Present — Smith, P. J., Gilbert and MerwiN, JJ.

Judgment reversed:


text:
    ELBERT W. COOK, Appellant, v. PHELETUS ALLEN and others, Trustees, etc., Respondents.

      Motion for new 1/ridl at Special T&rm — pro forma denial of, i/rregula/r — Written instnnment— question as to construction of.

    Section 265 of the Code, requiring a motion for a new trial upon a case and exceptions before judgment, to be first made at the Special Term, contemplates a real, and not a mere formal review of such ease and exceptions at the Special Term.
    The denial of such a motion at Special Term, pro forma, in order to allow an appeal to be taken, is error.
    The proper construction of a written instrument is a question of law. When, however, the instrument is not produced, and there is a question as to its terms, such question is properly left to the jury.
    Appeal from an order made at Special Term, denying a motion for a new trial. The court at General Term was of opinion, from the papers in the ease, that the denial of the motion at Special Term was merely formal, in order to give opportunity to take an appeal to the General Term ; and though considering such practice-wrong, yet-, having heard the cause, the court waived the irregularity, and, after an examination of the case on the merits, concluded that the motion was properly denied, and affirmed the order of the Special Term.

      John O. Strong, for appellant. Lewis (& Gurney, for respondents.
   Opinion by

Smith, P. J.

Present ■ — - Smith, P. J., Gilbert and Merwot, JJ.

Order affirmed.


text:
    PETER D. LIVINGSTON, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Belay resulting from breaking down of freight cm' — company not liable for, when its car is broken on track of another company — Bamages—evidence as to mcurket-mlue — value at what time to be shown.

    Appeal from a judgment in favor of the plaintifij entered upon tbe verdict of a jury at the Cayuga Circuit, and from an order made at the same Circuit, refusing to set aside the verdict.
    The action was for damages for the failure to transport from Moravia to New York, via Auburn,within a reasonable time, certain cheese.
    On November 15th, 1811, the assignor of plaintiff made an arrangement with one Ward, the freight agent of defendant at Auburn, by which he agreed, for a certain price, to transport from Moravia to New York, two car loads of cheese, and to send two cars from Auburn to Moravia to get the cheese. Moravia was some eighteen miles from Auburn, and on the Southern. Central railroad, a corporation distinct from defendant. The assignor and his agent told the freight agent, at the time, that they wanted it shipped without delay; that they wanted to get it through as soon as possible, because it was sold; and Ward said he would send the cars as soon as he could. On the seventeenth of November, two of defendant’s freight cars arrived on the road of the' Southern Central at Moravia from Auburn, sent, as the court inferred, by Ward, the agent of defendant. These were loaded with the cheese. the same day, and were returned by the Southern Central railroad to Auburn, arriving at the yard of that company the latter part of the afternoon of the same day. They were billed from Moravia to the agent of the Southern Central railroad at Auburn, and he, on the morning of the eighteenth, rebilled them to the defendant, the bills being delivei-ed to them that morning. It was the custom of defendant, with its own switch engine, to take from the yard of the Southern Central railroad the freight going-on the defendant’s road. These cars remained at the yard for some five days. The occasion of this delay, in part at least, arose from tbe fact tbat one of the cars was not in a condition to run.; bad been broken ; and tbe cheese bad to be transferred to another car, which was furnished by defendant upon the order of the agent of the Southern Central railroad, and the transfer was made by the men in his charge, but when does not appear, nor whether it was before the twentieth. How or when the injury to the car occurred does hot appear, nor whether the car was in good condition when it was sent from Auburn to Moravia. On Saturday, the twenty-fifth of November, the consignees, who lived in New York, were notified by the defendant of the arrival of one car, and on Monday, the twenty-seventh, of the and val of the other; and they paid the freight, as agreed upon, and took the property.
    On the nineteenth and twentieth of November, the cheese was, worth in New York thirteen and a half cents a pound, but on the twenty-fifth and twenty-seventh-it was worth only twelve and a half cents. Its value in the mean time does not appear. The passage from Moravia to New York, by the New York Central, occupies from two to three days.
    The court charged the jury, that the delivery to the defendant was complete on the eighteenth of November, and the injury to the car did not affect the question ; that if the defendant was guilty of-negligence, as it seemed to be, the plaintiff, could recover, as damages, the difference in price, which was one cent a pound, and interest from the time it should have been delivered. The defendant duly excepted. The jury found a verdict for plaintiff for $550.10.
    The General Term held, that as even if the delivery was complete on the eighteenth, the cheese could not have reached New York until late on the twentieth, so that a delivery to the consignees could not have been reasonably made until the twenty-first, and as there was no evidence of what- its value was on that day, the direction of the justice'as to the allowance of one cent per pound was erroneous. That it could as well be assumed that the price fell on the twenty-first as on the twenty-fourth. That as the price of the cheese on that day was not shown, there was no basis for ascertaining the damages.
    MeewiN, J., held, that it was incumbent upon the plaintiff to show that the car was injured at the time it was delivered to the Southern Central railroad, to be transported to Moravia, and that, in the absence of such evidence, it would be presumed that it was injured while passing to and from that place.

      J. R. Cox, for appellant. John T. Pingree, for respondent.
   Opinion by

MeewiN, J.

Present — SMITH, P. J., Gilbeet and MeewiN, JJ.

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


author: GilbeRT, J.

text:
    HEMAN BARLOW and JOHN REED, Overseers, etc., Appellants, v. LEVI J. PEASE, Respondent.

      Section 80, chapter 820, of 1873 — excise law — suit by private person when pi'operr officer refuses to bring an action —motion by officer to dismiss complaint — what proof of his refusal to bring action requi/red.

    Appeal -from an order of the County Court of Monroe county, setting aside the summons and complaint in this action.
    The action was brought under section 30, chapter 820, of 1873, authorizing a prosecution by a private person for the recovery of a penalty for a violation of the provisions of the excise law, when a complaint that a penalty has been incurred, accompanied with reasonable proof of the same, has been made to the parties or persons whose duty it is to prosecute for such penalty, and they shall have neglected or refused to prosecute for the same for ten days thereafter. The pe2-sons named as plaintiffs in this suit were overseers of the poor of the town of Sweden until the second day of March last, when their term of office expired, and it was their duty to prosecute for penalties incurred for violations of the statute referred to. This action was instituted by one Ells-worth, upon an allegation contained in' the complaint therein, made upon information and belief only, “ that on .or about the 20th day of February, 1875, and ten days prior to the commencement of this action, a complaint was duly made to said plaintiffs, that the defendant had incurred a penalty of fifty dollars, by violation of the excise law of 1857, as hereinafter set forth, accompanied by reasonable proof of the same; and that said overseers have neglected and refused to prosecute for such penalty.” The overseers moved, upon the summons and complaint in the action, and upon their own affidavit, together with the affidavits of several other persons, to dismiss the summons and complaint upon the grounds, among others, that they had not neglected or refused to prosecute the defendant for the 'penalty, alleged in the complaint to have been incurred by him; that ten days had not expired after proof made of the same; and that reasonable proof of the same was not made as required by the statute. The 'affidavit made by the overseers stated that, in their judgment, no proper or sufficient complaint had been made to them. The papers did not show that this statement was denied. Neither party presented to the court the complaint that had been made to • the overseers, nor the proof accompanying the same.
    The General Term held, that the denial, being in the moving papers, cast upon Ellsworth the burden of overcoming it by showing the complaint made, to the overseers and the proof which accompanied it; that the allegation in the complaint in the action, although good as an averment, in a pleading, was incompetent as evidence to prove the fact averred, even upon a motion; and thát Ellsworth’s omission to make the requisite proof raised a presumption against him, which was aided by the rule of law, which requires that all reasonable intendments be made in favor of public officers. The General Term also held, that the action was prematurely commenced; that the only statement of the time when the complaint to the overseers was made, was that it was made on or about the 20th day of February, 1875, and ten days prior to the commencement of this action; that the words “ on or about ” rendered it uncertain whether the complaint to the overseers was made on the twentieth day of February, or shortly before, or shortly after that day; and that, if it was made after that day, the period of ten days, provided by the statute, had not elapsed when the term of office of the overseers then in office expired, and that it did not therefore appear that when this suit was commenced, a period of ten days had elapsed after the alleged complaint against the respondent was made.

      O. H. JSlevens, for appellants. Fuller da Glark, for respondent.
   Opinion by

GilbeRT, J.

Present — MulliN, P. J., Smith and Gilbert, JJ.

Order affirmed, with costs.


author: SMITH, P. J.

text:
    MARY E. THAYER, Respondent, v. THE AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, Appellant.

      Insurance policy — occupancy of insured premises —power of agent to waive conditions of policy.

    Appeal from a judgment, in favor of plaintiff, entered on the' report of a referee.
    The policy of insurance upon which this action was brought contained the pro vision following: “ If the dwelling-house hereby insured become vacated by the removal of the owner or occupant, or be unoccupied at the time of effecting the insurance, and not so stated in the application, then and in every such case, and in either of said events, the policy shall be null and void.” The dwelling-house of the plaintiff insured, was vacant at the time of the fire, and had become vacant, as the referee found, on the 23d of May, 1873, and was consumed by fire on the twentieth of June afterward.
    The referee found that the application for the policy was made through one Malcolm, an agent of the defendant, and that the defendant, pursuant -thereto, issued and delivered by mail to the plaintiff said policy; that on the 19th of May, 1873, at Boonville, N. Y., the plaintiff met the defendant’s agent, Malcolm, and informed him that her tenant was about to. move out, and the said dwelling-house become vacant, and stated to him that she had lost the policy; that she was informed by him that he had a record of it at home, and that there would be no trouble about it.
    The court held, that if Malcolm had been a general agent of the defendant, authorized to receive applications and issue policies in its behalf, this notice to him, that the said dwelling-house was about to become vacant, with a declaration or assurance to the plaintiff thereupon, “that he had a record of it at home, and that there would be no trouble about it,” would be equivalent to the issue of a new policy upon said house as a vacant and unoccupied house, or a clear waiver of all ground of forfeiture on account of the removal of the plaintiff’s tenant therefrom, within the case of Pratt v. New Yorh Gen. Ins. Company (64 Barb., 589, and 55 N. Y., 505). That, as a matter of fact, Malcolm had no power to bind the defendant by any contract, except to give consent to the assignment of policies on notice to the company, be merely having authority to make surveys and to take applications for insurance against loss or damage by fire for said company. That, as the plaintiff’s policy upon its face stated that “ no agent of the company is permitted to give consent of the company in any other case required by the provisions of this policy, or to waive any stipulation or condition therein contained,”' this was part of the contract, and the plaintiff was bound to take notice of the terms of the policy.
    The court distinguished the cases of Bodime v. Exchange Ewe Insurance Company (51 N. Y., 117), and Bowma/n v. The Agricultural Insurance Company (2 N. Y. S. C., 264), and said it was properly held in them that the condition as to prepayment of premiums might be and could be waived by the delivery of the policy or certificate of renewal by the company or its authorized agent without exacting payment, upon credit given or implied; and as to the case of The Niagara Insurance Company (3 N. Y. S. 0., 33), as the company had notice of the insurance from Haines (the agent), and of the fact that the building was then unoccupied, and received the premium, it was not in a position to claim that Haines had no authority to waive the condition as to vacant buildings.

      Bradley Winslow, for appellant. Abram 1. Mereness, for respondent.
   Opinion by

SMITH, P. J.

Present — Smith, P. J., Gtlbeet and MebwiN, JJ.

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