text:
    Margaret Fifer, Resp’t, Prudential Ins Co. of America, Appl’t.
    Sup. Ct., App. D., 2 D.,
    May 8, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements, upon authority of Howard v. Insurance Co., 1 App. Div. 135. All concur.


source: Caselaw Access Project

license: Public Domain

text:
    William Finder, Jr., Resp’t, v. Fidelity and Casualty Co., App’lt.
    Sup. Ct., App. D., 3 D.,
    April 14, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Ella V. Fitzgerald, Appl’t, John H. Timoney, Resp’t.
    N. Y. C. P.,
    November, 1895.
   No opinion. Appeal dismissed.


text:
    Margaret Fitzgibbons v. National Steamship Co.

    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Motion denied, upon payment of $10 costs.


text:
    Margaret Fitzgibbons v. National Steamship Co., Lim.
    Sup. Ct., App. D., ID.,
    April 24, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Irene A. Fleet, Resp’t, v. Helen M. Cronin, App’lt.
    Sup. Ct., App. D., 1 D.,
    May 1, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Estelle Floyd, App’lt, v. Wallace J. Floyd, Resp’t.
    Sup. Ct., 2 D.,
    July 26, 1895.
   No opinion. Judgment affirmed, on opinion of Bartlett, J., at special term. All concur.


text:
    Eleanor Flynn, Resp’t, v. Kings County El. Ry. Co., App’lt.
    Sup. Ct., App. D., 2 D.,
    April 21, 1896.
   No opinion. The order as entered correctly states the decision of the court. The motion is denied.


author: FITZSIMONS, J.

text:
    James J. Galligan et al., App’lts, v. Rodger C. Groten, Resp’t.
    N. Y. C. C.,
    April 27, 1896.
    T. E. Murray, for app’lts; Rabe & Keller, for resp't.
   FITZSIMONS, J.

— There is not a single fact alleged in the affidavits upon which the attachments herein was granted that shows that the defendant was about to assign, dispose of, or secrete his property with the intent to hinder, delay, and defraud his creditors (the ground upon which the same was issued). The attachment was therefore rightly vacated, and the order appealed from must be affirmed, with costs.


text:
    Isaac Goldsmith, Resp’t, v. Valentine E. N. Cook, App’lt.
    N. Y. C. P.,
    November, 1895.
   No opinion. Appeal dismissed.


text:
    Granite State Provident Ass’n, App’lt, v. Waldemar Dorfman et al., Respt’s.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Order affirmed, with $10 costs and disbursement!


text:
    Hugh J. Grant v. Horace H. Chittenden.
    Sup. Ct., App. D., 1 D.,
    April 17, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Hugh J. Grant v. Horace H. Chittenden.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    In re Joseph P. Hale.
    Sup. Ct., App. D., 1 D.,
    April 17, 1896.
   No opinion. Motion denied.


text:
    Charles S. Halstead v. Sarah B. Halstead.
    Sup. Ct., App. D., 1 D.,
    March 20, 1896.
   No opinion. Motion, denied, with $10 costs.


text:
    Peter A. Hegeman et al., Resp’ts, v. Metropolitan E. R. Co. et al., App’lt.
    Sup. Ct., App. D., 1 D.,
    May 1, 1896.
   No opinion. Judgment affirmed, with costs.


author: PER CURIAM.

text:
    George Herold, Resp’t, v. John Fleming, App’lt.
    N. Y. C. C.,
    April 27, 1896.
    Richards & Brown, for app’lt; F. P. Hummel, for resp’t.
   PER CURIAM.

—Judgment affirmed, with costs.


text:
    Theresa Hirsch, Resp’t, v. Metropolitan El. Ry. Co. et al., App’lts.
    Sup. Ct., App. D., 1 D.,
    May 1, 1896.
   No opinion. Judgment modified by reducing fee damages to $1,000, and rental damages to $1,250, and, as modified, affirmed, without costs.-• ■


author: Per Curiam.

text:
    William M. Hoes, App’lt, v. Thomas Hume, Resp’t.
    Sup. Ct., App. D., 1 D.,
    May 1, 1896.
    J. W. Boothby, for app’lt; R. E. Deyo, for resp’t.
   Per Curiam.

—The rule laid down upon the previous appeal (Stebbins v. Hume 1 N. Y. Supp. 131) is the law of this case, so far as this' court is concerned. The trial judge ruled in accordance with the views there laid down by the general term. We should therefore affirm his action. The judgment should be affirmed, with costs.


text:
    Holmes, Booth & Hayden v. Eberhard Faber.
    Sup. Ct. App. D. 1 D.
    March 6, 1896.
   No opinion. • Motion granted.


text:
    Otto Huber, Resp’t, v. John George Grauer, App’lt.
    Sup. Ct. App. D. 2 D.
    May 8, 1896.
    Delos McCurdy for app'lt; Samuel Untermyer, for resp’t.
   Per Curiam.

—The facts in this case are fully stated in the opinion of Mr. Justice Cullen, delivered at general term in May 1894, when a new trial was ordered upon the plaintiff's exceptions to a dismissal of the complaint. Huber v. Grauer, 87 Hun, 100, 33 N. Y. Supp. 877. The case has now been tried in strict accordance with the directions contained in that opinion. The argument in behalf of the appellant on the present appeal is designed to show that a different view of the law and the facts should now be adopted from that which was then taken by the general term. It is enough, to say that the commission reached by that court, and expressed in Judge Cullen’s opinion, finds recent support in the case of Thomas v. Poor, 147 N.Y. 402, 42 N. E. 13, and that we think the former decision was correct. Judgment and order affirmed, with costs.


text:
    Charles Hutchinson v. Mary F. Root.
    Sup. Ct. App. D. 1 D.
    March 20, 1896.
   No opinion. Motion denied.


author: Conlon, J.

text:
    Nathan Hutkoff, Resp't, v. Amelia Gorman, App’lt.
    N. Y. C. C.
    March 16, 1896.
    A. C. Shenstone, for app’lt. David Leventritt, for resp’t.
   Conlon, J.

—Appeal from an order denying defendant’s motion to vacate the order restoring this cause to the calendar. The order appealed from should be affirmed, with costs. All concur.


text:
    John S. Huyler, Resp’t, v. David H. Roberts, App’lt. William Bush, Resp’t, v. Same, App’lt. James W. E. Roby v. Same. First Nat. Bank of Jeannette v. Same. First National Bank of Birmingham v. Same.
    Sup. Ct. App. D. 1 D.
    May 8, 1896.
    Otto Horwitz, for app’lt; John J. Adams, for resp’t.
   Per Curiam.

—These five cases are presented upon substantially the same state of facts as were before this court in the case of Glass Co. v. Roberts (recently decided), 38 N. Y. Supp. 301, in which case the warrant of attachment had been vacated, and the order was affirmed by us. It is insisted here that additional facts have been made to appear. These facts are stated in the affidavit of Van Horn, which we have considered. But the facts herein stated do not change the aspect of the case as formerly presented to us, or require or permit any change in the result. The orders should be reversed, with $10 costs and disbursements, and the motion to vacate the attachment granted, with $10 costs in each case.


text:
    Sacharie Isear v. Willian Daynes.
    Sup. C’t App. D. 1 D.
    May 1, 1896.
   No opinion. Motion denied.


text:
    Jonathan Jenkins, Resp’t, v. Postal Telegraph Cable Co., App’lt.
    Sup. Ct., App. D. 3 D.
    April 14, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Catharine Jennings, Resp’t, v. Ralph Henry, App’lt.
    Sup. Ct., App. D. 1 D.
    March 6, 1896.
   No opinion. Judgment reversed; new trial ordered, with costs to appellant to abide event.


text:
    Robert A. Johnston, App’lt, v. Joseph Meany, Resp’t.
    Sup. Ct. App. D., 1 D.
    May 1, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Thomas J. Kinsey v. Elija J. Arkenburgh.
    Sup. Ct., App. D., 1 D.
    March 13, 1896.
   No opinion. Judgment affirmed, with costs on opinion in Allen v. Arkenburgh, 73 S. R.


text:
    Robert H. Kinsey v. Elija J. Arkenburgh.
    Sup. Ct. App. D., 1 D.
    March 13, 1896.
   Judgment affirmed, with costs, on opinion in Allen v. Arkenburgh, 73 S. R.


text:
    Jacob Klotsky, Resp’t, v. Dora Hertchikoff, App’lt.
    N. Y. C. P.
    November, 1895.
   No opinion. Order reversed on argument.


text:
    John Koster et al , v. Marvin S. Robinson.
    Sup. Ct., App. D., 1 D.
    April 24, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Lachman v. Aronson.
    Sup. Ct. App. D., 2 D.
    April 7, 1896.
   No opinion. Motion to dismiss appeal denied, without costs, with leave to renew at tHe next term. Ail concur.


text:
    Adolf Ladenburg et al., v. Commercial Bank of Newfoundland (Davidson, App’lt.)
    Sup. Ct. App. D., 1 D.
    April 17, 1896.
   No opinion. Motion denied, on payment of $10 costs.


text:
    Florence M. Lane et al., v. Frank Moss et al.
    Sup. Ct., App. D., 1 D.
    March 13, 1896.
   No opinion. Motion granted, with $30 costs.


text:
    Harriet Leland, Resp’t, v. Sun Printing and Publishing Ass’n, App’lt.
    Sup. Ct. App. D., 1 D.
    May 1, 1896.
    Bartlett, for app’lt; Jonas B. Weil, for resp’t.
   Per Curiam.

—We do not see thst this case is distinguishable in principle from the case of McClean v. Press Co. (Sup.) 19 N. Y. Supp. 262. The judgment should be affirmed with costs, with leave to the defendant to answer in 20 days after service of affirmance, upon payment of the costs of appeal and costs of the special term.


text:
    Charles H. Leonard et al., v. Eberhard Faber.
    Sup. Ct. App. D., 1 D.
    March 6, 1896.
   No opinion. Motion granted.


text:
    Abraham Levy v. Swick Piano Co. Frank Hartenstein v. Same (two cases). William H. Spiedel v. Same (four cases) Hester Ann Swick v. Same.
    N. Y. C. C.
    March 16, 1896.
    Philip Waldheimer (Abraham Levy, of counsel), for app’lt; Benno Loewy, for resp’t Hester Ann Swick; Alfred B. Jaworower, for resp’ts Speidel and Hartenstein.
   Per Curiam.

—The special term justice decided these applications rightly, and, for the reasons assigned by him, the order appealed from is affirmed, with costs.


text:
    Z. Edwards Lewis, Resp’t, v. George K. Thompson, App’lt.
    Sup. Ct., App. D., 2 D.
    April 28. 1896.
   No opinion. Motion for,reargument denied,*with $10 costs.


text:
    Hannah Liebeskind v. Philip Bohnet.
    Sup. Ct., App. D., 1 D.
    May 1, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Louis Liebmann et al., pl’ffs, v. Liebmann Bros. Co., Def’t. (Blumgart, App’lt.)
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Orders affirmed, with $10 costs and disbursements, en opinion of Justice Cullen at special term. All concur.


text:
    Edward V. Loew v. Sebastian Christ.
    Sup. Ct., App. D., 1 D.
    March 13, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Wilhelmina Lucas Resp’t, v. Benedict Fischer et al., App’lts.
    Sup. Ct., App. D., 2D.
    May8, 1896.
   No opinion. Judgment and order-affirmed, with costs. All concur. 1


text:
    James B. Ludlow, Resp’t, v. Dorothy G. Johnson et al., App’lts.
    Sup. Ct., App. D., 2 D.
    April 28, 1896.
   No opinion. Motion to dismiss'appeal denied, with $10 costs.


text:
    Hannah McGinley et al., Resp’ts, v. Bank For Savings, App’lt.
    Sup. Ct., App. D., 1 D.
    April 17, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Chasles McClouth, Resp’t (Pliny T. Sexton App’lt), v. George C. Hunt et al., App’lts.
    Sup. Ct. 5 D.
    December 28, 1895.
   No opinion. Judgment affirmed on opinion of the referee. Costs of this appeal to the parties, respectively, payable out of the income of the fund.


author: Williams, J.

text:
    In re R. H. Macy et al.
    Sup. Ct., App. D., 1 D.
    May 1, 1896.
    The facts in this case were the same as in the other case 73 S. R., argued at the same time as this, except that the relators had, at the time this application was made, closed and locked the entrance and door to their building on West Thirteenth street. There was an entrance also on Sixth avenue, 173" feet only distant from the entrance of the school on West Thirteenth street; and the respondents assigned an additional reason for refusing this application that, considering the number of existing licensed places in the neighborhood for which the license was sought, they were satisfied that there was no public necessity or convenience to be served by granting such license.

      Daniel G. Thompson, for relator; Julius M. Mayer, for resp’ts.
   Williams, J.

—We think the license was properly refused upon this application, for the first reason assigned, and which was considered in the other case argued with this. The views of the courts are fully stated in the opinion in that case and need not be repeated here. The door was not walled or boarded up, but merely closed, and locked. It was still an entrance, within the statute as fairly construed. This writ should therefore be dismissed, with costs. We have not regarded it as necessary to consider the other reasons assigned by the respondents for refusing the license, because this reason was sufficient, and the other reasons become unimportant in view of the-fact that the law, cease to be in force beyond April 30, 1896;' and under the new law, these reasons will be unimportant. The reason' we have considered may be important under that law.

All concur.


text:
    Thomas Martin, App’lt, v. Harry A. Lynch, Resp’t.
    Sup. Ct., App. D., 1 D.
    March 13, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Mary J. Mooney v. Anastasia Byrne et al.

    Sup. Ct., App. D., 1 D.
    April 24, 1896.
   No opinion. Motion denied.


text:
    Rose Mulhearn, App’lt, v. William B. Davenport, Resp’t.
    Sup. Ct., App. D , 2 D.
    April 21, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    John R. Myers et al., App’lts, v. Josephine Polhemus, Resp’t.
    Sup. Ct., App. D., 3 D.
    April 14, 1896.
   No opinion. Judgment reversed; referee discharged; new trial granted; costs to abide the event. Reversed on the ground that the evidence was insufficient to sustain the findings of the referee upon the questions of fact.


text:
    Julia Pomeroy Newell, Resp’t, v. Josephine Pomeroy et al., Def’ts, Frank R. Chandler, App’lt.
    Sup. Ct., App. D., 2 D.
    April 7, 1896.
   No opinion. Judgment affirmed, with costs, to be paid by the appellant personally. All concur.


text:
    Julia Pomeroy Newell, Resp’t, v. Josehine Pomeroy et al., Def’ts, Frank R. Chandler, App’lt.
    Sup. Ct., App. D., 2 D.
    April 21, 1896.
   No opinion. Motion denied.


text:
    George H. Newton, v. A. J. Lyman.
    Sup. Ct., App. D., 1 D.
    March 13, 1896.
   No opinion. Appeal dismissed.


text:
    New York Life Insurance & Trust Co. et al., Resp’ts, v. Tabernacle Baptist Church et al., App’lts.
    Sup. Ct., App. D.,1D.
    April 24, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. 1


text:
    New York Nat. Exch. Bank, Resp’t, v. Abram Rosenstein et al. App’lts.
    Sup. Ct., App. D., 1 D.
    May 1, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    James R. O’Beirne v. Spencer S. Bullis et al.

    Sup. Ct., App. D., 1 D.
    April 24, 1896.
   No opinion. Motion denied with $10 costs.


text:
      In re Opening Brook Ave.
    Sup. Ct., App. D., 1 D.
    April 17, 1896.
   No opinion. Motion denied.


text:
    People v. National Mut. Ins. Co.
    Sup. Ct., App. D., 1 D.
    April 17, 1896.
   No opinion. Motion denied.


text:
    People ex rel. Frank J. Borst, App’lt, v. Roosevelt et al., Resp’ts.
    Sup. Ct., App. D., 1 D.
    May 1, 1896.
   No opinion. Proceedings affirmed, with $10 costs and disbursements


text:
    People ex rel. Francis J. Clarke, v. Theodore Roosevelt et al.

    Sup. Ct., App. D., 1 D.
    March 13, 1896.
   No opinion. The parties may file new note of issue for'April term. The rule referred to in the moving affidavits is not a rule of this department only, but is contained in the general rules of practice.


text:
    People et rel. Charles A. Cole et al., Relators, v. Board of Education of Town of New Rochelle, Resp’t.
    Sup. Ct., App. D., 2 D.
    April 28, 1896.
   _ No opinion. The action of the board of education has no semblance of judi*cial form or substance." Certiorari will not lie. Writ quashed, with $10 costs. and disbursements. All concur.


text:
    People ex rel. James J. Connolly, App’lt, v. Joseph Murray, et al. Resp’ts.
    Sup. Ct., App. D., 1 D.
    April 17, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    People ex rel. Illingworth, v. Court of Oyer & Terminer.
    Sup. Ct., App. D., 1 D.
    March 13, 1896.
   Proceedings by the people, on the relation of one Illingworth, against the-court of oyer and terminer. No opinion. The appeal will be heard upon» copies of the papers. Unless such copies are prepared and printed, the motion» will be granted.


text:
    People ex rel. James W. Jordan, App’lt, v. James J. Martin et al., Resp’ts.
    Sup. Ct., App. D., 1 D.
    March 6, 1896.
   No opinion. Proceedings annulled, and relator reinstated, without costs.


text:
    People ev rel. Thomas B. Keator v. Theodore Moss.
    Sup, Ct., App. D., 1 D.
    April 17, 1896.
   No opinion. Motion denied, on payment of $10 costs.


text:
    Aaron S. Polhemus v. Spencer Aldrich et al.

    Sup. Ct., App. D., 1 D.
    April 17, 1896.
   No opinion. Motion denied.


text:
    Pratt v. Pratt.
    Sup. Ct., App. D„ 1 D.
    April 24, 1896.
   No opinion. Motion denied.


text:
      In re Rodney F. Pugh.
    Sup. Ct., App. D., 2 D.
    April 21, 1896.
   No opinion. Motion granted, and order signed.


text:
    James D. Putnam v. Charles Davis et al.

    Sup. Ct., App. D., 1 D.
    March 6, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Wilhelm Recke, App’lt, v. Manhattan Ry. Co., Resp’t.
    Sup Ct., App. D., 1 D.
    April 17, 1896.
    W. W. Badger, for app’lt; Davies, Short & Townsend, for resp’t.
   Per Curiam.

—The facts in this case are not in all respects the same as they were in the Otten Case, lately decided by this court (37 N. Y. Supp. 982), buS the principle upon which the reversal in the latter case proceeded is applicable! to these facts. The variations are not sufficiently important to affect the re» suit. The judgment should therefore he reversed, and a new trial granted, with costs to the appellant to abide the event.


text:
    Garrett Reilly, App’lt, v. Charles Q. Freeman, et al., Resp’ts.
    Sup. Ct., App. D., 1 D.
    March 13, 1896.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Louisa A. Richardson v. George W. Thedford et al.

    Sup. Ct., App. D., 1 D.
    May 1, 1896.
   No opinion. Motion denied without costs.


text:
    George W. Robinson et al., v. Robert J. Gray.
    N. Y. C. C.,
    March 16, 1896.
    Blandy, Mooney & Shipman, for ap’lt; Goodrich, Deady & Goodrich,for resp’s.
   Per Curiam.

—Judgment affirmed, with costs,


text:
    Simon Rothschild v. Rio Grande Western Ry. Co.
    Sup. Ct., App. D., 1 D,
    March 6, 1896.
   No opinion. Motion denied, on payment of $10 costs.


text:
    George P. Rowell et al., App’lt, v. Edward M. Lambert. Res’pt.
    Sup. Ct., App. D., 1 D.,
    May 1, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    William H. Schecker, Pl’ff, v. Kate T. Woolsey, et al., Def’s.
    Sup. Ct., App. D., 2 D.,
    April 14, 1896.
   No opinion. Motion to resettle granted, and order-signed.


text:
    John D. Schmidt v. New York El. Ry. Co.
    Sup. Ct., App. D., 1 D.,
    April 17, 1896.
   No opinion. Motion denied, with $10 costs.


text:
    Catharine Sheridan, Resp’t, v. William Scott, App’lt.
    N. Y. C. P.,
    November, 1895.
   No opinion. Judgment affirmed.


text:
    Smith et al., App’ts, v. City of Buffalo, Resp’t.
    Sup. Ct., 5 D.,
    October, 1895.
   No opinion.


text:
    John J. Snyder et al., App’lts; v. John A. Suydam, Resp’t.
    Sup. Ct., App. D., 2 D.,
    April 28, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur»


author: CONLAN, J.

text:
    Evelyy Stedeker, Resp’t, v. Caesar L. Pinto, App’lt.
    N. Y. C. C.,
    March 16, 1896.
    Jones & Govin, for app’lt ; Samuel Johnson, for resp’t.
   CONLAN, J.

—Appeal from an order denying a motion to vacate an ordes directing the examination of the judgment debtor. The order appealed front' should be affirmed, with costs. All concur.


text:
    Erwin Steinback v. Louis E. Diepenbrock.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Motion denied, with costs, unless stipulation by given as directed in memorandum in two days from service of copy order hereon.


text:
    Alfred E. Stone v. Abraham Cohen.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Motion denied.


text:
    Sarah A. Tagliabue et al., Resp’ts, v. Metropolitan El. Ry. Co., App’lt.
    Sup. Ct., App. D., 1 D.,
    March 6, 1896.
   No opinion. Judgment modified by reducing the fee damage to $3,000, and, as so modified, affirmed, without costs.


author: VAN WYCK, C. J.

text:
    James Talcott v. D. C. Cowdry et al.
    N. Y. C. C.,
    April 27, 1896.
    L. B. Bunnell, for app’lt; Blumenstiel & Hirsch, for resp’ts.
   VAN WYCK, C. J.

—This cause was first tried in June, 1887, and a verdict returned for plaintiff, which, however, was set aside by the trial judge, after investigation, in a well considered opinion, concluding with the statement that there was no evidence whereon the jury could base a verdict for plaintiff; and an appeal was taken by plaintiff from the order setting aside the verdict, but the same was affirmed in November, 1887. The second trial of this cause was held in January, 1896, and resulted in the judgment of nonsuit, from which this appeal is taken ; and upon this second trial the plaintiff did not make out a stronger case than he did on the first trial, which the trial judge held did not-entitle him tó go to the jury, and this was sustained by our general term of November, 1887. The judgment of nonsuit is affirmed, with costs.


text:
    Amelia Thompson v. Jacob Schwartz et al. (two cases).
    Sup. Ct., App. D., 1 D.,
    April, 1896.
   No opinion. Motion denied, upon payment of $10 costs.


text:
    William Thomas Tompkins, Resp’t v. Brooklyn Heights R. Co., App’lt.
    Sup. Ct., App. D., 2 D.,
    April 21, 1896.
   No opinion. Judgment and order affirmed, with costs.

All concur.


text:
    In re John Turl’s Estate.
    Sup. Ct., App. D.,1 D.,
    May 15, 1896.
    W. W. Niles, Jr., for app’lt; Edgar J. Levey, for resp’t.
   PER CURIAM.

—This order should be affirmed, upon the authority of the case of In re Livingston’s Estate, 1 App. Div. 568, 37 N. Y. Supp. 463, from which we do not think it is distinguishable. This order should be affirmed, with $10 costs and disbursements.


text:
    Ulman Goldsborough Co., Resp’t. v. Bernard L. Ackerman et al., App’ts.
    Sup. Ct., App. D., 1 D.,
    April 10, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Benjamin E. Valentine, Resp’t, v. Henry Schreiber, App’t.
    Sup. Ct., App. D., 2D.,
    April 28, 1896.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Nathaniel W. Vanderhoff, Resp’t, v. Charles A. Miller, App’lt.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Order denying motion to vacate attachment reversed, with $10 -costs and disbursements, and motion granted, with $10 costs.'


text:
    Nathaniel W. Vanderhoff, Resp’t, v. Charles A. Miller, App'lt.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Order denying motion to vacate order of arrest affirmed, with -$10 costs and disbursements.


text:
    Louis C. Vanuxem v. William W. Ker.
    Sup. Ct., App. D„ 1 D„
    April 17, 1896.
   No opinion. Motion denied, with $10 costs.


text:
    John Volk, Respt, v. Sigmund Bergman, App’lt.
    N. Y. C. C.,
    April 30, 1896.
    John E. Brodsky, for app’lt; Henry G. Harris, for resp’t.
   FITZSIMONS, J.

—Because of the decision of the general term of this court herein filed November 26, 1895, upon this appeal we are limited to a consideration of the question whether or not the defendant actually paid to the plaintiff .any part of the sum of $1,045, sued for herein. There is certainly no evidence of any such payment, the defendant merely contending that the sixth clause of the agreement made between the parties hereto, and upon which this action is based, only required the payment of the sum of $2,500 per year until the expiration of the term (viz. five years from date thereof) mentioned in such agreement,'when an accounting might be required, and the balance over $12,500, if any there was found to be due, should be paid. That contention in said former appeal, as we have said, was passed upon adversely to the defendant. Therefore we must affirm the judgment herein, with costs.


text:
    Elizabeth H. Von Dersmith, Resp’t, v. Bernard Rourke, App’lt.
    Sup. Ct., App. D., 1 D.,
    April 24, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Joseph Von Hatten, Resp’t, v. Louisa Scholl et al., App’lt.
    Sup. Ct.. App. D., 2 D.,
    April 21, 1896.
   No opinion. The plaintiff should apply at special term for an order directing the purchaser to complete her purcli¡ase. Motion denied.


text:
    In re Larue Vredenburgh.
    Sup. Ct., App. D., 2D.,
    April 7, 1896.
   No opinion. Application granted and applicant may appear in court and <take the oath of office.


text:
    Karl M. Wallach v. Mark Davis et al.
    Sup. Ct„ App. D., 1 D.,
    March 20, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Karl M. Wallach, Resp’t, v. Samson Wallach, App’lt.
    Sup. Ct., App. D., 1 D.,
    March 6, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. ’


text:
    George W. White, Resp’t, v. Warren H. Jeffers et al., App’lts.
    Sup. Ct., App. D., 2D.,
    April 28, 1896.
   Mo opinion. Judgment and order affirmed, witli costs. All concur.


text:
    In re Ada Florence Whittier.
    Sup. Ct., App. D., 2D.,
    April 28, 1896.
   No opinion. Order affirmed, without costs. All concur, except CTTLLEM, J., dissenting, and BARTLETT, J., not voting.


text:
    Jacob Wilson v. John J. Clancy.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Motion denied, upon payment of $10 costs.


author: PARKER, P. J.,

text:
    Martha M. Wright et al., Resp’ts, v. George W. Lott, App’lt.
    Sup. Ct., App. D., 3 D.,
    April 14, 1896.
    Sherman Moreland, for app’lt ; Rockwell, McDowell & McCann (George McCann, of counsel), for resp’ts.
   PARKER, P. J.,

—John W. Hathorn contracted, by written agreement dated June 30,1879, to sell to Furman a tract of timber land, at an agreed price; and, ' in the same instrument, Furman agreed to get the timber and bark off the same, and deliver to Hathorn at or near Lott’s Mill, at prices therein fixed. Furman did nothing towards performing the contract on his part; but, in the year 1881 or 1882, the defendant George W. Lott, by mutual consent of all, was substitituted for Furman in such contract, and entered upon the premises, and delivered a large amount of lumber and bark therefrom, Payments were from time to time made by Hathorn to Lott on account of work so done, and purchases of lumber were made by Lott from Hathorn. Complaints were also made by Hathorn that Lott did not deliver the lumber and bark as he agreed to, whereby damages and loss accrued to him. Finally, Lott ceased to perform any more work thereon; and in December, 1892, Hathorn commenced this action, to recover the purchase price of the premises, and for an accounting as to all the matters, and amounts due from one to the other under such contract, including damages for Lott’s alleged breach of the same. Lott’s answer admits his substitution for Furman; denies any breach on his part, except such as was caused by Hathorn’s acts, and claims a large balance due to him. It was also agreed upon the trial that an account existing between them prior to Lott’s entering into this contract should be tried and decided in this action. The case was referred, and the referee makes a report, charging Lott with a balance of §194.19, and, from the judgment entered thereon, this appeal is taken. There was a large amount of evidence taken, upon the trial, and the referee has found against defendant certain items of damage, for not delivering bark in a reasonable time after it was cut and peeled. He has also charged the defendants with the purchase price of the land, and thus fixed the items which both defendant and Hathorn should be charged for lumber delivered and payments made, and for a long account existing between them. His report consists of fifty-eight findings of fact, and twenty-three conclusions of law, in which are minutely set forth the items with which each of the parties should be credited. We have carefully examined the evidence bearing upon them all, and find no reason for disturbing the referee’s conclusions. On the contrary, we think them fully sustained by the evidence before him; nor do we find any error in his rulings during, the trial that has operated to the prejudice of the defendant or would warrant a new trial. The earnest objection which defendant makes to the finding of the referee as to which was the correct agreement under which Lott entered upon the work is not a ground for reversal, even if his conclusion was erroneous in that respect. We think the evidence sustained his findings but the contract differs so slightly that, under either, the items with which the referee has charged defendant should be sustained. We are also of the opinion that Hathorn was not bound by the contract to furnish a road across the land; of Perry Lott, and that his omission to do so did not excuse Lott from a performance of the contract on his part. We conclude that the referee’s report is correct, and that the judgment appealed from should be affirmed. Judgment affirmed, with costs. All concur.


text:
    Mary Yore, App’lt, v. William B. Davenport, Resp’t.
    Sup. Ct., App. D., 2 D.,
    April 21, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Eugene Zimmerman, Resp’t, v. Howard K. Burrass et al., App’lts.
    Sup. Ct., App. D., 1 D.,
    April 24, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


author: FITZGERALD, S.

text:
    In the Matter of the Petition for Probate of the Will of Jennie Carland, Deceased.

      (Surrogates Court, New York County,

      Filed December, 1895.)

    1. Will—Uudtje influence.
    Where, under a will, the natural objects of a testator’s bounty are ignored, and a stranger who is the sole beneficiary presentg the paper for probate, he should come into court prepared to show that it represents the free and unconstrained wishes of the testator, and that there were good reasons moving for the disinheritance of kindred.
    2. Same.
    Where a guardian has been at all instrumental in procuring the execution of a will by his ward in his favor, the law presumes undue influence by reason of the confidential relation existing between guardian and ward.
    Petition for probate of the will of Jennie Garland, deceased.
    O’Shaughnessy & Kelly, for proponent; Henry F. Miller, for contestant.
   FITZGERALD, S.

Jennie Carland, the decedent, was an orphan. She had barely reached the age when a minor can make a legal bequest of personal property. By the instrument propounded, she gives her whole estate to Mrs. Platt, her aunt by marriage, and the guardian of her person, and with whom she was living. The claims of her brother, her only next of kin, were not only ignored, but in the paper is contained the unusual statement that, in making the will, she had taken into consideration her brother, George, and her aunt, Mrs. Nettie Watts, and, as they were entitled to nothing from her because of their cruel and unkind treatment of her, she had made the devise and bequest to Mrs. Platt, because Mrs. Platt had given her a good home, kind treatment, motherly care, and nursing during her long and protracted illness. The language quoted is, doubtless, that of the scrivener, in which the decedent probably acquiesced, but such a statement is not competent evidence of the fact. It is only admissible as showing her feelings towards the persons named. Mrs. Watts was produced as a witness for the contestant, and she denied that she had been guilty of cruel or unkind treatment of the deceased. The brother was not called. He would have been competent to either affirm, deny, or explain the statement of his alleged cruel and unkind treatment. But it was shown that, immediately after the execution of the paper, he and his sister were engaged in conversation, and were playing cards together. Other witnesses testified that in many years they had never seen any evidence of an unfriendly spirit between the brother and sister. It is certain that she was and had been for sbme time an invalid, and about ten weeks after the execution of the paper she died. One witness, in describing her, states that he had a “ pity for the poor little girl.” Another, Mr. Heyman, a subscribing witness, testified that 11 she was quiet and passive.” Still another, Mr. Cohn, the draftsman of the will, states that she looked like a girl of fourteen or fifteen, not matured; that she was thin, wasted, pale, and languid, with no life or vigor about her, for she was perfectly passive. Mr. Cohn's testimony is open to criticism because, with this view expressed of the girl’s weak condition, he, an intelligent attorney, received the instructions for the preparation of the instrument in which the guardian was made the sole beneficiary, superintended its execution, and became a subscribing witness thereto. But many of the facto testified to by him are corroborated by the testimony of other witnesses ,• and, by the circumstances showing the origin and execution of the paper, I cannot but conclude that the girl was in a weak mental and physical condition, and could be easily influenced by a dominating mind, and, on all the evidence, I am satisfied that Mrs. Platt was the active directing mind in causing the preparation and execution of the paper. She certainly had both motive and opportunity for diverting to herself the estate of her ward. She did not even wait for the death of her niece to begin to vest it in herself. A petitition was filed by the ward setting, forth that it was necessary for her health that she go to a warmer climate, that she have, carriage rides, and a belief that the guardian would spend the money judiciously for the benefit of ■ her health. On these representations, an order was entered that $500 be advanced to the guardian out of the estate. But the order was coupled with a condition that the guardian was to expend the same, or as much as would be therefor 'required, for the purposes stated in the petition, “and not otherwise.” The good, faith of Mrs. Platt may well be questioned when it appears that out of the sum $50 was paid to the attorney for drawing the will, and $150 in the purchase of a ring for the ward, and that the balance was deposited by the guardian to her own credit in a savings bank, though this fact was reluctantly admitted. This was a clear violation, not only of the spirit, but of the letter, of the direction of this court. When, under a will, the natural objects of a testator’s bounty are ignored, and a stranger who is the sole beneficiary presents the paper for probate, he should come into court prepared to - show that it represents the free and unconstrained wishes of the testator, and that there were good reasons moving for the disinheritance of kindred, for such a paper “is viewed with great suspicion by the law, and some proof should be required besides the factum of the will before it can be sustained.” Marx v. McGlynn, 88 N. Y. 370. “ When the guardian has been at all instrumental in procuring the execution of the will, the law presumes undue influence by reason of the confidential relation existing between the guardian and ward. And the guardian who proposes such acts must go beyond the mere formal execution of the paper, and show the act to have been the act of a voluntary, capable, and understanding testator.” Limburger v. Rauch, 2 Abb. Prac. (N. S.) 279. The contest of the will of Fanny Bosch, reported under the title of Seiter v. Straub, 1 Dem. Sur. 264, has many features similar to the one now under consideration. In that proceeding, Surrogate Eollins made an able presentation of the law applicable to such cases, and it may be referred to with profit. Probate was denied, and the matter was never appealed. It is often difficult to determine the existence of undue influence when it is not made manifest by threats or physical coercion. But in Children’s Aid Soc. v. Loveridge, 70 N. Y. 387, Judge Miller presents a lucid definition. He says that, to avoid a will on the ground of undue influence, “it must be shown that the influence exercised amounted to á moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not • be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection, the desire of gratifying the wishes of another, the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity or by a silent resistless power, which the strong will often exercises over the weak and infirm; and which could not be resisted, so that the motive was tantamount to force or fear.” In this case, Mrs. Platt, the guardian, had doubtless been kind to her ward; yet, for all she did do, she has been amply paid out of the ward’s estate. Mot satisfied with this, she anticipated a portion of the testamentary benefaction by taking possession of $450 which this court had ordered to be advanced for specific uses for the benefit of her ward, and diverted it to other uses. On all the proofs, I am satisfied that the will was the result of undue influence “ exerted by a strong will over a sick young girl.” In this view I will sign a decree denying probate.

Probate denied.


author: ARNOLD, S.

text:
    In the Matter of a Petition for Probate of the Will of Nelson B. Gregory, Deceased.

      (Surrogate’s Court, Otsego County,

      Filed January, 1896.)

    Wills—Revocation—Adoption.
    Under section 10, chapter 830 of 1873, as amended by chapter 703 of 1887, adoption does not, like the subsequent birth of a child, revoke a prior will of the person adopting.
    Petition for probate of the will of Mel son B. Gregory, deceased.

      D. P. Loomis, Edwin D. Wagner, and Stephen S. Gregory, for proponents; C. T. Brewer (Emmett B. Olcott, of counsel), special guardian, for Jeannie Marie Nellie Genin Gregory, contestant.
   ARNOLD, S.

A paper writing is here offered for probate as the last will and testament of Nelson B. Gregory, deceased. It was duly executed on the 27th day of June, 1889, and devises and bequeaths all the testator’s property to his brothers and sisters, nephews and nieces. The contestant is the adopted daughter of the testator. She is not named in the will, and no provision has been made for her in any way by the testator. All of the facts in this case fully appear in a former decision of this court. In re Gregory’s Estate, 13 Misc. Rep. 363; 69 St. Rep. 478.

The contestant was duly adopted by testator on the 23d day of July, 1894. Hedied on the 23d day of September, 1894. Her special guardian here contends that the effect of this adoption was to revoke the will, or at least to render it inoperative. The Be-vised Statutes of this state provide the ways in which wills shall be canceled or revoked. See 2 Rev. St. p. 64, §§ 42, 43, 49. None of the provisions of the Bevised Statutes ajd contestant in her contention. She must rely entirely upon chapter 830 of the Laws of 1873, as amended by chapter 703 of the Laws of 1887. Section 10 of the above act reads as follows :

“A child, when adopted, shall take the name of the person adopting, and the two henceforth shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation [including] the right of inheritance, and the heirs and, next of kin of the child so adopted shall be the same as if the said child was the legitimate child of the person adopting, excepting that as respects the passing and limitation over of real and personal property, under and by deeds, conveyances, wills, devises and trusts, dependent upon the pérson adopting dying without heirs said child adopted shall not be deemed to sustain the legal relation of child to the person so adopting as to defeat the rights of remaindermen, and in case of the death óf the person so adopted the person so adopting as above provided shall, for the purpose of inheritance, sustain the relation of parent to the person so adopted.”

By this act the legal effect of an adoption in this state now is to put the person adopting and the child adopted in the relation of parent and child, accompanied by all the legal consequences of that relationship.

Saving the exception noted in the section of the above quoted as to the passing of property dependent upon the person adopting dying without heirs, the contestant, by this adoption, was placed in exactly the same position as though she were the child of Nelson B. Gregory, born in lawful wedlock. She was not given by this act the rights of. an after-born child under the statute, but she was given all the other rights of a child. She had the same right of inheritance as a legitimate child of the person so adopting, and no greater. Suppose that Dr. Gregory, at the time of adopting contestant, had had a legitimate child, who was born before the making of this will, tills will would at his death, if unrevoked, have cut off the rights of such legitimate child in his property. It works the same result with the adopted child. The right of in- „ heritance of an adopted child is like that of any other child or heir, subject to the testamentary power of the adopting parent. Austin v. Davis, 128 Ind. 472; Davis v. Fogle, 124 id. 41; Davis v. King, 89 N. C. 441. A will made either before or after the adoption must be admitted to probate. The court, before it could make an order of adoption, was required to be satisfied that the moral and temporal interests of the child would be promoted by adoption. The intent of the law was that the adoption should work an advantage to the child, and such was, doubtless, the intent of Dr. Gregory; but, before anything was done to effectuate this, death visited him, and this will was left in existence. The circumstances in this case lead me to express the hope that the persons receiving the benefits given by this will will remember that this contestant is the natural daughter, as well as the adopted daughter, of decedent, and that they may be led to give to her some portion of that which the law cannot give. The will must be admitted to probate.

Decreed accordingly.


author: ROSS, J.

text:
    Lester Southard, Resp’t, v. Abraham Becker, App’lt.

      (Onondaga County Court,

      Filed January, 1896.)

    1. Appeal—Record.
    A ruling based on evidence not in the record will not be reviewed on appeal.
    3. Justice’s court—Judgment—Entry.
    Under section 3893 of the Code, a single judgment should be entered for plaintiff for the actual amount recovered with costs to the time of offer, less defendant’s costs accruing after the offer.
    3. Same—Modification on appeal.
    Under section 3063 of the Code, the appellate court should, where a justice enters one judgment for plaintiff for damages and for costs accruing prior to the offer, and a separate one for defendants for costs accruing after such offer, enter a single judgment for plaintiff, less the costs accruing to defendant after his offer of judgment.
    4. Same—Costs.
    Under subdivision 5, section 3066 of the Code, modification of the form of a justice’s judgment should be without costs to either party, where the objection to the form was an open question and not urged on ai-gument.
    Appeal from a judgment in favor of plaintiffs for damages and costs to time of offer, and in favoi of defendant for costs from time of offer.
    A. J. Northrup, for app’lt: Charles C. Cook, for resp’t.
   ROSS, J.

The plaintiff sought to recover judgment for labor performed by himself and team, and also damages for a claimed breach of contract relative to the cultivation by the defendant of corn and potatoes. The answer was a denial, and a counterclaim for the use of farm implements and for services rendered. The plaintiff offered evidence to support his claim, including the claim for damages arising from the claimed breach of contract. The defendant also offered evidence to support his counterclaim. The defendant offered, pursuant to the terms of section 2892 of the Code of Civil Procedure, a judgment of $12.50, with costs, which was not accepted. "Upon the cross-examination of the defendant the plaintiff offered a receipt in evidence (which is not returned herewith), which was objected to and received. The defendant offered, upon his redirect examination, to explain that the receipt related to other transactions than those litigated, which offer was presented in different forms, objected to, and excluded.- This is claimed by the appellant to be error. The justice rendered judgment for the plaintiff, damages, $12.50; thé costs prior to the offer, $1.35; in all, $13.85,—and against the plaintiff for $4.60, being the amount of costs which accrued subsequent to the offer.

It may be that the admission of the receipt in question was error. I cannot say, as the receipt is not made a part of the return. For the same reason, I cannot say whether the exclusion of the explanatory evidence was erroneous. It may be that the receipt shows upon its face that it had no bearing upon the matters litigated, and that the admission, or the refusal- to allow -an explanation, was harmless. It does not appear for what amount the receipt was given. It may have been 'a receipt for a trifling sum. In any event, this court is not to presume'that the receipt was for such a sum and.of such a nature as to prejudice the defendant. In its absence, the intendments are all the other way. To justify the reversal of the justice’s judgment, in the amount here involved, for the admission or exclusion of evidence, the error should be apparent.

The practice of the justice in rendering a judgment against a plaintiff for the amount of costs accruing after the offer, instead of deducting the same from the amount which he found to be due the plaintiff, seems to me to be subject to correction, although the language of section 2892, Code Oiv. Proc., relation to the offer of judgment, 'does not clearly specify the practice:

“If an acceptance is not filed, the offer cannot be given in evidence upon the trial; but if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant’s costs from that time.”

It certainly would seem that it was not intended to leave the defendant with a simple claim against the plaintiff for the costs which accrued subsequent to the offer. It certainly is the object of all litigation to, as nearly as possible by a judgment, determine the exact rights of the parties, and have the judgment as simple as possible; and, in a matter involving only a money obligation, when each litigant has a money judgment against the other seems to be far from a simple determination of their rights. Just what the rights of these judgment debtors might be, as against each other, in the case of the insolvency of one, does not clearly appear, but it seems to me that the ends of justice will be furthered in this case by the entry of a single judgment. Section 3070 of the Code of Civil Procedure, to which I have been referred, does not apply to this case. "That section only applies upon appeal in this court. The judgment, as to $4.60, is reversed; as to the balance, $9.25, affirmed.

The question as to the form of the justice’s judgment, so far as I can ascertain, is new; but is objection was not urged by the appellant upon the argument, and for these reasons such modification should be without costs to either party. See Code Civ. Proc. § 3066, subd. 5.

I think this is a case within the spirit, at least, if not the letter, of section 3063 of the Code of Civil Procedure, in which “ the appellate court must render judgment according to the justice of the case without regard to technical errors or defects which do not affect the merits.” Davison v. Luckman, 45 St. Rep. 729; Angell v. Hill, Id. 83; Merris v. Hunt, 71 Hun, 483; 53 St. Rep. 548.

Judgment in favor of defendant reversed, and judgment in favor of plaintiff modified and affirmed.


author: INGRAHAM, J.

text:
    Clarita Doval, Resp’t, v. Bernard L. Ackerman, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 13, 1896.
    1. New trial—Erroneous charge.
    A court may properly grant a motion for a new trial where it has given a clearly erroneous instruction.
    2. Same.
    The fact, that the plaintiff did not except to the instruction given by the court, will not prevent the court from rectifying a clear error by granting a new trial.
    3. Contracts—Consideration.
    The compromise of a doubtful claim is a good consideration for a prom- . ise to pay money; and, when an action is brought upon the promise, it is no answer to show that the first suit could not have been maintained, or that the claim was not a valid one.
    Appeal from an order granting a motion for a new trial.
    David Keane, for app’lt; Edward W. S. Johnston, for resp’t.
   INGRAHAM, J.

The court on the trial charged the jury, at the request of the defendant, “that, if the jury find that there was no original liability by Bernard L. Ackermann to Mrs. Dovale, there was no consideration for his promise to make the payments to Mrs. Dovale.” Subsequently, on a motion for a new trial, the court held that this instruction was erroneous, and for that reason granted a new trial. We think the court was clearly right. It appeared from the evidence that the plaintiff had loaned to the firm of B. L. Ackerman h Sons the sum of $7,000; that the plaintiff had insisted upon the defendant’s repaying that sum; that she had then asked the defendant as to who were the partners of that firm ; and that he said, “Adolph and Ben and myselfand that he (the defendant) then said, “You had no business to give that money to them without consulting me first, but I promise to give you a hundred dollars every month, the interest and the principal of your money, if you will release me of being a partner.” It further appeared by the evidence that the defendant was engaged in this business from 1855 to 1875 ; that on the 31st day of December, 1875, he sent a notice to his customers that the business in which he had been engaged “will hereafter be solely com ducted by my two sons, who will settle all outstanding business.” There is no evidence that this notice" was given to the plaintiff. The defendant then went to Paris, and remained there for about eight months, when he returned and settled up his affairs here, and in December, 1879, obtained a discharge in bankruptcy. He then went back to Europe, and remained there continuously until August, 1884. ■ When he returned, he resumed the business of B. L. Ackermann & Sons, the partnership of which was then dissolved. He resumed this business because, as he said, “I had a right to, according to the agreement with my sons when the business was passed to them. They had to pay a certain amount to my wife, and, if they did pay it, the whole business was theirs, and I released them; but, if they did not, we had a right to come back and take it. The agreement was in writing. It was lost in the removal. After we returned, the agreement existed, and the firm of B. L. Ackermann Sons was dissolved.” The witness also testified that, “in addition to the motive of friendship and sympathy in paying off this debt, I was also releasing my sons frorti an obligation that was good against them, and that was also a motive4h my mind.” It thus appears that whatever promise was.made by the defendant to the plaintiff was made after he had returned ana resumed the business, taking the assets of the copartnership under his original agreement, by which he had relinquished the business to -his sons; and that one of the considerations of making the promise was that, by the promise, he would release the sons from an obligation that was binding upon them.

The plaintiff claimed that defendant was liable as a member of the firm to which she had loaned the money. The defendant re- ■ cognized that his sons were liable, and thus made an agreement having the object to release himself from the claim of the plaintiff against him as liable for the moneys loaned to the sons during his absence in Europe, and also releasing his sons from the liability that was concededly good against them, and for which the property of the sons which had become vested in the defendant would have been liable. That there was-a perfect consideration for the new promise of the defendant, not dependent upon the validity of plaintiff’s claim against the defendant, is clear upon principle and authority. The plaintiff claims that the defendant was a member of the firm to which she had loaned money. The defendant had owned the business, and he had turned it over to his sons, uponi an agreement by his sons to pay his wife a certain sum of money each month, coupled with an agreement by which he was to be entitled to resume possession of the business if this money was not paid. The plaintiff had known of his absence, but had no notice that he did not continue an active member of the firm. He had returned, and, under the terms of the agreement between himself and his two sons, had resumed the ownership and control of the business, had taken its assets, and was conducting it for his own benefit. Accepting this position as testified to by the defendant as true, it is not at all clear that he was not responsible to the plaintiff for the loan that she had made to the sons during the absence of the defendant.

But it is not necessary to determine just what, if any, legal liability rested upon the defendant. There was a claim made that he was responsible; and he, to avoid that claim, and to relieve his sons from a liability that was conceded, promised the plaintiff to pay her a certain sum per month. And the release of this claim against the defendant and his two sons, and the right of the plaintiff to enforce her claim against the property of the former copartnership, which was then in the hnnd-s of the defendant, and used by him for his own benefit, was ample consideration for the new promise to pay $100 per month until the debt was paid.This view of the obligation of the defendant is recognized by Mr.Justice Bartlett, in writing the opinion of the general term of the supreme court in the former'action between this plaintiff and the sons of the defendant (39 St. Rep. 517), where he says; “A consideration for the agreement to pay $100 a month may be found in Mrs. Dovale’s abandonment of her claim against Mr. Ackermann, Sr., in his capacity of partner, as evidenced by her letter September 3,1885. The rule i? well settled that the compromise of a doubtful claim is a good consideration for a promise to pay money; and when an action is brought upon the promise, it is no answer to show that the first suit could not have beer, maintained, or that the claim was not a valid one. See Stewart v. Ahrenfeldt, 4 Denio, 190; White v. Hoyt, 73 N.Y. 505; Andrews v. Brewster, 124 N. Y. 433; 36 St. Rep. 412. The promise is expressly alleged in the complaint, and is clearly the cause of action sued on by the plaintiff.

We do not think that the letter of September 3, 1885, debarred the plaintiff from contradicting any of the admissions in her letter so as to entitle the defendant to a dismissal of the complaint. The most that can be said for it is that it is evidence against her as to the terms of the new agreement, and was to be considered by the jury in determining that question. If her present claim is true that that letter did not state the terms of the new agreement the defendant was bound to make the payments to the plaintiff which he subsequently made; and the mere fact that he continued to make payments that he was bound to make cannot estop the plaintiff from enforcing the contract as it really existed. The fact that the plaintiff did not except to the instructions given by the court would prevent the court from rectifying a clear error in granting a new trial.

We think, therefore, that the order granting the new tria] was right, and should be affirmed, with costs. All concur.


author: PARKER, J.

text:
    Margaret Ann O’Donoghue, et al., App’lts, v. L. Dwight Boies, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1895.)

    1. Will—Construction.
    Where the testator devised his real estate to his executors, in trust to sell the same, to divide the proceeds into eight equal shares, to invest such shares severally for the benefit of his eight children, and to pay over to-each child at his majority an equal share, and by a codicil, he revoked the power of sale so given, but provided that the land should be held under the same trust, and further provided that the executors might, whenever a child reached lawful age, make partition of the land and allot to each child his share, the direction and evident purpose of the testator is that none of the shares of his children in such real estate should be sold during his or her minority.
    B. Partition—Sale of infants’ land.
    A sale of an infants’ real estate by order of the court, contrary to the provisions of a devise, is utterly void, and no title passes thereunder to the purchaser.
    8. Same.
    The act of trustees, the one in instituting the partition action, and the other as guardivn ad litem of the infants, in allowing judgment of partition and sale to be take therein by default, are in direct violation of section 65, 4 Rev. St. (8th ed.) 2439.
    4. Same—Guardian.
    All purchases made by a guardian, in such an action, of infants’ lands sold therein, are unless for their benefit; and. where the conveyance is made to the guardian in his own name and in form for himself individual^, and there is nothing in the record nor in the conveyance to indicate that he holds the property in other person’s interest than his own, the presumption is that the transaction is such as upon its face it appears to be.
    5. Same—Burden.
    Where an act is prohibited with an exception, the burden rests on the party claiming the exception to bring himself within it.
    6. Same.
    The fact that an order entered in the partition action confirming said sale to the guardian, does not strengthen it.
    7. Same—Laches.
    A delay on the part of the wards in bringing proceedings to recover possession of the premises, does not affect their rights.
    8. Same—Bona fide purchaser.
    Where the record, through which a purchaser makes his title, discloses all the facts, he can claim nothing as a bona fide purchaser.
    Appeal from a judgment in favor of defendant.
    Frederick A. Card and Ladislas Karge, for app’lts; B. A. Benedict, for resp’t.
   PARKER, J.

The lands in controversy in this action are a part of those devised by the will of Michael O’Donoghue, and so far as any question presented by this case is concerned, such will may be said to have provided as follows: By the eighth clause thereof, the testator.devised all'of his real estate to his executors, in trust, to sell the same, to divide the proceeds into eight equal shares, to invest such shares, and to apply the interest and income

therefrom severally to the use of his eight children, one share to each, during his or her minority, and upon each of them attaining lawful age, to pay over to such child his or her equal share. By a codicil, however, he subsequently revoked the power of sale so given, except as to three parcels in the city of New York, and directed that only such excepted parcels should be sold. He further provides that the lauds not sold shall be held by his executors under the same trust which was imposed by the eighth clause upon the proceeds which were to be derived from the sale therein directed. He also expressly declares that he does not design to alter the beneficial interests in such lands, which were given by such eighth clause. In the ninth clause, it is provided that the executors shall have power, whenever any of his children shall attain lawful age to make partition of his real estate, and allot to such child his equal share thereof. It is manifest from those provisions that the plain intent of the testator was to preserve to each of his children an equal share, viz. one-eighth, of his real estate, until.such child should attain the age of 21 years. During the period of his minority his share of the land was to remain unsold, and the rents and income therefrom were to be collected by the executors, as trustees, and applied by them to the infant’s use. Although power was given them to divide and allot each child, as he or she became of age, an equal share of such lands, a sale of such share during infancy is directly prohibited.

It is claimed that the ninth clause of the will under consideration gives to each child, upon arriving at majority, the right to have his share of the estate, and that, therefore, in the event that equal partition could not be made by the executors without a sale, a sale was intended and authorized by the testator. In view of the fact that each child, on his arriving at majority, became vested with his undivided share of the lands so devised in the event that the executors did not, or could not, fairly allot it to him in severalty, and that each thus received the full benefit of all that was given by the will, and in view of the further fact that the testator expressly revoked by codicil the power of sale previously given, we cannot adopt the construction contended for. We are not required or permitted to seek the testator’s intent by inference or implication in the face of a purpose so plainly expressed in the codicil before us. The direction and evident purpose of the testator was that none of the shares of his children in such real estate should be sold during his or her minority. Some ten years after the probate of such will, one of the executors, a son of the testator, commenced an action for the partition or sale of all the lands so devised, and for a division of the proceeds among the beneficiaries named in said will. The plaintiff’s in the present action, who were then infants, were made parties defendant in such action, and their mother, Ann O’Donoghue, the other executor, was appointed their guardian ad litem. No defense was made, and the action resulted in a judgment directing the sale of all the testator’s real estate. The lands in question were sold under such judgment by a referee appointed therein, and were bid off by Ann O’Donoghue, the said guardian of such infants$ and a conveyance thereof was executed to her by the referee upon May 25, 1870. Subsequently, in April, 1876, she executed a mortgage upon such premises to secure a loan of $1,500 made to her. Such mortgage was foreclosed, the premises were sold thereunder, and in August, 1880, this defendant acquired the title which was so mortgaged and sold. The plaintiff's bring this action of ejectment to recover an undivided three-sevenths of the premises. It appears that one of the children of the testator died without issue, and, under the will, his share became- vested in his surviving seven brothers and sisters.

At the time the premises were sold in the partition action, the Revised Statutes that:

“No real estate (of an infant) or term for years shall be sold, leased, or disposed of in any manner against the provisions of any last will, or of any conveyance by which such estate or term was devised or granted to "such infant.”

The plaintiff’s claim that, by reason of such statute, the court was without jurisdiction to render a judgment directing the sale of the property in question; that hence all proceedings under such judgment were utterly void; and that their interests in the premises were not affected by the referee’s conveyance to Ann O’Donoghue. Conceding, as we must- that the sale under that judgment was in-plain opposition to the provisions of Michael O’Douoghue’s last will, this claim of the plaintiff’s seems to be sustained by the decisions in this state. If the court was without jurisdiction to order such sale, such order was a nullity, and could have no effect whatever upon the plaintiffs’ title. Craig v. Town of Andes, 93 N. Y. 405, 410; In re Walker, 136 N. Y. 20, 29; 48 St. Rep. 893. That its proceedings were not merely irregular, but were utterly without jurisdiction, is held in Rogers. v. Hill, 415. It was there held that a sale of an infant’s real estate, by order of the court of chancery, contrary to the provisions of a devise, was utterly void, and'that no title passed thereunder to the purchaser. That was a case .where the proceedings to sell were under the statute relative to the sale of infants’ real estate, when necessary for their support and maintenance; but that the rule is equally applicable to a sale in an action for partition is held in Muller v. Struppman, 6 Abb. N. C. 343. The reason is the same in each case. In neither proceeding has the court any authority to sell, except bjr force of the statute (Thompson v. Hardman, 6 Johns. Ch. 436; 17 Am. & Eng. Enc. Law, 785; 3 Pom. Eq. Jur. § 1390); and in those instances where the statute forbids it the authority is utterly wanting.

The plaintiffs further claim that there was a trust expressed in the will of Michael O’Donoghue in their favor during their minority, and that the statute declares that every sale, conveyance, or other act of the trustee in contravention of such a trust shall be absolutely void (4 Rev. St. [8th Ed.] p. 2439, § 65) ; hence, that the acts of their trustees, the one in instituting the partition action, and the other as guardian ad litem of. the infants, in allowing judgment of partition and sale to be taken therein by default, were in direct violation of this statute; and that the sale so procured was therefore utterly void. The following eases seem to sustain that position, and to hold that the court has no power to render-valid, by an orderor judgment, an act of the trustees which the statute declares to be void. Douglas v. Cruger, 80 N. Y. 15, 18; Cruger v. Jones, 18 Barb. 467, 469; Uhl v. Loughran, 22 St. Rep. 459; Cuthbert v. Chauvet, 136 N. Y. 326; 49 St. Rep. 671. If the court may not approve and make valid such an act, it would seem to be without authority to order it.

At the time of the sale in the partition action it was provided by statute as follows:

“Nor shall any guardian of any infant party in such (partition) suit, purchase, or be interested in the purchase of, any lands, being tíre subject of such suit, except for the benefit or in behalf of such infant; and all sales contrary to the provisions of this section shall be void.” 2 Rev. St. pt. 3 p. 326, c. 5, tit. 3 § 58.

On the trial of this action, although it appeared from the record that Ann O’Donoghue, the guardian ad litem of these infants in the partition action purchased the premises in her own name, entered into possession of them as the owner, borrowed the sum of $1,500 about six years thereafter, and executed a mortgage upon them to. secure its payment, and subsequently allowed such mortgage to be foreclosed and the premises to be sold, yet it was held that such sale to her was not void, because the plaintiffs had failed to show that she did not purchase them for their benefit. In this ruling, we think, there was error. All purchases made by a guardian, in such an action, of infants’ lands being sold therein, are void unless made for their benefit; and where the conveyance is made to the guardian in her own name, and in form for herself individually, and there is nothing in the record nor in the conveyance to indicate that she holds the property in any other person’s interest than her own, the presumption would seem to be that the transaction is such as upon its face it appears to be. At least, if she desires to hold such premises from her wards, the burden is upon her to show that the purchase was not such an one as the statute condemns. It is a general rule of evidence that, where an act is prohibited with an exception, the burden rests on the party claiming the exception to bring himself within it. Fleming v. People, 27 N. Y. 329, 334; People v. Weldon, 111 N. Y. 569; 20 St. Rep. 112; Knapp v. O’Neill, 46 Hun, 317, 319. The fact that an order was entered in the partition action confirming such sale did not strengthen it, Gallatian v. Cunningham, 8 Cow. 375, 375; Terwilliger v. Brown, 44 N. Y. 237, 243; and, inasmuch as the guardian ad 1 item’s purchase was made void by statute, delay on the part of these plaintiffs in bringing proceedings to recover possession of the premises does not affect their rights. The sale is made absolutely void by the statute, and therefore the title remained wholly in the infants, even as against subsequent bona fide purchasers for value. See Forbes v. Halsey, 26 N. Y. 53. Moreover, the defendant can claim nothing as a bona fide purchaser, as the record, through which his title is made, discloses all the facts. The title to the premises in question vested in these plaintiffs upon their arriving at the age of twenty-one years, Watkins v. Reynolds, 123 N. Y. 211, 217; 33 St. Rep. 173; and the case does not show that it has ever been divested. In that respect the decision of the trial court was erroneous, and the judgment should be reversed.

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

HARDIN, P. J., concurs: MBRWIN, J., not voting.


author: ADAMS, J.

text:
    Julia G. Smith, App’lt, v. Hiram W. Babcock, Resp’t.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed March 14, 1896.)

    1. Appeal—Nonsuit.
    Upon an appeal from a judgment of nonsuit, the plaintiff is entitled to have the case considered in the light most favorable to his contention, and to have the benefit of every fact proven and every inference which is fairly deducible therefrom.
    3. Election law—Void contract.
    A contract, entered into with the sole design to promote the election of one or more persons, or as a mere device or cover by which such election is to be accomplished, is void.
    8. Same.
    A contract, whereby the chairman of the county central committee of a political party employs plaintiff to perform for him the duties usually pertaining to such office and agrees to he personally responsible for his compensation, is not, as a matter of law, within the provisions of subdivision 4, § 410 of the Penal Code.
    4. Same.
    In such case, the question of the intent of the parties in entering into the agreement should be submitted to the jury, and a failure to do so is error which renders a reversal on the judgment necessary.
    5. Same—Burden op proof.
    The onus is upon the defendant to make it appear that the contract is entered into for some ulterior purpose, and with the design to defeat or evade the statute in its true intent and meaning.
    Appeal from a judgment of the Cayuga county court, affirming a judgment of nonsuit granted by the city court of the city of Auburn.
    The plaintiff is the assignee of one Fred M. Smith, and brings this action to recover for work, labor, and service performed by her assignor in the fall of 1892 at the request of the defendant, and at an agreed price, as it is alleged, of $500. The record discloses the following facts: In the month of August, 1892, the defendant, Hiram W. Babcock, informed the plaintiff’s, assignor that he was about to be chosen chairman of the Democratic county committee of the county of Cayuga; that he was anxious, for personal reasons, to accept the position, if chosen, but that his own private business was such that he could not very well neglect it and give to the performance of his duties as chairman the time and attention which they would demand; that he (Smith) had had experience, and was familar with such duties, and that, therefore, he wanted him to represent him (the defendant) upon such committee. Smith, in reply to this request, stated that he could not afford to spend his time gratuitously, as his time was his only capital in business. The defendant replied that he did not expect him to perform the services for nothing, and that there would be ample means with which to pay for the same. Smith stated that he was unwilling to enter into any contract with the county committee, whereupon the defendant asked Smith if he considered him responsible, to which Smith replied that he did for any agreement or bargain which he might make, and then added that if he performed the services desired by the defendant he should do so for him personally, to which the defendant replied, “All right; I will pay you.” The defendant then aslced what he thought the services would be worth, and Smith told him $500. The defendant said they would be worth it. Thereafter the defendant was appointed chairman of the county committee, and Smith entered upon the discharge of his duties. But prior to such appointment, at the suggestion of the defendant, he (Smith) opened party headquarters, and gave such time and attention to the performance of the duties required of him as seemed to be necessary. After the campaign was formally opened, he was also chosen secretary of the executive committee, but no claim is made for the services rendered by him in that capacity. It appears that the duties devolving upon Smith as the representative of the defendant were to be at headquarters to receive parties that came in, and attend them in person, and answer such questions as came from different parties interested in the campaign; to provide for meetings that were to be held in Cayuga county; to secure speakers for different dates; to receive campaign speakers when they arrived at Auburn, and take care of them; to arrange dates and secure places where meetings were to be held, and to provide transportation for and accompany the various speakers during their campaign. About three days before the close of the campaign the defendant came to Smith, and told him that certain men, mentioning them by name, had come from New York with money, and that he was to go and get his pay, to which Smith replied that he had nothing to do with them that he (defendant) understood very well that he was working for him, and nothing to do with asking them for payment for his services. Subsequently, and two or three days after the election, the defendant met Smith at an hotel in the city of Auburn, and • asked him if he had received his pay ; to which he replied that he had not, and that he (the defendant) knew he had not. Smith then told him that he wanted his pay. The defendant wanted to know what he was going to charge. Smith thereupon referred to the talk of August, in which it was understood the services would be worth $500, but said that he would make a lump bill against him for $300 for all services. The defendant said, “ Make out your bill, and send it to me,” which Smith did, upon the 11th of November, but never received any reply to this bill except a promise to settle.

      John Van Sickle, for app’lt; D. L. Hurlburfc, for resp’t.
   ADAMS, J.

The claim which the plaintiff seeks to establish through the medium of this action, and which in her bill of particulars she states is for work, labor, and services “ performed and rendered [by her husband] in conducting the Democratic campaign in the county of Oayuga, between the said dates in 1892 (September 1st to November 11th), and performing the duties of said Hiram W. Babcock as chairman of said county committee,” is resisted by the defendant upon the ground that the contract upon which it is founded is in contravention of the statute which prohibits contributions of money with the intent to promote the election of a person to an elective office, and upon the further ground that such contract is, in its spirit and letter,- repugnant to public policy. It is always the duty of the court—and more especially is this so in these latter days—to set its face sternly and rigidly against the infraction of any and every law which is designed to promote the purity of elections and to prevent the corruption of electors, but it is equally its duty to apply the law impartially to all suitors who may be attempting to assert or defend . their legal rights, whatever may be the circumstances of the particular controversy which it is called upon to adjudicate. In the case in hand it is true that the differences sought to be adjusted are traceable to. an agreement which, as the evidence .now stands, it appears was entered into by the parties for the rendition of services connected with the general election of 1892 ; and if it can be said as matter of law that the contract was entered into with the sole design to promote the election of one or more persons, or if it was a mere device or cover by which such election was to be accomplished, the defendant’s contention is undoubtedly well grounded, and the plaintiff must fail in her action. This contention, as we understand it, is that the contract entered into between these parties was violative of subdivision 4 of section 410 of the Penal Code of this state. This section, as its caption clearly indicates, was designed by the legislature to prevent “ furnishing money or entertainment to induce attendance at the polls,” and it provides that “ any person-who, with the intent to promote the election of a person to an elective office, * * * (4) contributes money for any other purpose that the printing and circulating of hand-bills, books and other papers previous to an election or town meeting, or conveying such poor or infirm electors to the polls, is guilty of a misdemeanor.” It is easily conceivable that a contract might be entered into substantially like the one which the plaintiff insists was made between her assignor and the defendant, which would seek to accomplish by indirection precisely what this state is designed to prevent; that is, a man might be selected and employed to perform certain clerical duties, not because of any necessity for his employment, not because of any peculiar aptitude which he possessed for the duties his position required him to perform, but rather because of the influence he was supposed to possess with a certain class of voters. It is broadly intimated that .such a purpose really lies at the foundaLion of the agreement in question, and it is quite possible that, with all the facts before them, a jury would be justified in reaching a conclusion in harmony with this intimation, and in that event the plaintiff would certainly fail in -her action ; but from the facts as they now stand the question to be determined is whether or not the court was justified in adopting such a conclusion as a matter of law. This being an appeal from a judgment of nonsuit, the plaintiff is entitled to have the case considered in the light most favorable to her contention, and likewise to have the benefit of every fact proven, and every inference which is fairly deducible therefrom (Stuber v. McEntee, 142 N. Y. 200, 205; 55 St. Rep. 455; McNally v. Phœnix Insurance Co., 137 N. Y. 389; 50 St. Rep. 680; American Central Insurance Co. v. Haggerty, 92 Hun, 28; 71 St. Rep. 712); and with this rule in mind we are not prepared to hold that it is impossible to draw inferences from the established facts in the case which are consistent with a valid agreement. It seems that the defendant was ambitious to serve his party as chairman of its county committee, and he discovered an opportunity in the immediate future by which he believed his ambition might be gratified; but, being unwilling to divert from his private business the time which would be required to manage the affairs of his party, he entered into negotiations with the plaintiff’s assignor to represent him upon the committee, and to perform the labor which would naturally fall upon his shoulders as chairman. During these negotiations he was careful to impress upon Smith the fact that it was his (defendant’s) work which was to be done, and that it was to be performed in such a manner that the defendant was to receive whatever credit resulted from its performance. These negotiations ultimately resolved themselves into a contract, by which the defendant assumed personal responsibility for the services to be performed. This being the situation, it is quite obvious that a contract was established between these parties which was personal in its character; and that one of the objects sought to be accomplished in its futfillment was the success of the nominees of one of the two great political parties does not, in our opinion, deprive it of that character. It might as well be said that a contract of employment between the publishers of a partisan newspaper and its editor, whose only duty was to accomplish by his pen what the plaintiff’s assignor was expected to accomplish by his diligence and energy, would, be within the condemnation of the statute. In either case, if the element of intent is present,—■ that is, if the contract is entered into for some ulterior purpose, and with the design to defeat or evade the statute in its true intent and meaning,—then, doubtless it is void; but until that is made to appear (and in this case the onus is upon the defendant to make it so appear) we think it must be treated like any other contract. These views lead us, therefore, to the conclusion that the question of intent of the parties in entering into the agreement in question should have been submitted to the jury, and that the failure to do so was error which renders a reversal of the judgment appealed from necessary.

Judgments of the county court of Cayuga county and of the' city of Auburn reversed, with costs.

All concur.


author: O’BRIEN, J. WILLIAMS, J.

text:
    Philippo Bello, as administrator, etc., App'lt, v. Metropolitan Street Railway Company, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Negigence—Contibutory.
    To recover damages for personal injuries, the burden is upon the plaintifi to prove by a fair preponderance of evidence that the accident occurred solely through the negligence of the defendant, and that the person injured was free from contributory negligence.
    3. Same—Dismissal of complaint.
    Where upon both propositions, relating to the negligence of the defendant and the freedom from contributory negligence of the decedent, the inferences as to the presence or absence of negligence are so eqally balanced that it cannot be said that the burden, which rests upon the plaintifi, is sustained, a dismissal of the complaint is proper.
    8. Same.
    The evidence, in this case, was held not- sufficient to go to the jury on the questions of negligence or freedom from negligence.
    Appeal from a judgment dismissing the complaint, and'from an order denying a motion for a new trial.
    This was an action brought by the plaintiff, as administrator of Joseph Bello, deceased, a son, to recover damages for injuries received by said decedent whieh caused his death, and which plaintiff alleges were due to the negligence of the defendant’s servants and employees. At the time of the accident the boy was a bright, intelligent lad, of the age of eight years and ten months. He had attended public schools. three years and, according to his father, he could read the names of streets,—“every name and everything.” The accident occurred on Sullivan street,' in the middle of the block between Broome and Spring streets, on November 27,1894, between five and six o’clock in the evening, when, as testified, “it was a little dark.” Sullivan street is narrow, with a grade almost level between Broome and Spring streets, having therein only one car track, which is the north or up track of the Seventh avenue line. The car which ran over the boy was going north, in the direction of Spring street, and, as the manner in which the accident occurred is detailed by only two witnesses, it will avoid any dispute as to the facts if we briefly refer to their testimony, using the 1'angu‘age employed by them upon the trial. Anthony F. Cadmore, plaintiff’s first witness, testified as follows: “As I was coming up near Spring street, I saw a boy running across the track, and-he fell. I hallooed to the driver,—^1 don’t suppose he heard me, —and I ran up to him, and said, “Boy in under "the car.’ He stopped, and I said, ‘Take your brake up, and shove your caí back,” and they shoved the car back. * * * The street was clear of obstructions. There was nothing to obstruct any one’s view. * * * The boy started from, the west side of the street, and was going east. * * * When the boy was at the track, I should judge that the heads of the horses attached to the car were about twenty-five feet from him, and then I called out. I didn’t call out exactly at the minute when the horses were yet twenty-five feet from the boy. When I see that he didn’t put the brake on, I hallooed out I hallooed to the driver when the boy was twenty-five feet away from the heads of the horses. * * The boy was running across the track. When he was twenty-five feet away from the heads of the horses he fell, and was lying across the track, and I suppose' he was trying to get up. I saw him fall while he was running from the west side of the street, and he fell on the track. At the time he fell, and when the heads of the horses were still twenty-five feet distant from him, I called out to the driver to stop. * * * I told him there was a boy under the car and to take off his brake and back up. He got down and took the car back. I don’t suppose he knew the boy was there.” In addition, he testified that the driver was talking with a man on the east side of him, standing on the platform of the can “When the driver was talking to a man on the platform, as I have stated, the driver was facing east. He had face turned east. The car was going north. He continued that conversation until the boy was struck. He never knew that they struck him until I hallooed out.” Upon cross-examination this witness said: “I didn’t take any notice whether there was any wagons between the car and the west pavement or not. * * I couldn’t swear there was, and couldn’t swear there was not. * * * Mr. Frank Spinetti kept a fruit store there. * * * His place is right where the accident happened. Sometimes, in the evening, there is from two to three wagons there, and sometimes there ain’t., I couldn’t tell you whether there were any wagons there on this particular evening or not. * * *” Nor would the witness confirm or deny that, upon the coroner’s inquest, he had testified that there were to wagons standing there. He further stated that he was sure the boy fell on the track before the horses got to him. He’stumbled and he fell. When the boy fell, the car just at the time, was about twenty-five feet away. I don’t think it would take a second, or a tenth of a second, before the horses reached him. It was only fifty feet. He could have got away if the driver hnd put the brake on and seen him. At any rate, he would have had to get up and go away, and get out of the way before that second or tenth of a second. That is all the time the driver had to stop the car in.” Another witness, one Joseph Grants, testified as follows: “I saw the boy cross the street from the west side on the front of the barber shop on the east side of Sullivan street. He was crossing from the west side of Sullivan .street towards the east side. * * * I saw the boy fall. He fell in the middle of the street. At that time the horses attached to the car, that was going north, were about twenty-five feet away. At the time that this boy fell, and when his horses were yet sofai distant, the driver was on the front of the car. He had the reins in his hands and talked this way, with a gentleman on this side of him. He was-not looking ahead. * * * He was looking to the east side of the street. * * * He was not looking in the direction in which the boy fell. I saw the boy fall, and then I saw the horses going, and I heard somebody halloo. * * *” Upon cross-examination he said that he saw the boy running across the street not so fast as a run: “I said the boy was not running fast. He was running a little. He was not walking. I should think there was a wagon before the barber shop. I am sure there was one. There could not have been two or three there. * * * I know there was one there, but I didn’t see any other.” In addition to these witnesses, the only others exam-in plaintiff’s behalf were a car driver, who testified that a car could be brought to a full stop, after the application of the brake, in about five feet, and the plaintiff, who gave evidence as to the boy’s capacity. At the close of such testimony the complaint was dismissed upon the ground that it had not been shown that the accident occurred solely through the negligence of the defendant. The plaintiff, however, moved for a new trial, which motion was reserved; and in the opinion thereafter written the judge sustained his former ruling, and denied the motion for a new trial, upon the additional ground that, “ even if it is to be assumed from the facts that the defendant was guilty of negligence, it would be an equally fair inference, that the deceased was likewise at fault, and that the combined negligence of both led to the accident.”
    Henry M. Gfoldfogle, for app’lt; John T. Little, Jr., for resp’t.
   O’BRIEN, J.

To recover damages for injuries sustained, in an action of this kind, the burden is upon the plaintiff to prove by a fair preponderance of evidence that the accident occurred solely through the negligence of the defendant, and that the person in jured was free from contributory negligence. Upon the first proposition it is insisted that the evidence shows that the driver of the defendant’s car was negligent in not observing the plaintiff’s intestate on the track until he was run over; in not heeding the warning to stop the car; in being inattentive to what was happening ahead of him, and in turning his head to the side, loudly talking to some one on the platform ; and in not bringing the car to a stop when he had ample opportunity so to do, and could have averted injury to the boy. If such inferences can be properly drawn from the testimony, then, upon this branch of the case, as to defendant’s negligence, there was sufficient to go to the jury. We think, however, that the plarntiff’s counsel overstates the inference so to be drawn. As said in Reich v. Union Railway Co., 78 Hun, 418; 60 St. Rep. 450.

“ The motorman * * * had no right to expect or anticipate the fact that this boy was going to cross the track in the' middle of the block. He undoubtedly, under the rules, was required to be more vigilant at the crossing, where he might naturally expect parties to cross the track, than in the middle of the block.”

As correctly urged by the respondent, the conduct of the driver prior to the time the boy fell is perfectly immaterial. If the boy calculated to cross before the car reached him, the driver ,of the car was entitled to the benefit of that calculation. He was entitled to assume that the boy would safely cross. It here appears that the boy, in the middle of the block, at or about the place where there was at least one wagon, darted from the west side of the street, intending to reach the east, and fell in the middle of the track, and was overtaken by the car before he could rise, and was injured, not by the wheels passing over him, but by the horses or platform, or by some of the chains or gearing connected with the brake. That the car was not going fast is conclusively proved by the fact that, as soon as an intimation was given that the boy was under the car, it was stopped before it had gone many feet. Considering the intelligence of the witnesses, and their incapacity to measure distances exactly, we think it reasonably certain from their testimony that the car was almost upon the. boy at the time he fell, and that, in stating that it would take but a second or a tenth of a second for the car to reach the boy after he fell, the witnesses testified on the question of time more accurately than when they attempted to give their - measurements of twenty-five or fifty feet as the distance between the boy at the time he fell and the heads of the horses pn the car. It is from the moment that the boy fell on the track until the car struck him that the conduct of the driver is material. If, when the boy fell, the car could not possibly have been stopped in time to avert an accident, it is difficult to see upon what theory the negligence of the driver could be predicated. In this respect the plaintiff's testimony was:

“At any rate, he [the boy] would have had to get up and go away, and get out of the way, before that second or tenth of a second. That is all the time the driver had to stop the car in.”

Considering the hour, the narrowness of the street, the fact of the presence of at least one wagon at the place where the boy started to cross on a run, and the close proximity of the horses to the boy at the time he fell on the track, which left but a second or a tenth of a second within which the driver must act to avert the injury, and that all the witnesses agree that the car was stopped before the wheels reached the place where the boy was, showing that the car was not going at a very rapid rate, it left the inferences just as consistent with the absence as with the presence of negligence on the part of the driver. If, however, we conclude that there was sufficient to go to 'the jury upon the question of the negligence of the defendant, the question remains whether the burden was sustained of showing that the plaintiff’s intestate was free from contributory negligence. The testimony shows that the boy attempted, with the car close upon him, to cross, in the middle of the block, a narrow street, taking the chances of getting over safely; and having fallen, and thus rendered his calculations unsuccessful, it can hardly be said that suffioient evidence was presented from which the jury .could infer that the boy was free from contributory negligence. As said in Reynolds v. Railroad Co., 58 N. Y. 250:

“It belongs to the definition of the cause of action that the injury must have been occasioned solely by the negligence of the defendant; and either by direct proof given by the plaintiff, or from the circumstances attending the injury; the jury must be authorized to find affirmatively that the person injured was free from fault that contributed to the accident, or the action is not maintained. If this element is wanting in a case, the court may nonsuit, or set aside a verdict for, the plaintiff.”

And in Hart v. Bridge Co., 84 N. Y. 58, it was said :

“ It is not enough to prove facts from-which either the conclusion of negligence or the absence of negligence may with equal fairness be drawn.”

We think, upon both propositions, relating to the negligence of the defendant, and the freedom from contributory negligence of the decedent, that the inferences as to the presence or absence of negligence were so equally balanced that it cannot be said that the burden which was upon the plaintiff was sustained, and that for this reason the dismissal of the complaint was proper, and -the judgment should be affirmed, with costs.

VAN BRUNT, P. J, and.PATTERSON and INGRAHAM, JJ., concur.

WILLIAMS, J.

I dissent on the ground that the questions of negligence and of contributory negligence were for the jury.