text:
    Constance B. Price, Resp’t, v. De Witt C. Holman et al., Ex’rs, App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

      1. Interest—Husband and wife.
    Plaintiff placed the sum of $5,000 in her husband’s hands for investment and with her assent he invested it in a mortgage of $50,000. Upon this $17,000 were paid to Mr. Price during his lifetime, besides all the interest. Plaintiff never demanded her money, but, in 1873, began an action against him claiming $10,000, and she recovered $5,000 with simpie interest. In 1883 she began this action claiming interest with annual rests. Held, that she could not recover; that assuming that she owned one-tenth oí the mortgage and that one-tenth of the payment was received hy her husband for her, the measure of damages for his failure to pay over would be the principal sum with simple interest.
    3. Same.
    After Hr. Price’s death the executors continued to defend this action,, depositing the interest on the mortgage in a separate bank account. Heldr that they were not liable for interest upon the interest.
    3. Same—Bab.
    Plaintiff having recovered simple interest in the first action, she cannot now maintain this action to recover an additional sum created hy compounding the interest.
    Appeal from order of the supreme court, general term, third department, reversing judgment in favor of defendants.
    On the 22d day of November, 1869, the defendants Roessle gave Walter W. Price, the husband of the plaintiff, a mortgage to secure the payment of $50,000. In November, 1873, the plaintiff commenced an action against her husband and the Roessles, and she alleged in her complaint that in November, 1869, the Roessles were indebted to her upon two promissory notes made by them amounting to $10,000; that on the 22d day of the same month the Roessles applied to her husband for a loan of $40,000 to be secured by a mortgage, and he applied to her for the two notes and agreed to take the mortgage for $50,000. and include them therein and to hold the°mortgage in trust foher for that sum; that he loaned the $40,000 and surrendered to the Roessles the two notes and took from them the mortgage for $50,000, which remained unpaid; that in October, 1871, Price refused to permit the plaintiff to live in his family any longer and afterward commenced an action against her fraudulently, asserting that her marriage with him was void or should be annulled, and that he and the Roessles were doing other things evincing a purpose to dispute their indebtedness to her and to cheat and defraud her out of her rights in the mortgage; that ho interest had been paid to her upon her $10,000 and that Price refused to make any provision for her support or for the support of the child born of their marriage; and she prayed judgment as follows: “That it may be adjudged and decreed that plaintiff is the owner of said bond and mortgage to .the extent of $10,000, and that that sum and interest thereupon from its date is a lien thereupon in the hands of said Price, and that said Roessles may be adjudged to pay her that portion of the principal, together with the interest, as either or both shall become due from time to time, and that each of the defendants may be restrained and enjoined from doing any act or thing in the premises to the prejudice of any of her rights, and for such other relief as may be just,” besides costs. The complaint was unverified, and the defendants then served unverified answers, denying the allegations of the complaint. That action was referred to a referee and was pending and the trial progressed for several years. Price died in June, 1876, and his executors-were substituted as defendants in that action. The referee therein made his report April 21, 1881, and he found as facts that the Eoessles gave Price their mortgage for $50,000 at the date mentioned in the complaint; that a portion of that sum was cash loaned by Price at the time and notes against the Eoessels surrendered to them; that sometime before that date Price held $5,000 of the plaintiff’s money, as her agent and trustee, and he loaned it to the Eoessles and took their note therefor, and that note he surrendered when he took the mortgage and the amount thereof was included in the mortgage, and to that extent he took and held the mortgage as her agent and trustee, and to that extent she became and was interested in the mortgage; that the mortgage after the death of Price came into the possession of his executors and that no part of the $5,000 principal or interest had been paid to her; and he found as conclusions of law that the $5,000, so secured by the mortgage, with interest thereon from October 15, 1869, was an indebtedness to the plaintiff to the payment of which and to the benefit of all securities therefor she was entitled; that the mortgage to the extent of the $5,000 and the interest thereon was held in trust for her and for her benefit, and that she had a lien thereon for that sum and the interest; that the plaintiff had an interest in and claim upon all moneys in the hands of the executors which they had received as payments on the mortgage, and in and upon all the proceeds from the mortgage or the indebtedness thereby represented that might thereafter come into the hands of the executors to the extent of' $5,000 and interest thereon, and that for the purpose of paying and satisfying that sum the plaintiff was entitled to the benefit of all proceedings to enforce the mortgage, and that she was entitled to a judgment in accordance with the findings, and to an injunction.
    Before the entry of judgment upon the report of the referee the plaintiff made a motion for an extra allowance of costs, which were granted to her, and afterward also made a motion for leave to file a supplemental complaint, and in case that should be denied that the cause be referred back to the referee to report, specifying what, if any, payments had been made upon the bond and mortgage and what interest ought to be charged in her favor. In her proposed supplemental complaint she alleged that after the commencement of the action the Eoessles made payments to Price of principal and interest upon the mortgage, which he used and treated as his own money; that such payments included the whole or the greater part of the sum claimed by her as her money covered by the mortgage; that Price by his denial of her rights in "the bond and mortgage, and other conduct, was guilty of a breach of" trust, and that in determining the amount to be paid to her, he and his estate should be charged with interest upon the sums so collected, making annual rests in the computation of the same; and she prayed judgment that the executors should account to her for all payments made upon the bond and mortgage, and that it might be determined what sums had been collected and received for her, and that the executors might be charged with interest on such sums, making annual rests, and that she might have judgment against the executors for the sum found due and that the mortgage stand as security for the payment of such sum. In opposition to the motion it was shown that upon the trial before the referee it was proved that all the interest on the mortgage and $17,000 of the principal had been paid. The motion was denied. Thereafter on the 22d day of April, 1882, judgment was entered in that action pursuant to the report of the referee. The defendants appealed from that judgment to the general term, and there the judgment was affirmed February 4, 1884, and then the defendants appealed to this court, where the judgment was affirmed in April, 1885. See Price v. Brown,' 98 N. Y, 385.
    In June, 1882, the plaintiff commenced this action and alleged in her complaint that'the Eoessles had paid $17,000 of the principal of the mortgage and that all the interest had from time to time been paid to Price and his executors, and that none of the money so received had been kept for the plaintiff, but that the same had been received and kept in disregard of her rights, and mingled with other moneys of Price or his executors; and she prayed judgment, among other things, for an accounting as to the moneys received by Price and his executors, and that interest be computed upon the sums received with annual rests.
    After the affirmance in this court of the judgment in the first action, certain attorneys who had acted for the plaintiff gave notice to the defendants of liens claimed by them for costs and counsel fees upon the judgment, and in July, 1885, the defendants made a motion at a special term, entitling their papers in both actions, for leave to pay the amount of that judgment, with, the interest and costs, into court for the benefit of the plaintiff and others interested therein. The plaintiff opposed the motion on the ground, among others, that she was entitled to more than the interest on the $5,000, and that she was entitled to the interest to be computed as claimed in this action. The court granted the-motion by an order made in both actions, which provided, among other things, as follows: that the executors might pay the amount of the judgment, wdth interest to date of payment, into court, by paying the sum to the county treasurer for the benefit of the plaintiff and her attorneys having liens thereon ; that upon such payment the executors, the estate of Price and the mortgagors, should be absolutely released and forever discharged of and from all liability and all right, title or interest of, in or to the same whatever on account of the judgment, mortgage, and any claim or any trust or interest therein, and also from the right to the payment of any money due or to grow due thereon whatever; that the plaintiff and her attorneys having such liens should severally and respectively execute under their hands and seals, acknowledge and deliver a release to the above effect to the executors on a demand, accompanied by proof by the certificate of the county treasurer that the money has been paid to him ; that this action should be discontinued; that it be referred to a referee named to take proof as to the liens of the attorneys, and report to the court, and that the county treasurer hold the money deposited with him until the confirmation of the referee’s report and the farther order of the court. Pursuant to that order, on the 9 tli day of September, 1885, the executors paid the money, amounting to $12,984.04, to the county treasurer, and afterward the,, plaintiff appealed from the order to the general term, and there, on the 18th day of December, 1885, the order was modified, among other things, so as to authorize the payment of the money into court, and providing simply that upon such payment, the judgments should be fully discharged and satisfied, and that the plaintiff and her attorneys should execute and deliver to the defendants a certificate satisfying and discharging the judgment. The plaintiff then appealed from portions of the order of the general term to this court, omitting, however, to appeal from that portion of the order which authorized payment of the moneys-into court. Subsequently, on the 9th day of March, 1886, on the motion of the defendants, the appeal to this court was dismissed.
    On the 8th day of December, 1885, the plaintiff and her attorneys having liens on the moneys deposited gave the county treasurer notice forbidding payment or return of the moneys so-deposited, and that each of them claimed several parts thereof. Subsequently on the 18th day of April, 1886, upon the motion of the plaintiff and her attorneys, an order was made in both actions at a special term directing the county treasurer to pay out all the moneys so deposited with him by the defendants to the plaintiff and her attorneys; and pursuant to that order the county treasurer paid the moneys, and the plaintiff and her attorneys satisfied and discharged the j udgment.
    The defendants did not answer the complaint in this action until May, 1886, and then they answered, alleging as a bar to this-action the judgment in the "prior action and the payment and satisfaction of that judgment. They also set forth the orders of the-special and general terms authorizing the payment of the amount due upon that judgment into court, and the payment of the amount pursuant to the order to the county treasurer, and the proceedings on the part of the plaintiff and her attorneys to obtain the money from the county treasurer. The action being at issue was brought to trial at a special term, and judgment was-given to the defendants dismissing the complaint From that judgment the plaintiff appealed to the general term, which reversed the judgment and ordered a new trial. The new trial was had at-the special term and judgment was again given to the defendants, and the general term upon plaintiff’s appeal again reversed the-judgment and ordered a new trial. The other facts appear sufficiently in the opinion.

      A. D. Wait, for app’lts; James Lansing, for resp’t.
   Earl, Ch. J.

The general term reversed the judgment of the special term upon questions of law only,, and hence in our review here we must take the facts as they have been found, so far as there is any evidence to support them. The facts material to the disposition of this case are not much in dispute, and there are at, least two grounds upon which we think the judgment of the special term can stand.

The plaintiff has received the principal of what we will call the trust fund, with the simple interest thereon, and that is all upon the facts established to which she was entitled.

We have,not a very definite description of the trust created by the plaintiff and her husband; all we know about it is that -she placed the sum of $5,000 in his hands for investment for her, and that with her assent he invested it in the mortgage for $50,000, ■and she thus became interested in that mortgage to the extent of "the $5,000. Seventeen thousand dollars were paid upon the mortgage in the life time of Mr. Price, besides all the interest due thereon. There is no evidence that he took that $17,000 as in■cluding her $5,000, or any part thereof. Under his agency to invest, he could treat her $5,000 as still invested in the mortgage, and so all he can be charged with receiving for her is the annual interest on that sum. It does not appear w'hat under his agency ■for her he was to do with the interest, whether he was to re-invest it for her, or pay it over to her, or keep it for her until she called for it, nor does it appear what he did with the interest as he received it. It does not appear that he used it in his -business, or for his own purposes, or that he in any way" made any profit cut ■of it. In the absence of proof we must assume that he, a man of wealth, had the money, or its equivalent, at all times ready to respond to any call she might make. She was undoubtedly entitled to the interest upon demand; but she never demanded it, although she must have known that it had been received. She commenced her original suit without any demand, and in her. unverified complaint alleged an investment for her by her husband of $10,000 in the mortgage. He did her no injustice by disputing ■and denying her excessive and unjust claim.

But if we assume that as she owned one-tenth of the mortgage, one-tentli of the $17,000 paid upon the mortgage, to wit, $1,700, was receivedior her, then what was Mr. Price bound to do with that $1,700? We do not know enough about his agency to say that he was bound to re-invest it. What trust was there as to that sum ? So far as the evidence discloses he simply became indebted to her for that sum, and liable to pay it to her upon demand. She -could have sued him for it-, and thus have compelled payment to her with simple interest. It was not paid to him for investment, and it does not appear that he made any profit out of it. If there was any breach of trust, it was simply in not paying it over to her, and for such a breach the simple interest is the general measure of damages, and that she has received. We see no ground for compounding the interest as a penalty or a punishment of Mr. Price for misconduct.

In Rapalje v. Hall, 1 Sandf. Ch., 399, it was held that a trustee is not to pay interest, even simple interest, solely for the reason that he deposits the trust moneys indiscriminately with his own ; nor because he makes use of them in his own business; that there must be superadded a breach of trust, a neglect or refusal to invest the fund at the time or in the mode which the trust instrumeat or the law itself has pointed out. To the same effect is Jacot v. Emmett, 11 Paige, 142.

The law exacts of a trustee fidelity to his trust. If he is guilty of fraud or the mismanagement of the trust fund, or is guilty of a breach of trust, or has used the trust funds for his own purposes and made a profit therefrom, he may be compelled to pay interest, and in extraordinary cases compound interest so as to place the cestui que trust in the same situation as if the trustee had faithfully performed his proper duty. Here all the elements as grounds of liability for interest upon the moneys paid to Price upon the mortgage are wanting.

It is said that he ought to be charged with interest because in. his answer interposed to the complaint in the original action he denied the trust. It does not appear that he ever denied or repudiated the trust before that action was commenced. He simply denied in his answer the alleged trust for $10,000. It is difficult, to perceive how that denial, in the absence of fraud in the management of the trust fund and of any breach of the trust, affected his situation or in any degree increased his liability or justly exposed him to any penalty or punishment.

We, therefore, conclude that there was nothing in the facts existing prior to the death of Mr. Price which entitled the plaintiff, as matter of law, to more interest than she has received ; nor is her case any stronger against the executors. They found the original suit pending untried when they assumed their duties ¡is, executors. They found a complaint asserting a claim upon th. * mortgage for $10,000 and an answer interposed by their testator denying it, and they had no personal knowledge of the matter. What could they do under such circumstances ? They could not with safety or propriety allow the claim, and they certainly were not bound to allow.it. It was their apparent duty to defend the action and obtain the judgment of the court upon the plaintiff’s claim, and that judgment was that her just claim was only $5,000 and the interest thereon.

It thus turned out that it was their duty to defend the action. While the suit was pending they received the interest upon the-mortgage. That interest, prior to September, 1879, they kept, with other funds belonging to the estate of their testator, and after that date they deposited all the interest paid upon the mortgage in a separate bank account. They made no use of the inter- est thus paid and no profit out of it. The plaintiff made no demand of the interest and was making an excessive claim in her action. What could the executors do except to hold the interest ready for the plaintiff and subject to the final judgment in the pending action ? There certainly is no basis for holding the executors liable to pay interest upon the interest thus received by them, and there is absolutely no authority which would sanction such a holding.

But it is said that the executors appealed from the judgment, and thus delayed the plaintiff in obtaining the fruits of her judgment, and that, therefore, they should pay her compound interest or the interest upon the interest received by them. It does not appear that they acted in bad faith or maliciously in bringing the appeal, or even unreasonably. It is true that they were defeated. 98 N. Y., 388. But there were fair questions for debate upon the appeal, and the executors should not now be punished for bringing the appeal. (The mortgage ran to their testator and they held it, and hence during the pendency of the litigation and of the appeal the interest was paid to them. What could they do but to receive it and hold it until final judgment upon the rights of the parties, or at least until some proper demand was made for it? By bringing the appeal they exposed themselves to the usual penalty, to wit: the payment of the accruing interest upon the judgment and the costs allowed by law. Such interest and the costs are in the law the measure of the injury done to the opposite party by the appeal.

But there is another ground for defeating this action, which, we think, did not receive proper consideration by the learned general term. The recovery in. the first action is a bar to any recovery in this. It is a general principle that the judgment óf a court of ■competent jurisdiction is final as to the subject matter thereby determined, final not only as to the matter actually determined, hut-as to every other matter which the parties might have litigated in the action and had determined. The purpose of the rule is to ■diminish and put an end to strife and contention between litigants, and to spare the courts the labor and vexation of many suits when one would serve to adjust the entire controversy between the parties. Le Guen v. Gouverneur, 1 Johns. Cas., 436, 492; Rice v. King, 7 Johns., 20; Bruen v. Hone, 2 Barb., 586.

Here the plaintiffs complaint in the first action was sufficient for the recovery of all the interest she now claims, and the proper parties were before the court for the adjustment of the entire controversy between them. If the $1,700 was in -the hands of Mr. Price at the time of his death, as plaintiff’s money, then she, having recovered the simple interest thereon, cannot now maintain this action to recover an additional sum created by compounding the interest. Whatever interest she was entitled to upon that sum •should have been recovered in the first action. If she was entitled to interest upon the annual interest received upon the mortgage, why should that not have been adjusted in the first action? She ■claimed some interest; why did she not claim it all? The action related to the trust and the trust fund, and the amount of the fund, principal and interest, was in controversy and was to be determined. In that equitable action the court could take and state the account in reference to the fund down to the time of the trial, .and could determine what should b.e done with the interest as it ■came in after the trial, and could, if needful, render a money judgment against the executors. Code, § 1207. It would be contrary to all authority to permit the plaintiff, after she has recovered a part of the interest claimed by her, to maintain another action to recover more interest, and that, too, upon substantially the same evidence. It appeared upon the trial of the first action ■that the $1,700 had been paid upon the mortgage to Mr. Price, and that the annual interest had been paid, and hence it cannot now be claimed that she did not then know the facts upon which she now bases this action. The first adjudication was not affected with fraud or mistake, and there is no ground whatever for the maintenance of this action to rectify that adjudication, or to agitate anew the controversy which the court was then competent forever to put at rest. The doctrine of res adjudícala properly applied to this case defeats this action.

We are therefore of opinion that the order of the general term should be reversed and the judgment of the special term affirmed, with costs.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    William Hughes, Ex’r, et al., App’lts, v. George Bingham et al., Resp’ts.

      (Court of Appeals,

      Filed October 4, 1893.)

    1. Highways—Dedication.
    In October, 1890, a highway commissioner in due form made an order laying out a highway over the lands of J., plaintiff’s testator, and over the lands of W. The two landowners brought an appeal from the order, and while it was pending the landowners made and delivered to the referees a deed conveying the use of the road as a public highway between December 1st and May 1st in each and every year, the commissioner to have the right to work the road at any season, but the gates upon said road to be kept closed from May to December, during which time the public had no use for the road, and the referees reversed the order appealed from. Held, that by the delivery and acceptance of the deed the locus in quo was dedicated to the public as a highway, and a court of equity would not interfere to restrain the working of the highway on the ground that the grant was void because the road was not open and free to the public at all times.

      2. Same.
    The power to purchase or take lands by voluntary conveyance for highway purposes implies the power to take such interest as the necessity of the case or the public good may require.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment for defendants.

      Oswald P. Backus, for app’lts; E. L. Stevens, for resp’ts.

         Affirming 40 St. Rep., 985.

   O’Brien, J.

The plaintiff sought the aid of a court of equity to restrain the defendants from working a highway which he had .granted to the town, but under circumstances and with conditions and restrictions that, as he claims, render the grant absolutely void. The trial court refused to interfere, and we think its decision rests upon correct principles. It has been found upon sufficient evidence that ■ in October, 1890, the highway commis■sioner of one of the towns of Oneida county, as a result of proceedings under the statute and the finding of a jury, made an order laying out a highway over and across the lands of Jones, the original plaintiff in this action and the present plaintiff’s testator, and also the lands of one White. These two landowners brought an appeal from this order, claiming that the highway was unnecessary and the proceedings erroneous, and referees were appointed under the statute to hear the parties and determine the appeal. While the matter was pending before the referees, the landowners, for the purpose of inducing the referees to reverse the order appealed from, delivered to them a deed made and executed by the appellants and their wives to the town, whereby, in consideration of one dollar, they conveyed to the town and its successors the interest in the real estate described in the order by the highway commissioner as follows:

“ The interest hereby conveyed is the perpetual right of use of the above described road as a public highway during the time intervening between the first day of December and the first day of May in each and every year hereafter, no damage to be claimed - from the town unless said road is subsequently laid out as a public highway under the statute. This grant-is upon the express condition that no road shall hereafter be laid across the premises of said Jones and White, from the bill, without their consent. In case any such road be laid out, this conveyance to be void and of no effect; said second party to have the right to enter upon and work said road at any season of the year, providing that at any other period than the one above mentioned, the gates upon said road shall be kept closed.”

This deed had the effect of influencing the referees to reverse the order appealed from and pending before them, and they did reverse it on the 30th of September, 1887. And the deed with their decision was filed with the town clerk of the town, and subsequently accepted and recorded, the town board auditing the bill for the expense of procuring it to be recorded. The commissioner of highways annexed the road to one of the highway districts and directed that it be worked as a highway under the direction of the defendant Bingham as overseer, and it was cared for and worked as one of the highways of the town for about two years, until Bingham and the other defendants acting under his directions and authority, were restrained by the injunction procured by the plaintiff at the commencement of the action. The trial court held that by the delivery and acceptance of the deed the locus in quo was dedicated to the public as a highway and the complaint was dismissed. The general term affirmed the judgment. During the pendency of this appeal the original plaintiff died and his executor, who now appears as plaintiff on the record, was substituted.

It is not claimed that the conveyance is any the less binding upon the grantors therein by reason of the finding that it was given for the purpose of influencing the result of a legal proceeding, judicial in its character, and had that effect. This finding-does not necessarily imply any corrupt act on the part of the referees or the owners of the land, and it is not likely that any such meaning was intended to be given to it. The. presentation of the deed to the referees informed them that the town was in that way to obtain all that it could by the order appealed from, and thus they concluded to end the litigation by a reversal of the order. Whatever may be said in criticism of this method of disposing of the appeal, the transaction is not urged or relied upon as a reason for relieving the plaintiff from the full force and effect of his grant and obviously cannot be. The circumstances under which the deed was given and the purpose it was intended to sub-serve may be considered by a court of equity when its discretionary power is invoked by the plaintiff for the purpose of relieving himself from its obligations, but the plaintiff would not be heard to urge them for the purpose of overthrowing his grant if otherwise valid.

There are many cases where the complaining party will be denied equitable relief and left to his remedy at law, and the judgment in this case might well be sustained on that ground alone. Assuming, as is argued in behalf of the plaintiff, that the deed is not valid, still equitable relief was not a matter of absolute right, but of discretion, Calhoun v. Millard, 121 N. Y., 69 ; 30 St. Rep., 759. But we think that the deed is valid and vests a title in the town according to the terms and for the purposes mentioned therein. A town in its corporate capacity has power to take lands for highway purposes by conveyance, voluntary or otherwise. Vail v. Long Island R. R. Co. et al., 106 N. Y., 287 ; 8 St. Rep., 700; 1 R. S., 337, § 2.

The right to take lands by grant for general highway purposes is conceded by the learned counsel for the defendant, but. it is urged that the town could not take under a conveyance subject to such conditions and restrictions as were incorporated in the instrument in this case. These are (1) that the lands may be used as a highway from December till May in each year; (2) to be worked at any time 5 (3) gates to be kept closed from May till December.

The power to purchase or take lands by voluntary conveyance for highway purposes implies the power to take such interest as the necessity of the case or the public good may require. The proposition that the town or the commissioner of highways can take only for a highway to be kept open to the public at any or all times or not at all, is not supported by authority or any controlling or satisfactory reason. The argument urged is that a ■commissioner, or the town itself, cannot burdep. the community with the support of highways, except such as are open and free to all the public at all times. It may be that where it is sought to ■obtain lands by proceedings in invitum, for highway purposes, that the statutory power must be pursued strictly and no interest can be condemned except such as the statute prescribes. As we understand the findings in this case, precisely the same qualified interest was taken under the order of the highway commissioner, laying out the road, as was subsequently described in the deed, and this may have induced the conveyance. It does not follow that because these lands could not be condemned for such a road as this, that the owner could not convey and the town accept them for the qualified use described in the conveyance. Whenever a town has a highway that it does not need, or some limited right to use land for highway purposes that is not necessary for the public convenience, it can readily abandon or discontinue such road. In this case it appears that the road in question was needed only during the winter months. It is quite conceivable that a. like necessity may, during the same season of the year, exist in many other towns. To say that while the town or the commissioner has capacity to take a grant of land for general highway purposes, but is utterly without capacity to take a limited or qualified grant to supply such a public necessity as may, and probably in many cases does exist, during the winter months, is-to fix a limit upon powers conferred for the public good that would be quite unreasonable, if not absurd. There were seven months of the year in which the public had no use for this road, and it was provided that during these months the gates shoulcL be kept closed.

This was the season of the year, however, when it is possible to make repairs on roads, and it was stipulated that the highway commissioner might then make such repairs or do such work on the road as he thought the public interest required. The capacity to take a grant in fee for highway purposes must, upon every just-principle of construction as well as upon reasons growing out of the necessity of the case, be deemed to include the power and capacity to take an interest less than a fee, or upon conditions such as were inserted in this deed. The town is expressly authorizecL by the statute to take conveyances of lands “ for the use of the inhabitants,” and this fairly includes a qualified or limited estate as well as a fee. It appears that after the deed was delivered by the grantors and accepted by the grantee that a town meeting r< - solved “not to accept the road.” It is said that--this resolution was passed at the instigation of and through devices of the grantors in the deed, after they had attained the end which its delivery was intended to promote, namely, the termination, in their favor, of the appeal from the order of the commissioner. However that may be, the deed had been then delivered and accepted, and the road recognized by the proper authorities as one of the highways of the town. A town meeting has no power to discontinue a highway once established. That can be done only by the intervention of the authorities and according to .the procedure pointed out in the statute, and a town meeting is no part of these. 1 R. S., 502, § 3; Driggs v. Phillips, 103 N. Y., 77-83; 3 St. Rep., 69; Monk v. Town of New Utrecht, 104 N. Y., 557; 6 St. Rep., 484.

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

All concur.


author: Andrews, J.

text:
    Emma K. Enos, Resp’t, v. John A. Enos, App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Slander—Repetition—Malice.
    Where the object of proving other wordscon the trial of an action for slander spoken before the commencement of the action is to show the malicious intent of the defendant in speaking the words laid, if they are a. repetition of the same calumny, the particular form of words in which the-repetition is clothed is immaterial.
    3. Same.
    Such words proved as repetitions of the slander charged are not an independent ground of action in the case, and no recovery can "be had for uttering them.
    .3. Same—Damages.
    It is competent to permit proof that the plaintiff, a married woman, had a family of young children, as bearing upon the question of damages.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff.

      John Gillette, for app’lt; Huson & Dwells, for resp’t.

       Affirming 40 St. Rep , 988.

   Andrews, J.

The words proved by the witness Burt imputed a charge of unchastity, and were, we think, admissible under the rule which permits proof of a repetition by the defendant before the' commencement of the action of the slander charged in the complaint, as bearing upon the degree of malice which actuated him in speaking the words laid. Root v. Lowndes, 6 Hill, 518; Howard v. Sexton, 4 N. Y., 157; Frazier v. McCloskey, 60 id., 837. The words testified to by Burt are not the same words, nor substantially the same words laid in the complaint, but they were of the same import, or at least the jury might so find. They would not under the rules of pleading, if they had been relied upon to sustain the action, have been provable without an amendment of the complaint, because the words laid must be proved in substance, and different words, although imputing the same charge, but entirely different language, will not support the complaint.

But where the object of proving other words is to show the malicious intent of the defendant in speaking the words laid, then, provided they impute the same, and not a different charge, or a charge of a different nature, there seems to be no reason for excluding them in view of the general rule and the purpose for which repetitions are admissible. If the words arc a repetition of the same calumny, the particular form of words in which the repetition is clothed would seem to be immaterial. They would «equally bear upon the malice of the defendant as if the repetition was verbally exact, and I perceive no reason why their proof in an action would not bar another action by the plaintiff founded thereon, to the same extent as if the words were identical. See Root v. Lowndes, supra.

We think the trial judge erred in his charge to the jury in respect to the evidence of Burt. He dwelt at considerable length upon it, and in such terms instructed the jury that if they found that the defendant intended by the words to charge the plaintiff with unchastity, they might base their verdict upon them. The words, as has been said, did not sustain the complaint. They were not the words counted on, nor substantially similar words. They were adfnissible, as has been -stated, as bearing upon the degree of malice of the defendant in speaking the words in the complaint. But the authorities are uniform that words proved as repetitions of the slander charged are not an independent ground of action in the case and that no recovery can be had for uttering them. They reflect upon and strengthen the claim for damages on account of the words charged. If the defendant had excepted to the part of the charge referred to, or in any other way had raised the question by a proper exception that the jury had no right to regard the words sworn to by Burt as a ground or cause of action, the point would have been well taken. But we do not find that the point was raised.

After the evidence of Burt had been given and the defendant’s counsel had cross-examined the witness, he asked that the evi- ' dence should be stricken out, upon the grounds that the statement proved was not alleged in the complaint and that it was not a statement alleging unchastity. The court denied the request and exception was taken. Before Burt was examined, words charged in the complaint had been proved in substance, and Burt’s testimony was competent as a repetition, and they did amount to-a charge of unchastity. The court might properly refuse to strike out the-testimony. The only exception to the charge is stated in the case as follows : “ Counsel for the defendant excepted to the charge that the jury might pass upon what the defendant intended by the words sworn to by Burt, and to all that was charged upon the subject.” This manifestly did not call the attention of the court to the error to which we have referred.

There were some other exceptions taken on the trial. Some-were taken to questions asked witnesses as to what was said by the defendant in their presence at a time and place stated, and the objection preceded the giving of the evidence. It is now claimed that the complaint did not allege with sufficient particularity time, place and circumstances in connection with the speaking of the words charged, and that no proof thereunder could be-given, and the exceptions now referred to were doubtless based upon this view.

We think the complaint was sufficiently definite, and if for any reason the defendant desired a fuller statement of the circumstances, his remedy was by motion, and he could not exclude the-evidence by objection taken on the trial. It was competent to permit proof that the plaintiff had a family of young children, as-bearing upon the question of damages. It certainly was a serious-aggravation that the words were spoken of a mother having children who would be disgraced by such a charge. See Townshend on Slander, § 391, and cases cited. The rule that the wealth of a defendant cannot be shown in aggravation is based upon the fact that that circumstance has no relation to the injury suffered by the plaintiff. See Myers v. Malcolm, 6 Hill, 292. We find no exception justifying a reversal of the judgment.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Benedicta Durnherr, App’lt, v. Joseph Rau, Resp’t.

      (Court of Appeals,

      Filed October 4, 1892.)

    Husband and wife—Doweb.
    A husband conveyed lands to defendant in payment of a debt “and the further considerations expressed herein.” The grantee assumed all incumbrances on the premises “by mortgage or otherwise.” The deed also declared that the wife reserved her right of dower in the premises. Defendant did not pay the mortgages, and they were foreclosed, and the wife, who had joined in them, lost her dower. In this action brought by the wife on the defendant’s covenant in the deed to recover as damages the value of her inchoate right of dower, Held, that the covenant was with her husband alone, and she could not recover. No legal or equitable obligation of which the law can take cognizance was created in favor of the wife against the husband or his property by these circumstances.
    Appeal from judgment of the supreme court, general term, fifth department, affirming an order made on the minutes of the judge at circuit, setting aside a verdict in favor of plaintiff and granting a new trial.

      Theodore Bacon, for app’lt; Wm. E. Edmonds, for resp’t.

       Affirming 38 St. Rep., 786-

   Andrews, J.

The deed from Emanuel Durnherr to the defendant recited that it was given in payment of a debt owing by the grantor to the grantee of $660, “ and the further considerations expressed herein.” The grantee covenanted in the deed to pay all incumbrances on the premises “ by mortgage or otherwise.” This constitutes the only “ further consideration ” on his part expressed therein. The deed also declared that the wife of the grantor (the plaintiff) reserved her right of dower in the premises. The conveyance contained a covenant of general warranty by the grantor, and the only legal operation of the clause respecting the dower of the wife was to limit the scope of the warranty by excluding therefrom her dower right. By the foreclosure of the mortgages on the premises existing at the time of the conveyance, in which (as is assumed) the wife joined, the title has passed to purchasers on the foreclosure and the inchoate right of dower in the wife has been extinguished.

This action is brought by the wife on the defendant’s covenant in the deed, and she seeks to recover as damages the value of her inchoate right of dower, which was cut off by the foreclosure.

The courts below denied relief and we concur in their conclusion. The covenant was with the husband alone. He had an interest in obtaining indemnity against his personal liability for the mortgage debts, and this presumably was his primary purpose in exacting from the grantee a covenant to pay the mortgages. The cases also attribute to the parties to such a covenant the further purpose of benefiting the holder of the securities and the natural scope of the covenant is extended so as to give them a right of action at law on the covenant, in case of breach, as though expressly named as covenantees. Burr v. Beers, 24 N. Y., 178.

But the wife was not a party to the mortgages and in no way bound to pay them. She had an interest that they should be paid without resort to the land, so that her inchoate right of dower might be freed therefrom. The husband, however, owed her no duty enforcible in law or equity to pay the mortgages to relieve her dower.

The most that can be claimed is that the mortgages having (as is assumed) been executed to secure his debts, and he having procured the wife to join in them and pledge her right for their payment, he owed her a moral duty to pay the mortgages and thereby restore her to her original situation.

But, according to our decisions, no legal or equitable obligation of which the law can take cognizance was created in favor of the wife against the husband or bis property by these circumstances. She was not in the position of a surety for her husband. Her joinder in the mortgages was a voluntary surrender of her right for the benefit of the husband and bound her interest to the extent necessary to protect the securities. Manhattan Co. v. Evertson, 6 Paige, 467 ; Hawley v. Bradford, 9 id., 200.

There is lacking in this case the essential relation of debtor and creditor between the grantor and a third person seeking 'to enforce such a covenant, or such a relation as makes the performance of the covenant at the instance of such third person a satisfaction of some legal or equitable duty owing by. the grantor to such person, which must exist according to the cases in order to entitle a stranger to the covenant to enforce it. It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for his benefit, or at least such benefit must be the direct result of performance and so within the contemplation of the parties, and in addition the grantor must have a legal interest that the covenant be performed in favor of the party claiming performance. Garnsey v. Rogers, 47 N. Y., 233; Vrooman v. Turner, 69 id., 280; Lorillard v. Clyde, 122 id., 498 ; 34 St. Rep., 224.

The application of the doctrine of Lawrence v. Fox, 20 N. Y., 268, to this case would extend it much further than hitherto, and this cannot be permitted in view of the repeated declarations of the court that it should be confined to its original limits.

The order should be affirmed, and judgment absolute ordered for the defendant, with costs.

All concur.


text:
    In the Matter of The Globe Mutual Benefit Association.

      (Court of Appeals,

      Filed October 4, 1892.)

    Benefit societies—Minobs.
    The insurance of infants is not within the powers of corporations organized under chap. 175, Laws 1883.
    Appeal from judgment of the supreme court, general term,, first department, affirming an order restraining said association “from continuing to transact business so far as the insurance' of minors against accident, sickness or casualty, and the insurance of the lives of minors is concerned.

      Charles F. Ayling, for app’lts; S. W. Rosendale, atty. gen., for resp’ts.

       Affirming 43 St. Rep., 756.

   Andrews, J.

The order from which this appeal is taken enjoins the defendant, a co-operative life and casualty insurance association organized under the act, chap. 175 of the Laws of 1883, entitled “An act to provide for the incorporation and regulotion of co-operative or assessment life and casualty insurance associations and societies,” from transacting the business of infantile insurance. The order proceeds on the ground that the insur anee of infants is not within the powers of corporations organized under this statute and is inconsistent with the statutory scheme and the legislative intention.

The by-laws of the defendant provide that any person between the ages of six months and seventy years, approved by the medical director, may become a member of the society, The applicant, if approved, is entitled to a certificate of membership, and on paying an entrance fee and a certain sum weekly during life, the company undertake to pay at his death to a beneficiary designated by the member, or to the next of kin if no beneficiary is named, a certain sum called a benefit, provided there is a fund realized from voluntary donations, admission fees and dues collected, or which may be collected from members, out of which such payment can be made.

There are two classes of members, a life class and a casualty class, the distinction between which is for the present purpose of no importance. It appears from a schedule in the case that infants from one to four years of age have been admitted as members of the corporation, in whose names certificates of membership have been issued designating a beneficiary, insuring the infant named in a certain sum in one of the classes mentioned.

The first section of the act of 1883 authorizes any number of persons not less than nine, residents of the state, to associate themselves together to organize a corporation thereunder. The second section prescribes that the associates shall file in the office of the superintendent of the insurance department a declaration of their intention to from a company under the act, containing several particulars specified, to be signed and acknowledged by each of the corporators. By the third section, upon the completion of the organization, it is declared that “ said corporators and those that may thereafter become associated with them or their successors shall be constituted a body politic and corporate.”

The fourth section authorizes the making of by-laws. The fifth section declares that corporations organized under the act, issuing-certificates payable on the decease of a member or upon his sickness or other physical disability, or to a beneficiary, from resources derived from voluntary donations or admission fees, dues or assessments collected from members, and whose payment is conditional upon means so realized, etc., shall be deemed to be engaged in the business of life or casualty insurance upon the co-operative or assessment plan and “ shall be subject only to the provisions of the act.”

The sixteenth section provides for the holding of an annual meeting of the members or policy holders of the corporation, of which due notice shall be given, and requires that before the adoption of any by-law or amendment thereto, a copy shall be mailed to the members and directors of the corporation, with a notice of the time and place when and where the same will be considered. The eighteenth section authorizes a member to change the beneficiary with the consent of the corporation, and without the con sent of the beneficiary.

The defendant was a co-operative association under the act, a continuing membership in which is made dependent on the member keeping up his dues. Each holder of a certificate is by virtue thereof a member and corporator in the association, and so remains until by non-payment of dues his membership is forfeited. The statute contemplates a meeting of the associates in annual meeting, at which reports of receipts and expenditures are to be submitted, and the associates assembled at a meeting duly notified are to consider and pass upon by-laws or amendments proposed for adoption.

It is plain that the powers conferred upon members cannot be ■exercised by children of tender years, such as have been permitted to become members of the corporation defendant. The children insured by the defendant, whose ages are given in the schedule, were incapable of exercising any choice in becoming members, or of appointing a beneficiary, or of exercising the powers with which members are invested by the statute. They could take no part in the co-operative scheme upon which the corporation rests, and which implies the voluntary association of persons capable of acting in the administration of the affairs of the corporation. There is nothing in the statute which permits, the inference that a child may be made a member of the corporation upon the application of the parent, or that a beneficiary' may be designated or changed by any person except the member himself.

, It has been held that where a statute authorizes persons to form a corporation, it is implied that they shall be persons of full age. Hamilton & Flamborough Road Co. v. Townsend, 13 Ont. App., 534; 16 Am. & Eng. Corp. Cas., 645. Infants admitted as members by the defendant became members of the corporation if legally entitled to admission, and may be elected trustees or- directors, and it might happen that management of the affairs of the corporation would become vested in persons who could not have organized it.

We place our assent to the judgment below on the ground that it appears from a consideration of the statute of 1883, and the nature and object of co-operative insurance companies, and the relation which members hold to the corporation, that adult persons only were contemplated as entitled to membership. The law fixes an arbitrary period when persons become clothed with general legal capacity, and while in many cases youths under twenty-one are capable of exercising an intelligent judgment, and might properly be admitted to the advantage of membership in a company like that of the defendant, in many others they would be wholly unfitted to act as members of such an organization.

We think the order below is right, and it should be affirmed.

Order affirmed, with costs.

All concur, except O’Brien and Maynard, JJ., not sitting.


author: Per Curiam.

text:
    Thomas Bolger, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed October 24, 1892.)

    Railroad—Elevated—Injunction.
    Where the evidence abundantly establishes the fact of substantial damage to the fee value of property by the maintenance of an elevated railroad, but does not sustain a finding of damage to the amount named in the decree as an alternative to the granting of an "injunction, the decree may be modified by providing that an injunction issue without an assessment of fee damage, with a suspension thereof for a reasonable time to enable defendant to acquire title to the property or easements taken.
    Appeal by defendants from a judgment after trial of the issues at the equity term.

      Davies, Short & Townsend, for app’lts; E. B. & C. P. Cowles, for resp’t.
   Per Curiam.

With a single exception, which will' be presently noted, the judgment is right. The exception relates to that part of the judgment which provides that an injunction issue against the maintenance of so much of defendants’ railway and structure as is within the limits of First avenue in front of -plaintiff’s premises, unless the defendants shall pay to him the sum of $3,500. A careful review of the evidence upon this branch of the case has. satisfied .us that the proof does not sustain a finding of more than $3,000 damage. But as substantial damage has been abundantly established, it is only necessary to modify the judgment according to the rule laid down in Blumenthal v. N. Y. Elevated R. R. Co., 42 St. Rep., 683, and by deducting from the money part the sum of $175 awarded, as an allowance upon the amount of the fee damage.

As thus modified the judgment should be affirmed, without costs to either party. Order to be settled on notice.

Freedman, Dugro and Gildersleeve, JJ., concur.


text:
    Charles E. Hovey et al., App’lts, v. George Elliott et al., Ex’rs, Resp’ts.

      (New York Superior Court, General Term,

      Filed October 24, 1892.)

    Judgment—Supreme court District op Columbia—Validity.
    The question of the validity of a decree of the supreme court of the District of Columbia is to be determined by the laws of the United States and by the interpretation of those laws by the United States supreme court.
    Appeal by plaintiff from judgment dismissing the complaint, entered upon the report of a referee.

      Thomas M. Wheeler (H. B. Titus, of counsel), for app’lts; R. D. Harris ( Wm. G. Choate and John Selden, of counsel), for resp’ts.
   Per Curiam.

Upon the case as now presented the right of the plaintiffs to any relief whatever rests upon the alleged decree of the supreme court of the District of Columbia entered on the 17th day of April, 1878. The referee found that the decree was invalid for want of jurisdiction of the court wherein it was entered to enter the same.

The question of the validity or invalidity of the decree must ■"be determined by the laws of the United States, and by the interpretation of those laws by the supreme court of the United States. Whether a decree of the same character made under the same cir•cumstances by a court of the state of New York or of any other .state would or would not be valid is an immaterial question, if, under the decisions of the supreme court of the United States, the ■decree was one which a federal court was wholly incompetent to make. Upon a careful examination of all" that has been cited •upon this point by both parties, we are of the opinion that the learned referee reached the right conclusion.

The judgment should be affirmed, with costs, upon that part of the opinion of the referee which related to the question of jurisdiction.

Freedman, Dugro and Gildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    The German Savings Bank in the City of New York, App’lt, v. Emanuel Friend et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed October 24, 1892.)

    Interpleader—Savings banks.
    A savings bank cannot implead an adverse claimant of a deposit where the claimant claims by title superior to the depositor, as the bank cannot dispute the title of its depositor, unless the third party, who claims to have been despoiled of his money, proceeds by process of law to enforce his rights.
    Appeal from order of special term denying motion for an injunction.

      Sanders, Wagner & Auerbach (Lewis Sanders, of counsel), for app’lt; McIntyre & Settel (Frederick B. House, of counsel), for resp’ts.
   Gildersleeve, J.

On or about the 7th day of April, 1892, the defendant Guttman deposited the sum of $180 with the plaintiff, which is a savings bank organized under the laws of this state. Subsequently, the defendants Friend and House made a demand upon the plaintiff for said sum so deposited, claiming that it had been assigned to them by the defendant Guttman, and they brought a suit in the city court to recover such sum, which suit is defended by this plaintiff on the ground that it knows of no •such assignment by Guttman to Friend and House. Plaintiff further claims that the defendant Guttman still claims the deposit as his own, and that the defendant Podrasky also has made a demand on plaintiff for it, claiming that said money was stolen from him by the defendant Guttman. Plaintiff has therefore brought this action to restrain the defendants Friend and House from further prosecuting their action in the city court, and also to compel the respective defendants to interplead among themselves, and praying that plaintiff, upon the payment into court of the said sum, be discharged from all liability, and be allowed its costs and disbursements. Plaintiff applied to the court for an injunction restraining the defendants Friend and House from a further prosecution of their action in the city court, and from the order denying the motion plaintiff appeals to the general term.

From the affidavit of defendant Guttman, it appears that he admits making the assignment to Friend and House, and denies he has made any claim to the said money since such assignment. This disposes of any apprehension that plaintiff may feel as to the position of the defendant Guttman. It also appears from the appeal papers that the charge of stealing the money made by the defendant Podrasky against the defendant Guttman was dismissed by the grand jury. We think, therefore, that the plantiff’s fears of the claim of Podrasky are too shadowy and unsubstantial to be given serious consideration. • Guttman’s claim is disposed of by his own affidavit, in which he swears he assigned it to Friend and House. Podrasky, as plaintiff asserts, claims by title superior to the depositor, Guttman, alleging that Guttman stole the money from him; but the court will refuse to allow a savings bank to implead an adverse claimant of a deposit in the bank, where claimant claims by title superior to depositor, as the bank cannot dispute the title of its depositor, Lund v. Seaman’s Sav. Bank, 20 How., 461; unless, indeed, the third party who claims to have been despoiled of his money proceeds by process of law to enforce his rights, which Podrasky has not done. See Lund, v. Seaman’s Sav. Bank, 23 How., 258.

We are of the opinion that the plaintiff is^not entitled to an interpleader, and therefore no right to the injunction sought existed. ,

The motion for the injunction" was properly denied. The order appealed from is affirmed, with ten dollars costs and disbursements.

Freedman, J., concurs.


author: McAdam, J.

text:
    John Douglass, Resp’t, v. Henry J. Meyer, App’lt.

      (New York Superior Court, General Term,

      Filed October 24, 1892.)

    t. Depositions—Examination befobe tbial—Negligence.
    An examination of an adverse party before trial cannot be granted for the purpose of enabling the moving party to look up witnesses to be used against his opponent.
    2. Same.
    In an action for injuries sustained by plaintiff from the fall of an iron bar from an elevator in front of defendant’s premises, an examination of the defendant before trial will not be allowed to ascertain the names of the persons who were present at the time, but should be limited to the question of defendant’s ownership of the elevator and his relations to the persons who had it in charge at the time of the injury, and a disclosure of the name of the physician called by defendant to attend the plaintiff.
    The plaintiff complains that while passing the defendant’s place of business he was struck by an iron bar falling from the elevator left in front of defendant’s store, that the blow rendered the plaintiff unconscious, and he was carried into the defendant’s premises and there restored to consciousness by a physician procured by the defendant, and that the plaintiff was thereafter sent home in a cab." Plaintiff sues to recover $1,000 for his injuries, charging negligence on the part of the defendant and his servants in the management of the lift. The defendant in his answer denies all liability. Upon an affidavit complying with the requirements of the Code, the plaintiff procured an order requiring the defendant to submit to an examination as a witness before trial on the part of the plaintiff. From an order of the special term denying a motion made by the defendant to vacate the order for examination, this appeal is taken.

      Jas. Forrest, for app’lt; E. K. Kissam, for resp’t.
   McAdam, J.

The general rules of practice provide that where an examination is required under §§ 870, 871 and 872 of the Code, the affidavit shall specify the facts and circumstances which show, in conformity with subdivision 4 of § 872, that the examination of the party is material and necessary (Eule 83). In compliance with this rule, the plaintiff swears he believes “ that the defendant knows the name of the physician who attended the plaintiff and the names of the various witnesses who were present at the accident, whom deponent will need to prove the manner of the accident and the injury then received by him, as well as the ownership and management of the elevator lift which caused the injury, and that the plaintiff does not know the name of the physician or of said witnesses.”

While it is true that the Code provisions apply to all actions, the right is qualified by the condition that the examination may be had only in cases where the,same is “both necessary and material,” and where the witness might be compelled to testify to the same facts at the trial. The judge to whom the application is made is to determine the materiality or necessity from the facts stated, and he is to see that the privilege is not abused, because the mere circumstance that a party has been examined before trial does not preclude his examination at the trial, Berdell v. Berdell, 27 Hun, 24; Misland v. Boynton, 79 N. Y., 630, and the court may,"ilpon all the facts appearing, vacate the order and leave the party to take the examination at the trial. Jenkins v. Putnam, 106 N. Y., 276 ; 8 St. Rep., 710. Where it appears thatthe proceeding is experimental, unnecessary, instituted to vex or harrass, or for idle or frivolous purposes, the- order should be vacated. Sumner v. Hosford, 12 W. Dig., 440. If the proceeding contemplates a broader line of examination than is necessary and material, “it is for the judges now,” said the court of appeals, “by rules of practice and by rulings at the examination, to keep the plaintiff within proper bounds, and to ward off from the party all inquiry which is vain or curious.” Glenney v. Stedwell, 64 N.Y., 123.

In Herbage v. City of Utica, 109 N. Y., 81; 14 St. Rep., 845, an order limiting an examination was reversed, because “the order appealed from was so limited, not according to the discretion of the court, by which it might have been restrained, but because, as appeared by the order, the court was of opinion that it had no power to order otherwise.” Indeed, § 873 of the Code as amended in 1879, expressly declares that 'the judge who grants the order may, in his discretion, “ designate and limit the particular matters as to which the party shall be examined,” and whatever discretion the judge below had in the premises may be exercised by the court at general term, for the appeal is nothing more or less than a continuation of the same proceeding in the same court. Phipps v. Carman, 26 Hun, 518. The power was exercised by the general term in Kinsella v. Second Ave. R. R. Co., 46 St. Rep., 251; 19 N. Y., Supp., 188, in which the court intimates that the granting of unrestricted orders for the examination of parties in negligence cases leads to great and unnecessary consumption of time and hardship to litigants, without commeasurate results, and decided to modify the order by limiting the examination within certain specified bounds.

The right to the examination is subject, therefore, to the power of the court to confine the scope of the examination to the legal necessities of the party who seeks it. We make these observations because the plaintiff seeks to ascertain from the defendant the names of the various witnesses who were present at the accident, and the authorities hold that where the object of the examination is to enable the moving party to look up witnesses to be used against his opponent, it will not be allowed, Beach v. The Mayor, 14 Hun, 79; Chapin v. Thompson, 16 id., 53, nor will the examination be permitted to discover the testimony which the adverse party may be able to give in support of his defense. Fourth Nat. Bk. v. Boynton, 29 Hun, 441; Schepmoes v. Bousson, 1 Abb. N. C., 481. If these liberties were allowed, every railroad company might be required by parties prosecuting them for negligence to furnish the names of all their witnesses in advance of the trial, a course not sanctioned in the conduct of civil causes.

We think the examination should be limited to the defendant's ownership of the elevator, and his relations to the persons who had it in charge at the time of the injury, followed by the disclosure of the name and address of the physician called by the defendant to attend the plaintiff.

This information, seemingly important, is within the peculiar knowledge of the defendant, is materiakto the plaintiff’s case, the establishment of the facts essential to the recovery sought for, and an examination of the defendant respecting the same substantially a legal right. Carter v. Good, 57 Hun, 116; 32 St. Rep., 501; Sweeney v. Sturgis, 24 Hun, 162; Goldberg v. Roberts, 12 Daly, 339, S. C., 67 How. Pr., 269.

In Sweeney v. Sturges, supra, the injury was done by a machine, the ownership of which was' denied, and the court held that the plaintiff had the right to establish such ownership by the defendant’s examination before trial.

In Goldberg v. Roberts, supra, the co-partnership of the defendants was denied, and the court held that the plaintiff was entitled to examine the defendants respecting the same. See also Glenney v. Stedwell, 64 N. Y., 122. Examinations as to such matters are not experimental merely, but in the nature of the- discovery formerly allowed in equity, Glenney v. Stedwell, supra, although the Code provisions are far more than a substitute for the old bill of discovery. Hynes v. McDermott, 55 How. Pr., 260. The disclosure here sought for is necessary to supply the links in the chain which associate the defendant with the liability charged.' The right to examine an adverse party before trial has frequently been before the courts and has called forth many adjudications upon the subject. This is owing in part to the numerous phases in which the question was presented and the difficulty of applying immutable rules to all cases in which such examinations were claimed. In view of this fact probably the court of appeals, in Jenkins v. Putnam, 106 N. Y., 276; 8 St. Rep., 710, said: “It is one of those matters of practice which should always be left to-the discretion of the court of original jurisdiction, and its decision should not be reviewed here unless it appears from its order that, the decision was placed upon some ground of law not involving discretion.”

With the modifications suggested the order is right and must, be affirmed, but without costs.

Freedman, J., concurs.


author: Hatch, J.

text:
    Samuel B. Deane, Resp’t, v. Frederick H. Cutler, Survivor, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed October 26, 1892.)

    1. Master and Servant—Discharge.
    Where the court embraces in its charge three causes of justification for the discharge of a servant, and charges thatif the jury finds their existence-they might find justification, and one of such causes standing alone would be sufficient, the defendant is entitled to a charge as to such cause distinct from the other two.
    2. Same.
    Plaintiff was employed by defendant’s firm because of his peculiar skill and knowledge, and to build up the business. In an action for wrongful discharge, defendant asked a charge that if plaintiff made an arrangement to thoroughly renovate a couch for a customer for less than one-half what it could properly be done for and then directed the work to be done in such a manner that the contract would not be carried out substantially, and thereby caused the loss of the customer, that would be sufficient in law for a discharge. Field, that defendant was entitled to have such proposition charged; that such action would conclusively show a wilful disregard of instructions, the purpose of his employment and a lack of interest in the welfare of his employer.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      F. M. Inglehart (Adelbert Moot, of counsel), for app’lt; George W. Cothran, for resp’t.
   Hatch, J.

The action is to recover for a breach of contract in wrongfully discharging plaintiff before the termination of his term of service contracted" for. The jury found, upon conflicting testimony, that plaintiff was hired for a specified term, and his discharge before the expiration of that term was admitted. Defendant alleged in justification of the discharge that plaintiff had failed and neglected to perform the services contracted for in a proper manner. Defendant specified three particulars in justification. First, that plaintiff had sold a mahogany chair in place of a cherry chair for the same price of the latter, although the former was- worth considerably more. Second, that plaintiff was inattentive to a lady customer. Third, that he contracted to rehabilitate a couch for a much smaller sum than it could be done for, and caused the work to be performed in an unworkmanlike manner, whereby the firm lost a customer. It is upon the last, proposition claimed that the court upon the trial committed error. The substantial facts of the last transaction are undisputed. It appears that Dr. Martin, whether a customer of the firm before or not does not appear, applied to plaintiff to have a couch renovated ; upon examination it was found moth eaten, and the cost of repair was determined to be twenty-five dollars; this price was deemed too much by the doctor, and he declined to pay it; subsequently plaintiff offered to do it for ten dollars, and was given the order. It appeared that in order to properly renovate it it was necessary to remove the moths, which conld only be done by removing the entire covering, and replacing it with new; plaintiff, however, directed it to be fixed up without this removal, and did not improve its condition. When returned, the customer was dissatisfied with it, and concluded his dealing with the firm.

Upon the trial the court grouped the three causes of justification together, and charged the jury that if these facts were found by them to exist, then to find from them whether they were sufficient to warrant defendant in discharging the plaintiff.

It is evident that the theory of the charge was two-fold : Did the facts claimed exist, and if so, were they sufficient to warrant the discharge? Thus the defense in both respects was treated as a question of fact.

At the close of the charge defendant’s counsel asked the court to charge “ That if they believe Dr. Martin took the couch and made an arrangement to have it thoroughly renovated, and the moths taken out properly for $10. and then Mr. Deane instructed the work to be done in such a manner that the contract would not be carried out substantially and thereby caused the loss of Dr. Martin from this firm as a customer, then that would be sufficient in law for his discharge.” The court declined so to charge, and an exception was taken.

It is at once seen that this request presented two different aspects from the charge of the court, one as to the fact and the. other as to the law. As to the first the court, as we have seen, grouped the three causes of justification together, and said, if they found as to them, they might find justification, if they found them sufficient. The request asked the court to charge that if the jury found the specified fact, that would be sufficient. If this one offense was found, as a fact, and it was sufficient to 'justify the discharge, then defendant was entitled to have'it charged distinct from the other two. This the court refused, and as the-three were embraced in the charge as given and this one standing-alone would have been sufficient, we can see that the charge did not present that question in as favorable a light as defendant was entitled to have it; consequently, in this respect the charge as made did not cover the charge requested, and the contention of respondent in that regard cannot be upheld. But the request to «barge differed from the theory of the court as to the law of the case, for it Risked that if the fact was found, not that they were authorized from it to find it sufficient as justification, but to go a step farther and say as matter of law, if it existed, it amounted to a justification. And this, in my judgment, presents the only question on this appeal.

In Harrington v. First Nat. Bk. of Chittenango, 1 T. & C., 363, it was said: “It is not necessary to discuss the proposition that for misconduct or disobedience to lawful orders the plaintiff could be dismissed.” This is undoubtedly true, but what acts constitute misconduct or disobedience might present quite a serious problem, dependént upon many circumstances.

The question presented seems to fall within that denominated “ mixed,” partaking both of law arid fact, and while, in many instances, it would be proper to submiti both questions, first, as to the existence of the fact, and second, as to its effect, to the jury determination, yet, when the facts are undisputed, it will usually present a question of law for the court to determine, being analogous in this regard to questions of negligence. An illustration of the first rule is found in Hand v. Coal Co., 143 Penn. St., 408, and of the latter in Matthews v. Park Bros., 146 Penn. St., 384, where it is said: ‘“What is sufficient reason for dismissal is a question of law for the court.” As applied here, I think defendant was entitled to the charge asked. Plaintiff was employed because of his peculiar skill and knowledge, and for the purpose of building up the particular business of the firm; when, therefore, he undertook to renovate this couch for less than one-half what it could be properly done for, and then directed that it be done in an unfit and unworkmanlike manner, and caused it to be returned in no better condition than when received, it evidenced conclusively a wilful disregard of his instructions, the purpose of his employment, and a lack of interest in the welfare of his employer. Nor do I deem it material whether Dr. Martin was prior thereto a customer of the firm or not; he was a customer for this particular piece of work, and ceased to be after its improper performance. We can very well see that he was quite likely to be dis-~ gusted with the manner in which this work was performed; and to determine upon a bestowal of his patronage elsewhere. It is not necessary that the firm should have suffered an actual loss; it is sufficient if you can fairly see that it may have been damaged by the act, or was likely to be. I am, therefore, of opinion that defendant became entitled to the charge as requested, and that error was committed in its refusal.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to abide the event.

White, J., concurs; Titus, Ch. J., not sitting.


text:
    Leo Maskelinski, App'lt, v. Joseph Wazsinenski, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed October 26, 1892.)

    Sale—Title—Personal property not in possession oe vendor.
    Defendant sold to plaintiff a horse which he did not then own, but which he afterwards purchased. Held, that such subsequently acquired ownership enured to the benefit of the plaintiff, and that defendant could’ not be heard to say that he had no title when he sold; hut title to the horse, immediately vested in plaintiff in accordance with the terms of the sale.
    Appeal from the municipal court of Buffalo.

      Feldman & Schreiber, for app’lt; M. A. Gearon, for resp't.
   Hatch, J.

The action is replevin. Upon the trial plaintiff's complaint was dismissed and the possession of the property awarded to defendant and its value assessed. It is not clear upon what theory the judgment proceeded, but it is probable that it was based upon the ground that no title to the property passed to plaintiff, as defendant was not at the time of sale the owner. The facts were that defendant applied to plaintiff to purchase a horse which the former did not own, he intending thereafter to acquire title, an agreement of sale was reached and plaintiff paid a part of the purchase price to bind the bargain, defendant emmediately purchased the horse of the owner but refused to deliver .the same to plaintiff, resting his refusal solely upon the ground that he had sold the horse too cheap. It may" be conceded that, the contract of purchase was executory and that no title to the horse, in fact, passed at that time, and had the situation so remained this action could not be maintained. But when the defendant obtained title to the horse a very different question, arose; his title to, and possession of, the property then inured to the benefit of the plaintiff; the contract then ceased to be executory, and, as defendant had acquired the means of fulfilment, he could not thereafter be heard to say that he had no-title when he sold; having become possessed of title it immediately became vested in plaintiff in accordance with the terms of the sale. If, however, this should not be the accepted doctrine,, the result can still be reached upon the doctrine of waiver. At. the time when plaintiff tendered the balance of the purchase price, defendant had title to the horse; he refused to deliver, not upon, the ground that the contract of sale was executory, but upon the ground that he had sold too cheaply. The latter ground simply involved a repudiation of the contract. This position clearly could not avail him, and as he insisted upon no other reason, he must be held to have elected so to Stand, and waived any other defense he then had. Bradley v. Cole, 6 Hun, 660.

His attitude was that there was a sale but that he would not fulfill unless paid more money. As he cannot successfully stand upon this, he should not now be heard to allege any other. The judgment should be reversed, with costs.

Titus, Ch. J., and White, J., concur.


author: White, J.

text:
    Mary F. Crone, an Infant, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed October 26, 1892.)

    Negligence—Contributory.
    The evidence in the case showed that plaintiff was prevented from crossing defendant’s tracks promptly hy a moving train on track 4; that immediately on its movement off the street she and her companions started to -cross to a place of safety, when they were struck on track 2 hy a hacking ■engine which they did not observe until too late to escape. Meld, that it could not be held as matter of law that plaintiff was guilty of contributory negligence in lingering or loitering at the place of the accident.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Howard & Clark, for resp’t; James F. Gluck, for app’lt.
   White, J.

That the jury was justified in finding the defendant guilty of negligence in operating its engine which caused the injury complained of, cannot be seriously questioned. The appellant contends that the plaintiff was guilty of contributory negligence on the ground that she lingered or loitered at the point where the accident happened, when she ought to have passed on to a place of safety.

As an abstract proposition of law it is probably true that if a person approaches several railroad tracks, and takes an observation and sees that-the crossing of those tracks is safe, he ought not in the exercise of care to stop and linger upon the tracks, but it is his duty to advance and pass them as rapidly as is consistent with due care, and if he does stop and loiter until the time when it is-unsafe, instead of going to a place of safety, and by reason thereof injury results, he is guilty of contributory negligence. But I am unable to see what application can be made of such a principle to the case before us, because the plaintiff was prevented from crossing the several tracks promptly to a place of safety by a moving train of cars on one of the defendant’s tracks; nor is there any evidence that she lingered or loitered on the tracks. On the contrary, such evidence as there is tends to prove that immediately upon the movement off the street of the train on track No. 4, south of the flag shanty, the plaintiff and her companions started to cross to a place of safety, when they were struck on track No. 2 by an engine backing across the street, unobserved by them until they were on this track No. 2, when it was too late to escape.

Í think the case was properly submitted to the jury, and that the ruling of the trial judge on the question of contributory neg ligence by the plaintiff w<as right, and therefore the order an<£ judgment appealed from should be affirmed,1 with costs.

Titus, Ch. J., and Hatch, J., concur.


text:
    Frank W. Schaffer, App’lt, v. Willis Jones, Resp’t.

      (Superior Court of Buffalo, General Term,,

      Filed October 26, 1892.)

    Appeal—Mistake—Undertaking.
    On appeal by defendant from the municipal court, the plaintiff's, atrtu» ney, supposing that an undertaking had been filed, served a notice of retainer. JSTo undertaking had in fact been filed. On motion to dismiss the appeal or for other relief, Reid, that the court on appeal had power to relieve from the effect of such mistake by allowing a withdrawal of the notice of retainer.
    Appeal from order of special term, denying motion to dismiss appeal.

      Frank R. Perkins, for app’lt; George W. Cothran, for resp’t.
   White, J.

The plaintiff in this action recovered a judgment against the defendant "in the municipal court of Buffalo on July-18, 1891. '

On the 24th day of July, 1891, a transcript of the judgment was filed in Brie county clerk’s office, and the judgment docketed therein on that day. On August 1, 1891, the defendant served a notice of appeal from said judgment to this court, and demanded a new trial. On the 15th day of August, 1891, the plaintiff’s attorney, supposing that the defendant had executed and filed the undertaking required by statute to render such an appeal effectual, served a general notice of retainer in the case in this court. Ho undertaking had been given by the defendant, and immediately upon the discovery of that fact, within an hour after service of the notice of retainer, and before the defendant, had taken any further proceeding in the case, the plaintiff asked to be relieved from the effect of the notice of retainer which he had served, and disclaimed any intention to' waive the giving of the undertaking on the part of the defendant. The defendant thereupon took the ground, which he still maintains, that by serving the notice of retainer the plaintiff had waived the right to require an undertaking, and that jurisdiction having been so conferred upon this court, it must proceed to the trial of the case on its merits. The plaintiff, to relieve himself from the effect of his notice of retainer, moved at special term to dismiss the defendant’s appeal on the ground that no undertaking had been given.

That motion was denied and the plaintiff appeals. The notice . of motion to dismiss the appeal was in form for general relief in case the court should hold that a dismissal of the appeal was not the appropriate remedy for the difficulty encountered by the plaintiff by reason of his service of the notice of retainer.

The case is such, it seems to me, that if the court possesses the power to relieve the plaintiff from the effect of his inadvertence and mistake, it should unhesitatingly interpose in his behalf, and I think it has the power. Perhaps it may be said, strictly speaking, that the plaintiff was not and is not entitled to have the appeal to this court dismissed so long as the service of his notice of retainer stands unimpeached.

I am of the opinion, however, that it was competent for the special term, under and pursuant to the notice of motion given by the plaintiff, to set aside the service of the notice of retainer, and I think that should have been done.

On a motion to amend irregular proceedings they may be struck out under a prayer for general relief. If a party moves for wrong relief, the granting relief under the general prayer is ordinarily a matter of discretion. Van Slyke v. Hyatt, 46 N. Y., 259.

Under § 1317 of the -Code of Civil Procedure we “ may modify the * * * order appealed from.’’ o

My conclusion is that the order appealed from should be so modified as to provide that service of notice of retainer, by the defendant be set aside, or that the plaintiff be permitted to withdraw and cancel such notice, and that the defendant be allowed to give the undertaking prescribed by law in such cases to perfect an appeal, without costs to either party.

Hatch, J., concurs; Titus, Ch. J., not sitting.


author: Hatch, J. White, J.

text:
    James H. Hill, Pl’ff, v. William Sheehan, Def’t.

      (Superior Court of Buffalo, General Term,

      Filed October 26, 1892.)

    Master ard servant—Liability of master for acts of ore to whom: THE SERVART INTRUSTS THE PERFORMANCE OF HIS DUTY.
    Defendant, the keeper of a livery stable, kept a horse of one J., which he was to deliver at J.'s place of business at stated times, the performance of which duty he intrusted to one of his servants, who, on the day in question, allowed one K. to deliver the horse to J. In doing so K. ran into and injured the plaintiff. Held, that as the act was done in the prosecution of defendant’s business, it was immaterial that the relation of master and servant did not exist between defendant and K.; that defendant was liable for his acts and that a direction of a verdict for the defendant was error.
    Motion for a new trial upon a case and exceptions, ordered to be heard at the general term in the first instance.

      John Laughlin, for pl’ff; Edward L. Jellinek, for def’t.
   Hatch, J.

The facts upon which this motion is to be disposed of are undisputed, and are these: Defendant is the keeper of a livery stable; he contracted with one Louis Jellinek to keep a horse and at stated times of the day to deliver the same at the latter’s place of business; the stable and the business place are situate upon-different streets in the city, and the custom was for defendant to intrust the said horse to one -of his servants for delivery, the latter having positive instructions not to permit any other person to drive the horse or to deliver it to the owner. In-pursuance of these instructions one of defendant’s servants, competent in all respects for the performance of his duty, had attached the horse to a cutter, preparatory to delivery at the owner’s place of business, when he -was applied to by one Krueger, a person not in defendant’s employ, and who never had been, for leave to drive said horse and cutter to its destination; this request was granted, and while Krueger was passing over the usual route between said stable and business place, he dróve said horse in such a negligent and careless manner that while crossing a street he ran into and seriously injured plaintiff. This action was subsequently brought to recover damages for such injury. At the close of the evidence defendánt moved for the direction of a verdict in his favor, and thereupon the court directed the jury to find a verdict for defendant of no cause of action, which they accordingly did ; exception was taken to such ruling, presenting the questions now here.

The direction by the court proceeded upon the theory that the relation of master and servant was not established, and consequently defendant was not liable for the act of Krueger; examination leads me to the conclusion that this ruling was wrong. We see that the servant of the defendant was'charged with the duty of delivering the horse; that he violated that duty in intrusting it to a stranger for delivery is equally true, but such violation of duty does not lead to a discharge of the master from liability. Quinn v. Power, 87 N.Y., 535.

It is said by Judge Grover in Cosgrove v. Ogden, 49 N.Y., 255, “ The test of the master’s responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do.”

Here the servant was charged with the personal delivery of this horse; he violated the instruction by intrusting performance to a stranger; but he intrusted it to the stranger for no other or different purpose than such as he was charged with, and the horse at the time of injury was being driven by the usual route. While the positive instruction was violated, yet we see that the master’s business was being prosecuted throughout the entire transaction. Had the horse been delivered to the stranger for any "other pur i pose than delivery to its owner, or had the servant or stranger, oil both, used it to drive for purposes of business or pleasure, disconnected from the business of the master, a different rule would apply, and we would have the case, relied upon by defendant, as presented in Cavanagh v. Dinsmore, 12 Hun, 465.

As it is, we have a case in principle like Althorf v. Wolfe, 22 N. Y., 355, where it is stated by Judge Denio: “If we keep in mind that the defendant is responsible for the acts of Fagan (the servant), and that Fagan took his comrade (stranger-) on to the roof, and thus enabled the latter to do the mischief, it is difficult to discover any principle which will shield the defendant from responsibility.” Id., 365.

It is insisted that Krueger was in no sense defendant’s servant, and consequently he cannot be made liable for his acts. This overlooks the fact that by the act of the servant who was in charge an instrument, i. e., Krueger, was used for the prosecution of the master’s business, and that such instrument inflicted the injury. It is not essential under such circumstances that the relation of master and servant should exist in order to fasten responsibility. It is sufficient when .it appears that the master’s business is being prosecuted by the instrument used. This question has, however, been decided.

In Kilroy v. D. & H. C. Co., 121 N. Y., 22; 30 St. Rep., 724, a captain of a canal boat was charged with the management of a guy rope connected with a hoisting apparatus used in unloading a cargo. While in use the captain temporarily intrusted the management of the rope to a boy, who negligently operated it, inflicting injury. The defendant, whose servant the captain was, was held liable for the act. I see no distinction between the cases.

Defendant strongly insists upon the case of Hexamer v. Webb, 101 N. Y., 377; 1 St. Rep., 46, as being fatal to a recovery. This, and other cases like it, hold that an owner is not liable for the acts of servants working under the direction of an independent contractor, whether paid by the day or otherwise. These authorities would be precisely in*point if it were attempted to enforce liability against the owner of the horse, but they are without application to the principle involved in this case.

It follows that the exceptions should be sustained, and the motion for a new trial granted, with costs to abide the event.

White, J.

From the evidence taken on the trial the jury might have found that on December 8, 1890, the defendant was the proprietor of a boarding and livery stable in Buffalo, and had as a boarder at his stable a horse owned by one Louis Jellinekj that it was the duty of the defendant to deliver the horse to its owner for his use at his place of business at a certain hour each day, and the duty of making such delivery was intrusted by the defendant to the servant, who employed a stranger to perform that duty in his stead; that on the day in question the servant „of the defendant charged by him with the duty of delivering the horse at Jellinek’s place of business, instead of performing the duty himself, and without the knowledge or consent of the de-' fendant (at least I will assume the absence of such knowledge and consent), employed the stranger to perform that duty, and that in its performance the stranger negligently handled and drove the horse on the way to Jellinek’s place, and that by reason of such negligence the plaintiff was injured. The trial court directed a verdict 'of no cause of action in favor of the defendant, on the ground that the relation of master and servant did not exist at the time of the accident between the defendant and the stranger who was driving the horse.

It is claimed by the respondent that the rule applicable to this case is laid down in the cases of King v. N. Y. C. & H. R. R. R. Co., 66 N. Y., 181, and Hexamer v. Webb, 101 id., 377; 1 St. Rep., 46. Those cases decide simply that the owner of premises is not responsible for the negligence of the servant of an independent contractor engaged in making repairs on such premises. The same principle is recognized in the case of Boniface v. Relyea, 5 Abb., N. S., 259, and Michaels. Stanton, 3 id., 462, cited by the respondent. The cases of Cavanagh v. Dinsmore, 12 Hun, 465, and Sheridan v. Charlich, 4 Daly, 338, are authorities for the well settled rule that for the negligence of a servant while engaged in his own business and not in that of his master the master is not liable.

The plaintiff’s right to go to the jury, I think, is clearly established by the cases of Althorf v. Wolfe, 22 N. Y., 355 ; Cosgrove v. Ogden, 49 id., 255; Kilroy v. Del. & H. C. Co., 121 id., 22; 30 St. Rep., 724.

The exceptions taken by the plaintiff to the direction of a verdict for the defendant should, therefore, be sustained, and his motion for a new trial granted.

Hatch, J., concurs; Titus, Ch. J., not sitting.