text:
    The People, Resp’ts, v. A. Edwin Benedict, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.

    Forgery—Character—Charge.
    TJpon the trial of an indictment for forgery, defendant testified in his own behalf, and his general character was thereafter attacked and defended. The court charged that “ if you find from the evidence that the character of the defendant is bad, then you may take that fact into consideration in connection with all the other evidence in the case in arriving at a conclusion as to whether the defendant committed the offense charged,” and refused to charge the jury as a matter of law, “ that they have no right to consider the question as to the good or bad character of the defendant in determiningthe question whether or not he is guilty of the crime charged,” and also refused to charge that “if any question arises in reference to the good or bad character of the defendant, then it is only to be considered by them as bearing upon the amount of credence to be given to his testimony and for no other purpose. Reid, that the charge as given, together with the refusals to charge, may have influenced the jury improperly, and therefore the conviction- must be reversed.
    Appeal from, a judgment of the court of sessions of Otsegocounty, entered upon a verdict taken in that court, finding the defendant guilty of the crime of forgery in the second degree, he having been sentenced to imprisonment in the state’s prison at Auburn for the term of six years. The indictment in accusing the defendant of the crime of forgery in the second degree alleges that “ heretofore and on the 19th day of January, 1888, at the town of Laurens in this county, with intent to injure and defraud one Addison P. Strong and others to the jury unknown, feloniously did falsely make, forge and counterfeit, and cause and procure to be falsely made, forged and counterfeited, and wilfully assist and act in the false making, forging and counterfeiting a certain instrument and writing in the form of a bond purporting to have been given pursuant to § 2352 of the Code of Civil Procedure, and filed with the clerk of Chenango county, January 23, 1888, upon an application duly made to sell certain real estate of Kittie A. Toombs, an infant. And the indictment after alleging the instrument in detail and the acknowledgment thereof before J. P. Newell, a justice of the peace, and the justification of the alleged sureties before the said justice, on the 19tli of January, 1888, alleged that the bond in the penal sum of $1,500 was approved by the county judge of Chenango county, on the 23d of January, 1888.
    Defendant’s sister was the wife of Jonas Toombs, and said' Toombs died on the 1st day of April, 1887, in the town of Coventry, Chenango county, leaving his widow and two minor children him surviving, and leaving a farm of about 160 acres. After the funeral the defendant moved his sister and her two children to his home in Laurens, and proceedings were instituted before the surrogate of Chenango county for the appointment of the defendant as general guardian in April, 1887, and to effectuate the appointment the defendant executed a bond, with Strong and Keyes as sureties, which was filed November 1st, 1887, for one of the children, and a similar bond, with the same sureties, for the other child, filed November 1, 1887, by Hon. George W. Ray, who was then acting as attorney in the proceedings. The instrument charges the defendant with having forged the name of A. P. Strong to the instrument known as exhibit No. 8, which -instrument is set out in the case.

      W. H. Johnson and A. C. Tennant, for app’lt; Burr Mattice and S. S. Edick, for resp’ts.
   Hardin, P. J.

During the trial voluminous evidence was produced tending to show the defendant guilty of the crime charged in the indictment. On the other hand, extensive evidence was produced by the .defendant tending to show that he was innocent of the crime charged against him, and that the instrument was executed by the persons whose names appear thereon. The defendant was sworn as a witness in his own behalf, and gave important evidence bearing upon the principal issue in the case. Thereafter the People called six witnesses, who gave evidence tending to impeach the general character of the defendant; thereupon the defendant called six witnesses, who gave evidence tending to sustain his general character. The defendant was also cross-examined very extensively in respect to many damaging circumstances alleged to have occurred during his life, bearing adversely upon his character. Thus the question whether his character was good or bad was made a conspicuous issue in the trial. Of course it was entirely competent for the People to attack his general character after he became a witness in his own behalf; and it was entirely competent for the defendant to call witnesses to sustain his general character, with a view of giving confidence to him as a witness, as well as for the purpose of presenting a good character for the consideration of the jury in determining whether he was guilty or not of the crime alleged, or to influence the jury in case they had a reasonable doubt at to his guilt.

In the course of the charge delivered by the learned trial judge he said: “The testimony of the defendant Benedict is to be considered by you, and tested and scrutinized in the same way that you consider and scrutinize the testimony of any other witness; yet you will, in determining his credibility, consider the fact that he stands charged with a criminal offense, and that he is, therefore, an interested party. If you find from the evidence that the character of the defendant is bad, then you may take that fact into consideration in connection with all the other evidence in the case in arriving at a conclusion as to whether the defendant committed the offense charged; and you may consider also, in that connection, that is, in connection with all the other evidence in the case, that men of bad character are more likely to commit offenses than men of good character; but in this connection it will be proper for me to say to you, that should you define the defendant’s character to be bad, you are not permitted from that circumstance to infer that he is guilty of this offense; but it is when that circumstance, taken in connection with all the other evidence in the case, convinces you beyond a reasonable doubt that the defendant is guilty of forging the names of Keyes and Strong to this bond, “Exhibit No. 8.” The forgery must be proved; but you may consider, if you so find the fact that the defendant’s character is bad, whether a person of bad character would not be more likely to commit the offense with which the defendant stands charged. If you find from the evidence that the character of the defendant is good, then you should take that fact into consideration, in connection with all the other evidence, in arriving at a conclusion as to the guilt or innocence of the defendant. Bear in mind that men of good character are not so liable or likely to commit the offense with which the defendant Stands charged as men of bad character; but it is proper for me to say to you in this connection, that if you find from all the evidence in this case that the defendant committed the offense with which he stands charged, and you are satisfied of that fact beyond a reasonable doubt, then good character can avail him nothing.

“ Good character is something upon which the defendant can rely until the crime with which he stands charged is proved against him beyond a reasonable doubt; but the defendant has the right to have his good character, in this case, if you find it to be good, considered by you in connection with all the other evidence in the case, in arriving at a conclusion in regard to the guilt or innocence ; and if you should say from the evidence that the character of the defendant is good, then ask yourselves whether that being so, taken in connection with all the other evidence, whether upon the whole evidence that fact being considered, you entertain a reasonable doubt as to the guilt óf the defendant; and if you entertain such a doubt, after a fair review and consideration of all the evidence, then your verdict should be not guilty.” Defendant took an exception “ to the charge of the court in substance and to the effect'that if there is any evidence of bad character in this case, it may be considered by the jury upon the question as to whether the defendant is or is not guilty of the crime charged in the indictment; ” and the counsel for the defendant also asked the court “ to charge the jury as a matter of law, that they have no right to consider the question as to the good or bad character of the defendant in determining the question whether he is or is not guilty of the crime charged in the indictment.” This request was “ Refused, except as charged; ” thereupon an exception was taken. Then a request was made to the court “To charge the jury that if there is any question, if any question arises in reference to the good or baa character of the defendant, then it is only to be considered by them as bearing upon the amount of credence to be given to his testimony, and for no other purpose.” Thereupon the court replied “ Refused, except as charged,” and the defendant took an exception. We think the exceptions taken to the charge and to the refusals to charge present error. It is provided in § 389 of the Code of Criminal Procedure that a defendant in a criminal action “ is presumed to be innocent until the contrary is proved." The burden is upon the People to show the guilt of the accused. The testimony should be given of facts legitimately pointing in that direction. People v. Newton, 3 N.Y. Crim. Rep., 406.

Mr. Bishop, in his work on Criminal Law, vol. 1, § 487, observes : “ If a man is known to be addicted to various kinds of vice and crime, one is more ready to believe him guilty of some new offense than if he were a person of irreproachable character. Still, in point of law, every defendant on trial for a particular crime is presumed to be innocent both of it, and of every other crime, until the contrary is duly shown in evidence.” In considering a somewhat kindred question in Hall v. The People, 6 Parker’s Crim., 673, Peckham, J., said: “ This proof had no direct tendency _ to show that the prisoner stole the property referred to in this indictment It did not prove that the one who had stolen that, had necessarily stolen this property. It showed, or tended to show, that the prisoner was a thief, and, therefore, more likely to have stolen this property than if he had been honest. If that proof were proper, then the prosecution might in the first instance prove the bad character of the prisoner, and thus show him more likely to have committed the clime charged. This, however, would not be contended for, yet the one kind of evidence is just as admissible as the other.” In People v. Corbin, 56 N. Y., 365, in the course of the opinion it was observed by Rapallo, J.: “The fact that the prisoner made an unauthorized use of the name of Ganoung, if established, shows that he was morally capable of committing the same offense against Van Amburgh, but does not legitimately tend to show that he did so, or that he knew and understood that Van Ainburgh’s authority had been withdrawn, or that the signature in question was made with a criminal intent.” The learned counsel for the appellant calls our attention to People v. Spriggs, 11 N. Y. Supp., 433; 33 St. Rep., 989; in that case it was ruled that after the judge had fully defined the element of good character as a defense, and stated its effect, “ that it was not error to refuse a request to charge that evidence of good character, of itself, tends to prove that the defendant is not guilty of .the offense charged.” In harmony with that principle, we think it may be said that evidence of bad character does not of itself prove that the defendant is guilty of the offense charged in the indictment

In People v. White, 24 Wend., 573, Senator Verplanck said: “ The offense must be proved substantially. The harmony and justice of the law give the prisoner the right of adducing evidence of virtuous character to show the improbability of the charge, but otherwise the law must hold every man, whether virtuous or vicious in his course of life, to be innocent of any specific crime until he is proved guilty. * * * The rule and practice of our law in relation to evidence of character rests on the deepest principles of truth and justice. The protection of the law is due alike to the righteous and unrighteous. The sun of justice shines alike 1 for the evil and the good, the just and the unjust.’ Grime must be proved, not presumed ; on the contrary, the most vicious is presumed innocent until proved guilty. The admission of a contrary rule, even in any degree, would open a door not only to direct opposition of those who are vicious because they are ignorant and weak, but even to the operation of prejudices as to religion, politics, character, profession, manners, upon the minds of honest and well-intentioned jurors. * * * I think it should have no such weight or tendency at all, even when such proof of character was presented in its most direct form.”

We think the charge as given, coupled with the effect of the refusals to the requests made in respect to the question of bad character may have influenced the jury improperly. People v. White, 14 Wend, 115. Perhaps if the judge had told the jury that if they came to the conclusion that the defendant’s character was bad upon the evidence relating to that subject, that they would have been warranted in giving little or no credence to his testimony, they might have found other evidence in the case sufficient to remove all doubt in their minds as to the guilt of the defendant; but with the instruction given the jury may have been in doubt as to the guilt of the defendant, and resolved that doubt by recalling the charge of the judge in respect to the effect of bad character, and thus have reached a verdict adverse to the defendant Other important questions are presented in behalf of the appellant which we do not comment upon because the views already expressed, if adopted, lead to a new trial.

Conviction, order and judgment of the court of sessions of Otsego county reversed, and a new trial ordered, and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this court to the court of sessions of Otsego county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Martin and Merwin, JJ., concur.


source: Caselaw Access Project

author: Hardin, P.J.

license: Public Domain

text:
    In the Matter f the Proposed Village of Harrisville.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Villages—Incoe: 'oeation.
    The provisions of chapter 291 of the Laws of 1870, in relation to the incorporation of vil ages, were not repealed or altered by chapter 282 of the Laws of 1890, in£ smuch as the latter act relates to public officers to be elected rather tho.. a question of whether a certain project or proceeding shall be approved
    2. Same—Costs of a jpeal.
    The county jud ;e is authorized by § 2 of the act of 1870 to provide for paying the expens :s or costs of appeal out of the §100 required by the act to be deposited wi h the county clerk on filing a petition objecting to the election for the in orporation of a village as irregular.
    3. Same.
    Section 1357 of 1 te Code provides for an appeal from an order made by a county judge in roceedings instituted under chapter 291 of the Laws of 1870.
    Appeal from ai order made by the county judge of Lewis county, on the 4th day of April, 1892, which order contains the following langm ge “I find and decide that such prior proceedings and such e ection for the incorporation of said village of Harrisville were and are valid and legal, and that said village was duly incorporated, a id it is ordered that the appeal herein be, and the same is hereby dii missed.” Also, an appeal from an order made by the same judge o . the 18th of April, 1892, which contains the following provision: “I order and direct, that out of the moneys deposited with said ¡ounty clerk, he pay Fred C. Schraub $50, as attorney for respor dents in this matter; to Elmer P. Lake the sum of $7, for witnes 5 fees and expenses, and to Milton Garter $15, for services rend ¡red in assistance of the respondent’s attorney in the defense of said appeal, and that he pay the balance of said money, to wit, $18, to W. B. Van Allen, the attorney of appellants depositing tin same.”

      W. B. Van Allen, for app’lts; Fred C. Schraub, for resp’ts.
   Hardin, P.J.

Procedings were instituted under chapter 291 of the Laws of 1870 for the incorporation of the village of Harris-ville. Subsequent to the preliminary proceedings provided for in the early sections of that statute, a petition was filed in virtue of § 11 of the statute; that section provides that any elector qualified to vote at such election may appeal to the county judge of the county in which the territory is situated, “ by petition specifying the irregularities in and objections to such election.” That section provides for a deposit with the county clerk of the county of the sum of $100, “ to meet the expenses of the appeal.” It also provides that a day for the hearing of the same shall be appointed by the judge. A day was appointed, to wit, the 15th of March, and the parties interested" in the proceedings stipulated to adjourn the hearing until the 16th, and on that day they appeared before the judge and a hearing was had.

The section provides that “such judge shall have power,by subpoena, to compel the attendance of witnesses before him on such day, or on adjourned days.” Acting under this provision the parties on either side to the contest produced witnesses before the county judge who were sworn and gave evidence upon which the judge acted in connection to the papers relating to the formal matters connected with the proceeding. It may be observed that this provision in the section seems to be for the purpose of enabling the county judge, in disposing of any questions arising in regard to the election, to take evidence and ascertain all the facts essential to a just conclusion in the premises.

The section further provides: “ His decision as to the legality or illegality of such election shall be rendered within thirty days from -the day of presenting the petition of appeal to him.” It may be observed that in the early part of the. section it is provided that the petition shall specify objections to “ such election,” and in the latter part of the section the words: “His decision as to the legality or illegality of such election,” seem to provide principally for the review of the election. In a later section it is provided that “ If the county judge shall decide such election to be legal, he shall file an order,” etc. In the thirteenth section it is provided that “ If the county judge shall decide such election to have been illegal, he shall forthwith, on rendering his decision, make an order and file the same in the county clerk’s office in the county in which such territory shall be, directing another election to be held to determine the question of the incorporation of such territory.”

It seems, therefore, that the principal question to be determined by the county judge in the proceeding now here for review was whether or not the election held was valid; was legal or was illegal. It seems that the supervisor and town clerk, pursuant to § 6 of the statute, constituted the board of inspectors for the election ; they presided at the election, received the ballots, upon which ballots those favoring the incorporation wrote the word “ Yes ” and those opposed to the incorporation wrote the word “ Ho,” in accordance witli the provisions found in § 9. A certificate was made out of the holding of the election and of the canvass of the ballots, which showed the whole number of ballots with the word “Yes" thereon and with the word “ Ho ” thereon, together with a copy of the notice of the holding of such election, and an affidavit of posting and publishing the same, and the certificate was signed by the inspectors and verified by their affidavit and was filed in the county clerk’s office in the county of Lewis, in accordance with the provisions of § 10 of the statute. By the papers produced before the county judge and by the evidence produced before him it clearly appeared that a majority of the persons voting at 'such election in pursuance of the statute were in favor of the incorporation ; and the papers and evidence warranted the judge in concluding, as he did, that the election was held in accordance with the provisions of the statute upon that subject. However, it is insisted in behalf of the appellants that the election was not held in accordance with the provisions of chap. 262 of the Laws of 1890. The first section of that statute provides that “All ballots cast in elections for public office within this state shall be printed and distributed at public expense.” The second section provides that any convention or primary meeting “ held for the purpose of making nominations to public office * * *

may nominate candidates for public office to be filled by election within the state.” -In the case in hand no election for public office was to be or was held in the town of Diana or in the territory proposed to be incorporated. The acts just referred to, as well as the other sections, do not seem to apply to the case in hand. In § 45 of the act of 1890, it is provided that “ All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.” Inasmuch as the act of 1890 relates to public offices to be elected rather than a question of whether a certain project or proceeding shall be approved, we are inclined to the opinion that the provisions of the act of 1870 were not repealed or altered by the Laws of 1890. We are of the opinion that the county judge was warranted by the papers and the evidence produced before him to find and decide as he did, that the election was legal

(2) Having reached the conclusion that the election was legal, we think the provision in § 11 authorized him to provide for paying the expenses or costs of the appeal out of the one hundred dollars deposited with the county clerk. The section provides as follows: “ If such decision shall be adverse to the prayer of such petition, he shall, within ten days from rendering such decision, by order signed by him,' direct such portions as he may deem just of the one hundred dollars deposited with the county clerk to be paid by such clerk to the persons in such order named, and the balance to the person or persons who deposited the same.” The order was made within ten days from the order in which he decided that the election was legal.

(3) We are of the opinion that § 1357 of the Code of Civil Procedure provides for an appeal from the order made by the county judge, as that section authorized an, appeal from an order “affecting a substantial right, made by a court of record, possessing original jurisdiction, or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision.” The county judge of Lewis county • was a “judge of a court of record having original jurisdiction ; ” and the special proceedings were brought before him “ pursuant to a special statutory provision.” The question was raised in the Matter of the proposed village of Elba, 30 Hun, 548, although it was not directly passed upon by this court when that decision was made.

(4) Several other questions are raised and discussed in the brief of the learned counsel for the appellants, and are quite satisfactorily disposed of by the opinion of the learned county judge.

We think the orders appealed from should be affirmed, with costs.

Order of April 4, 1892, affirmed, with costs as upon an appeal from a judgment.

Order of the 13th April, 1892, affirmed.

Martin and Merwin, JJ., concur.


author: Hardin, P. J.

text:
    Ira W. Perry, App’lt, v. Thomas Perry et al., Resp'ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Will—Proof of lost.
    In order to establish an instrument as a lost will pursuant to §§ 1861 to 1867 of the Code, it is incumbent upon the plaintiff to establish that the will was in existence at the time of the death of the alleged testator, or that it was fraudulently destroyed in his lifetime.
    Appeal from a judgment entered upon a decision made at the Oneida special term dismissing plaintiff’s complaint. On the 16th day of February, 1891, Ellenor Perry died in the city of Utica at her residence, 57 Lansing street, leaving her surviving children and grandchildren who are parties to this action. At the time of her death she was the owner of the premises known as 57 Lansing street. Plaintiff's amended complaint alleges that the deceased for a valuable consideration, in her lifetime, “ being then the owner in fee and in full possession of the premises hereinafter described, executed, acknowledged and delivered to him, and for his sole use and benefit and behoof, an instrument in writing, by which she duly granted and conveyed to him in fee simple and to his heirs and assigns forever, he to have, take and hold the same absolutely, although the interest or right to the possession thereof was postponed until the death of the said grantor, and by the terms thereof the said premises and real estate, etc.” Plaintiff also alleges that after the death of his mother at the homestead “ a due and diligent search was made, and also a due inquiry among the papers and effects of the said deceased and in all places where the same would be likely to be found, but that he could find no trace nor information sufficient to ascertain as to what became of the said deed and instrument as above described, although the same (upon record) bears date February 25, 1884, and after the due acknowledgment thereof, and the due recording thereof, was duly and by the said acting county clerk, A. H. Ballou, Esq., duly and in person handed over and delivered by the said clerk to the said Ellenor Perry, the said grantor therein named, and should have been found among her papers and effects and in and about her said residence, and which abstraction or destruction of the said deed and instrument was so accomplished in some manner unknown to this plaintiff, and cannot be accounted for unless it was mutilated or burned or destroyed by the two said defendants, Mary Jane and Catharine Perry, or one of them." It alleges that the defendants mentioned “ had ample opportunity so to do; ” and it alleges that the said defendants have presented to the surrogate of Oneida a will made December, 1887, by the mother. The plaintiff asks that the instrument of 1884 “be declared and adjudged as valid and subsisting deed and grant of the premises; * * *
    whether as a lost or destroyed will or a lost and destroyed deed and as provided by law, and so adjudged by the court and upon the proofs adduced.” The defendants in an answer admitted the death of Ellenor Perry, and that the parties to this action are her sole heirs.surviving at law, and denied the other allegations of the complaint; and they also, in their answer, allege that Ellenor Perry was the owner of lot 57 Lansing street, Utica, and they allege that on the 3d day of December, 1887, she then executed and published in proper form of law her last will and testament, and set out a copy of the same, and that it was by her delivered to the attorney who drew the same, and retained by him until after her death, when it was delivered to the surrogate of Oneida for probate.
    It is found that the will of the 25th of February, 1884, was made and executed, and that, on the 29th of October Ellenor Perry delivered it to the clerk of Oneida county, at his office ; that the clerk made a memorandum of the receipt of the same, and recorded the same, and that the same was delivered to Ellenor Perry, December 10, 1885, “when she carried it away." It is found “ That on or about December 3d, but without the knowledge of the plaintiff, the said instrument above set forth was thrown into a stove and burned by the said E. J. Ball at the direction of Ellenor Perry, which act he (said Ball) had previously and upon the same occasion advised her she had a right to do, and which act was done in her presence and in the presence of W. D. Ball.”
    As conclusions of law it was found “ That the instrument signed and executed by Ellenor Perry on or about February 25, 1884, was a will and testament. (II.) That the same was subject to the control of the testator, and could have been revoked and altered by her at any tima (HI.) That said instrument was revoked on or about the 3d day of December, 1887, by its destruction at the request of the testator. (IY.) That the said instrument was not a deed and did not convey to the plaintiff the title to the premises described in the complaint (Y.) That there was not sufficient évidence on the part of the plaintiff to make out a cause of action.” Judgment was directed for the defendants dismissing the complaint, with costs, and dissolving an injunction that had been obtained.

      W. H. Gardenier and William Kernan, for app’lt; E. J. & W D. Ball, for resp’ts.
   Hardin, P. J.

Nothing appears in the instrument of February, 1884, indicating that it was intended as a deed of the premises mentioned therein.

(2) Nothing appears in the evidence adduced at the trial indicative that the deceased intended the instrument to operate as a deed or conveyance of the premises. On the contrary the language of the instrument and the evidence of the circumstances under which it was executed, unite in indicating that the instrument was intended as a last will and testament of the deceased Ellenor Perry. She, therefore, had the right to revoke the same during her life. It is vtrell settled that where a will is not found to be in existence at the time of the death of the testator, there is a presumption that it was revoked.

It was said in Holland v. Ferris, 2 Bradf.,335, “ If a will proved to have been executed and to have been in the possession of the decedent cannot be traced to the custody of another, or cannot be found, the presumption of law is that it has been destroyed. anima revocandi

It was provided in § 67 of the Revised Statutes, as appears at page 153 of the 3d vol. 5th edition, as follows: “ No will of any testator who shall die after this chapter shall take effect as a law, shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator; or be shown to have been fraudulently destroyed in the lifetime of the testator.”

This section fell under the eye of Judge Mason for construction in Knapp v. Knapp, 10 N. Y., 278, and after quoting the portion of the section above given, he said : “ This statute recognizes the former common law rule, by requiring proof either that the will was in existence at the time of the death of the testator, or that the legal presumption that the testator destroyed it anima revocandi be overcome by satisfactory proof that it was fraudulently destroyed in the lifetime of’the testator.” In that case it was held there was not sufficient evidence to authorize a submission to the jury of the question whether the will in controversy was in existence at the death of the testator; and a fortiori not sufficient to justify proof of its contents. In the Matter of Nichols, 40 Hun, 387, it was held, viz.: “ Where a will, which was last seen in the possession of the testator, cannot be found after his death, the legal presumption is that he destroyed it for the purpose of revocation.” It seems the plaintiff supposes this action may be maintained to establish the instrument of February, 1884, as a lost will pursuant to the provisions of article 3 of title 3 of the Code of' Civil Procedure, containing §§ 1861 to 1867, inclusiva It is provided in § 1865 of the Code as follows: “ But the plaintiff is not-entitled to a judgment establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator's death or was fraudulently destroyed in his lifetime." It was, therefore, incumbent upon the plaintiff in order to bring his' case within the provisions of the sections to which reference has: been made, to establish that the will of 1884 was in existence in 1891 at the time of the death of Ellenor Perry, or that it was-fraudulently destroyed in her lifetime. No satisfactory evidence of either fact was given upon the trial. On the contrary, it does appear by evidence that the will was by her act destroyed on the 3d of December, 1887. There was not sufficient evidence given upon the hearing to warrant the court in giving the relief provided for by the sections of the Code relating to establishing a lost will. We are, therefore, of the opinion that the trial judge properly held that the instrument of February, 1884, was not a deed, and that upon the evidence before him it could not be established as a lost will. We think no error was committed upon the trial calling for an' interference with the conclusion reached, and that the judgment should be affirmed, with costs.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


author: Putnam, J.

text:
    Stephen L. Constable, Resp’t, v. Rufus Lefever et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Services—Evidence.
    In an action for work, labor and services performed for defendants, neither the complaint nor answer contained any allegations as to an agreement as to the price to be paid. Plaintiff testified that he told defendant what he would work for, but that defendant said he could not afford to pay that; that he thought it should be for a lower sum, which plaintiff refused to take. Defendant testified he was to pay the lower sum. Bold, that the referee was justified in refusing to find that there was an agreement fixing the price, and in admitting evidence of the value of plaintiff’s services.
    3. Rexebence—Evidence.
    Where evidence as to a particular matter has been given by both parties, it is within the discretion of the referee whether to allow one of the parties to go over the matter again.
    Appeal from judgment In favor of plaintiff, entered upon report of a referee.

      Lawton & Stebbins (S. L. Stebbins, of counsel), for app’lts; D. W. Sparling ( William Lounsbery, of counsel), for resp’t.
   Putnam, J.

The complaint alleges a cause of action for work, labor and services performed by plaintiff for defendants, as co-partners, for which they became indebted to him in the sum of $343.50 ; that only $166.42 had been paid thereon, leaving a balance of $177.08 due the plaintiff.

The answer admitted that plaintiff had performed labor for defendants as co-partners, but denied that the indebtedness therefor was the amount stated in the complaint, and also set up two small counterclaims, which were allowed by the referee. The referee found due the plaintiff $141.85.

Neither the complaint or answer has any allegation indicating whether or not there was any agreement between the parties as to the price per day plaintiff was to receive for his services.

The questions to be considered by us are, whether the exceptions taken on the trial by the defendants, or any of them, required a reversal of the judgment.

The exceptions to the ruling of the referee allowing the value of plaintiff’s services per day to be shown were properly overruled. The referee, perhaps, could have determined from the evidence that a contract was made between the plaintiff and defendants as to the price plaintiff was to have for his work, but the testimony was such that he could also properly reach the conclusion that the minds of the parties never met as to the price plaintiff was to have. As plaintiff testifies, the conversation with defendants preceding his employment was as follows: “ I made the agreement before I commenced work with Rufus Lefever; I told him how much I wanted a day; I told him I wanted $1.50 per day; he said he couldn’t afford to pay me that; he told me as we were going out the door to take the team and go to work.”

On cross-examination he also testified: “ Then I told him I would draw the lime at a cent a barrel or at $1.50 per day by the day; he said he wouldn’t give me a cent a barrel, that he thought it ought to be done for a while at $1.25 per day; I said I wouldn't do it for less than $1.50; when we were walking out he told me to take the team in the morning; I did so.” Defendant testified he was to pay $1.25 per day. This testimony indicates that no-sum was agreed upon. It does not show a meeting of the minds of the parties as to the price to be paid. I, therefore, think that the receipt of the evidence as to the value of plaintiff’s services during the time he worked for defendants, and the referee’s refusal to find that there was an agreement fixing the price for such services per day, was not error.

I also conclude that the referee properly sustained the objection to the question, “Did he then promise to pay you $1.50?” The conversation between the parties at the time of the employment of plaintiff had been drawn out by plaintiff, and had also been detailed in defendant’s examination of the witness before this question was asked, and it was within the discretion of the referee whether or not to allow the defendants to go over the matter again. It was also not error to exclude the evidence offered as to the plaintiff’s “ being out with the Knights of Labor.” This proposed evidence was entirely immaterial, and its exclusion could not have influenced the result. The referee did not err in refusing to find as a fact the payment of the five dollars as requested by the appellants, for the reason that the defense of such payment was not asserted in the answer. I also think the referee, for the reasons before stated, was justified in declining to find as requested by defendants, that shortly before plaintiff commenced working for defendants they agreed upon a price per day and that such price was $1.25. I construe the referee’s note of “not found,not as a refusal to pass upon the requested finding, but a-refusal to find as requested.

For reasons also above stated, I think the referee did not err' in holding that no agreement was made between the parties as-to the price plaintiff should receive for his services. Whether such an agreement was or was not made was a question of fact for the referee to decide. Certainly the testimony given by the plaintiff did not show any meeting of the minds of the parties as to the price, and the referee, relying on plaintiff’s testimony, could very well reach the conclusion he did.

The evidence tends to show that plaintiff performed 230 days work for the defendants, as found by the referee. The plaintiff testified to that effect, and the referee, believing his statement, could find as he did. Also, I do not discover that defendants on the trial took the position that some part of the work performed by the plaintiff was done for Lefever alone, and, lienee, was not a legal claim against both defendants. Hence, such an objection to the recovery could not be entertained now.

The judgment should be affirmed, with costs.

Mayham, P. J., and Hebbiok, J., concur.


text:
    Dudley S. Bartlett, Supt of Poor, App’lt, v. Levi Ackerman, Overseer of Poor, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Poor—Indigent persons.
    A widow with children, who has a little personal property and is sick and unable to work, and whose husband’s funeral expenses were paid by the town, and who has received aid from the town without objection from the overseer, is a poor and indigent person, within the meaning of the statute against the removal of poor persons from one town or county to another, with intent to charge such town or county with their support.
    2. Same—Removal.
    What will not constitute such removal.
    Appeal from judgment in favor of defendant, entered upon the report of a referee.
    Action to recover for the support of an alleged poor person under the statute. E. S., part 1, chap. 20, § 58.
    The facts appear in the opinion of the referee, as follows: 0. M. Parke, Referee.
    This action was brought by the superintendent of the poor of Montgomery county, N. Y., against the overseer of the poor of the town of Danqbe, Herkimer county, N. Y., to recover certain expenditures made on account of Pauline Hansen and her minor children, alleged to have been removed from Danube, Herkimer county, to Minden, Montgomery county, in violation of the provisions of the Revised Statutes relating to the support of the poor.
    The contested questions in the case are, were Pauline Hansen and her minor children indigent persons within the meaning of the statute at the time alleged; and, second, were they removed from Danube to Minden with intent to charge the latter town or the county of Montgomery with their support ?
    We find that Mrs. Hansen had lived with her husband upwards of two years prior to May 31, 1890, in the town of Danube; she had four minor children; on May 31, 1890, her husband died. They had prior thereto rented and worked a small place of about eighteen acres, which was owned by a Mr. Dell; Mrs. Hansen owned what was on the place, consisting of two cows, a horse, two pigs and some produce; this property she sold during the summer and realized about $135; two weeks before her husband’s death she had been confined, and at the time of his death was still weak and sick and unable to work; the day of Mr. Hansen's death she left her home with her children and went to one of the neighbor’s, Mr. Snell’s, and remained until the funeral, June 3, 1890. From this time for several months she was weak and sick, could only take care of her children, and some of the time requiring an attendant to care for her; at the time of her confinement and attendant sickness Dr. Young was her physician, and his bill for such service was afterward audited and paid by the town board. The funeral expenses of Mr. Hansen was also audited and paid by the town board; the overseer of the poor at or about the time of the funeral told the undertaker that if Mrs. Hansen did not pay the expense, he, the overseer, would see that he got his pay.
    Enough appears from the evidence to give a pretty clear view of the situation.
    Mr. Hansen had no money when he died; Mrs. Hansen had no monéy, but she had the personal property above mentioned and no other except a little provision which she carried with her when she left; she was left with four small children, one newly born; she herself was unable to work; she immediately became dependent, and, as events proved, continued so for several months; the town by its audit of Dr. Young’s bill incurred prior to Hansen’s death has admitted that she was then a worthy object of public charity ; afterwards in July the overseer did not raise any ques ¡ tian as toher condition, but furnished assistance readily; unde'I these circumstances I am led to the conclusion that Mrs. Hansen,! in June and July, 1890, was poor and indigent within the definitions as laid down in the statute and authorities. Rev. Stat. (Banks Ed.), 2,106; Knapp Law of Poor, 1; Goodale v. Lawrence, 88 N. Y., 517 ; City of Albany v. McNamara, 117 id., 168; 27 St. Rep., 165.
    This conclusion will impress itself more forcibly if we assume for the moment that under such circumstances the overseer of Danube took her over into Minden and left her with the avowed intention of making the latter town chargeable' with her support. Would the town of Danube escape liability by alleging that she was not indigent? I think not.
    But another essential element of plaintiff’s case is that the indigent person must be removed, etc., and must be removed with intent to make the other town or county chargeable with her supnort.
    However difficult it may be to obtain a judgment in such a case, the provisions of the statute as interpreted by the higher courts must be followed. Rev. Stat. (Banks’ ed.V 2,117, §§ 58, 59 ; Foster v. Cronlchite, 35 FT. Y., 150; Cortland Vo. v. Herkimer Co., 44 id., 26; Coe v. Smith, 24 Wend., 341.
    Mrs. Hansen left her home on the day her husband died with her children, and remained at one of the neighbors until after the funeral when she voluntarily went over into Minden with her children, taking her provisions and clothing with her; she sold what little property she had and never returned to Danube except for one day and then to pack her remaining effects and have them taken away.
    There is no act in the whole transaction that is contended to be a removal within the statute except the act of Hyde in giving the order for the house.
    But Mrs. Hansen at the time this order was given had been gone from Danube more than six weeks ; apparently with no intention of returning; this she had a right to do and no liability was incurred thereby. Foster r. Oronkhite, 35 N. Y., 150 ; Coe v. Smith, 24 Wend., 341.
    The house hired was selected by her as the place where she wished to live ; Hyde, when he gave the order, swears he did not know the location of the house; he asked Oeser which town it was in and Oeser could not tell him, though he lived only two miles from the Dingman house, while Hyde lived seven or eight; it is fair to assume that the house was near the town line since it was only a mile from Mrs. Hansen’s former home in Danube.
    It may be that Danube has furnished support for this family which it was not legally bound to furnish so long as she went to and remained in Minden voluntarily ; if so, Minden is by so much the gainer; but such fact does not create any liability under the statute in question.
    Upon the facts proven, I fail to find any evidence showing a removal with intent to charge the town of Minden with the support of this family, even without considering the positive denial by Hyde of any such intent.
    Judgment should be directed in favor of the defendant.

      W. B. Dunlap, for app'lt; Charles J. Palmer, for resp’t.
   Putnam, J.

This action was brought by plaintiff, as superintendent of the poor of Montgomery county, against defendant, as overseer of the poor of the town of Danube, Herkimer county, to recover expenditures made on account of one Pauline Hansen, alleged to be an indigent person, and her infant children, who, plaintiff claimed, had been removed from Herkimer county to Montgomery county in violation of the statute. .

The issues in the case were, whether said Pauline Hausen and her children were indigent persons under the statute or otherwise; and, second, were they removed by defendant or his predecessor to Montgomery county with intent to charge said county with their support.

The only questions raised are of fact. The referee reached the conclusion that the said Pauline Hansen and her children were, within the meaning of the statute, indigent persons, but that the evidence in the case failed-to establish a removal of such indigent persons from the county of Herkimer to the town of Minden, in Montgomery county, with the intent to charge said town with the support of this family.

A careful examination, of the evidence in the case leads us to the conclusion that the findings of the learned referee on the questions of fact in the case are correct We think that his conclusious are fully sustained by the evidence, and coincide with his vievvs as stated in his opinion.

It follows that the judgment should be affirmed, with costs. Mayham, P. J., and Herrick, J., concur.


author: Mayham, P. J.

text:
    Thomas C. Birdsall, Resp’t, v. George E. Keyes, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Costs—Appeal to county court—Insufficient offer.
    An insufficient offer made upon an appeal for a new trial in county court, and not accepted, when the recovery exceeds the offer, leaves the case as if no offer had been made, and the successful party is entitled to liis costs.
    8. Same.
    Where the recovery in county court is for a sum sufficient to entitle the plaintiff to costs if his action had been originally commenced in that court, he is entitled, under § 3071, to the full bill of costs in such an action.
    Appeal from an order of the Albany county court.

      George II. Stevens, for app’lt; James C. Johnson, for resp’t.
   Mayham, P. J.

The plaintiff recovered judgment in justice’s court for §77 and costs, from which the defendant appealed to the county court, and demanded a new trial. Before the justice filed his return the appellant served on the respondent and his attorney an offer to allow judgment to be rendered in the appellate court for §30. This offer was not accepted, and no offer wasi made by the respondent. On the trial in the county court, the* respondent recovered a verdict for $55, on which judgment was entered with $57.31 costs, amounting in all to the sum of $112.31. On a motion for readjustment of costs, the appellant objected to the allowance of costs to the respondent, but the same were readjusted by the clerk at $52.31. The appellant then moved in county court to strike out the costs allowed by the clerk and inserted in the judgment, which motion was denied, and from the order denying that motion the appellant appeals.

The determination of the question on this appeal must depend upon the construction to be given to the various provisions of the Code of Civil Procedure relating to the subject, as we have not been referred by the learned counsel in their briefs to any case precisely like the one at bar.

The sections of the Code which relate directly to the questions of costs on appeals in the county court where a re-trial is asked for in that court are 3070, 3071 and 3072.

Section 3070 provides that within fifteen days after service of notice of appeal either party may make an offer in writing to allow judgment to be taken in the appellate court for a specified sum, and if the same be not accepted, the party on whom it is served will be liable for costs to his adversary unless the recovery is more favorable to him than the offer.

The only real effect of that offer is to entitle the party making it to costs if the recovery is less favorable to his adversary than the offer.

When the offer is not accepted and is not as favorable to the adverse party as the result of the trial, the offer has no effect upon the question of costs.

If this were not so, then an offer, however insufficient or inadequate, if not accepted, would deprive the successful party of costs. No such result can fairly be deduced from this section.

An insufficient offer, not accepted, when the recovery exceeds the offer, leaves the case as if no offer had been made, and the successful party in that case is entitled to his costs.

But if there be doubt as to the true interpretation of § 3070, standing alone, when read and construed in connection with § 3071, the legislative intent on this subject seems quite apparent. The latter section provides that after the expiration of ten days from the time of filing the justice’s return the action is deemed an action at issue in the appellate court; and all proceedings therein, including the entry of judgment, are the same as if the action had been commenced in the appellate court, except as otherwise specially provided.

When an appeal has reached the stage that it has become an issue in the appellate court to be triéd and disposed of as an action originally commenced in that court, the rights of the parties upon the question of costs are governed by the provisions ■of law applicable to such original actions. •

In this case, the recovery in the county court was for a sum sufficient to entitle the plaintiff to costs if his action had been originally commenced in the county court, and he is,, therefore, ■entitled, under the provisions of § 3071, to the full bill' of costs in such an action.

We think the order of the county court appealed from was correct, and should be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurs; Herrick, J., concurs in result.


text:
    Elsie S. Morrison, Ex’rx, Resp’t., v. Thomas H. B. Crane, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Reference—Compulsory.
    This action was brought upon an alleged agreement of assignees for creditors on a sale of real estate to pay a certain mortgage thereon, and to recover of the preferred creditors a sufficient amount to pay the same. The assignees denied making such agreement. Held, that a reference could not he compelled, as the examination of a long account was not involved; the real issue being as to whether such agreement was made. If plaintiff should recover on such issue, a reference might afterwards be ordered to take proof as to the portion of the recovery which each defendant should pay.
    Appeal by the defendants from an order referring the action to a referee to hear, try and determine. The defendants opposed a reference.
    The action was originally brought by one Alexander C. Morrison, to whom Fales assigned the cause of action, and is now prosecuted by Morrison’s executrix.
    The facts set forth in the complaint are briefly these: Clark & Kline in 1883 became insolvent and made a general assignment for the benefit of their creditors to Hinman & Crane. At the time of the assignment the assignors owned two parcels of real estate, one known as the “Globe mill property,” the other as the “Brewery property.” The former was encumbered to the amount of about $50,000, and the latter was mortgaged to Morris to secure him against liabilities to the amount of $6,000. In 1884 the assignees agreed to sell to Fales the two parcels of real estate for $35,000, subject to all encumbrances, except that said assignees agreed to pay said Morris mortgage out of said $35,000. A deed of said two parcels was thereupon made and delivered by said assignees to Fales, containing the clause “ subject to existing liens and encumbrances thereon,” and the $35,000 purchase price paid. The assignees failed to pay the Morris mortgage, and Fales was subsequently compelled by foreclosure proceedings to pay the same. The assignees proceeded to pay said $35,000 to the preferred creditors under the assignment, and now have no funds in their hands.
    The plaintiff has requested the assignees to bring an action to recover from the preferred creditors a sufficient amount of the money paid them under'their preferences to reimburse him, and the assignees have omitted to do so. The plaintiff seeks in this action to recover from the preferred creditors a sum sufficient to reimburse him for his payment of the Morris mortgage. The issue in the case is whether the assignees upon the sale to Fales agreed to pay the Morris mortgage out of the purchase price.

      C. S. Nisbet, for app’lts; E. F. Bullard, for resp’t.
   Putnam, J.

The real issue in this caséis whether the assignees of “Clark & Kline” agreed, on the sale to plaintiff’s assignor of the real estate described in the complaint, to pay out of the purchase money the “ Morris ” mortgage, which was a lien thereon and which plaintiff’s assignor was afterwards compelled to pay.

It is quite clear that the action does not involve the examination of a long account within the meaning of § 1013 of the Code of Civil Procedure. If the plaintiff should succeed on the only real issue in the case, i. e., as to the agreement of the assignees of “ Clark & Kline ” to pay said mortgage, on which issue defendant is entitled to a trial by jury, a reference might be afterwards ordered, if desired, to take proof as to the portion of plaintiff’s recovery that- each defendant should pay. Drexel et al. v. Pease et al., 41 St. Rep., 236 ; Thayer v. McNaughlon, 117 N. Y., 111; 26 St. Rep., 843; Camp v. Ingersoll, 86 N. Y., 433.

The order should be reversed, with costs and printing, and the motion for a reference denied, with costs.

Mayham, P. J., and Herrick, J., concur.


text:
    Charles A. Smith, App’lt, v. Andrew D. Simmons, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    New tbial—Absence op exceptions.
    Where no valid exception was taken during the progress of the trial, nor to the direction of a verdict, a denial of a motion for a new trial is proper and the judgment should be affirmed.
    Appeal from judgment entered upon verdict for defendant directed by the court.
    Action for damages caused by the death of plaintiff’s horse which fell into an excavation made on defendant’s premises, where said horse was pasturing under an agreement with the defendant.

      Spencer & Banker (Edgar A. Spencer, of counsel), for app’lt; Smith & Nellis (Andrew J. Nellis, of counsel), for resp’t.
   Putnam, J.

No exceptions were taken during the trial that should cause a reversal of the judgment. After the parties had rested defendant moved that the court direct a verdict against plaintiff in his favor of no cause of action. Plaintiff asked to go to the jury upon the questions involved in the case. The court denied the plaintiff's motion and directed a verdict for the defendant.

To this ruling of the court and direction no exception was taken by the plaintiff. The plaintiff then moved for a new trial upon all the grounds specified in § 999 of the Civil Code, which motion was denied, plaintiff excepting.

Inasmuch as no valid exception was taken by the plaintiff during the progress of the trial, nor to the direction of the court to the jury to render a verdict in favor of defendant, the motion for a new trial was properly denied. But if otherwise, as no order was entered denying the motion, we cannot consider the propriety of the ruling of the court. The question is not before us. The only way that the exception from the order denying a new trial could be considered by us would be on appeal from the order had one been entered. There is no order, and hence no appeal from the ruling of the court denying the motion.

All that is before us, therefore, is the appeal from the judgment. And no exception being taken to the direction for a verdict or other material exception to the rulings of the court upon the trial, and as, under the circumstances, we cannot consider the case upon its merits, it follows that the judgment must be affirmed, with costs. See Jacobson v. Cornelius, 52 Hun, 377—378; 24 St. Rep., 360 ; Third Ave. R. r. Co. v. Ebling et al., 100 N. Y., 98 ; Ainley v. Manhattan R. Co., 47 Hun, 207 ; 13 St. Rep., 557.

Mayham, P. J., and Herrick, J., concur.


text:
    Sarah E. Lockwood, App’lt, v. The Salmon River Paper Co. et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Costs—Teial bee—Discontinuance.
    On the call of the calendar the case was announced ready for trial, hut

      a notice of discontinuance was served and nothing further was done at that term. An order of discontinuance having been subsequently entered, Held, that defendants were not entitled to a trial fee.
    Appeal from orders denying motion for readjustment of costs. Action to foreclose a mortgage.

      John I. Gilbert, for app’lt; McClary & Paddock (Frederick C. Paddock, of counsel), for resp’t, Salmon River Paper Company ; Cantwell & Cantwell (William, P. Cantwell, of counsel), for resp’t, F. D. Kilburn, trustee, etc.
   Putnam, J.

The affidavits show that this case was upon the calendar of the Franklin county circuit in March, 1892, and upon the call of the calendar was announced as ready for trial. But before it was reached or moved for trial plaintiff served upon defendants a notice of discontinuance, and no further proceedings were taken in the case at that circuit. At a subsequent special term an extra allowance was granted to each of the defendants and an order entered discontinuing the action. The defendants might have insisted upon moving said cause when it was reached on the calendar and on having said cause dismissed at the circuit, and in that case would have been entitled to a trial fee. The service of the notice of discontinuance, without an order being entered, did not stay defendants’ proceedings, but as the cause was not in fact moved or dismissed at the circuit I am unable to see how a trial fee can be properly allowed. Sutphen v. Lash, 10 Hun, 120; Studwell v. Baxter, 33 id., 331; Oelbermanv. Rosenbaum, 4 N. Y. Sup. 210 ; 2nd Ramsay’s Practice, and cases cited.

In Jones v. Case, 38 How., 349, the cause was reached and moved for trial. See Ehlers v. Willis, 63 How., 341. The distinction between Jones v. Case and the present action is apparent. In this case on the regular call of the calendar it was announced as ready for trial. Afterwards a notice of discontinuance was served and nothing further was done with the cause at that circuit. In Jones v. Case, the cause was actually reached and moved for trial and the court held that moving a cause for trial was equivalent to a trial under the circumstances.

The orders should be reversed, with costs and printing in each case, and the motions for retaxation in each case granted, with costs. But as the defendants are entitled to a calendar fee for the term in question, to save the parties from a future motion, the better course is to enter an order directing the clerk of Franklin county to deduct from each bill of costs as taxed twenty dollars.

Mayham, P. J., and Herrick, J., concur.


author: Herrick, J.

text:
    Sarah E. Lockwood, App’lt, v. The Salmon River Paper Co. et al., Resp’ts.

      (Supreme Count, General Term,, Third Department,

      Filed November 22, 1892.)

    1. Costs—Extra allowance.
    It is within the power of the court to grant an extra allowance in an action which has never been brought to trial. The case may be of such character and importance, involving difficult legal questions and requiring

      such labor in preparing for trial that the court would, be justified in granting such allowance upon discontinuance or default without trial.
    2. Same—Eobeolosure.
    Even in a foreclosure action some of the same reasons that warrant an allowance in other actions should be shown to authorize the granting of an allowance.
    Appeal from orders granting an extra allowance to each of the defendants.

      John I Gilbert, for app’lt; McClary & Paddock (Frederick C. Paddock, of counsel), for Salmon River Paper Co., resp’t; Cant-well & Cantwell (Thomas Cantwell, of counsel), for resp’t, Kilburn.
   Herrick, J.

This is an appeal from an order of the special term granting to each of the respondents an extra allowance of two hundred dollars costs.

The action was for Ihe foreclosure of a mortgage of $15,000.

Both respondents interposed an answer.

It was on the calendar of the court but once, and after some negotiations for a reference, was at the same term of the court discontinued by the plaintiff.

The reasons for such discontinuance are not necessary to be set forth here, suffice it to say that they are not of a character to indicate that the plaintiff’s action was recklessly or carelessly commenced or that she had not a good cause of action.

Undoubtedly it is within the power of the court to grant an extra allowance of costs in an action which has never been brought to trial.

The case may be one of such character, of such importance, involving legal questions of such difficulty, rendering necessary such labor in preparing the case for trial, that the court is justified in awarding more than the statutory costs upon a discontinuance of the action, or upon a default, without trial.

The question of granting or refusing an extra allowance, and the amount thereof, if granted, is so largely a matter of discretion that appellate courts hesitate to disturb the orders made at special term. Still, they are subject to review. And when we consider that they are usually decided upon in the hurry of a special term, largely upon the oral presentation of the case, without an opportunity for a close examination, or careful weighing of the merits of the application, it should not be considered any reflection upon the wisdom or prudence of the court before which it was first heard, if the appellate court, with opportunity for greater deliberation, with the printed case before it, wherein the facts are coldly set forth, and not magnified or colored by the oral arguments of ingenious counsel, comes to a different conclusion as to the difficulty of the case and the amount of labor involved.

.In this case the maximum allowance that can be granted to a party after trial has been granted to each of the respondents without a trial, in addition to a separate bill of costs to each.

To warrant this it seems to me that there should be some-tiling in the case to convince the court that unusual and difficult questions of law were involved, that required more than usual labor to investigate, or that the facts were such that more than the usual amount of labor was necessarily involved in investigating them.

The litigation was not a protracted one. It was only upon the calendar one term and was discontinued during that term.

It is evident that no considerable, if any, preparations were made to try it at that term.

Both parties agreed that it was a referable case, the only contention was over the question who should be the referee, and while negotiations were being had upon that question, the case was discontinued.

If extra allowance, to the maximum amount are to be granted under such circumstances, nearly every case that is commenced can be made to appear the proper subject for an allowance, and a case where judgment is taken by default, or ended by voluntary discontinuance, will for all practical purposes stand on the same footing as one that has only been ended by a decision of the court of last resort; no more can be had at the end of a long laborious- and expensive litigation than for one disposed of without a trial.

It does not strike me that in this case there was anything that takes it out of the class of every day ordinary litigation, except its speedy termination.

Being an action of foreclosure, under a literal reading of the, Code, it need not be a difficult and extraordinary case to empower ' the court to grant an extra allowance; but still I think some of the same reasons that warrant a court in granting an allowance in other actions should apply in actions of foreclosure.

It seems to me that this case presents none of the features that calls for an extra allowance, and as an original proposition I would not feel disposed to grant any; as it is, however, I do not feel inclined to entirely disregard the views of the special term. The defendants for all practical purposes are one, their interests are the same, and could have been protected by the same counsel.

I think the allowance should be reduced to two hundred dollars-to be divided equally between the respondents.

Let an order be entered accordingly, with ten dollars costs and printing and other- disbursements to the appellant

Mayham, P. J., and Putnam, J., concur.


author: Putnam, J. Mayham, P. J.

text:
    John H. Sheehan, Surviving Partner, Resp’t, v. Daniel W. Fleetham, Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Partnership—Evidence.
    In an action against two persons as partners, the declarations of one of the defendants made in the absence of the other to a mercantile agency, and the report of such agency presumably founded on such declarations, to the effect that a copartnership existed between such defendants, are inadmissible to prove that fact as against such other defendant.

      Appeal from a judgment entered upon a verdict of a jury at the circuit, and from an order denying a motion for a new trial upon the minutes of the judge.

      Sawyer & Sawyer (George C. Sawyer, of counsel), for app’lt; Nelson L. Robinson (William Neman, of counsel), for resp’t.
   Putnam, J.

I concur in the views stated in the opinion of Justice Mayham, that the former decision in this case concludes us as to the greater part of the questions involved, and that the trial judge properly submitted the question of fact as to the partnership to the jury. But I have reached the conclusion that an error was committed in overruling defendant’s objections to the evidence of the witness Hutchins, as to his declarations to the agent of Dun & Co., and also the objection to the report of the latter. The principal question in the case was whether the defendant Fleetham was a partner of Hutchins. Plaintiff was allowed on the trial to prove the declarations of Hutchins, in the absence of Fleetham, that the latter was such partner, and also to put in evidence the report of Dun & Co., presumably founded on such declaration. This evidence was objected to, and proved, or tended to prove, the co-partnership between Fleetham and Hutchins. I think that the objections of defendant Fleetham to these declarations of Hutchins and to the report of Dun & Co. were well taken, and should have been sustained. McPherson v. Rathbone, 7 Wend., 216; Thorn v. Smith, 21 id., 365; Kirby v. Hewitt, 26 Barb., 607 ; Rice on Evidence, 444-445.

For this error the judgment should be reversed, and a new trial granted, costs to abide the -event.

Herrick, J., concurs.

Mayham, P. J.

In Sheehan v. Fleetham, 34 St. Rep., 665, this court held, a majority of the judges concurring, that the evidence in this case on a former trial, which was substantially like the evidence on this trial, was sufficient to authorize the submission of the case to the jury upon the question of the existence of a co-partnership between Hutchins and Fleetham, and that evidence was on this trial so submitted, and the jury found the existence of that relation.

If this evidence was sufficient to authorize the submission of that question to the jury, then their verdict finding the existence of that relation could not be set aside on the ground that it was unsupported by the evidence, and a refusal of the trial judge to set aside the verdict as not supported by the evidence was not error.

As the question whether the evidence in this case was sufficient, as matter of law, to create the relation of copartners was fully discussed on the former appeal in this action, and passed upon and held by a majority of the court to be sufficient to establish that relation, or, at least, sufficient to authorize the jury so to find, it seems unnecessary to discuss that question on this appeal.

In that case Learned, P. J., upon that subject, uses this language : “ But when one carrying on a business of buying and selling assigns half of the property, including the accounts, to another, and goes on with the buying and selling as before, with the knowledge of the assignee, there is quite strong evidence from which the jury may infer that the assignee consents to share in the business as a partner.

“ Still more, if the assignee himself had previously been half owner of the business.” Sheehan v. Fleetham, supra, p. 668.

The appellant insists that errors were committed in the receipt and rejection of evidence on this trial, for which the judgment should be reversed.

We think within the view taken by the prevailing opinion of the general term the evidence offered and received relating to the transactions and litigations between the defendant Hutchins and his wife and the defendant Fleetham was competent as bearing upon the question as to whether or not the defendants Hutchins and Fleetham were partners, and was properly received in this case, and for the purpose of this appeal the decision of the general term must be taken as the law of this case upon that subject The testimony offered and received, under objections, tending to show that the defendant Hutchins transferred his property to defendant Fleetham, and the object of that transfer, and the communication of that fact to the mercantile agency by the defendant Hutchins, and from whom plaintiff derived his information of the existence of the partnership, was also competent, under that decision, as tending to prove the existence of the partnership, and was properly received on the trial.

Also the testimony as to who owned the balance of the drug store. The objection to that evidence was that it was incompetent and immaterial. It was both competent and material evidence in the case, as bearing upon the question of partnership, and no objection was taken that it called for the opinion or conclusion of the witness. Its recejkion was not, therefore, error.

On the whole case we see no error in the receipt or rejection of evidence in this case for which this judgment should be reversed. Hor do we think the court erred in refusing to charge as requested by the defendant. The request was for the court to charge the jury that there was no act established on the part of Fleetham towards the plaintiff during the accruing of the plaintiff’s claim which entitled the plaintiff to believe that Fleetham was a partner of Hutchins. We think the court properly refused so to charge.

That question under the decision of the general term was one of fact for the jury. ' On the whole case I see no ground in the light of the former decision for a reversal of this judgment But my associates think the judgment should be reversed on the ground stated in the opinion of Judge Putnam.

Judgment reversed, new trial ordered, costs to abide event


text:
    Charles H. Fort, Assignee, Resp’t, v. James Milligan, App’lt.

      Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Justice’s court—Service—Verified complaint.
    The mere fact that the complaint was verified and attached to the summons the day after it was issued, but before service on defendant, is not prejudicial error.

      Appeal by the defendant from an order and judgment of affirmance, made by the Eensselaer county court, affirming a judgment rendered by a justice of the peace in Eensselaer county in favor of the plaintiff for $94.40 damages and costs.
    The summons in this action was issued by one E. B. Stiles, Esq., a justice of the peace in the town of Lansingburgh, on the 2d day of December, 1891, and on the face of said summons was endorsed an authority to one William Champlin to serve .said summons. On the 3rd day of December, 1891, the complaint in this action was verified and attached to the summons, and both served upon the defendant The person deputized to serve said summons made an affidavit of service of both summons and complaint, and said summons, complaint and affidavit were filed with the justice. On the return day of the summons, the defendant failed to appear, and the justice rendered judgment in favor of the plaintiff without taking any proof of the facts alleged in the complaint.

      Myers & Norton (John T. Norton, of counsel), for app’lt; C. D. Hudson, for resp't.
   Herrick, J.

I think, upon the argument, we substantially agreed that there was no merit in this appeal. The principal point argued was that the summons was issued on the 2d and the complaint attached to it on the 3d. I do not see any objection to such practice. The defendant is in no way harmed.

Judgment -should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


text:
    Sebastian Gilzinger, Resp’t, v. The Saugerties Water Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)
    1. Maxims—Damnum absqtjb injuria.
    The maxim damnum absque injuria applies only to cases of a wrong done to a party for which the law provides no remedy.
    3. Riparian owners—Diversion op water.
    The right to the whole natural flow of a stream, whether used or not, is a right guaranteed to a riparian owner by law, of which he cannot be divested except by voluntary relinquishment on his part or condemnation for public purposes, and, therefore, when his rights are invaded without consent or legal authority, he may, in a propercase, invoke equitable aid for its restoration.
    3. Same—Charge.
    In an action by a mill’owner to restrain the unauthorized use of water of the stream above his premises, the court refused to submit to. the jury the question whether defendant, by the diversion of the water, essentially diminished the supply of water necessary for the use of plaintiff’s water power and mill. Eeld, no error.
    Appeal from judgment in favor of plaintiff.
    Action in equity to restrain defendant from interference with a water course and for damages.

      A. T. Clearwater, for app’lt; Preston & Chipp (Howard Chipp, Jr., of counsel), for resp’t.
   Mayham, P. J.

The plaintiff is a mill owner with a water power situated on Plattskill, a non-navigable stream of water, running through plaintiff’s premises.

The defendant is a corporation under contract to furnish water to the village of Saugerties to the maximum quantity of one and one-half million gallons daily, drawing its water supply from the Plattskill at a point about five miles up the stream from plaintiff’s premises, and thus diverting the amount of water so taken by the defendant from its natural and usual channel or course away from the plaintiff’s premises and water power, and depriving plaintiff of the use of the same.

For this diversion the plaintiff brought this'action for damages, and also for a mandatory injunction compelling the defendant to restore the flow of this stream to its natural channel, and to remove its dam, reservoirs and pipes by which the waters of the stream are diverted from plaintiff’s mill.

At the trial of this action the court submitted certain questions of fact to the jury as follows:

First. Does the defendant by any diversion of the waters of the Plattskill deprive the plaintiff of the full beneficial use of his water power and mill ?” To which the jury answered, “ Yes.”

“Second. What are the damages sustained, if any, in consequence of such diversion?” To which the jury answered, “We find for the plaintiff $650.”

The court adopted the above finding of the jury, and upon it and other findings made by the judge directed a decree perpetually enjoining the defendant from any diversion of the waters from plaintiff’s mill, and gave judgment for $650 damages, with costs, to the plaintiff.

From this judgment and decree the defendant appeals to this-court. The first point raised by the defendant on this appeal is that this case is one of damnum absque injuria.

This maxim, under our jurisprudence, seems to apply only to cases “ of a wrong done to a party for which the law provides no remedy.” 1 Bouvier’s Law Dictionary, 423.

I fail to see its application to this case. If, as this maxim seems to imply, the diversion of this water is a wrong and affects injuriously the rights of the plaintiff, the maxim could have no application to this case, as in that case the law under which the defendant is incorporated gives it ample power of condemnation, and at the same time guarantees to the plaintiff just compensation for the injury. Ohap. 737, Laws 1873, as amended by chap. 415, Laws 1876.

The case of Palmer v. Mulligan, 3 Caines, 307, is not an authority sustaining the contention of the defendant upon this point.

_ That was a contest between riparian owners on the Hudson river, and the case does not disclose that the water was diverted from the natural bed of the stream, or that the supply of the plaintiff was in any way diminished or affected, and the court held that what the defendant did in that case was only to exercise his undoubted right to use the water in the stream as it passed along his premises.

It cannot, therefore, be held as matter of law in this case that the diversion of this water from its natural channel over the plaintiff’s land furnished no ground for legal or equitable relief, if the plaintiff’s property was injured by such diversion.

We are, therefore, brought to the consideration of the question whether there was any evidence to sustain the verdict of the jury and the findings and decision in this case.

It is proved, and not disputed, that the plaintiff was the owner of this mill and water power, and that the defendant had by dams and conduits diverted a portion of the waters of this stream, above the plaintiff’s mill, so as to cause it to flow past plaintiff’s mill, and thus deprive him o°f the use of the same, to which, as a riparian owner, he was entitled.

If no injury did or could result to the plaintiff by this diversion, then he had no cause for complaint, and should not recover. But can it be said that the deprivation of the right to have this stream flow over his land did not and could not injure the plaintiff’s property rights in the water privilege? This question was propounded to the jury in substance, and they found that the diversion of this water deprived the plaintiff of the full beneficial use of his water power. If this finding was sustained by the proof, then we think it brings this case within the principle of Garwood v. N. Y. C. & H. R. R. R. Co., 83 N. Y., 400, and entitles the plaintiff to relief by injunction, and also to such damage as lie had sustained by reason of such diversion.

In West Point Iron Co. v. Reymert, 45 N. Y., 705, the court say : “Equity will interpose by injunction to prevent an encroachment upon the rights of a proprietor in a running stream and will, exercise jurisdiction to compel the restoration of running water to its natural channel.”

This follows Corning v. Troy Iron Co., 40 N. Y., 191. In Smith v. The City of Rochester, 38 Hun, 612, where the defendant diverted the water from a lake which had flowed into a creek on which the plaintiff’s mill was situate, and the plaintiff admitted that the defendant had taken steps by which the plaintiff would be supplied with sufficient and a more uniform supply of water for his mill than he had from the lake, the waters of which the defendant had diverted ; yet, it was held that as the defendant had no legal right to divert the waters of the lake, and thus diminish the plaintiff’s supply, the plaintiff was entitled to an injunction restraining such diversion even though it occasioned no actual damage to him, and this case was affirmed by the court of appeals and reported in 104 N. Y, 674; 7 St. Rep., 867.

In the N. Y. Rubber Co. v. Rothery, it was held that the title of a riparian proprietor to his water rights in a stream and the right to redress for their invasion, is not conditional upon the beneficial user of them, and it was accordingly held that he could recover for a diversion, although he has not yet made any use of the water, or enough is left in the stream for the purpose of his business as then conducted.

It follows, therefore, that the rights of riparian owners do_ not depend upon the use that they make-- of the water at any given time, arid it does not lie with one who invades that right to say that the plaintiff has enough water left, or would have enough if he properly controlled or secured it for his uses and purposes; the right to the whole natural flow, whether used or not, is a right guaranteed him by law of which he cannot be divested except by voluntary relinquishment on his part or condemnation for public purposes.

It follows, therefore, that when his rights are invaded without consent, or legal authority, he may in a proper case invoke equitable aid of the court for its restoration.

The remaining question is, did the learned trial judge commit any error in receiving or rejecting evidence or in submitting the case to the jury for which the judgment should be reversed ? The counsel for the defendant .requested the court to submit to the jury the following question on which to pass, viz. : “Does the defendant by any diversion of the waters of the Plattskill essentially diminish the supply of water necessary for the use of the plaintiff’s water-power and mill ? This request the court denied, and the defendant duly excepted.

Within the case of N.Y. Rubber Co. v. Rothery, supra, we think the ruling of the court on this request was correct. We have carefully examined all the rulings of the learned judge, upon the receipt and rejection of evidence to which the appellant took exceptions, and also the portions of the charge to which exceptions were taken by the defendant’s counsel, and discover no error for which this judgment should be reversed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    John D. Spicer and Henry B. Thomas, App’lts, v. Edward Snyder, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Assignment—Evidence.
    In an action to recover moneys claimed to be due upon a builder’s contract, assigned to plaintiffs as security for material furnished for the building on credit, a witness was allowed to answer the question, “Will you state what other bills there are outstanding for lumber and materials against the Snyder house, for which defendant is liable ?” Held, error, as it clearly involved a conclusion of law as to the question of defendant’s liability, and the determination of the facts out of which such question arose.
    Appeal from judgment in favor of defendant, dismissing the complaint.

      Smith & Parmenter (R. A. Parmenter, of counsel), for app’lts; J. A. Cipperly, for resp’t.
   Mayham, P. J.

The plaintiff furnished Vandenburgh & Qui ruby, who were partners, lumber which was used by them in the construction of two houses which they had'contracted to build, one for the defendant, and one for one “Edmans, at the contract price of about $5,900 each, and, being in impecunious circumstances, contracted with the plaintiffs to furnish lumber and material on credit, and to secure the plaintiff for such credit assigned to the plaintiffs the contract with the defendant, as collateral to the payment of all moneys due or to grow due from such builders to the plaintiff.

On the day of making such assignment, the plaintiffs gave notice to the defendant of such assignment.

The lumber was delivered by the plaintiffs, and at the time of the delivery of the same the plaintiffs charged the lumber used by Quimby & Vandenburgh in the Edmans house to Julia A. Ed-mans. After the notice of the assignment of the Snyder contract to the plaintiffs, Snyder paid to plaintiffs at different times sums amounting in the aggregate to the sum of one thousand dollars, and thereby recognized the validity of the assignment, and his obligation to pay the plaintiffs for some^of the material at least furnished by plaintiffs to Vandenburgh & Quimby, which went into the construction of this house, to the extent of his liability to the builders, had not the assignment been made to the plaintiffs.

In Spicer and Thomas v. Snyder, 34 St. Rep., 376, this court held that the assignment from Quimby & Vandenburgh to this plaintiff did not vest in the assignee absolute right to all the money contracted by. the defendant to be paid on this contract, but merely an equitable interest, operating upon the indebtedness as it arose from time to time, and that money paid by the defendant in the construction of this house to mechanics and material men was payment on and satisfied the contract to the extent of such payment.

Payments of that character became a proper subject of inquiry on this trial, and within that decision the plaintiffs could only recover, as assignées, the balance due upon the contract, after deducting all payments made by the defendant to other material men for material furnished in the construction of this house.

As the evidence stood in that case, this court held that the plaintiff was entitled to recover a balance of $372.68, the amount due upon the contract estimated upon the above basis. How much the evidence on this trial would change that amount it is not important for us to consider, as this court, as the case now stands, could in no event order a judgment if a balance were found due upon the contract.

But we think that on this trial the court erred in receiving evidence directed to the question of payments by and liabilities of the defendant for materials furnished by persons not parties to this contract, which might have influenced the verdict of the jury, for which this judgment should be reversed.

The question put to Vandenburgh, which appears on page 145 of the case, in these words : “ Q. Will you state what other bills there are outstanding for lumber and materials against the Snyder house for which the defendant Snyder is liable? ” This was properly objected to, and, we think, improperly received.

The answer clearly involved a conclusion of the witness as to the legal question of the defendant’s liability and, also, the determination of facts out of which that legal question arose. It placed the witness in the position of the court and jury for the determination of conclusions of law and fact, and the answers which followed were not statements of facts, but many of them conclusions of the witness.

As this was one of the vital questions in the case, this court cannot assume that this illegal evidence was harmless.

There were other questions raised by the plaintiff upon the admissibility of evidence somewhat similar to the one above discussed ; but it is unnecessary for us to discuss them here. Upon the whole case we are of opinion that the' motion made by the plaintiff to set aside the verdict and for a new trial upon the minutes should have been granted.

The evidence as it stands shows a substantial performance _ of the contract in all essential particulars, except such as to which there was an actual or implied waiver by the defendant.

The assignment of the builder’s right was, therefore, entitled to payment of the contract price less the advancement made to him or to others for material furnished in the construction of the house.

The burden of showing such payment was a part of his affirmative defense and we think he has failed in establishing that affirmative proposition.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ, concur.


text:
    Walter H. Hyman, App’lt, v. The Central Vermont Railroad Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Carriers—Liability of railroad for lost baggage.
    To relieve a carrier which has checked a piece of baggage to a point on a connecting line from liability for a subsequent loss thereof, it must show such an unequivocal act of transfer to the connecting line as would charge the latter company if the action were brought against it.
    3. Same.
    Plaintiff purchased a ticket of defendant to a station where it connected with another line, and had his baggage checked to a station on such connecting line. The station at the junction was a union station, and the same person acted as baggage master for both roads. On arrival he placed plaintiff’s trunk in the common baggage room in the place where baggage for the other road was usually placed, and the following day it was destroyed by fire. Held, that there was no such unequivocal act of transfer as relieved defendant from liability.
    Appeal from judgment of county court, reversing judgment of a justice of the peace in favor of plaintiff.

      N. M. Claflin, for app’lt; Louis Hasbrouck, for resp’t.
   Mayham, P. J.

Appeal from a judgment of St. Lawrence county court, reversing a judgment of justice court in favor of the plaintiff. The defendant is a railroad company owning or controlling a railroad for the transportation .of passengers between a station called Norwood and one on the same road called Moira, at which latter station the Northern Adirondack Eailroad con-nected with that of the defendant. "At Norwood plaintiff purchased a passenger ticket to Moira, and at the same time took a check for his trunk from Norwood to Tupper Lake, a station beyond Moira on the Northern Adirondack. The baggage station at Moira on the defendant’s road is a union station used by that road and the Northern Adirondack Bailroad Company jointly, at which station the baggage master of the two companies is the same person.

The plaintiff’s trunk was carried on this check from Norwood to Moira on the defendant’s train, and on its arrival at the latter place was taken by the common agent of these companies and placed in this common baggage room in the place where the baggage was usually placed which was to be forwarded on the Northern Adirondack Bailroad. This was. about four o’clock on Saturday, September 26th. On the next night,' Sunday, September 27th, the station and baggage room at Moira with this trunk and its contents were destroyed by fire.

On these facts the justice gave judgment for the plaintiff, which was on appeal upon questions of law only reversed by the St. Lawrence county court, and from that judgment of'reversal the plaintiff appeals to this court.

The defendant is a common carrier of passengers and baggage, and as such is liable for baggage of passengers which it assumes to carry for all loss or destruction, except by the act of God or public enemies.

Having taken the baggage in its possession for transportation, it assumed the burden, in order to relieve itself from liability for loss, of showing that it discharged that duty by delivering it at its point of destination, or delivering it to tíre succeeding carrier to be so delivered.

Section 48 of chapter 565 of the Laws of 1890 provides that: “Every railroad corporation doing business in this state * * * shall be liable as a common carrier for the transportation of passengers, or delivery of freight, received by it to be transported to any place on the line of a connecting road, etc.” And also provides for the liability to them of connecting lines for losses which may be suffered on such lines.

If, therefore, we could treat this check as a contract on the part of the defendant to deliver this baggage at Tupper’s Lake, then the liability of the defendant could not be questioned. But it was held in Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y., 278, that the baggage check is not regarded as a contract on the part of the carrier which issues it, but simply a means of identification of the baggage at the end of the route.

But if we are not at liberty to regard this check as a contract on the part of the defendant to deliver this baggage at Tupper Lake, then it was a contract to deliver to the connecting line to be transported thither, and the defendant must establish such delivery before it can be relieved from the obligation of its undertaking as a common carrier.

The check indicated upon its face that the baggage was to be carried to Tupper Lake, and made it the plain duty of the defendant to forward it by the Rortbern Adirondack R. R to that point.

This it could not do without a delivery to that road. Rawson v. Holland, 59 N. Y., 611; Jennings v. Grand Trunk R. Co., 127 id., 445 ; 40 St. Rep., 318. Ro such delivery was in this case shown. To constitute such delivery there should be some act of the carrier so that if it was discharged the succeeding line would be charged with the care and custody of the goods. Goold v. Chapin, 20 N. Y., 264. In this case the court say: “Ra owner can be supposed to have an agent to superintend each transport-meat of goods, * * * and if the responsibility of each carrier is not continued until delivery in fact to the next carrier, or at least until the first carrier by some act clearly indicating his purpose terminates his relation as carrier, we shall greatly diminish the security and convenience of those whose property is necessarily abandoned to others.”

We see nothing in the act of the agent indicating that he had transferred this baggage from the custody of the defendant to the R. A. R R. and there is no such unequivocal act of transfer as would charge that company if the action had been prosecuted against it. In this class of bailment the security of the public can only be conserved by holding the first carrier to such unequivocal acts of transfer of possession to a succeeding line as will make it possible for the owner of goods to charge such succeeding line, before the first carrier should be released from its obligation.

We think the learned county judge erred in holding that this trunk was delivered to the Rortbern Adirondack Railroad Company by the defendant.

The judgment of the county court should be reversed and that of the justice affirmed, with costs.

Putnam and Herrick, JJ., concur.