text:
    John J. Campbell, Resp’t, v. William Ernest, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Injunction—Code Civ. Pro., § 604.
    Section 604 of the Code has no application to an action on contract for the recovery of money only. The plaintiff in such an action has no rights as against the property of the defendant until he obtains a judgment, and until then he has no legal right to interfere with the defendant in the use and sale of the same.
    2. Same—Sufficiency of affidavit.
    An affidavit stating that deponent believes, after reading the affidavit of defendant, made on a former motion for an injunction, that defendant will, during the pendency of the action, dispose of his property with intent to defraud the plaintiff and render nugatory his efforts to obtain payment of his claim, where the affidavit referred to simply states that it would he a great hardship if the court should restrain defendant from the use of his property, or make any order that would prevent him from applying it to his necessities, is insufficient to sustain an order of injunction prohibiting defendant from interfering with his property pending an action.
    Appeal from, order of the special term granting an injunction jpendente lite,

      Esmond & Ward, for app’lt; Strahan & McClung, for resp’t.
   Dykman, J.

This is an action upon a judgment obtained by the plaintiff against the defendant in the supreme court on the 7tli day of July, 1875, for $142.27.

On the 12th day of September, in the year 1891, Benjamin "McOlung, one of the attorneys for the plaintiff, presented to one of the justices of this court an .affidavit made by himself, in •which he recited the procurement of an order to show cause why the plaintiff should not have leave to sue upon the judgment, and the appearance of the defendant in opposition to the injunction which was then sought to restrain him from any disposition of his,property pending the action, the presentation of an affidavit of the defendant at that time, of which a copy was annexed, the prevalence of the application before the justice who made and signed an order in the action granting permission to the plaintiff to bring this aetiou upon the judgment, and also an injunction restraining the defendant from making any transfer or disposition of his property until the determination of this action; the appeal of the defendant from so much of the order as restrained him from transferring his property, and that such appeal would be argued and disposed of at the general term of the court in Brooklyn, on the 14th of that month. Be uses the following language: “That deponent believes, after reading the said affidavit of William Ernest, a copy of which is heieto annexed, as aforesaid, that should the plaintiff in said action (the plaintiff herein) not be successful in obtaining the affirmance at said general term of the injunction order -referred to in said- former action, that the said "William Ernest, defendant herein, will, during the pendency of this action, dispose of his property referred to in hb said affidavit, with intent to defraud the plaintiff herein, and to render nugatory any proceedings or effort by this plaintiff to obtain payment of his claim in this action.”

The annexed affidavit of the defendant to which reference is made is as follows:

JOHN J. CAMPBELL '
against
WILLIAM ERNEST.
OouNTYoF ORANGE,
ss.:
City of Hewburgh,

William Ernest, being duly sworn, says: I. That he is a married man, residing at the city of Newburgh, Orange county, N. Y.

II. That he cannot remember that a summons was ever served upon him m the above-entitled action, although he cannot deny the fact on oath at the present time.

III. That he is a sick man, unable at the present time to perform work and engage in business, being afflicted with a serious lung trouble. That deponent’s father died on the 9th day of June, 1891, at Newburgh, N. Y., leaving a very small property in which deponent has a third interest, and in which his wife claims her right of dower. That a partition suit has been brought against deponent to partition or sell said property, and in deponent’s opinion his interest in the property left bv his-said father will not exceed from two to three hundred dollars. The real estate left by his father is mortgaged for $1,500, and consists of a small house and lot in the city of Newburgh, about eighteen feet front and rear by 100 feet deep, and worth not to exceed $2,500.

IV. That deponent’s said interest in his father’s estate is all the property he has in the world, and includes everything he has for his support, and to keep him in sickness. That deponent’s physician says that he is suffering from consumption; deponent has a severe and constant cough, great weakness, and has been unable to labor since the middle of February last

V. That it would be a great hardship and affliction to this deponent if the court should restrain him from the use of his property, or make any order that would prevent him from applying it to his necessities during the pendency of the action which the plaintiff herein asks leave to bring.

William Ernest.
Subscribed and sworn to before me,)
this 13th day of August, 1891, f
F. W. Tompkins,
Commissioner of Deeds, Oity of Newburgh.

Upon those affidavits and the pleadings, which are not printed in the appeal papers, but which means only as we assume an ordinary complaint upon a judgment, an order was made requiring the defendant to show cause at a special term of this court at Poughkeepsie on the 19th day of September, 1891, why an order should not be made and entered enjoining the defendant from removing or disposing of his property, or making any disposition of the same during the pendency of this action, not exempt by law from execution, or in any manner to interfere therewith until further order in the premises, and the order also contained a temporary stay until the determination of that motion.

Upon the return day of that order to show cause the motion was heard and granted, and an order was made enjoining and restraining the defendant from removing or disposing of his property not exempt from execution or making any disposition of the same during the pendency of this action, or in any manner interfering therewith until further order in the premises.

The defendant has appealed from the order, and we are required to ascertain whether it can be sustained.

The rule of law by which the validity of the order must be tested is this : “ Where it appears by affidavit that the defendant during the pendency of the action is doing or procuring or suffering to be done, or threatens or is about to do or procure or suffer to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.

“ Where it appears by affidavit that the defendant during the pendency of the action, threatens, or is about to remove or dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition.” Code of Civil Procedure, § 604, subds. 1 and 2.

This statute authorizes the interposition of the court and the issuance of an injunction order to restrain the action of a defendant where it appears by affidavit that during the pendency of the action he is doing or procuring or suffering to be done, or threatens or is about to do or procure or suffer to be done an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual; also where it appears by affidavit that the defendant during the pendency of the action threatens, or is about to remove or dispose of his property with intent to defraud the plaintiff.

It was the design of the law to empower the court to enjoin the commission of some particular act which the defendant was,doing or procuring or suffering or threatening in violation of the rights of the plaintiff respecting the subject of the action, or where he was about to remove or dispose of his property with intent to defraud the plaintiff But it never was intended to authorize the restraint of all sales of property.

Moreover before any act can be restrained it must be violative of the rights of the plaintiff respecting the subject of the action,, and we may pause here to say that the property of the defendant is not the subject of this action, and no act of the defendant in relation thereto can violate any rights of the plaintiff respecting the same for that reason, and for the additional reason that the plaintiff has no rights in such property and claims none.

In short, this statute has no application to an action of this character where a monied judgment only is sought It was designed to provide a short and easy method for the procurement of injunctions in equitable actions for relief where the defendant, if unrestrained, would do or suffer some act in violation of the rights of the plaintiff respecting the subject of the action, which would tend to render the judgment ineffectual and nugatory.

But plainly it applies and can be utilized only in an action involving the rights of the parties to something which constitutes the subject of the action in respect to which the plaintiff claims some rights, and seeks some special relief.

In no proper or legal sense can a defendant do or permit any act in violation of the plaintiff’s rights respecting the subject of the action in an action on contract for the recovery of money only.

The plaintiff in such an action has no rights as against the property of the defendant until he obtains a judgment, and until then he has no legal right to interfere with the defendant in the use and sale of the same.

It would be a new and dangerous innovation to hold that a plaintiff, upon the commencement of an action on an account against a merchant, could procure an order of the court restraining him from selling his goods pending the ¡suit because such sales would diminish the chances for the collection of the judgment when obtained, and yet such is the logical result of the doctrine which would sustain this order.

Turning now to the affidavit upon which the order was based we find it entirely insufficient to sustain it in any view. It states no fact, and merely says that after reading the affidavit of the defendant the deponent believes he will dispose of the property referred to during the pendency of this action with intent to defraud the plaintiff, and render nugatory any effort of his to obtain payment of his claim in this action.

How he could imbibe such a belief after reading the affidavit it is impossible to conjecture. Certainly there is nothing in the affidavit tending to. induce such a conviction. The defendant said there that it would be a great hardship to him if the court should restrain him from the use of his property or make any order that would prevent him from applying it to his necessities.

There is no expression of a desire or intention to sell or dispose of the property, and no statement from which such intention can fairly be inferred.

But even though the affiant did entertain such belief after he read the affidavit, he could not transfer his credulity to the judge who made the order. That official required facts to convince the judicial mind and upon which he could find that the defendant entertained an intention to make a fraudulent disposition of his property, and it is idle to claim jhat the affidavit contained any statement to justify such a conclusion or upon which the judge could base any action.

The order should be reversed, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    Sarah McGrath, Resp’t, v. Sarah F. Walker, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Nuisance—Continuance—Landlord.
    Defendant purchased certain premises which had been used for a lively stable and which had a passageway to the basement excavated in the sidewalk from the stoop line, and leased the premises in this condition to a tenant. Plaintiff, while walking along the street in the evening, fell into this excavation and sprained her ankle. Held, that such depression in the sidewalk was a nuisance; that defendant’s act in leasing the premises in that condition amounted to a maintenance of the • nuisance, and that she was liable for plaintiff’s injury.
    2. Trial—Misconduct of jury—Waiver of objection.

      A failure of counsel to object to a direction to the jury to view the premises amounts to consent, and is a waiver of slight improprieties arising upon such view, such as remarks of bystanders made to or in the hearing of the jury.
    Appeal from judgment in favor of plaintiff, entered upon verdict, from order denying motion for a new trial on the minutes, and from order denying motion to set aside the verdict on the ground of misconduct of the jury.

      Deming & Logan (Chas. M. Demond, of counsel), for app’lt; Backus & Marine, for resp’t.
   Dykman, J.

By her complaint in this action the plaintiff charges the defendant with the ownership of the house and premises designated as Nos. 13 and 15 Columbia street in the city of Brooklyn, and alleges that she wrongfully and unlawfully constructed and maintained a dangerous opening in the highway in front of the property.

She then further states that on the 21st day of May, 1889,. while walking upon the highway in front of such premises without knowledge of the excavation, without want of care, she fell into it and sustained a severe injury to her foot.

The defendant, in her answer, admits her ownership of the property and denies the other allegations in the complaint.

Then for a special defense the answer “ further alleges that, the defendant since the year 1878 has owned the premises mentioned in the complaint, and that at no time was there any dangerous hole, opening, pit or excavation maintained by her in front of said premises and along and upon the highway in front thereof, nor was there any arch in front thereof, but that, on the contrary, the only excavation in front of said premises during all of such" times was an inclined depression wholly within the stoop line of said premises, gradually sloping downwards toward the cellar of said building; that such depression was on said premises-when defendant acquired the same, and was, and is, an entrance-for horses into the basement of said building, and prior to defendant’s ownership of said premises was used, in connection with said premises, for the purpose of a stable for horses; that said depression was and is properly constructed, and was lawfully maintained by defendant and properly guarded in all respects, and. was in no sense dangerous or likely to cause damage or injury, and defendant alleges that this is the hole, opening, pit or excavation referred to by the plaintiff in her complaint; that all of the matters herein alleged existed on May 21, 1890; that at such last mentioned date the said premises were in possession of a tenant of defendant.”

Many years ago, and before 1860, the building upon the premises had been used as a livery stable, and a passage way had been excavated in the sidewalk to lead to the basement by a gradual descent at an angle of about fifteen degrees. It was about four feet in depth at the floor of the basement, and ascended so as to strike the sidewalk about at the stoop line, and left several feet between the point where it came to the surface and the curb stone. It was made and used to pass horses to and from the basement.

As the plaintiff was walking along the sidewalk in front of these premises with her two children about ten and a half o’clock in the evening of the 21st day of May, 1889, she fell into that run-way and sprained her ankle, and this action is for the recovery of damages she has sustained.

The run-way was in the sidewalk when the defendant became the owner of the premises, and she has leased them to a tenant and allowed the excavation to remain the same, down to the time of the accident.

The case was tried at the circuit before a jury, and the plaintiff obtained a verdict for the sum of two hundred and sixty-eight dollars.

From the judgment entered upon that verdict, and from the order denying a motion for a new trial on the minutes, the defendant has appealed to this court.

The defendant did not allege in her answer nor prove during the trial permission from the municipal government to construct the opening on the sidewalk, and although such authority might be inferred from long acquiescence in its continuance without objection from the city, yet the duty of safe covering and protection devolved upon some one, and if that obligation remained unperformed the opening continued to be a wrong and a nuisance. Jennings v. Van Schaick, 108 N. Y., 532; 13 St. Rep., 686.

It becomes necessary now to inquire and determine whether the defendant is responsible for the continuation of the wrong.

The plaintiff was lawfully upon the sidewalk when she received her injuries, and her right to use the same was coextensive- with the boundary of the street. She could walk by faith in reliance upon the performance of the duty which the law imposed upon the municipal authorities and the property owners to maintain the streets and sidewalks free from pit falls and other nuisances.

In all other respects the verdict of the jury exonerates her from the imputation of negligence contributive to the injury.

As we have seen already, the defendant had leased the premises to a tenant with the depression in the sidewalk the same as when it was originally constructed, without any guard or protection. It remained the same down to the time of the accident, and the natural inference is that the property was rented for use in that condition.

It becomes necessary now to inquire and determine whether the defendant is responsible for the continuation of the wrong. According to the cardinal rule relating to the subject, any act of an individual in a public highway or street which detracts from the safety of travelers is a nuisance, and whoever makes or continues the same is responsible for all injuries resulting from the unsafety of the way caused thereby. Dygert v. Schenck, 23 Wend., 446; Congreve v. Smith, 18 N. Y., 79.

In point of principle the maintenance of a nuisance is a wrong equal to its creation, and it has long been settled that if the owner creates a nuisance upon his premises and then demises them while it yet exists, and is in the receipt of rent therefrom at the time of an accident, he is responsible for the resulting damage.

There is no reason why that principle should not extend to this case. The' pit was in the sidewalk when the defendant became the owner of the property, and it imperiled the safety of travelers. It was therefore a nuisance, and the premises were affected with it when they were rented by the defendant

It was her duty then to abolish the same, but instead of doing so she leased the property in the same dangerous condition. That act amounted to maintenance of the nuisance. Her failure to abate the same was non-feasance, and non-feasance was equivalent to mis-feasance. Continuance was equal to creation, and inaction was continuance.

Her demise of the premises with the opening uncovered, to be used by the tenant in the same condition, constituted a perpetuation of the wrong, from which she derived a pecuniary benefit

The case of Walsh v. Mead, 8 Hun, 387, was an action for damages for injuries caused by the sliding of a quantity of snow from the roof of a house owned by the defendant, but in the actual occupation of a tenant at the time of the accident

The action was prosecuted upon the theory that the roof of the building had not been properly constructed or guarded by the owner, and for that reason the snow was precipitated to the street and upon the plaintiff.

That fact was found in accordance with the contention of the plaintiff At the general term of the supreme court, where the case went upon an appeal of the defendant, it was held that a roof so constructed in a large city is a nuisance, because it imperils the safety of persons passing below in the lawful use of the streets. Also, “ that the landlord or owner will remain liable, after a lease and exclusive possession under it taken by a tenant of premises affected by a nuisance at the time of the demise, for an injury occasioned by it to a third person, and upon general principles he ought not to be exonerated from that liability, even though the tenant’s negligence combines with the same wrong in producing such result The erection and maintenance of a nuisance is a wrong, and by leasing the building affected by it to another person the owner continues it and stipulates for the enjoyment of a profit from it. That has always been held to be sufficient to render him accountable to innocent third persons for the consequences of injuries received by them from it,’’

It was also said in that case, as it may be said in this, that “ no agency of the tenant intervened to produce the result,” but it befel in both cases by reason of the improper structure which endangered the safety of travelers in the public street

The doctrine enunciated in the case of Swords v. Edgar, 59 N. Y., 28, is in favor of the plaintiff here.

In that case 'the defendants were the owners of the one-half of a pier in the city of New York, which, at the time of the accident, was in the possession of their tenants, but it was in a defective condition at the time of the demise, and the owners were held responsible for injury to one lawfully upon the dock which resulted from its unsafety.

The decisions in the following cases are also in favor of the plaintiff and of the conclusion we have reached: Clancy v. Byrne, 56 N. Y., 129; Congreve v. Morgan, 4 Duer, 439; 5 id., 495; Clifford v. Dam, 81 N. Y., 62; Davenport v. Ruckman, 37 id., 568; Irvine v. Wood, 51 id., 224; Anderson v. Dickie, 26 How., 105.

This is not like the case of Woram v. Noble, 41 Hun, 400; 1 St. Rep., 499. There the defendant became the owner of the premises in September, 1883, subject to a lease expiring May 1, 1884, and the tenant was in possession when the plaintiff was injured at the coal hole in April, 1884.

The coal hole was in the sidewalk when the defendant became the owner, and he had no knowledge of its defective condition previous to the accident. It was there said in the opinion respecting the nuisance, that the defendant had no agency in its creation, was without knowledge of its existence, derived no benefit from its continuance, and was destitute of authority for its abatement."

The case is also distinguishable from the cases of Wolf v. Kilpatrick, 101 N. Y., 146, and Stone Road v. Buffalo, etc., R. R. Co., 51 id, 582.

After a careful examination of the case, both upon principle and authority, we reach a conclusion adverse to the appellant, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

There is also an appeal from an order denying a motion to set aside the verdict for misconduct of the jury, based upon the following facts:

At the close of the first day of the trial, the jury was directed to visit the premises in the following language:

*' The Court: I think I will send the jury down and let them look at it.
“ Gentlemen = I. will send you down there to look at it, and make up your mind among yourselves what the condition of that path or run-way was in 1889 when this accident took place. I will not allow the counsel to say a word to you while you are there, but I will send an officer with you. How just go there and satisfy yourselves whether that hole has been filled up or not. I think if you examine it you can tell exactly what the condition of that run-way was in 1889.”

At the opening of the court the next morning the following record was made:

“ Mr. Backus (counsel for the plaintiff).—Does it appear upon the record that the jury at this stage yesterday afternoon visited the scene of the accident with the consent of both parties. I would like it to appear upon the record that the jury visited the scene of the accident in the custody of an officer.
“Mr. Demond (counsel for the defendant.)—No, let the record read that by order of the. court the jury visited the premises in question, without objection from either party.
“ The Court.—I do not think it very material. The court has a right to order it.”

The jury did visit the premises, and the moving affidavits tend to establish abuses, while the answering affidavits tend to disprove all such allegations.

We cannot convict the jury of misconduct upon the affidavits read on the motion. Without doubt.there were remarks improperly addressed to some jurors, or made within their hearing, but we cannot say they influenced their minds. Such abuse was inevitable and was almost certain to follow the visitation of a body of men in a populous city to any particular locality, and the first mistake was made when the visit was directed.. But neither of the counsel made any objection to such direction, and their silence amounted to consent.

It was easily to be foreseen that improprieties even beyond detection might creep in and that the jurors would imbibe some impression from the evidence they took in through their eyes if not through their ears, and all that was waived by failure to object.

As no misconduct is fastened upon the jury we cannot interfere, and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concursPratt, J., not sitting.


author: Barnard, P. J.

text:
    The Casco National Bank of Portland, Maine, Resp’t, v. John Clark et al., Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Banks—Notice to officer.
    The mere fact that a director of a bank which discounted a note was also a director in the corporation which was the payee thereof is not sufficient to charge the bank with notice of the facts and circumstances under which the note was made, unless such director was the agent for the bank in the transaction of the business.
    3. Bills and notes—Addition of official title to signature.
    A promissory note in the usual form was made by defendants. who signed their names with the addition of their official titles The name of the corporation of which they were officers was printed in the margin, but did not appear in the body of the note. Meld, that the defendants were personally and individually liable.
    Appeal from judgment in favor of plaintiff, entered upon -the decision of the court, after a trial without a jury.

      Henry Daily, Jr., for app’lts; Edward B. Merrill, for resp’t.
   Barnard, P. J.

On the 22d of March, 1890, the Clark & Chaplin Ice Company of Portland, Maine, agreed to sell to the Ridgewood Ice Company of Brooklyn, '¡¡Slew York, ten thousand tons of ice at §4 per ton. On the 2d of August, 1890, there was sent to the Clark & Chaplin Ice Company for ice delivered upon this contract a note, of which the following is a copy:

The Clark & Chaplin Company obtained the money on the note of the plaintiff a few days after it was received and before its maturity and without other information than is contained in the note and what is to be inferred from the fact that one Wins-low was a director in the Clark & Chaplin Company and also in the plaintiff’s bank where the note was discounted.

The question is whether John Clark and E. H. Close, who signed the note, are personally and individually liable upon the note. The plaintiff is a bona fide holder without notice of the facts in respect to the contract under which the note was made. The fact that Winslow was a director in the payee company and in the bank is not sufficient to charge the bank with notice unless Winslow was the agent for the bank in the transaction of the business. Mayor v. Tenth National Bank, 111 N. Y., 446; 19 St. Rep., 133; Atlantic St. Bk. v. Savery, 82 N. Y., 291; Holden v. N. Y. & Erie Bank, 72 id., 290.

The Ridgewood Ice Company is not liable upon the note. The note does not purport to bind the company. If the addition of the official character of the signers had not been added, the words Ridgewood Ice Company printed on the side- of the note would not bind that company. The makers expressly promise to pay the note jointly, and if they are not liable upon the note there is no maker who is liable. DeWitt v. Walton, 9 N. Y., 571.

The note must show on its face that it was signed for the principal and in some way in its name.

When an agent fails to designate a principal he will be personally liable. Pentz v. Stanton, 10 Wend., 271.

It follows that the judgment should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    James Sweeney, by Guardian, App’lt, v. David R. Paige et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Master and servant—Negligence.
    Plaintiff was employed as a brakeman by defendants, who were contractors. Stone was brought from their quarry upon cars which were drawn up an inclined plane by a stationary engine, thence by a mule to the top of another incline, down which they descended by gravity. While plaintiff was taking down the incline a car loaded with heavy stone, and standing in front holding the brake, the car gave a jolt, and one of the stones moved forward and threw plaintiff off and beneath the car. There was no defect in the track or the car. Held, that a nonsuit was properly granted, as no negligence on the part of the defendants was shown, and the injury was caused by the negligence of plaintiff’s fellow servants in loading the stone.
    Appeal from judgment dismissing complaint.
    Action to recover for injuries alleged to have been caused by the negligence of the defendants.

      A. M. & G. Card (W. Farrington, of counsel), for app’lt; Abram, J. Rose, for resp’ts.
   Dykman, J.

The defendants in this action were building a large dam for the city of New York in the town of Southeast, in Putnam county, and obtained the stone from a quarry about three-quarters of a mile from the work

There was a railroad from the quarry to the foot of an incline and the stone were transported upon cars to that point, and then the cars as they were loaded at the quarry were raised or drawn up the incline to the top by a stationary steam engine. At the summit there was a turn-table upon which the cars were placed and turned so as to run upon another track and be drawn by a mule for a short distance upon the level until they reached the top of another incline, down which they ran by force of gravitation to the place where they were to be used.

There was a brake on each car with a loop in the top of the staff through which a stick was run for a handle to be used in applying the brake. . There was no fastener for the brake, and it was held tight or loose by the operator as he desired to regulate its movement. This last descent was about twelve rods in length and about four or five feet to the rod.

It was the duty of the plaintiff to mount the car when it left the turn-table, tighten the brake and be ready to regulate the speed when it commenced the descent.

The car upon which the plaintiff was injured came to the turntable in the usual course of business loaded with three stones weighing about one ton each.

The stone near the brake was about four or five feet long and four feet high. As the car started down the descent the plaintiff was standing upon the car in front of the stone holding the brake, when the car gave a jolt and the stone moved forward and struck the plaintiff and threw him off, and he fell under the wheel and was dragged or pushed along to the bottom of the hill, and received the injuries of which he complains in this action.

There was no defect in the track or the car, and the movement of the stone upon the car was the cause of the injury.

It is true the plaintiff said the rails had spread, and the expansion jarred the car.

The cause was tried at the circuit, and at the close of the testimony on the part of the plaintiff the defendants moved for a non-suit, which was granted, and the plaintiff excepte and has now appealed from the judgment entered against him.

Before the defendants can be rendered liable for the injuries sustained by the plaintiff they must be convicted of personal negligence which contributed to the accident; and in the examination of the question they are entitled to the presumption in which the law indulges that they have performed their duty towards the plaintiff as their employee until the contrary is made to appear.

It is well settled law in this state applicable to cases of this character that a master is bound to exercise all reasonable care to provide a secure place and safe machinery and implements for the use of his servants, but experience has shown that when that duty has been performed with scrupulous care, there often remain dangers incident to the nature of the employment which are beyond the reach of anticipation.

In this case the cause of the injury is not obscure. It resulted from the insecure loading of the stone upon the car at the quarry, and that work was done by persons employed by the defendants who were co-servants with the plaintiff, and against whose negligence the defendants are not insurers.

Besides this, if there was danger in the situation incident to the mode of carrying forward the work in which the defendants were engaged they were all apparent, and as easily observed by the plaintiff as by'the defendants, and he is equally chargeable with them with knowledge of such imperfections.

A careful examination of the testimony fails to disclose any negligence on the part of the defendants.

They were engaged in the erection of a large structure requiring many appliances for the facilitation of the progress of the work, and among these were the railroad, and cars, and the stationary engine, all of which answered the purposes for which they were designed.

The defendants were not required to furnish the best appliances for their workmen. They were contractors for the construction of a large dam, and their success depended upon economical devices for the advantageous prosecution of their work. They had the right to consult their own interest, and their duty to their workmen was discharged when they used reasonable diligence and care for their safety.

The railroad was an easy means for the speedy transportation of stone from the quarry to the place where they were to be used, and it was a temporary track easily shifted at the end to facilitate the deposit of stone and other material at the proper point.

Heither the track nor the cars ever failed to endure the weight and strain to which they were subjected. They always answered their purposes, and even at the time of the accident nothing gave way, and the car was not derailed.

Moreover, as we have already said substantially, the plaintiff and others saw the track, and could plainly discover any danger to which he was exposed from its insecurity, but there never was any complaint of its inadequacy or of its dangerous condition, and that is a plain indication that no one supposed there was any danger in operating the car as the plaintiff used it.

The following cases are deemed ample authority for what we have said. Marsh v. Chickering, 101 N. Y., 396; Cahill v. Hilton, 106 id., 518; 11 St. Rep., 26; Byrnes v. N. Y., L. E & W. R. R. Co., 113 N. Y., 251: 22 St. Rep., 936: Burke v. Witherbee, 98 N. Y., 564.

Thus there are two reasons why the plaintiff cannot recover in this action. First, because his injury resulted from the carelessness of his fellow workmen in loading the stone upon the car, and, second, because the defendants have not been guilty of negligence.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Willlam Hulse, Resp’t, v. Samuel B. Nicoll, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Verdict—Conflicting- evidence.
    The verdict of a jury rendered on conflicting evidence is conclusive as to the facts.
    2. Trial—Further instructions.
    It is not error to further instruct the jury at their request in open court, in the absence of the defendant and his counsel, where they leave the court and fail to return at the close of a recess.
    Appeal from judgment of the Suffolk county court, entered on .verdict of a jury.
    Action to recover for services as sexton of a church which was-not incorporated, upon an alleged employment by defendant. At the evening recess the defendant ana his counsel went to their respective homes. After the recess the jury returned into court, and stated that they had not agreed and requested further instructions, which were given in the' absence of defendant and his counsel.

      Timothy M. Griffing, for app’lt; Benjamin H. Reeve, for resp’t.
   Dykman, J.

This is an action for the recovery of compensation for services as sexton of a church in Shelter Island in Suffolk county.

The action was commenced and tried in a court of a justice of the peace, where the plaintiff obtained a verdict. From the judgment entered upon that verdict the defendant appealed to the county court of Suffolk county, where the cause was retried before a jury and a verdict was again rendered for the plaintiff for the same amount.

Now the defendant has appealed to this court from the judgment entered upon the last verdict.

The claim of the plaintiff was that the defendant employed him to perform the services rendered, and the defense was that the services were rendered gratuitously and without expectation of compensation.

Both parties gave evidence tending to establish their respective positions, and the testimony was contradictory and presented a question of fact for the determination of the jury.

The verdict in favor of the plaintiff settles the facts against the defendant, and it is not a proper case for the interposition of an appellate tribunal.

The case presents no errors of law, and the judgment and order , denying a motion for a new trial on the minutes should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    The People ex rel. Richard McGrath v. The Board of Excise of The City of Yonkers.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Excise—Revocation op license.
    Proceedings were commenced before the board to revoke relator’s license, on the ground of keeping open bis bar on Sunday. An officer testified that his attention was attracted by the crowd going in the place by the hall door; that he went in and found the bar-keeper behind the bar, ready for business, and that relator tried to put him out. Relator having been indicted upon the same testimony for not keeping bis hotel closed on Sunday, which indictment was quashed on demurrer, the proceeding was opened, and a motion made to dismiss the proceeding on the ground that the indictment had been set aside, which motion was denied, and his license revoked. Held, that the proceedings were regular, and that the proof warranted the decision.
    2. Same—Bar.
    The judgment of the court of sessions sustaining the demurrer to the indictment for not closing the hotel was not a bar to this proceeding.
    Certiorari to review the action of the board in revoking the relator’s hotel license.
    Complaint being made to the excise board that relator had violated his license by keeping his bar-room open on Sunday, a summons was issued, and on the return day thereof the relator appeared personally and by counsel. On the adjourned day he did not appear, and testimony was taken of the officer who made the complaint. The officer testified that he noticed crowds of people going in relator’s hall door, which was open; that he went in to see where they were going, and passed through an inside door into the bar-room: that relator was there, and his bar-tender behind the bar, ready for business; that there were a dozen persons sitting there at tables on which there were glasses of beer; that relator tried to put him out, upon which he arrested him and took him to the station house, where he gave bonds, and that he was after-wards indicted. Subsequent to this, relator’s demurrer to the indictment, which was for not closing his hotel on Sunday, was sustained by the court of sessions, and the indictment dismissed. This proceeding was then re-opened, and relator moved for its dismissal on the ground that the indictment had been dismissed. This motion was denied, and the board revoked the license.

      John F. Brennan, for relator; Arthur J. Burns, for resp’t.
   Barnard, P. J.

The evidence returned shows that the relator was a licensed innkeeper; that he kept open his bar-room on Sundays. The proof warrants a conclusion that the persons who frequented and drank beer upon the premises were not travelers, but were such as frequented saloons. The decision of the Westchester court of sessions had no relevancy. The indictment was for not keeping his inn closed on Sunday. The relator had an opportunity to present his defense on the 6th of November, 1891, after the sessions had sustained the demurrer to the indictment. The motion to dismiss the complaint was properly denied. The proceedings before the county court of sessions did not bar this complaint and the evidence established that the frequenters of the bar-room on Sundays were not guests of a hotel.

The judgment of the commissioners should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Per Curiam.

text:
    Albert S. Newcomb, Resp’t, v. Horatio N. Fraser et al., App’lts.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

    Contract—Hiring—Construction.
    Plaintiff was employed by defendants to introduce and sell certain medical preparations on commission, or for a certain sum per year if commissions did not amount to that sum, the commission on sales to new customers being fixed at forty per cent, less expense of delivery, and the contract provided for a lay off in case of accident delaying manufacturing for over two weeks A fire occurring which caused a lay off, an arrangement was made by which plaintiff was to sell for fifty per cent, less expense of delivery. In an action on the first named contract; Maid, that the two contracts were not intrinsically inconsistent, and that the question whether the last one superseded the first, or was intended as a temporary expedient, was one for the jury to be determined by the attendant circumstances.
    Appeal from judgment of the general term of the city court of New York, affirming a judgment in favor of plaintiff, entered on verdict. , •
    Action on a contract of hiring.
    The contract sued upon was entered into February 1,1886, and was to continue one year at $1,715.50, payable monthly, together with a commission of forty per cent on all sales made by him to new customers, and twenty per cent to old customers. If the sales were made to retail druggists the commissions were to be fifteen per cent, and to wholesale druggists ten'per cent. If the commissions for the year fell below $1,715.50, the plaintiff was to receive that sum in full payment. If they exceeded that sum he was to have the excess. It was also agreed that in case of accident, whereby the defendants were delayed in their manufactory for “ more than two weeks,” the plaintiff was to be laid off and receive no compensation during the “lay off.”
    An accident occurred February 7, 1886, by which the defendants’ manufactory was destroyed by fire. No services of any consequence had been performed under the contract up to this time. • The contemplated “ lay off ” followed.
    About the 4th of March, 1886, the plaintiff claimed that the “ lay off ” ceased. Finally, on April 12, 1886, a new arrangement was made. By the new arrangement the plaintiff was to receive fifty per cent commission on each order, and the writing signed by the plaintiff specified that the commission was to stop January 1, 1837. The plaintiff claims that this was only a temporary or experimental arrangement not intended to supersede the original contract.
    The following is the opinion of the city court:
    Fitzsimons, J.—This This real question litigated between the parties hereto at the trial of this action was, “Did the agreement of April 12th cancel the agreement of February 1st, or was it intended by the parties hereto as a temporary substitute therefor and only to that extent a modification of the same ?
    The question was fully and fairly submitted to the jury and they by their verdict decided that the April agreement was merely a temporary substitute for the February agreement, and rendered judgment in favor of plaintiff.
    In submitting this question to the jury in the manner he did, I think the trial justice did right. The agreement of April 12 is certainly vague, uncertain and indefinite, and the intent of the parties is left in doubt, and, therefore, it was proper, in view of this condition of affairs, to submit the whole matter to the jury and let them, from all the evidence in the case and surrounding circumstances, determine what was the purpose and intention of the parties when they made said agreement. That the trial justice in pursuing this course did the wisest thing, is apparent from a reading of the February agreement. In that paper nothing is left to inference or conjecture; all is plain. The rights and duties of the parties thereunder are clearly set out and defined. From this circumstance I infer that the parties, when they intended to make a final and lasting agreement, expressed in writing their agreements fully, but when they intended to make a mere temporary and shifting agreement they carelessly and uncertainly expressed the same as they did in the April agreement
    The objections of defendants are mainly based upon the theory that the April agreement annulled the February agreement, andas this theory is in our opinion a mistaken one, we believe that the objections are not well taken.
    The plaintiff had the right, in fact it was his duty, to seek employment elsewhere when defendants failed or refused to carry out their agreement with him.
    The jury, by their verdict, decided that the defendants and not the plaintiff refused to carry out the agreement. That the April' contract was not intended by the parties to annul the February agreement; under these circumstances the acceptance by plaintiff of employment from Caswell & Co. was not an abandonment of his contract with defendants, but, upon the contrary, was a duty which the law cast upon him, viz.: to seek employment so as to lessen the damages which accrued to him because of the violation cf his contract with defendants by defendants.
    The judgment must be aifirmed, with costs.

      A. B. Tappen (Abel Crook, of counsel), for app’lts; Walter R. Beach, for resp’t.
   Per Curiam.

The chief controversy between the parties was whether the contract of February 1, 1886, was superseded by the instrument of April 12, 1886.

The papers not being intrinsically inconsistent, but their effect, one upon the other, depending on the attendant circumstances and contemporaneous oral explanations, presented a question, not of law for the court, but of fact for solution by the jury; and the verdict being supported by sufficient proof, we have no jurisdiction'to disturb it because contrary to the weight of evidence.

The result of the trial appears to be in conformity with substantial justice, and unaffected by material error; and, accordingly, the judgment is affirmed, with costs.

Daly, Ch. J., Bischoff and Pryor, JJ., concur.


author: Giegerich, J.

text:
    Henry Clews et al., App’lts, v. John B. Alley, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

    Guaranty—Statute of frauds.
    In an action upon an alleged guaranty of payment of a note it appeared that such note was made in pursuance of an arrangement for the settlement of a suit against defendant, plaintiff Clews and others in such manner that it should seem to remain unsettled. The note in question was made by one R., who was not a party to the suit, and represented the share which Clews was to pay under the arrangement. Plaintiffs discounted the note and claim that defendant verbally agreed to pay the note if R. did not; while defendant claims that R. had agreed to pay Clews' share if his note was discounted. The evidence on ail these points was conflicting. Meld, that the court properly left these questions to the jury and instructed them that if defendant merely guaranteed payment of the note he was not liable as the promise being verbal was invalid under the statute; but that if the note was only intended as a screen to cover his obtaining the money and paying it himself he was liable.
    Appeal from a judgment of this court entered in favor of the defendant on the verdict of a jury, and from an order denying a'-motion for. .a new trial.
    The facts are stated in the opinion.

      Albert A. Abbott, for app’lts; Robert G. Ingersoll and Robert H. Griffin, for resp’t.
   Giegerich, J.

This action was brought to recover $2,000 and interest upon an oral promise or guaranty alleged to have been, made by the defendant to the plaintiffs.

The complaint alleges the making of a certain promissory note by one George D. Roberts, bearing date March 2, 1885, whereby he promised to pay to the order of Henry "Clews & Co. two thousand dollars with interest, six months after said date; that on March 2, 1885, the plaintiffs, at the request of the defendant, cashed the aforesaid note, and on the like request paid such cash to Albert A. Abbott; the complaint further charging that this transaction was had solely in consideration of the defendant’s promise and agreement that he would pay the aforesaid note if the said George D. Roberts should fail to pay the same at maturity. The complaint was amended at the trial by adding the allegation that “ Roberts, at the request of defendant solely, and without any consideration whatever, and upon the defendant’s promise to protect him, the said Roberts, from any liability thereupon.”

The answer admits the making and delivery of the note; denies the guaranty or the receipt of any consideration on the alleged guaranty, and pleads the statute of frauds as a special defense.

It appears that on March 2, 1885, the day of the date of the note, there was an action pending by one Mott against John B. Alley and nine others, charging them with fraud in putting the stock of the Santa Maria Mining Company on the market, of which company the defendant was president and one of its largest stockholders. The plaintiff Clews was the treasurer of the company, but held only one share of the stock.

The plaintiffs claimed that the defendaut aud others, who were largely interested in the company, were desirous of settling the litigation, but wished to settle in such a way that they would not render themselves liable to demands of a like nature in the future, while the plaintiff Clews was willing that it should be settled provided he should not be required to pay anything towards the settlement; that Roberts, the payee named in the note, was the intermediary who arranged the settlement; that he was used “ for the purpose of concealing or coveiing up ” the terms of settlement, being, as testified to by the plaintiff's witness George D. Roberts, that Harpending should pay $8,000, the defendant $6,000, and Clews $2,000, in all $16,000, the payments to be made through Roberts in “ such a manner that it would still appear it was unsettled.” It further appeared by the testimony of the said Roberts that upon the defendant’s verbal promise to protect him, he (Roberts) gave to the defendant his notes for $6,000, and a note to Henry Clews & Co. for $2,000 (the note in question); that the defendant went away with them, and when he came back he had a check payable to Roberts’ order, which the latter endorsed and gave it to the defendant, who handed the check to Mr. Abbott

It also appeared by the testimony of the plaintiffs that the note in question was received from the defendant on March 2, 1885; that the defendant then said: “ Mr. Clews, I want your firm to cash this note, and I will guarantee that it is paid. If George D. Roberts does not pay it, I willand thereupon, and upon the faith of these representations and statements, the plaintiffs cashed the note.

The defendant’s version of the transaction is that these $2,000 were not for him; that he never made any promise to Mr. Clews of any kind or any agreement wnth him respecting that sum of money or the note in question ; that Roberts in the presence of Clews agreed to pay $2,000 as his part of the amount to be paid in settlement, provided Mr. Clews would discount his note in six months time for that amount; this Mr. Clews agreed to do; that accordingly Mr. Roberts made a note for that amount, and as he was going to the office of Mr. Clews, Roberts requested the defendant to take the note and obtain the money for him (Roberts), which the defendant did and subsequently gave it to Roberts.

It appears to have been conceded upon the trial that Roberts was not a party to the action which was settled; that he was not settling a liability in that action for himself; but the defendant testified that Roberts promised to pay $2,000 if Mr. Clews would discount his note, which he swears Mr. Clews agreed to do, and the defendant insists that the transaction was simply one of an advance of money to Mr. Roberts on his (Roberts) own note, and not a guarantee of the note in question by the defendant, as claimed by the plaintiffs.

Upon the issue thus raised the learned trial judge charged the jury, among other things, as follows:

“So the question for the jury to determine in this case is whether this was the debt of Alley to Clews, or whether it was a simple guaranty by Alley of the note of Roberts, given to Clews & Co., or whether there was any guaranty whatever upon the part of Mr. Alley. If Mr, Alley promised nothing, then, of course, Re is not liable in this action. If he promised that he would pay that note if Roberts did not pay it, then he is not liable, because it was a verbal promise; and, in respect to that, the jury will consider that the statute in question is a wholesome one, and designed to protect persons from liability for the debts of others unless they have specially assumed them in writing, to protect them from being charged upon the evidence of a mere verbal contract. But if the transaction was that Mr. Alley got this as an advance from Mr. Clews and this note was only intended as a screen to cover his obtaining this money and paying it himself, so that he was in no sense the guarantor of another, but was promising expressly to pay his own obligation, then, of course, he is liable. ”

To this the plaintiffs took the following exception :

“And I also except to your honor’s reference in the charge to the statute of frauds as in any way applicable to this case, and to your honor’s charge where you spoke of the probability of the jury finding on the evidence that it was a simple guarantee of a note of Roberts. I claim that there was no obligation on the part of Mr. Roberts in any event.’,’

This exception cannot, under any view of the evidence in the case, be sustained. If credence be given to the testimony of George D. Roberts, a witness called bv the plaintiffs, that Harpending should pay $8,000, the defendant $6,000, and Mr. Clews $2,000, and that Harpending paid his share in bills, and the defendant paid $6,000 by the note of the witness Roberts, and also $%,000 by the note made by Roberts to Henry Clews & Co., then the conclusion is inevitable that Clews’ share of the settlement, viz., $2,000, was paid by the identical note in question. If this view of the evidence is correct, then as the alleged promise was made upon a consideration moving to a third person and beneficial to him, and not upon a consideration moving to the defendant, so that the defendant came in merely as a surety for the plaintiffs on the indebtedness of the plaintiff, Henry Clews, the promise, was collateral and void within the statute of frauds. Throop on the Validity of Verbal Agreements, § 663; White v. Rintoul 108 N. Y., 222; 13 St. Rep., 495.

On the other hand, if the defendant’s version of the transaction is credited, or if discredited, and the evidence viewed in the most favorable light to the plaintiffs, viz.: that Roberts made the note in suit for the accommodation of the defendant, who obtained the money from the plaintiffs, and that this note was only intended as a screen to cover his obtaining this money for himself, so that he was in reality obtaining the money on his, own obligation and on his promise to pay the same, then the charge as a whole conveys the correct rule of law upon the questions presented by the evidence, and therefore the exception to the same cannot be sustained. Sperry v. Miller, 16 N. Y., 407; Caldwell v. N. J. S. Co., 47 id., 282; Losee v. Buchanan, 51 id., 476, 492; Hickenbottom v. D., L. & W. R. R. Co., 122 id., 91; 33 St. Rep., 312, Chellis v. Chapman, 125 N. Y., 214; 35 St. Rep., 17.

The plaintiff requested the court to charge:

“ 1st If you believe the testimony of Mr. Clews and Mr. Foster concerning the promise of Mr. Alley, you must find a verdict for the plaintiff.”
“2nd. A paroi promise, that is a promise by word of mouth, such as Mr. Clews and Mr. Foster testify was made, is as good and valid in law as though it had been in writing and signed by the defendant.”

The judge refused to charge as requested, and the plaintiffs excepted. The principle of law involved in these requests was fairlj. covered by the charge, and the judge was hot required to charge the same proposition a second time, or in the particular language of the request Conley v. Meeker, 85 N. Y., 618; Raymond v. Richmond, 88 id., 671; Esmond v. Kingsley, 19 St. Rep., 665. These exceptions to the judge’s charge cannot therefore be sustained.

The verdict of the jury is amply sustained by the evidence, and we can find no reason to interfere with their determination of facts.

The judgment and order appealed from should therefore be affirmed, with costs to the respondent

Bischoff and Pryor, JJ., concur.


author: Pryor, J.

text:
    The United States National Bank, Resp't, v. The Home, stead Bank, App’lt.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

      1. Pleading— Sufficiency of complaint.
    A complaint will not be dismissed as not stating a cause of action, although drawn in flagrant disregard of the rules of pleading, where its allegations are susceptible of a construction that may support the action.
    2. Contract—Consideration—Compromise of disputed claim.
    The compromise of a doubtful or disputed claim is a sufficient consideration to uphold an assumpsit, and when action is brought on such promise it is no answer to show that the claim was not a valid one.
    3. Same—Power of president of corporation.
    Where a corporation seeks to avoid a compromise of a disputed claim against it made by its president, on the ground of want of authority to make it, the burden is upon it to show that such action was not authorized or ratified.

      Appeal from judgment of the general term of the city court of New York, affirming judgment entered on verdict.
    Action for money on a compromise of an unliquidated claim for. ser vices.
    The plaintiff, a national bank, brought this action to recover from the defendant, a state bank, the balance of an amount agreed to be paid plaintiff by defendant for services in clearing for defendant for over a year and transacting its business in the New York Clearing House
    The name of the defendant was originally the Ninth Avenue Bank.
    When the defendant bank started business it applied to the plaintiff to secure the facilities of the New York Clearing House, and plaintiff undertook to do the business of the defendant through the Clearing House, which was to receive and pay checks which defendant deposited with plaintiff, and to redeem checks drawn on defendant, provided defendant - would keep on deposit with plaintiff $20,000 to recompense it for the trouble and work for doing this Clearing House business.
    The plaintiff performed its undertaking, but defendant failed to observe its agreement and keep on deposit with plaintiff the amount agreed.
    Under these circumstances the presidents of plaintiff and defendant agreed that, in view of the breach, the sum of $1,200 should be allowed by defendant to plaintiff for its services in the Clearing House, being six per cent, on $20,000 for one year.
    And, accordingly, $500 was paid on account.
    The balance, $700, not having been paid, this action was brought to recover the same with interest.

      Charles F. MacLean, for app’lt; Howard R. Bayne arid Walter L. McCorkle, for resp’t.

       Affirming 40 St. Rep., 870.

   Pryor, J.

Before evidence taken, the defendant moved to dismiss the complaint, on the general ground that it was insufficient in substance; and an exception to the denial of the motion presents the first question for consideration.

It is not to be denied that the complaint is drawn in flagrant disregard of the rules of pleading; ■ but, nevertheless, its allegations are susceptible of a construction that may support the action.

“It is not sufficient to sustain a demurrer that the facts are imperfectly or informally averred, or that the pleading lacks definiteness, or that the material facts are argumentatively stated.” Milliken v. W. U Telegraph Company, 110 N. Y., 403; 18 St. Rep., 328. “On demurrer all reasonable intendments will be indulged in support of the pleading.” Lorillard v. Clyde, 86 N. Y., 385. “On demurrer a complaint will be deemed to allege what can by reasonable and fair intendment be implied from the allegations.” Marie v. Garrison, 83 N. Y., 14, 23.

On a motion at the trial for judgment cn a pleading, the rule of construction is still more liberal in its support.. Hence, an answer of possession for twenty years, not stated to be adverse, though bad on demurrer, will be held sufficient to allow evidence of the adverse user; the doctrine being, that a defective pleading, though the defect be one of substance, will not warrant the judge at the circuit in excluding evidence of the claim or defense thus imperfectly set up , ’ and that “ an issue is not immaterial on account of the omission of some averment in a pleading which is essential to the full legal idea of the claim or defense attempted to be set up.” White v. Spencer, N. Y., 247, 250, 251.

On the face of the complaint before us it sufficiently appears that, in compromise of an unliquidated claim for services rendered by the plaintiff, the defendant promised to pay the sum of twelve hundred dollars.

By all authorities the compromise of a doubtful or disputed claim is a sufficient consideration to uphold an assumpsit; and “ when an action is brought upon such a promise, it is no answer to show that the claim was not a valid one.” Crans v. Hunter, 28 N. Y., 389; White v. Hoyt, 73 id., 505; Dunham v. Griswold, 100 id., 224.

At the close of the plaintiff’s case the defendant moved to dismiss the complaint, on the ground “ that no cause of action had been shown on the alleged compromise.” But it was sufficiently evident that the plaintiff asserted a claim for an unliquidated amount against the defendant, and that m discharge of it the defendant’s president agreed to pay twelve hundred dollars. This version of the transaction the jury found to be true; and we have no jurisdiction to review their verdict in the light of conflicting evidence.

The defendant contends, however, that its president had no authority to make the compromise and promise the payment Indisputably, the compromise agreement was within the corporate powers of the defendant; and, “where a contract made in the name of a corporation by its president is one the corporation has power to authorize its president to make, or to ratify after it has been made, the burden is upon the corporation of showing that it was not authorized or ratified.” Patterson v. Robinson, 116 N. Y., 193; 26 St. Rep., 685; Chemical National Bank v. Kohner, 85 N. Y., 189; Lee v. The Pittsburgh Coal & Mining Company, 56 How., 373; aff’d 75 N. Y., 601.

So far from discharging the obligation to disprove original authority in its president to make the compromise or its subsequent ratification, the defendant itself furnished evidence to warrant an inference of-such authority and ratification.

Supposing, however, insufficiency in plaintiff’s proof; still, as the particular defect of evidence was not indicated by the motion for non-suit, we are unable to say that it might not have been supplied upon challenge. On this ground the appeal would miscarry. Webb v. Odell, 49 N. Y., 583; Mallory v. The Travellers Ins. Company, 47 id., 52, 54; Isham v. Davidson, 52 id., 237.

We see in the record no error involving reversal of the judgment.

Judgment affirmed, with costs. -

Bookstaver and Bischoff, JJ., concur.


text:
    Nellie Macdonald, Appl’t, v. Frederick F. Kieferdorf, Def’t.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

    1. Attachment—Waiter oe Objections,
    An objection that the moving papers on a motion to vacate an attach'ment made by subsequent attaching creditors do not show that the moving creditors have obtained a valid attachment or sufficiently-point out the particular irregularity complained of, cannot be raised for the first time on appeal.

      2. Same—Warrant must recite legal ground.
    A warrant of attachment must recite a legal ground therefor. A failure to do so does not constitute a mere irregularity, but is a jurisdictional defect.
    8. Same.
    A recital that the defendant has departed from the state is nut a compliance with § 641 of the Code, as this is not one of the grounds specified for the granting of an attachment.
    Appeal by the plaintiff from an order of this court, entered upon the motion of subsequent attaching creditors, vacating a warrant of attachment herein.
    On the first day of February, 1892, Nellie Macdonald, the plaintiff and appellant, procured a warrant of attachment against •the property of Frederick F. Kieferdorf in this action, which was subsequently levied upon the property of the defendant. The warrant recited “ that defendant has departed from the city and state of New York”
    ' Subsequently Harford B. Kirk and others, composing the firm of H. B. Kirk & Co., the respondents, upon an .affidavit of their attorney alleging the granting of the said warrant of attachment in the above entitled action on February 1, 1892, a copy of which he annexed to the moving papers, and also that in pursuance thereof .the sheriff had made a levy on the stock and goods of the defendant; that on or about February 4, 1892, an action was commenced in this court, in which the respondents were plaintiffs, and the defendant herein defendant; that on February 5, 1892, an attachment was granted in said last mentioned action against the property of the defendant, upon the ground that defendant had departed from this state"with intent to defraud his creditors or to avoid the service of a summons, and duly issued to the sheriff, who by virtue thereof attached the property of the defendant, and .upon the sheriff’s.certificate that he had levied Upon the property of the defendant by virtue of each of the aforesaid attachments, moved to vacate the attachment granted herein, upon the ground that it fails to comply with §§ 23 and 641 of the Code of Civil Procedure.
    Upon the argument of the said motion the appellant applied to the court “for leave to amend the said warrant of attachment by inserting therein a full statement of the grounds upon which the said warrant, was granted, as required by § 641 of the Code of Civil Procedure,” which application was denied, and- the said motion was granted, “ upon the ground that the said warrant of attachment fails to comply with § 641 of the Code of Civil Procedure,” and from the order entered thereon the plaintiff appeals.
    Farther facts are stated in the opinion.

      S. F. Kneeland and Henry M. Heymann, for app’lt; Seth Sprague Terry, for resp’ts.
   Giegerich, J.

The appellant seeks a reversal "of the order appealed from on the ground, among others, that the moving papers in this case do not show that any valid attachment had been obtained by the moving creditors, and that, therefore, the motion to vacate her attachment could not be entertained Had such an objection been made in the court below it would have been fatal to the right of the moving creditors to make such application, Tim v. Smith, 3 Civ. Pro., 347; aff’d 93 N. Y., 87; Williams v. Waddell, 5 Civ. Pro., 191; Bruen v. Gillet, 44 Hun, 298; 7 St. Rep., 632; Williams v. Kulla, 11 St. Rep., 283; Dayton v. The McElwee Mfg. Co., N. Y. Law Journal, Dec. 22, 1891, unless the defect pointed out was permitted to be supplied by amendment. But it would be manifestly unjust to permit such an objection to be raised for the first time on appeal, which the appellant had every opportunity to present in the court below, and which if made might have been met by strict legal proof of the subsequent lien, Tim v. Smith, supra; or if the court would not have permitted an amendment to supply such proof, it must have denied the motion without prejudice to a renewal of the application upon proper proofs and papers; therefore, under these circumstances, the objection is not available on appeal in the first instance.

The appellant also insists that the particular irregularity is not specified in the moving papers, The order to show cause specifies with sufficient distinctness the grounds upon which the moving creditor moved the court to vacate the warrant of attachment herein ; but conceding that the ground was not sufficiently pointed out, the record shows that this objection was not raised in the court below, where a full argument and hearing was had upon the merits, and under the authorities the objection cannot now be entertained for the first time. Livermore v. Bainbridge, 14 Abb., N. S., 227; Miller v. Kent, 10 W. Dig., 361; 59 How., 321.

The appellant also insists that the omission of any of the requirements specified in § 641 of the Code óf Civil Procedure is a mere irregularity, and that such an omission may be supplied by amendment. It is difficult to see how such a construction can be placed upon these provisions of the Code, which are mandatory, as clearly appears by the following portions thereof applicable to the case under consideration, viz.: “ The warrant must be subscribed by the judge and the plaintiff’s attorney, and must briefly recite the ground of the attachment.” Id. The requisites of the warrant are thus prescribed, and it is manifest from the language of the statute that the legislature intended that unless these provisions are complied with, the warrant should be void.

This view is in accord with that of the codifiers, whose reasons for the additional requirements which now appear in § 641 of the Code are stated by Mr. Throop, in his Hotes on the New Code, at page 129, and in which he says that the additions to this section are modelled upon a corresponding section in title 1 (§ 561). In the note to § 561 he says the second and third sentences have been added, and that the former expressly requires the order to state the grounds of arrest, so as to harmonize the provision with similar provisions relating to other provisional remedies, and with § 568, whereby the plaintiff, in opposing a motion to vacate an order of arrest, made upon proof on the part of the defendant, is, in general, confined to the grounds of arrest recited in the order.

While § 561 was amended in 1877 so as to omit this requirement, it can make no difference in the reason given by the codifiers. It was manifestly their intention to require the ground to be recited in tire warrant of attachment, as § 683 expressly provides that, upon a motion to vacate an attachment made upon additional affidavits, new proof on the part of the plaintiff may be made, tending to sustain any ground for the attachment recited in the warrant and no other.

In the case at bar the warrant which was vacated substantially failed to recite the ground of the attachment. It merely recited that “ defendant has departed from the city and state of New York.” This is not one of the grounds specified in the Code for the granting of an attachment. A person has a perfect right to depart from the city and state of New York, without subjecting his property to an attachment. In only two instances can an attachment be granted against the property of a person departing from the state, and those are, when he departs either with-intent to defraud his creditors or to avoid the service of a summons.

We have not, after some research, been able to find any decision touching the precise point involved. We have- been referred to the case of the First National Bank v. Bushwick Chem. Works, 17 Civ. Pro., 229; 25 St. Rep., 830, which does not touch the point, and it, therefore, cannot be regarded as controlling. In that case an attachment was granted upon the ground that the defendant was about to fraudulently assign, secrete or dispose of its property, while the warrant recited that it had transferred and disposed of its property fraudulently. The court said this was irregular, but as the defect had not been pointed out in the notice of motion as a ground of vacating the attachment, it could not be taken advantage of.

The difference between that case and the one at bar is plain. There the warrant on its face was a good one, as it recited a ground recognized by the Code; but in the case at bar the warrant does not recite any legal ground whatsoever.

The case of Worthington v. Dorsett, 6 St. Rep., 861; rev’g Daily Reg., Oct. 5, 1886, which arose in the supreme court, is in harmony with the views above expressed. In that case the name of the judge who granted the attachment was omitted from the copy warrant served. The defendants moved to vacate the attachment, which was denied by the judge at chambers, who held that the Omission referred to was a mere irregularity which it was the duty of the court to permit to be remedied, and was not a good ground for vacating the attachment. On appeal, the order denying the motion to vacate the attachment was reversed, and the paper purporting to he an attachment vacated.

The appellant has cited a number of cases which have been carefully examined and considered; but none of them are at variance with the conclusions arrived at and hereinbefore expressed. As a result of such an examination of the cases so cited, and of those cited by the respondent, it is deemed to be not amiss to state that the following deductions have been drawn therefrom, viz,:

1. That where the form of a mandate is prescribed by the Code, it must be substantially followed, otherwise the paper will be jurisdictionally defective and void. Osborn v. McCloskey, 55 How. Pr., 345; Worthington v. Dorsett, supra, Place v. Riley, 98 N. Y., 1; and see Blossom v. Estes, 84 N. Y., 614.
2. But where the substantial rights of the defendant have not been violated nor the rights of third persons prejudiced, the defect may be disregarded or supplied by amendment. Atlantic, etc., Tel. Co. v. Baltimore, etc., R. R. Co., 46 Supr. Ct., 377, 409.
3. Where the paper purporting to be a mandate recites the necessary jurisdictional facts, the same will not be set aside because of erroneous recitals therein, particularly if the defect is not pointed out in the notice of motion as a ground of vacating the attachment. First Rational Bank v. Bushwick, supra.
4. That sheriffs in an action against them to enforce an alleged liability as bail cannot attack the form of the mandate placed in their hands for enforcement. Douglas v. Haberstro, 88 N. Y., 611.

Inasmuch as the warrant in the case at bar was jurisdictionally defective, the order appealed from should be affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


author: Daly, Ch. J.

text:
    Philip Biershenk et al., App’lts, v. William E. D. Stokes, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

    1. Mechanic’s lien—Filing of lien no defense to action on contract.
    The fact of filing a mechanic’s lien does not constitute a defense to an action at law upon the claim, nor can the owner of the premises counterclaim in such action the expenses incurred in removing the lien and preparing for a possible action for its enforcement.
    2. Pleading—Demurrer—Judgment on.
    The proper judgment upon a demurrer to a part of an answer, where issues of fact remain to be tried, is an interlocutory judgment; final judgment cannot be entered until the case is ready for final judgment upon all the issues.
    Appeal from a final judgment of the general term of the city court, reversing the judgment of the special term, and overruling the plaintiffs’ demurrer to a part of the defendant’s answer, and from the order upon which said judgment was entered.

      Oscar Richter, for app’lts; Wm. R. Martin, for resp’t.

       Sec 43 St. Rep., 788.

   Daly, Ch. J.

The complaint was for work, labor and services, and the answer of the defendant, besides denying that the plaintiffs performed said work for him, set up as new matter constituting a defense and counter-claim facts showing that the plaintiffs had filed an unauthorized mechanic’s lien against his property for the same work, and thus subjected him to the expense of clearing the said lien from his land, and to the cost of defending any action they might bring thereon, and counter-claiming $500 damages therefor. To this new matter plaintiffs demurred on the ground of insufficiency in law.

Although a mechanic may acquire a lien for his work, he is not confined to the enforcement of that security for phe satisfacfaction of his debt. It is a cumulative remedy, and does not prevent an action at law upon his claim. This was held under previous lien acts. Cremin v. Byrnes, 4 E. D. Smith, 756; Maxey v. Larkin, 2 id., 540; Pollock v. Ehle, id., 541; Gridley v. Howland, 1 id., 670. The provision of the present act, Laws 1885, chap. 842, permitting a personal judgment where the plaintiff fails to establish a lien, does not exclude the right to a personal action for the debt if the lienor chooses to resort to that remedy instead of the enforcement of the lien. The fact of the filing of the lien, therefore, does not constitute a defense to this action.

Nor can the owner of the premises counterclaim, in an action for the debt, the expenses he has incurred for removing the lien and preparing for a possible action for its enforcement. The expense of preparing for “ a possible action ” can be no ground of action; and, therefore, no ground of counterclaim. As to the expense of removing the lien, it cannot be counterclaimed in this action because it is not a cause of action arising out of the contract or transaction set forth in the complaint nor connected with the subject of the action. .The subject-matter of this action is the doing of the work, labor and services at the defendant’s request; and the subject-matter of the defendant's counterclaim is the filing of the lien for such work. But the former is wholly independent of the latter. Nor is the claim for damages for the expense of removing the lien a cause of action arising upon contract.

It would seem, therefore, that the new matter in the answer not containing a good defense, nor counterclaim, the demurrer was properly sustained by the special term of the city court. Upon appeal," however, the general term reversed the special term and ordered judgment for the defendant overruling the demurrer. Had an interlocutory judgment only been entered upon this decision, an appeal therefrom would not lie in this court. The opportunity ■ to have such interlocutory judgment reviewed by this court could only be presented upon appeal from the final judgment in the action.

'"•But the defendant has chosen to enter a final judgment, after taxation" efcosts, with a provision for execution therefor against the plaintiffs!* - _This is clearly irregular. The proper judgment upon a demurrer'to, a part of an answer where the issues of fact remain to be tried, is an interlocutory judgment. Final judgment in the action cannot be entered until the case is ready for final judgment upon all the issues. Watson v. Bedlow, 2 Monthly Law Bulletin, 26; Belknap v. McIntyre, 2 Abb., 866. The costs awarded upon sustaining the demurrer to a part of an answer cannot be collected until final judgment is rendered upon the issues in the action generally. Armstrong v. Cummings, 22 Hun, 570. But in this case the defendant has entered final judgment in his favor for the costs of the demurrer, and from such final j udgment the plaintiffs are entitled to appeal to this court. The Code, § 8191, provides for an appeal from the general term of the city court to this court where a final judgment has been entered upon an appeal taken to the general term. The final judgment appealed from must, therefore, be reversed and the defendant may enter an interlocutory judgment in place of it.

We cannot entertain an appeal from the order of the general term, nor affirm the decision of the special term, upon the demurrer, for they can only be reviewed upon appeal from the final judgment in the action to be entered after all the issues are disposed of; but we have expressed an opinion upon the merits of the demurrer because both parties have argued them upon their briefs on this appeal.

Final judgment of the general term reversed, and the case remitted to the city court for the entry of an interlocutory judgment upon the decision of the general term.

Appeal from the order of the general term dismissed.

Ho costs of this appeal to either party.

Bischoff and Pryor, JJ., concur.


text:
    Charles J. Hartman, Resp’t, v. The Morning Journal Association, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Libel.
    A publication which plainly and unequivocally imputes to a person immoral and disgraceful complicity in the conduct of an insurance swindle, and chai'ges him with culpable, if not criminal, misbehavior in the management of his business, is libelous per se.

    3. Same—Malice.
    The unprivileged publication of matter libelous per se raises an indisputable presumption of malice.
    8. Same—Matter in mitigation. .
    Matter in mitigation, in disproof of express malice, operates only to prevent recovery of exemplary damages, and is ineffectual to reduce the damages actually sustained.
    4. Same—Damages.
    Where the publication was in a newspaper of large circulation, and there is clear and explicit proof of actual injury in the repulse and scornful reception the plaintiff encounters from liis club and business friends, a verdict for $5,000 is not excessive.
    Action for libel, and appeal from judgment and order denying new trial.

      John R. Dos Rassos, for app’lt; Louis J. Grant, for resp’t.
   Pryor, J.

We are not convinced by the able argument of counsel for the appellant that this judgment should be reversed.

The exceptions to the charge are clearly untenable; for in his instructions to the jury the learned trial judge went to the utmost verge of the law to protect the rights of the defendant.

Neither is there merit in the exceptions to evidence; but if otherwise, they are ineffectual for lack.of specific grounds of objection. Cruikshank v. Gordon, 118 N. Y., 178; 28 St. Rep., 784.

Beyond all question the writings complained of are libelous per se, because they plainly and unequivocally impute to the plaintiff immoral and disgraceful complicity in the conduct of an “ insurance swindle,” and reproach him with acts of culpable, if not criminal, misbehavior in the management of his business. Witcher v. Jones, 43 St. Rep., 151; Morey v. The Morning Journal, 123 N. Y., 207; 33 St. Rep., 49; Sanderson v. Caldwell, 45 N. Y., 398; White v. Nicholls, 3 How., U. S., 266; Moore y. Francis, 121 N. Y., 199; 30 St. Rep., 467.

The publication being libelous and confessedly made by the appellant, the defense was justification and matter in mitigation of damages. But the issues upon these pleas were submitted to the jury and determined adversely to the appellant, and so far from being against the weight of evidence, the verdict, in our judgment, is supported by proof of the most convincing character.

No resource, then, is left to the appellant but to challenge the verdict as excessive in the amount of damages; and this, obviously, is the real reliance of the learned counsel,

In actions for defamation there is no legal measure of damages, Shute v. Barrett, 7 Pick., 84; Coleman v. Southwick, 9 Johns., 52; Wadswork v. Treat, 43 Me., 166; but the amount which the injured party ought to recover is referred to the sound discretion of the jury, Littlejohn v. Greeley, 13 Abb., 41; cases supra, and the only control over their decision is in the power of the court to set aside a passionate, perverse, partial or corrupt verdict. Shute v. Barrett, 7 Pick., 84; Clark v. Binney, 2 id., 119; Trabue v. Mays, 3 Dana, 138; Bentley v. Reynolds, 1 McMull, 16; Coleman v. Southwick, 9 Johns, 52; Beehler v. Steever, 2 Whart., 326; Burt v. McBain, 29 Mich., 260; Miles v. Harrington, 8 Kan., 425; Zuckerman v. Sonnenschein, 62 Ill., 115; Snyder v. Fulton, 34 Md., 128; Lick v. Owen, 47 Cal., 252.

Hence the familiar rule that a verdict for defamation will not be set aside because of excessive damages, unless so exorbitant as to imply prejudice, partiality, mistake or corruption on the part of the jury. Townshend on Slander and Libel, § 293 (4th ed).

The question then is, whether this verdict of $5,000 be of such enormity as to suggest the influence with the jury of some defective intelligence or sinister motive?

The unprivileged publication of matter libelous per se raises an indisputable presumption of malice, Bromage v. Prosser, 4 Barn. & C., 247; Dakota v. Taylor, 1 Dak., 471; Hamilton v. Eno, 81 N. Y., 116; Byam v. Collins, 111 id., 143; 19 St. Rep., 581; and this legal inference of malice goes to the jury, who consider the particular' circumstances of the case, and in the exercise of-their judgment determine what sum will afford proper reparation to the plaintiff. Warner v. Press Co., 43 St. Rep., 633; Yeates v. Reed, 4 Black., 463; Johnson v. Robertson, 8 Port., 486; Rigden v. Wolcott, 6 Gill & J., 413; Miles v. Harrington, 8 Kan, 425; Pool v. Devers, 30 Ala., 672. In libel or slander, where the words are actionable per se, no actual damage or express malice need be shown; but the jury must still award full compensation for the injury. King v. Root, 4 Wend., 113: Langton v. Hagerty, 35 Wis., 150; Townshend, 290, note 7; Hubbard v. Rutledge, 52 Miss., 584. If one be defamed the law presumes that he has been injured, leaves the amount of such injury to the determination of the jury, Boogher v. Knapp, 76 Mo., 457; Rep. Pub. Co. v. Miner, 12 Col., 77, and the damages should be commensurate with the injury. True v. Plumley, 36 Me., 481. Matter in mitigation, as disproof of express malice, operates only to prevent recovery of exemplary damages, but is ineffectual to reduce the amount of the damages actually sustained. Witcher v. Jones, supra; Rearick v. Wilcox, 81 Ill., 77; Shipp v. Story, 68 Ga., 47; Wozelka v. Hettrick, 93 N. C., 10. If the publication be libelous per se and false, sufficient is shown to require the submission of the question of malice to the jury and to warrant the allowance of exemplary damages. Bergmann v. Jones, 94 N. Y., 52. In assessing damages the jury may allow for injured feelings. Fry v. Bennett, 4 Duer, 247; Hamilton v. Eno, 16 Hun, 601; aff’d 81 N. Y., 116. Defamation by print implying greater deliberation, a more extensive operation, and a permanent effect, the law will presume damage from less serious matter thus published than when orally uttered. 3 Sutherland on Dam., 641. The greater the circulation of the paper, the greater the probable injury. Gathercole v. Miall, 15 M. & W., 319; Fry v. Bennett, 28 N. Y., 324; Bigelow v. Sprague, 140 Mass., 425; McAllister v. Press Co., 76 Mich., 338.

In the case at bar, the proof of actual injury to the plaintiff from the defamatory publications was explicit and uncontroverted; namely in the repulse or scornful reception he encountered from his club and business associates. To a person of refined sensibilities, and the evidence authorizes the inference that such was the plaintiff, a mere pecuniary loss, no matter how heavy, is nothing in comparison with the agonizing sense of humiliation and mortification under the frown of public hatred and contempt. On the trial counsel for appellant claimed for his client that the circulation of its journal is limited only by the confines of the habitable globe ; and the propagation of plaintiff’s infamy being thus universal, and its effect the sacrifice of the respect and companionship of his cherished associates, what right thinking or right feeling man will say that a verdict of $5,000 is an inordinate reparation for such a wrong?

The amount of damages awarded being then only in recompense of actual injury, is not to be reduced by any circumstances of mitigation.

But, in truth, the matters pleaded in mitigation, namely, probable cause and absence of malice, are not supported by the evidence.

Probable cause for publication of a libel is not to be accorded to him who grasps at the calumny with avidity, and prints it without reasonable proof of its authenticity. Common justice requires that before scattering its charges broad-cast, the defendant should hear the plaintiff’s story; or at all events should publish the charges only upon the authority of a responsible person. But here the defendant precipitately arraigned the plaintiff at the bar of public opinion, and accused him of misappropriating the funds of his company, on the irresponsible statement of a man masquerading under an alias. Nay, more, this particular calumny was published after its contradiction by plaintiff, and on the trial was not pretended to be supported by a scintilla of evidence. “A reporter has no right to gather stories on the street about a citizen, to his detriment, and publish them as facts in a newspaper.” McAllister v. Press Co., 76 Mich., 338.

“ In an action for libel, if it appears the libel was published with no intent to injure, and that all proper precautions were observed in publishing it, actual'damages only are recoverable.” Evening News v. Tryon, 36 Am. Rep., 450.

“ Mere belief in the truth of a publication is not sufficient to constitute good faith on the part of the publisher; he must be free from negligence as well as improper motives in making it. It is his duty to take all reasonable precaution to verify the truth of the statement, and to prevent untrue and injurious publications against others.” Allen v. The Pioneer Press, 12 Am. St., 708; Morey v. Morning Journal, 123 N. Y., 207; 33 St. Rep., 49.

In the evidence before us the jury found sufficient ground for the inference that the publication of the libel was ventured with a reckless indifference to its truth or falsity; and by all authorities a wanton is as efficient as a wilful injury in the infliction of punitive damages. Warner v. Press Co., 43 St. Rep., 633.

Appellant urges, nevertheless, that the libel was published with no other motive than to explode a 'swindle mischievous to the welfare of the community. But, from the irrelevant and unnecessary attacks upon the plaintiff personally, from the startling headlines with which appellant ushered its calumnies, and from the prurient passion for popularity visible in the articles, the jury were authorized to believe that not the public good, but the interest of sensational journalism, was the real inspiration of the libel.

The learned trial judge, in that spirit of fairness towards the defendant to which we have already adverted, and with less opportunity to scrutinize the evidence than is afforded to us, charged the jury that there was no proof of actual or express malice. But, when we consider that want of probable cause is itself evidence of malice; when we observe the defendant persisting in the libel notwithstanding plaintiff’s denial of the charges; and especially when he fails to offer one particle of proof in support of the justification pleaded for the accusation of embezzlement against the plaintiff, we do not hesitate to affirm that the jury would have been well warranted in imposing even a heavier penalty than that of which the defendant complains. Cruikshank v. Gordon, 118 N. Y., 178; 28 St. Rep., 784; Bergmann v. Jones, 94 N, Y., 52.

Judgment and order affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.