text:
    Hormisdas De Loge, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Negligence—Railroads—Crossings.
    The quest’on whether a railroad company was negligent in.running its train over a street crossing in a city at the rate of twenty-five miles an hour, is one of fact.
    2. Same—Imputed.
    Where, in an action against a railroad company for in juries at a crossing, it does not appear that plaintiff, who, when the accident happened, was in a wagon driven by another person, was guilty of affirmative negligence or co-operated with any affirmative negligent act of the driver, the question whether plaintiff was negligent'in trusting to the driver’s diligence, is one of fact. !

      3. Same—Charge.
    In such action, a charge that “ the negligence of the driver to which plaintiff has consented, or in which he participated, would defeat the plaintiff’s right of action," is properly refused.

      4. Same—Municipal ordinances.
    Under subdivision 3, section 8, title 3, chapter 714 of 1869, compliance with the direction of the common council that an ordinance l)e published in two papers is sufficiently shown by an affidavit of publication by the publisher of one paper, to which was attached a printed copy of the ordinance, with an affidavit of the publisher of another annexed to the printed copy “that a notice, of which the annexed is a printed copy, has been published in said newspaper.”
    Appeal from a judgment for plaintiff, and an order denying a motion for a new trial.
    Plaintiff was riding with one Keech in a carriage, and approached the crossing, and received injuries which caused the loss of both feet and ankles of the plaintiff. An amputation thereof became necessary between the ankles and knees. Rut-land street passes nearly north and south, and the railroad tracks nearly east and west. The train was due at Watertown at about nine o’clock, and was ten minutes late. As Keech and plaintiff approached the crossing from the north, they passed a church where there was some festivity taking place; and the evidence is somewhat conflicting as to whether the night was light or dark, and there was some evidence that the bells or whistles were not given before the train reached the crossing; and the plaintiff testified that he heard no warning until he leaped from the buggy. The engine struck the carriage about the forward wheels, and Keech was killed, and the plaintiff jumped from the vehicle, and received the injuries mentioned. Plaintiff was riding in the carriage upon the invitation of Keech, a man about sixty years of age, a farmer, who lived near Watertown, and for whom the plaintiff worked; and there is evidence that the plaintiff knew nothing of the existence of the railroad. The evidence tended to show that the train approached the crossing at a speed of over twenty-five miles an hour. The defendant’s engineer testified, viz.: “I won’t swear that we were not running faster than fifteen miles an hour when I crossed Rutland street.” And the fireman said: “I would not want to swear we were not running faster than twenty miles an hour.” And the defendant’s conductor testified: “We were going faster than fifteen miles an hour over Hamilton street. We were going between twenty and twenty-five, I should judge. We were not going more than probably eighteen or twenty miles over Central street. * * * I will swear we were not going twenty-five. Won’t swear we were not going twenty; might be twenty to twenty-two. I think it ia about 300 feet from Central street to Rutland street. I will swear we were not crossing Rutland street crossing at a. greater speed than fifteen miles per hour. I know very near the speed we were crossing that street that night; of course, I could not tell within a second probably. We were going faster than we ought, of course. I knew it, and didn’t try to stop it.” Plaintiff gave evidence tending to show that the city had adopted an ordinance forbidding the running of trains within the city limits faster than five miles an hour under a penalty.
    Mullin, Griffin & Walker, for app’lt;
    Smith & Smith, for resp’t.
   HARDIN, P. J.

Upon all the evidence found in the appeal book, we are of the opinion that the trial judge properly submitted the question as to whether the defendant was guilty of negligence in operating its trains in the manner disclosed by the witnesses at the time the injuries were received, as a question of fact, to the jury.

In Massoth v. Canal Co., 64 N. Y. 524, it was said:

“Irrespective of any ordinance or law regulating the speed of railroad trains, it was a question of fact whether the rate was excessive or dangerous in that locality; and, if so found by the jury, and such excessive rate of speed caused the collision, the defendant'was liable for the consequences.”

A somewhat similar doctrine was restated in Cordell v. Railroad Co., 70 N. Y. 124.

In Thompson v. N. Y. C. & H. R. R. R. Co., 110 N. Y. 637; 16 St. Rep. 869, it was said:

“The giving of the signals required by law does not, under all circumstances, render the defendant free from negligence if it ran its trains in an undue, and what might be found to be an improper and highly dangerous, rate of speed throughout a village or city more or less densely populated.”

Towns v. R., W. & O. R. R. Co., 28 St. Rep. 124.

2. Upon the evidence given by the plaintiff himself as a witness,and upon the circumstances disclosed in connection therewith by the other evidence in the case, we are of the opinion that the question of whether he was guilty of contributory negligence on the occasion of receiving the injuries was one proper for the jury to determine. Plaintiff had been invited by Keech to ride, and apparently was in possession of his faculties. He was a man some thirty-two years of age, and in the company of Keech, who was about sixty years of age; and, upon the circumstances disclosed by the evidence of the plaintiff, it was a question for the jury to-determine whether Keech was guilty of any negligence in approaching the crossing. The evidence does not indicate that the the plaintiff himself affirmatively was guilty of any negligence, or in co-operating with any affirmative negligent act of Keech. Hpon all the evidence disclosed, it was for the jury to determine whether the plaintiff was himself free from contributory negligence at the time the injuries wer,e received. Masterson v. Railroad Co., 84 N. Y. 247; Miller v. N. Y. C. & H. R. R. Co., 82 Hun, 164; 63 St. Rep. 766; affirmed, 33 N. Y. Supp. 1130; Chisholm v. State, 141 N. Y. 246; 56 St. Rep. 811; McGoldrick v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 640; 60 St. Rep. 866; Bennett v. N. Y. C. & H. R. R. R. Co,. 40 St. Rep. 948; affirmed, 133 N. Y. 563.

In the last case it was said:

“The plaintiff being a poss'enger merely, and having no right to direct or control Mulligan, while not excused from exercising care herself, Mulligan’s negligence cannot be imputed to her. Eobinson v. Bailroad Co., 66 N. Y. 11; Masterson v. Railroad Co., 84 id. 247; Dyer v. Kailway Co., 71 id. 228; Platz v. City of Cohoes, 24 Hun, 101; Hoag v. N. Y. C." & H. R. R. R. Co., 111 N. N. 199-203; 19 St. Rep. 80.”

Upon the evidence given at the trial, we are of the opinion that the jury was warranted in finding the plaintiff free from negligence contributing to the injuries received.

The foregoing views lead to the conclusion that there was no error committed by the trial judge in refusing a motion for a non-suit, “upon the ground that, upon the undisputed evidence, the defendant is not chargeable with any negligence which contributed to the accident; and, upon the undisputed proof, it does not appear that the plaintiff himself was in the exercise of any care to prevent the accident, or, in other words, that he is chargeable with contributory negligence.” We think the motion based upon the grounds mentioned were properly denied, and that the exception thereto presents no error of which the appellant can avail.

Appellant calls our attention to Bates v. N. Y. C. & H. R. R. Co., 84 Hun, 287; 65 St. Rep. 496. In looking into the facts disclosed in that case, we find they differ widely from the facts presented by the testimony in the case at bar, and therefore they do not sustain the contention of the appellant in this case.

3. We think no error was committed in refusing the request made to the court that it should charge that:

“The negligence of Keech, to which the plaintiff consented, or in which he participated, would defeat the plaintiff’s right of action.”

The request was too broad. It assumed that Keech was guilty of negligence. Second, it assumed that the plaintiff consented to such negligence, or participated therin. In the body of the charge the court had observed:

“The fact that Keech may have been negligent does not impose liability for negligence on the part of plaintiff. If Keech was negligent, that negligence is not to be imputed to the plaintiff. On the contrary, the plaintiff could not rely upon the guardianship of Keech; he could not negligently permit himself to be in the custody of Keech, and depend upon Keech’s diligence and prudence; but he must necessarily have depended upon his own judgment, and he was required to give care and diligence himself, notwithstanding Keech may have been negligent.”

We think the charge as delivered was as fair upon the subject-matter embraced in the request as the" defendant was entitled to receive at the hands of the court.

4. We think there was sufficient evidence to indicate that the city of Watertown had adopted an ordinance forbidding the running of trains at a greater rate of speed than five miles an hour. through its city. In the thirty-third subdivision of section 8 of its charter, defining the powers of the common council, authority is given to the common council from time to time to make, ordain, and establish such by-laws and ordinances as may be necessary and proper. See subdivision 33, § 8, tit. 3, c. 714, Laws 1869. The charter expressly authorizes the common council to regulate the speed of railroad cars. See subdivision 26, § 8, of the charter. Subdivision 33, section 8, of the charter provides that such by-laws and ordinances as shall be adopted by the common council “shall be published in such manner as the common council may direct before they take effect.” It seems the common council adopted an ordinance in 1890, providing that it should take effect on the 16th day of October, 1890, which, upon inspection, turned out to be an amendment of a previous ordinance upon the same subject, with the same purport, however, as to the rate of speed at which trains should be operated within'the city. At the time of the adoption of the ordinance of 1890, a direction was given that the ordinance should be published in the Watertown Daily Times and Watertown Reunion before the date of its taking effect. Chapter 810 of the Laws of 1871 provides that the chamberlain shall act as clerk of the common council. There was a certificate produced by the chamberlain, and affidavits of publication of the same. Upon the argument before us, the original exhibit No 9, as marked at the trial by the reporter, was produced, which purports to be an affidavit made by Clare, publisher of the Watertown Reunion, to which affidavit is annexed a printed copy of the ordinance, and attached to that affidavit and annexed to the printed copy of the ordinance is the affidavit of Cole, publisher of the Watertown Daily Times, in which affidavit it is^said “that a notice of which the annexed is a printed copy has been published in said newspaper.” ' We think the affidavit must be read in connection with the ordinance of which a printed copy appears attached to the affidavit, and that the objections to the introduction of the ordinance were properly overruled, and that the exceptions thereto do not present, error. Code, §§ 926, 941.

No other exceptions are pressed upon our attention by the brief of the learned counsel for the appellant, nor were any others discussed in the course of his oral argument. Several others seem to have been taken during the trial, but have not been regarded as of sufficient consequence to challenge an argument in respect thereto from the appellant’s learned counsel. Plaintiff received very serious injuries, and no objection is made by the appellant’s counsel to the amount of damages awarded therefor. The foregoing views lead us to sustain the verdict.

Judgment and order affirmed, with costs.

All concur.


source: Caselaw Access Project

author: HARDIN, P. J.

license: Public Domain

text:
    Eliza A. Martin, App’lt, v. Charles B. Peet et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Contracts—Promise for benefit of third party.
    In order to establish a liability against a party making a contract with a third party not named therein, there must be a clear intention evinced to give a" right of action to such third party.
    8. Same—Indemnity.
    The agreement made by the defendants in this case, was held to be one of indemnity and'not a contract to pay the claim of the plaintiff or of any other party similarly situated.
    Appeal from a judgment of nonsuit, and from an order denying a motion for a new trial.
    Carver, Deyo & Jenkins, for app’lt;
    George F. Lyon, for resp’ts.
   HARDIN, P. J.

Plaintiff's complaint alleges that November 1, 1889, and for several years prior thereto, the Equitable Accident Association of Binghamton was a corporation organized under the laws of the state of Hew York, engaged in an accident insurance business, and that during said time Dunn and Ross were directors, and Arnold was secretary and manager, and Murray was attorney for the association, “and that they were the persons most largely interested in the conduct and management of the business of said association, financially and otherwise.” The complaint alleges that on the 23d day of Hovember, 1883, William A. Martin, then the husband of this plaintiff, became a member of the Equitable Accident Association of Binghamton, and received a policy of insurance, in which the association “undertook and agreed, among other things, to pay to this plaintiff, wife of said assured, the sum realized upon an assessment made in accordance with the provisions of its by-laws, not exceeding $5,000, within sixty days after the filing with the said association due proof that said William A. Martin had sustained bodily injuries, effected through external, violent, and accidental means, which injuries alone occasioned his death within niety days from the happening thereof.” The complait further alleges that William A. Martin, on'the 27th of April, 1889, while the policy was in force, “sustained an accidental injury, from which he died on or about May 10, 1889, and that the sum realized upon an assessment made in accordance with the provisions of said policy and by-laws, at the time of said accident, for exceeded the sum of $5,000.” It was alleged that the claim under said policy became due and payable about July 25, 1889, and that the same was not paid, and that the plaintiff, July 30, 1889, commenced an action against, the association on the policy; and that a defense was interposed by the association, and the action was for a long time contested “under the charge or direction of the above-named defendants;” that a trial was had at the Broome circuit, ¡November, 1892, and a verdict rendered for the plaintiff, and judgment entered therein in favor of the plaintiff against the association on the 19th of November, 1892, for the sum of $6,466.70; and that an execution was issued on the judgment to the sheriff of Broome on the 13th of March, 1893, and returned wholly unsatisfied prior to the commencement of this action. The plaintiff further alleges that at the times hereinbefore mentioned the United States Mutual Accident Association of the city of New York was a corporation organized under the laws of this state, and engaged in carrying on an accident insurance business; “that the said Charles B. Peet was the president, said James R. Pitcher was the secretary and general manager, of, and the said William Bro Swith was the attorney for, said association, and that they were the persons principally interested in the conduct and management of said association, financially and otherwise.” The complaint alleges that on the 1st of Ndvember, 1889, the defendants Peet, Pitcher and Smith “made an arrangement and entered into a contract with” Dunn, Ross, Arnold and Murrray, claiming to represent the Equitable Accident Association, “by which it was, among other things, agreed that said Dunn, Ross, Arnold and Murray would transfer, attempt to transfer, or cause to be transferred to said defendants the membership or risks of the said Equitable Accident Association, the same to be reinsured by said defendants, or in the United States Mutual Accident Association, and that said Equitable Accident Association should discontinue its business, and that they * * * would assign, transfer, and set over to said defendants any and all interest, contract rights, and privileges which they or either of them had in or to the business and management of the said Equitable Accident Association; that, in consideration of said transfer of said membership and said other interests, and of said discontinuance of said insurance business, and for other good and valuable considerations, the said defendants, on their part, undertook and agreed that they would settle, adjust, and pay -all liability and demands against said' Equitable Accident Association.” Plaintiff then alleges that her claim was one of the liabilities of the said Equita-, ble Accident Association “which said defendants undertook and agreed to settle and pay as aforesaid; that payment of the same was duly demanded of said defendants prior to the commencement of this action.” The defendants, in their answer, deny many of the allegations of the complaint, and they admit the ex©» cution of an agreement on ¡November 1, 1889, with ¡Dunn, Ross, Arnold and Murray, and they allege that the ¡Equitable Accident Association was a mutual benefit association, and that its by-laws, as well as each certificate, provided that any one claiming there* under should, in the event of liability, be entitled to “receive only such sums as might be realized upon a single assessment upon the members of said association at the time of the happening of the accident, made in accordance with the provisions of said certificate and by-laws, not exceeding the sum specified in such certificate, and that no such assessment has been made by said Equitable Accident Association for the payment of said alleged certificate, or proceeding taken, or even demand made therefor.” Upon the trial evidence was given to the effect that th Equitable Accident Association “has not been legally wound up. The directors and officers stand the same now as when the association ■ discontinued business.”

Plaintiff offered in evidence the judgment roll in the case of Eliza A. Martin against the Equitable Accident Association of Binghamton, which was filed in the Broome county clerk’s office ¡November 18, 1892, and an execution issued on that judgment, and its return unsatisfied. Evidence was given to the effect that Dunn, Ross, Arnold and Murray had no “interest, rights, or privileges” other than a portion of the salary which went to the secretary. Plaintiff rests her right to recover against the defendants in this action upon the language of the agreement of the 1st day of ¡November, 1889, executed by the defendants, as parties of the first part, with Dunn and his associates, as parties of the second part. That agreement enumerates certain debts and liabilities which the defendants undertook to discharge; and it contained a provision to “indemnify and save harmless all and singular the said parties of the second part from any and all demands, costs and expenses of every kind, arising by reason of the said parties of the second part having become sureties on the said undertakings on said appeal from said judgments.” Then follows the language which the plaintiff relies upon, and rests the claim made by the plaintiff against the defendants. The language found in the agreement is as follows:

“It is further -agreed by said first parties that they will idem* nify and save harmless the said second parties, and all other officers and directors of said association, from any and all liability in connection with said association, except indebtedness of the said association to officers and directors. It is further agreed by said first parties that they will settle and adjust all liabilities of said association, and save second parties harmless from any actions which may be brought wholly or in -part by reason thereof, and that the parties of the second part will retain their positions respectively, and act therein under direction and control of parties of the first part until such time as the affairs" of the Equitable Accident Association can be wound up.”

It is to be observed that the language quoted does not use the word “pay” or “liquidate.” It is contended, however, that the words “will settle and adjust all liabilities of said association, and save said second parties harmless from any actions which may. be brought wholly or in part by reason thereof,” are equivalent to a promise on the part of the defendants to pay the debts of the association, and especially the claim held by the plaintiff. It is now well settled that, in order to establish a liability against" a party making a contract to a third party not named therein, there must be a clear intention evinced to give a right of action to such third party. In Beveridge v. N. Y. E. Railroad Co., 112 N. Y. 26; 20 St. Rep. 962, Gray, J., in writing the opinion, says:

“Within the principles of adjudged cases in this court, where the plaintiff seeks to base his right to maintain his action against a third party upon a contract made between that party and another, it must be one made or intended for his benefit. Such a beneficial intent must be clearly found in the agreement. * * * But in all of the cases which I have" examined, where .the action was sustained, the facts showed that the promise- clearly was-for the third person’s benefit, and made with that distinct intention.”

After a careful study of the agreement now brought in judgment, we are of the opinion that the requirements of .the rule are not answered by the agreement before us'. After considering the agreement in the light of the surrounding circumstances, we are of the opinion that the agreement made by the defendants-was one of indemnity, and not a contract to pay the claim of the plaintiff, or any other parties similarly situated. 10 Am. & Eng. Enc. Law, p. 402, § 1; Feist v. Schiffer, 79 Hun, 275; 60 St. Rep. 859.

Appellant calls our attention to Brown v. Curran, 14 Hun, 260. The language of the contract under construction there was much broader than the language found in the contract before us. The copartnership "had existed, and its interests were inventoried and sold to the defendant for $6,000, who agreed “to settle, satisfy, and pay all debts against the said firm mentioned in a certain schedule.” In that case it was very clear that the promise wasmadd for the benefit of the third person who sought to recover one of the debts mentioned in the schedule. We think the case is-quite unlike the one now in hand, and does not aid the contention of the appellant. Appellant calls our attention to Butts v. Wood, 37 N. Y. 317. That was an action brought by a stockholder in his own behalf and in behalf of the other stockholders against certain trustees for an alleged fraud, and to recover damages sustained by the plaintiff by reason thereof. In the case before us there are no averments in the complaint of fraud or fraudulent practices on the part of the defendants in this action, and the doctrine of the case stated has no application to the case in hand. Our attention is invited to Riordan v. Presbyterian Church, 6 Misc. Rep. 84; 55 St. Rep. 396. In that case the language in the agreement was “will pay and discharge any and all charges for expenses for medical attendance and advice,” etc. And upon the evidence in that case it was very clearly made to appear that the promise was made for the benefit of the plaintiff, and it fell within the doctrine of Garnsey v. Rogers, 47 N. Y. 233, and Beveridge v. N. Y. E. Railroad Co., 112 id. 26; 20 St. Rep. 962. In the case in hand there is no proof sufficient to indicate that, at the time the contract was made by the defendants, Dunn, Eoss, Murray and Arnold were, or either of them were, personally liable to the plaintiff for the amount of her claim against the association. Carrier v. U. S. Paper Co., 73 Hun, 287; 57 St. Rep. 748; Durnherr v. Rau, 135 N. Y. 219; 48 St. Rep. 394; Binghamton Sav. Bank v. Binghamton Trust Co., 85 Hun, 80; 66 St. Rep. 40. The foregoing views lead to the conclusion that the nonsuit was properly granted.

Judgment and order affirmed, with costs.

All concur.


author: MERWIN, J.

text:
    William Miller, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Forth Department,

      Filed December 26, 1895.)

    1. Negligence—Railroads—Fires.
    Where, in an action against a railroad company for fire kindled by its engines, there is no evidence that at the time there was any wind or that the fireman did anything not necessary to the proper running of the train and no fire was left on the railroad land and the engine was in perfect order, there is no basis for predicating negligence.
    9. Same.
    The fact that sparks emitted from the engine were thrown upon the plaintiff’s premises and caused the fire, in case the engine was perfect, does not of itself establish negligence.
    8. Same.
    The rule that sparks or coals may be thrown of such unusual size as to indicate, prima facie, some defect in the engine, does not apply where the case is sent to the jury on the theory that the engine is perfect.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    George Doheny, for app’lt;
    William Kennedy, for resp’t.
   MERWIN, J.

The plaintiff owned lands adjoining the track of defendant in the town of Manlius. Hpon two occasions—one on or about June 11, 1891, and the other on or about July 24, 1893—his premises were injured by fire. There is evidence tending to show that the fire was in some way communicated to the land from the engine or train of defendant as it passed along on either occasion. The defendant claims that no negligence on its part was shown, causing the injury. Concededly it was incumbent upon the plaintiff to show such negligence. The negligence charged in each count of the complaint is that the engine was so improperly constructed that sparks and coals of án unusual and extraordinary size and character were emitted therefonn, which communicated fire to plaintiff’s premises and caused the injury. The court, at the request of the defendant, .charged the jury that there was no. evidence in the case that the engine was not perfect in all its parts. The court, however, left it to the jury to say whether the defendant was negligent in cleaning its fire pan at the times in question, and whether or not that negligence caused the fire. There was no fire on the railroad land, and upon the second occasion, as the court charged, there was no wind. Upon the first occasion there was a strong wind, and it .might be. argued that, as the fireman (as the plaintiff testifies) poked or raked the fire, it was blown to some extent on the plaintiff’s premises. But on the second occasion, there being no wind, and no evidence that anything the fireman did was not necessary to the proper running of the train, and no fire being left on the railroad land, and the engine being in perfect order, it is difficult to see on what basis negligence can be predicated.

Upon the theory the case was sent to the jury, the verdict must stand, if it stands at all, on the proposition that the fireman was negligent' in his management of the fire, thereby throwing, in some unexplained way, coal from the fire pan to the plaintiffs land. The evidence does not authorize the conclusion that the fire was caused in this way, at least so for as the second and main cause of action is concerned- It may be,' as alleged in the complaint, that sparks emitted from the engine were thrown upon the plaintiff’s premises and caused the fire. But if, as we assume here, the engine was perfect, that would not of itself establish negligence. McCaig v. Railway Co., 8 Hun, 600; Frier v. President, etc., 86 id. 464; 67 St. Rep. 541. We are referred by the ■plaintiff to cases where it is said that sparks or coals may be thrown of such unusual size as to indicate, prima facie, some defect in the engine. They do not apply here, as this case was sent to the jury on the theory that the engine was perfect. As the case stands, there should, we think, be a new trial.

Judgment and order reversed, and a new trial ordered; costs to abide the event.

All concur.


author: LEWIS, J.

text:
    The People, App’lt, v. Albín Gerber, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 28, 1895.)

    Game law—Deeb and venison.
    The closing words of section 41, chapter 488 of 1893 are limited in their application to that part of the' section which prohibits possession between the first and fifteenth dav of November.

      Appeal from a judgment in favor of defendant.
    Charles H. Knipp, for app’lt;
    A. S. Kendall, for resp’t.
   LEWIS, J.

This action was brought to recover a penalty of $100 for a violation of the act for the preservation of wild animals in the state of New York (Laws 1892, chap. 488).

It is provided by section 40 of said act that wild deer shall not be killed between the 1st day of November and the 15th day of August following.

Section 41 is as follows:

“Deer or Venison, When not to be Possessed. Wild deer or venison shall not be possessed or sold between the loth day of November and the 15th day of August following, and possession thereof, between the 1st day of November and the 15th day of November is forbidden, and shall be deemed a violation of this section, unless it b'e proved by the possessor or seller that such deer or venison was killed within the lawful period for killing, or out of the state.”

By section 51 of the act, a violation of provisions of the act is made a misdemeanor, and, in addition, the violatior of sections 40 to 48, inclusive, is liable to a penalty of $100 for each violation.

The action was tried at the Steuben circuit, before the court, without a jury. The facts were stipulated and are as follows: On the 3d day of January, 1893, the defendant herein had in his possession, and offered and exposed for sale, at his market or place of business, in the city of Corning, county of Steuben, and state of New York, the carcass of one wild deer or venison, which was killed outside the limits of the state of New York; which was the carcass mentioned, as alleged in the complaint. The trial court, upon these facts, held and decided that the defendant was not guilty of violation of the act, and dismissed the plaintiff’s complaint; and from the judgment entered upon such decision this appeal was taken.

. The disposition which should be made of this case depends upon whether the closing words of section 41, as follows, “unless it be proved by the possessor or seller that such deer or venison was killed within the lawful period for killing, or out of the state,” apply to and qualify the whole of said section, as is contended by the defendant, or are limited in their application to that part of the section which prohibits possession between the 1st and 15th days of November, as is claimed by the appellant. We incline to the opinion that th.e latted is the correct construction.' Such construction, we think, accords with the language of the section, and with its evident meaning; while the other construction is strained and unnatural. If the promoters of the law intended that the clause referred to should apply to the entire prohibited time,—that is, between the 1st day of November and the 15th day of August following,—they, were exceedingly unfortunate in phrasing the section. Had such been their intention, they could have accomplished their purpose by simply providing that the possession of wild deer between the 1st of November and the 15th of August following should be deemed a violation of the law, unless the person in possession proved that the killing took place within the lawful period for killing, or outside the limits of the state. Giving such a construction to the section makes the fifteen-day clause entirely superfluous, and of no meaning whatever. The statute prescribes two prohibited seasons; one commencing November 15th, and ending August 15th following. During that period possession of deer or venison is prohibited, no matter when or where the animal may have been killed. The other prohibited season is from the first to the 15th of November, during which time possession shall be deemed a violation of the law, unless the possessor or seller shall prove that the killing took place within the lawful period for killing, or outside of the limits of the state. The purpose of the fifteep-day clause is quite apparent. The law permitting the killing at any time from the 15th day of August to the first day of November following. It being lawful, therefore, to kill deer as late as the 31st of October, it was very properly provided that there should be a limited period thereafter for the disposition of the carcasses of deer which might be killed during the last days of October. Many statutes for the preservation of wild animals are found in our statute books', and the same general scheme that was contained in the act of 1892 will be found in many of them.

It was provided by section 1 of chapter 721 of the Daws of 1871 that:

“No person shall have in his possession or offer for sale or -transport any moose, carriboo, elk or wild deer or fresh venison, save only during the months of August, September, October, November and December. * * *• Any person offending against any of the preceding provisions of this section shall be liable to a penalty of $50.00 for and moose, elk, carriboo, deer or fawn so killed, * * * and may be proceeded against in any county of the state; provided, however, that any person may sell or have in possession the moose, elk, carriboo, or deer aforesaid, between the first day of January and the 1st day of March, without liabilities to the penalties herein provided, in case he shall prove that such game was killed outside the limits of this state, and at some place where the law did not prohibit such killing.”

It cannot be doubted that this latter provision of the section had reference only to the time between the 1st of January and the 1st of March.

Sections 7, 8 and 33 of the act of 1871 were construed in Phelps v. Racey, 60 N. Y. 10. An action was brought to recover penalties for a violation of said sections. It was charged in the complaint that the defendant had in his possession, and exposed for sale, in the city of New York, 100 quail on the 19th day of March, 1873. The answer admitted the allegations in the complaint, but alleged that defendant had invented an apparatus to preserve game, and that the game specified in the complaint was put up by him in said apparatus in the month of December, 1872, when the killing of it in this state was not prohibited, or it was received from the states of Minnesota and Illinois, where the killing was at the time legal. Plaintiff demurred to the answer, upon the ground that it did not state facts ■ sufficient to constitute a defense. The demurrer was sustained. The court, in construing the sections, said:

“With the policy of the statute in question we have no concern, but that the acts complained of, viz. having in possession certain game birds after the 1st of March, although killed prior to the prohibited time, or brought from another state, where the killing was not prohibited, is within the restraint of the statute, there can be no doubt. The seventh section declares that no pierson shall kill, or expose for sale, or have in his or her possession, after the same has been killed, any quail, between the 1st day of January and 20th day of October, under the penalty of $25. The eighth section contains a similar provision relative to ruffed grouse or partridge, and pinnated grouse or prairie chickens, fixing the time between the 1st of January and 1st day of September. The language of the section is plain and unambiguous; hence there is no room for construction. It is a familiar rule that, when the language is clear, courts have no discretion but to adopt the meaning which it imports. The mandate is that ‘any person having in his or her possession/ between certain dates, certain specified game killed, shall be liable to apenalty. The time when, or the place where, the game was killed, or when brought within the state, or where from, is not made material by the statute, and we have no power to make it so. But, if the intent in this respect was doubtful, section 33 would remove it. That section provides that persons selling or in possession of game shall not be liable to the penalty up to the 1st day of March, provided they prove that it was killed before the prohibited time or outside of the limits of the state, whore the killing was not prohibited. Provision is made by this section for the cases supposed not to be within the purview of the seventh or eighth section, but it is clear that the legislature did not suppose but intended to qualify those sections by allowing possession to continue, and a sale of game, lawfully killed or acquired, for two months, but after that period the inhibition is absolute.”

The acts of 1892 and 1871 are in substance quite similar. The case referred to is authority for the construction which we are inclined to give to the section in question. Plaintiff, upon the facts, was entitled to a judgment against the defendant for the $100 claimed in the complaint.

The judgment appealed from should be reversed, and new trial granted; costs to abide the event.

.WABD, J., concurs; BBADLEY, J., dissents.


text:
    The People ex rel. Bert Forbes, App’lt, v. John Markell, as Superintendant, etc., Resp’t.

      (Supreme Court, General Term, Fourth Department

      Filed December 26, 1895.)

    1. Criminal law—Commitment—Clerical errors.
    A commitment issued by police justice is not void merely for the reason that, through a clerical error, it was dated in 1885 instead of 1895.
    3. Same—Judsmekt.
    In criminal proceeding before a police justice, the certificate of the sentence pronounced is the only record of the judgment.
    8. Same—Habeas corpus.
    Where the imprisonment is under actual process, valid on its face, it will be deemed prima faeie legal, and the prisoner must, upon habeas coi-pus proceedings, assume the burden of impeaching its validity by showing a warrant of jurisdiction in the magistrate or court whence it emanated.
    Appeal from an oredr dismissing a writ of habeas corpus and demanding relator.
    Hopkins & Bondy, for app’lt;
    George W. Standen, for resp’t.
   MERWIN, J.

In the petition of the relatbr for a writ of habeas corpus, it is alleged that he is held on a commitment issued by the police justice of the city of Syracuse, and that such commitment is illegal and void. There is no specification qf any defect, except that it is dated March 15,1885. A copy of the commitment is attached to the petition, and, on its face, it is quite apparent that the year of the date should be 1895, and that the defect was only clerical. No point is made as to this on. this appeal, or that there is any other defect upon the face of the paper. Nor is it claimed that the police court did not have jurisdiction to try the relator and issue the commitment, or that the commitment is insufficient. The main point seems to be that there was no proper judgment in the police court. By section 721, Code Cr. Proc., which relates to proceedings in courts of special sessions 'and police courts, it is provided that when a conviction is had upon a plea of guilty, or upon a trial, the court must make and sign a certificate in substantially the form as there given. By section 725 it is provided that the judgment must be executed bv the sheriff or other proper officer upon receiving a copy of such certificate, certified by the court or the county clerk. The commitment in the present case was a copy, certified as required by section 725, of a certificate substantially in the form as provided by section 721. Upon its face it was‘a judrment. By section 723 it is provided that within twenty days after the conviction the court must cause the certificate provided by section 721 to be filed in the office of the clerk of the county, and by section 724 it is provided that the certificate so made and filed, or a certified copy thereof, is conclusive evidence of the facts stated therein. It is not claimed that this certificate was not properly filed. The presumption is that the court, in that regard, did its duty. The burden of proof is on the relator. Ex parte Heyward, 1 Sandf. 703; People v. Cavanagh, 2 Park. Cr. R. 650, 658. People ex rel. Slatzkata v. Baker, 19 St. Rep. 485, the certificate was held to be effectual, though not filed. In People v. Neilson, 16 Hun, 214, it was held that where a return to a writ of habeas corpus shows that the relator is held under a commitment issued by a court of special sessions, after a trial and conviction by it, the only question presented is whether or not such court had jurisdiction to try the relator and issue the commitment. “Where the imprisonment is under actual process, valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction in the magistrate or court whence it emanated. If he fail in thus impeaching it, his body is to be remanded to custody. Error, irregularity, or want of form is no objection; nor is any defect Avhich may be amended or remedied by a further entry on motion.” 3 Hill, 661, note 31 and cases cited. In People ex rel. Cook v. Smith, 28 St. Rep. 306, the court, in speaking of the certificate under section 721, say:

“The statute does not require that, any judgment should be entered in the minutes of the court. In short, there is but one mode of rendering judgment, and that is by pronouncing sentence. And there is but one record of the judgment, and that is the certificate of the sentence pronounced.”

The police court Avas not a court of record, and the provisions of section 721 et seq. were eAddently intended to provide for the form and preservation of its judgments. It is reasonable to presume that the certificate set out in section 721 was designed to-be the record of the conviction. If so,-as the police justice had, concededly, jurisdiction of the person and subject-matter, the relator had no basis for relief on a Avrit of habeas corpus. The evidence, therefore, as to whether the record kept by the clerk of the police justice was insufficient or incomplete, was not important. Hor is it material to inquire whether the police justice had a right, after the present proceedings were commenced, to correct the minutes of his clerk, and make them conform to his OAvn. If the county judge erred in his rulings in regal’d to evidence on those subjects, 1 Crary Prac. (3d Ed.) 387; Hurd, Hab. Corp. (2d Ed.) 304, the relator Avas not prejudiced.

We find no good reason for disturbing the order appealed from, and it should therefore be affirmed.

Order affirmed. All concur.


author: RUSSELL, J.

text:
    The People ex rel. George J. Gould et al., App’lts, v. Edward P. Barker et al., as Commissioners, etc., Resp’ts. (Five Cases.)

      (Supreme Court, New York Special Term,

      Filed December, 1895.)

    1. Taxes—Decedent’s estate—Personal property—Residence op executor.
    Where the executors are nonresidents of the city of New York, the commissioners of taxes have no jurisdiction over them and it is their duty to ascertain the fact of residence in order to act affirmatively.
    8. Same.
    The removal of executors and trustees from an assessment jurisdiction deprives the assessors therein of jurisdiction, though the removal was for such purpose.
    8. Same.
    The fact that the assessors of the place of the executor’s residence have not assessed the estate does not aid in retaining an assessment made in the place from which they removed.
    4. Certiorari—Amendment op petition. I
    An amendment to a petition for certiorari, which contains new grounds for asking the writ, will not be granted on final argument, after all evidence of issues joined by the return has been taken before a referee. ¡
    Certiorari to review an assessment by the tax commissioners of New York, of the personal property of the estate of Jay Gould, deceased, for the year 1894, and four other cases.
    John F. Dillon, Winslow S. Pierce, Harry Hubbard and Almon Goodwin, for relators;
    James M. Ward, for commissioners.
   RUSSELL, J.

The relators obtained writs of certiorari against the commissioners of taxes and assessments of the city and county of New York to review the assessments for person* alty made in the year 1894, on the ground that the relators were not residents of- the city of New York on the assessment day, the second Monday of January, 1894, and therefore that the commissioners had no jurisdiction to assess them for any personal property. No question here arises as to whether the relators were assessed too much or too little, and therefore the range within which the commissioners of assessments could exercise the, judicial function is limited to a much narrower scope than in such a case, the sole question being that of residence or nonresidence, which involves simply the determination of a fact, and not the application of the opinion and discretion of the commissioners to the formation of a judgment of values. George J. Gould was assessed for his personal • property for the sum of $400,000, Edwin Gould for the sum of $100,000, Howard Gould for the sum of $100,000, Helen M. Gould for the sum of $100,-000, and the same persons, as executors, etc., of the J ay Gould estate, for the sum of $10,000,000. In the cases of the assessments other than that against the estate, the evidence is qlear and distinct that George J. Gould, in October, 1893, removed to Lakewood, 1ST. J., with his family, with the intention of making the same his permanent home, and Has continued to reside there j that Helen M. Gould and Howard Gould removed to Irvington, H. J., in June, 1893, with a like intent, and that prior to the assessment day Edwin Gould removed to Tarrytown with the same intent. The counsel for the commissioners does not make any substantial contest over the change residence in these cases, aside from the case of the assessment against the estate, and the court is obliged to find, as to the assessments against George J. Gould, Edwin Gould, Howard Gould, and Helen M. Gould, that the commissioners did not have the jurisdiction to make the assessments, and that the same must be vacated.

A more serious opposition is made on behalf of the commissioners to setting aside the larger assessment against the Goulds as executors of the estate of their deceased father, Jay Gould, which objection is substantially that the application before the commissioners to cancel the assessment during the review period was made by George J. Gould, who assumed to have the custody and control of the personalty of the estate, and that, the motive of his removal from Hew York to Hew Jersey being clearly shown to be a mere pretense for the purpose of avoiding the payment of the tax assessed against the executors and trustees, and not for the purpose of obtaining a genuine and continued place of residence at Lakewood, they had the right to judicially determine the fact of residence in Hew York in favor of the city. The general statute upon which the assessment against the executors is based is as follows:

“Every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of these trusts be assessed against any other person.”

It will be thus seen that the fact of residence of the executor determines the right of any municipality to assess the personalty of the estate. If George J. Gould had been the sole executor, his genuine removal to Lakewood before the assessment day in Hew York would carry the right to assess away from the jurisdiction of Hew York city. If one of the executors remained in Hew York city, a question might arise as to the power to assess the estate which is not involved in this controversy. But upon the proof taken in this case it is clear to the court that all of the executors had removed months before the assessment day, and the proof of the motive of the removal of George J. Gould seems to me to confirm the genuineness of the removal, rather than to cast a doubt upon it. He frankly avowed, in the testimony taken before the referee, that he thought the commissioners assesssed the estate of Jav Gould for a far larger sum proportionately than was assessed against other rich estates and individuals, subject to their jurisdiction; citing instances which had come to his knowledge. Whether his assertion was well founded or not as to inequality of assessment is immaterial, for the sole value of his evidence in that respect is to display the adequacy of his motive, and the probability as to whether it ripened into the result of an actual change of residence. It is all the more apparent that his'removal to Lakewood was genuine because the corporation counsel feels homself unable to sustain the assessment against George J. Gould personally. The force of the argument made on behalf of the corporation counsel lay in the attack upon the manner of the presentation by George J. Gould of the application during the review period to cancel the estate assessment. He stated that he had control ■ of the personalty, whereas it appeared that the office of- the executors was at Tarry-town, in the state of Hew York. This statement of George J. Gould might well be reconciled with the facts as they appear. And the question as to who is the leading, elder, or more active executor, and has more immediately the actual possession of the securities, does not appear to be very material where all the executors live outside the city of Hew York, and where all of the executors have the legal right to the custody of the personal estate, permitting one executor to do the most of the responsible work as a matter of sufferance and convenience. The evidence of the application itself, and the circumstances under which it was made, shows clearly that the commissioners understood that the application to cancel w'as made , on behalf of the estate itself, and the testimony of Howard Gould and Mr. Pierce also distinctly shows that the parties were ready to furnish any additional evidence which the commissioners might deem it necessary to require. I think there could be no misconception by the commissioners as to the fact for whom the application to cancel was made, nor as to the fact of change of residence of each of the executors. Hor do I think the commissioners have the same power or range of judicial discretion in the case of the application to cancel an assessment on the ground of nonresidence that they would have in the case of disputed values. I do not entertain the idea that if, in fact, on the second Monday of January, 1894, the Goulds were hot residents of the city of Hew York it was necessary for them, in order to save their rights, to make an application for cancellation of the assessment whatever. If they were not residents, the commissioners had no jurisdiction over them, and it was the duty of the commissioners to ascertain the fact of residence in order to affirmatively act. Wilcox v. City of Rochester, 129 N. Y. 247; 41 St. Rep. 511. It follows as a necessary result that, if the executors, to avoid the embarrassments contingent upon an assessment made, or prompted by a desire to give the information to the commissioners so that they might correctly act, did, even in an informal manner, make their application to cancel, such proceecling would not give to the commissioners a jurisdiction to retain an assessment which they had no jurisdiction to make. I do not mean to imply by this that the application to cancel was informal, for it seems to me that it was sufficient for the purposes designed of giving the commissioners proper and sufficient notice sufficient evidence to show them that the assessment which they had made was not a legal assessment. In fact, it is apparent from the action of the commissioners themselves, as appears from Schedule B, attached to their return, that at one time they thought they had sufficient evidence, and did not require any additional information, though the applicants had offered to give it. The assessment appears in these words: “Gould, George J., and Edwin Gould and Helen M. Gould and Howard Gould, executors and trustees, estate Jay Gould. Place of business, 195 Broadway; residence, 857 Ave. 5; valuation, $10,000,000. Canceled in board, May 23d, 1894.” All of which lines just quoted have drawn through them lines indicating an intent to erase, and over the words “Canceled in board” are written “Reconsidered in board,” and over the date “May 23rd, 1894,” are the words and figures “May 31(see next line).” Below, on the following line, are the words and figures, unerased: “Gould, George J., Edwin Gould, Helen M. Gould, Howard Gould, as executors and trustees of Jay Gould, 195 B’way, $10,000,000, held in board May 31, 1894.” This evidently shows that an action taken by the commissioners to cancel the assessment, and eight days after-wards a reconsideration without notice or obtaining the additional information offered and tendered by the applicants. In view of all these circumstances, it would be a very narrow foundation upon which the court could sustain an assessment originally made without jurisdiction, as the facts now certainly appear from the testimony taken before the referee; and the circumstance that the assessment is a very large one will not justify its retention, even as against those who are easily able to pay the tax, any more than if it were made for a small sum against an estate of very moderate amount. There is nothing in the case to show that the assessors of Lakewood and Irvington and Tarry-town have not discharged their full duty in assessing the estate of these persons, but, if they have not done their duty, that fact would not help to retain the assessment in Hew York.

A motion is made, contemporaneously with the argument of this case, by the counsel for the executors, for the amendment of the petition, so that, in addition to the allegation of nonresidence, this certiorari proceeding in the estate case may also .be based upon the action of the commissioners in canceling the assessment, upon the theory that when that act was done the power of the commisioners was exhausted, unless notice was given to the applicant of a proposed change of action. The fact of such action appeared during the talcing of the testimony before the referee. I am of the opinion that the relators had the right to prove the facts attending such alleged cancellation as evidence in this case, but that it was their duty to have proceeded at once having then notice of such action of the commissioners, to obtain the amendment proposed, instead of continuing the testimony upon the one issue which was then the subject of reference. This action by the commissioners was proper evidence upon that issue to show what was done upon the application to cancel, and the good faith of the applicants in making such an application, but was not evidence upon any other issue. It is too late to submit such a motion with the argument of the cause itself, and thus place the application for the writ of certiorari upon an additional ground ab initio, even though an offer was made during the hearing before the referee to allow any evidence to be given upon that issue which the commissioners might desire. These commissioners are public officers, entitled to protection in the discharge of their "duties, and in the numerous cases in which they are called upon to defend their action in the courts have the right from the beginning to be advised of the precise objection to their proceedings, and on the trial of an issue thereon have the right to disregard all other issues which might have been, but were not, raised. I have less hesitation in declining to grant the request to amend, because, if the objection is good that the commissioners lost their jurisdiction when they took the steps they did towards canceling the assessment, the denial of the motion would not prevent the defense on this ground to the collection of the tax, and a contrary ruling here might establish a dangerous precedent. The motion to amend the petition is therefore denied, but upon the merits of the question of residence in each of the' cases an order must be made setting aside the assessment. The counsel for the relators will serve proposed orders prepared by them upon the corporation counsel before forwarding the same to me, so that he may suggest any amendments deemed material by him.

Ordered accordingly. .


text:
    Meyer Rubber Company, App’lt, v. Lester Shoe Company et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Appeal—Discretion.
    The determination upon a motion for extra allowance will not be disturbed where the affidavits are conflicting, unless the court has abused its discretion.
    Appeal from an order denying an .extra allowance.
    From "an order denying it extra allowance, plaintiff appeals. In the order appealed from are found the following words: “Ordered, that the court hereby entertains said motion for additional allowance of costs herein, and hereby denies the same, with $10 costs of the motion.”
    T. B. & L. M. Merchant, for app’lt;
    Carver, Deyo & Jenkins, for resp’ts.
   HARDIN, P. J.

On the 23d day of April, 1895, we affirmed an order made by the same trial justice refusing an extra allowance. In the course of the opinion delivered on that occasion in behalf of this court it was said, “The affidavits produced upon the motion tend to indicate that the case was difficult and .extraordinary.” And it was further observed in the opinion that so many considerations are addressed to the discretion of the court upon such motions that the appellate court rarely interferes with the action of the trial judge; and in support of that position we cited Morrison v. Agate, 9 Wkly. Dig. 286, and Tolman v. Railroad Co., 31 Hun, 403. And we affirmed the order then before us, with the suggestion that the question could not be well solved except upon mature consideration of all the proceedings and affidavits relating to the questions which were before the trial judge, and we gave leave to the plaintiff to apply at special term for leave to renew its motion. It seems such an application has been made to the special term, and that leave was granted, and the motion for an extra allowance was heard and determined by the special term, adverse to the plaintiff. Additional papers were used upon that motion, and are now brought before us by the appeal from the order now under consideration. Upon a careful examination of the papers now found in the appeal book, a severe and resolute conflict is found. Skilled and experienced practitioners are now in conflict as to whether the case was difficult and extraordinary. Affirmative affidavits that it was and affirmative affidavits that it was not difficult and extraordinary are found in the appeal book. The charge of the trial judge is also found in the appeal book, and the nature and character of the issues fully discussed, and it is confidently asserted on behalf of the appellant that the case was diffifficult and extraordinary, and it is resolutely denied on the part of the respondents that the case was both difficult and extraordinary. The trial judge was called upon to determine upon all the conflicting evidence before him, as well as upon his recollections of the trial as to whether this was a proper case within the rules that are applicable to motions for extra allowance or not. He has determined adversely, and in making that determination he has exercised his judgment and discretion. It may be observed that the case was somewhat extraordinary, but some doubt may be entertained as to whether it was difficult. Its determination at the circuit turned upon the application of simple rules relating to fraud cases, and we may well hesitate to declare that the trial judge has abused his discretion in refusing anallowance, as that refusal may have been put upon the ground that no difficult questions of law were involved in the case. As early as 29 N. Y. 423 (People v. New York Cent. R. Co.), it was decided that such applications were addressed to the sound discretion of the judge who was called upon to carry out the provisions of law upon the subject of allowances. The rule does not seem to have been changed by section 3253 of the Code of Civil Procedure. It was restated in Tolman v. Railroad Co., 31 Hun, 403. In Morrison v. Agate, 20 Hun, 25, it was said: “The court does not encourage appeals upon mere matters of discretion, and it will only interfere when the discretion seems to have been abused, or in a plain case of its unwise exercise.” And in Bryon v. Durrie, 6 Abb. N. C. 140, it was said that whether an action should be regarded as difficult and extraordinary “rests substantially in the judgment and discretion of the judge to whom the application is made, and the determination of the question usually involves so many considerations which are addressed to the discretion of the judge that the appellate court rarely interferes.” See, also, Insurance Co. v. Cranwell, 10 N. Y. Supp. 404; Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252; 52 St. Rep. 334. The papers disclosed .that the plaintiff made a claim for a larger amount of damages by reason of the detention of the goods than it was found entitled to upon the trial. That circumstances may have had some influence in the determination made by the trial judge in refusing an allowance. Burke v. Candee, 63 Barb. 552. Not being fully persuaded that the trial judge abused his discretion in denying the motion, we are not inclined to reverse the order made by him, after a full hearing of all the facts and circumstances disclosed in the present appeal book, and calling to mind all the circumstances that transpired before him at the time of the trial. The foregoing views lead us to sustain the order made at the special term.

Order affirmed, without costs to either party. j

All concur.


text:
    Harvy Joyce, App’lt, v. Rome, Watertown and Ogdensburg Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Appeal—Harmless error.
    The exclusion of material testimony is harmless error, where the appellant obtains all the information which the witness possesses upon the subject involved in the question excluded.
    8. Evidence—Relevancy.
    Where, in an action by a hr alternan to recover for injuries received in coupling cars, it is alleged that the couplings were defective, a rule of the company that conductors, “with the help of their men,” must know that their cars are in a safe condition, is not irrelevant in connection with plaintiff’s cross examination.

      Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes.
    Action for alleged negligence in causing injuries to the plaintiff which occasioned the loss of an arm while attempting to couple cars at the Richland station, January 10, 1890. The case was here upon a former appeal, when it was said: “The duty rested upon the defendant to cause a proper inspection of the cars before they left Oswego. * * * There was evidence tending to show that the appliances for coupling were defective; that there was an improper play of the drawhead of from one to three inches. Whether this contributed to the injury, and whether it existed when the train left Oswego, and might, by proper inspection, have been discovered and remedied, were questions of fact for the jury. So was the question of contributory negligence. See Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y. 398; 26 St. Rep. 767; Ellis v. Railroad Co., 95 N. Y. 546. We think the case should have been submitted to the jury.” 80 Hun, 601; 61 St. Rep. 586. At the trial now brought in review, the questions of fact were submitted to the jury, and its verdict was for the defendant.
    J. W. Shea, for app’lt;
    Mullin, Griffin & Walker, for resp’t.
   HARDIN, P. J.

Following our decision made when the case was here upon .former appeal (80 Hun, 601; 61 St. Rep. 586), the trial judge submitted the leading questions of fact to the jury. Plaintiff relied upon his testimony and the attending circumstances and incidents of the accident to show that he, on the occasion of the injury, was free from contributory negligence. The verdict may have passed against the plaintiff upon that ground, as it was for the juryto determine what credence should be given to the testimony of the plaintiff, and what force should be given to the facts and circumstances disclosed relating to the occasion of the injuries received. Elwood v. Telegraph Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 id. 177; Koehler v. Adler, 78 id. 287. In regal’d to the alleged negligence of the defendant, extensive evidence was given as to the condition of the drawheads at the time the injuries were received by the plaintiff, and a question was made, for the jury to consider, whether there had been proper inspection at Oswego, and, if no such inspection had been made, the jury were allowed to find that the defendant had been negligent in that regard; following the doctrine laid down in Bailey v. R., W. & O. Railroad Co., 139 N. Y. 302; 54 St.Rep. 550. Viewing the- evidence most favorable to the plaintiff, it must be said that there was some ambiguity, uncertainty, and indefinitetess in the evidence in regard to the condition of the draw-heads and the other appliances at the time he attempted to couple the cars, and received the injurious of which he complains. ¡Whether the defendant had been guilty of negligence, or not, in leaving the cbawheads or other appliances in an improper condition, was for the jury to determine, upon consideration of all the evidence relating thereto produced at the trial. A very full and exhaustive charge upon the evidence was delivered by the trial judge to the jury, and the principles of law that he laid down in respect to the liability of the defendant to the plaintiff, a brakeman and employee of the road, were within the rules of law, as found in adjudged cases. Cassidy v. McFarland, 139 N. Y. 202; 54 St. Rep. 605; Hough v. Railway Co., 100 U. S., 213; Railway Co. v. Daniels, 152 U. S. 684; Hankins v. N. Y., L. E. & W. Railroad Co., 142 N. Y. 423; 59 St. Rep. 802. A careful inspection of the evidence relating to the question of the defendant’s negligence leaves upon our minds the impression that the verdict is not contrary to the evidence relating to that question offered at the trial. The charge carefully directed the attention of th¿ jury to all the salient features of the evidence, and we are inclined to think the charge was favorable to the plaintiff as warranted by the evidence.

2. Plaintiff called as a witness Wolf, who was a car inspector, who gave a description of the drawhead and bumper, and appliances connected therewith, used in the operation of the cars; and, in the early part of his testimony, plaintiff asked the witness the following question: “Q. And, in a properly constructed car, how much space would there be between the drawhead and the frame sill of the car above it, or the keeper strap on either side?” This-was objected to by the defendant on the ground that it was incompetent and immaterial, and the objection was sustained on the ground that the witness is not shown to be an expert on the question of the construction of a car. Thereupon the plaintiff excepted. Subsequently the witness stated that he had been a car inspector for ten years, inspecting cars for defects; and added, “But not as to whether it is perfectly constructed.” Thereafter he stated:

“Sometimes a small drawhead is in a large space. In such a case we change them, to make the car safe to go over the road. It is a part of our duty to detect as to the space between the draw-head and the frame sill of the car. The drawbars are square. If they fit the space one way, they will another. I sometimes found, in my- inspection of a car, that the space is considerably larger than the drawhead, and regarded that as an imperfection. * * * There hadn’t ought to be less than half an inch. That gives them a chance to work in and out,—a half an inch each wary, up and down and sideways. About a half an inch is what it ought to be, no more nor less. About that.”

We think, in the evidence which we have clouted, and in tbe further evidence given by the witness, the plaintiff obtained all the information which the witness possessed upon the subject involved in the question, and that no prejudicial error occurred by reason of the ruling made in respect to the question.

3. When the plaintiff was upon the stand and being examined, he was asked, “If those drawheads had struck squarely upon each other, could you have made that coupling with safety?” That was objected to as calling for a conclusion. In response thereto the court observed: “That isn’t competent, to ask what might have been done if something else occurred. You have got the fact as to what did occur; showed that one shut over the other, and that let the deadwoods together.” The plaintiff thereupon took an exception. We are inclined to think that the exceptionprestent's no error. The witness subsequently was allowed to be examined quite in detail as to all the information he had upon the subject of the actual condition of the drawhead, the bumpers, and other appliances connected therewith.

4. In the testimony of the plaintiff he was asked, “And with the link entering there the spring—the coiled springs upon the tailpieces would have been brought into requisition, would they, —into resistence?” That was objected to by the defendant on the ground that it is a conclusion, and that the witness had given the facts. In response thereto the court observed: “I think that is a conclusion. We have got the facts.” Thereupon the plaintiff took an exception. We fail to see any prejudicial error in the ruling.

5. During the cross-examination of the plaintiff it was conceded that among the rules in force by the defendant at the time of the accident were several which were produced. To the introduction of those rules the plaintiff objected. The first rule read by the defendant was as follows:

“They (meaning brakemen) must load and unload freight, and will assist the conductor in inspecting the running gears of the cars at every point where the train stops to water or to pass other trains.”

The next rule read by the defendant was as follows:

“They (conductors) will be held personally responsible for examining cars in their trains at every convenient point, especially at the water stations, and, with the help of their men, must know their cars are in a safe condition, and no wheels or brakes broken. They must report all damage done to cars while in their charge, remembering that the safety of trains greatly depends upon the watchfulness of trainmen.”

The plaintiff seemed to have conceded that it was a rule in force at the time of the accident, but contended, however, that it was a rule for conductors. After an inspection of the language of the rule, we are inclined to think the court committed no error in receiving it in evidence in connection with the cross-examination, then talcing place, of the plaintiff.

6. Complaint is made by the plaintiff that he was asked if he had a son in the employ of the company, and that the son had continued in the employ of the company as a fireman, and that he was in such employ until the spring of 1892,—something liké a year after the commencement of the suit,—and that the son quit. We think the exceptions taken by the plaintiff do not present any error which warrants us in interfering with the verdict. The evidence which was condemned in Austin v. Carswell, 67 Hun, 579; 50 St. Rep. 844, in action brought to recover penalties against the defendant, was to the effect “that she had been taken to Sandy Hill and fined $100.” We think the case differs • essentially from this one, and does not condemn the rulings to which we have just adverted. Nor is this case like Hutchins v. Hutchins, 98 N. Y. 65, where the defendant was allowed to prove under objection, “that Phineas Hutchins was supposed to be worth $15,000, while he testified that he himself was not a man of property.” We think the case does not sustain the contention of the appellant.

7. Nor do we think it was error to allow the witness Morrell to state the mode of inspecting cars adopted at the yard at the west end of Oswego city.

8. Several other exceptions are referred to in the brief of the learned counsel for the appellant, to which we have given attention, and we are not persuaded that any of them present any error requiring us to disturb the verdict. Appellant contends the verdict is against the weight of evidence, and calls our attention to Kaare v. Troy S. & Iron Co., 139 N. Y. 369; 54 St. Rep. 653. In that case it was said that the general term “should not affirm the order simply out of deference to' the trial judge, but should exercise an independent' judgment.” Following the rule laid down in that case, we are of the opinion that the verdict is not against the weight of evidence. AYe see nothing, in Re Patterson, 79 Hun, 374; 61 St. Rep. 439, which supports the contention of the appellant. -The foregoing views lead us to sustain the verdict and the order denying the motion for a new trial.

Judgment and order affirmed, with costs.

All concur.


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    George C. Sherman, Resp’t, v. Adirondack Railway Company et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Venue—Charge.
    ■ An equitable action brought to secure the power of the court to prevent a railroad corporation from taking possession of lands mentioned in the complaint falls within the provisions of section 982 of the Code.
    2. Same.
    Where some of the defendants move to change the place of trial to a certain county, and other of the defendants move to change it to a different county, each must give notice of the motion to the other.

      Appeal from an order denying a motion for a change of venue.
    The action was commenced on the 31st of December, 1894. The place of trial named was Jefferson county. The two corporations and Young appeared by an attorney residing in Albany, who served an answer; the defendants Tilden, Schuyler, and Weed, constituting a majority of the forest commission, appeared by an attorney residing in Saratoga; Nathan Strauss appeared separately by an atorney residing in Watertown; and Francis Gr. Babcock appeared separately by an attorney residing in Hornellsville. The corporations and a majority of the forest commission moved to change the place of the trial of the action from Jefferson to Essex county, “on the ground that the latter was the proper county, becouse the action affected an interest in real estate situated in the county of Essex.” The motion came on to be argued at Syracuse, at April special term, and was denied, and the moving defendants appeal from that order. At the time of serving an answer a demand in writing for a change of the place of trial from the county of Jefferson to the county of Essex was served, and after the lapse of more than five days, no cansent having been given, the motion was made. The defendants representing a majority of the forest commission served their answer, in which they assert the legality and propriety of the proceedings granting a right of way to the defendant corporations, and with their answer served on the attorneys for the plaintiff a demand in writing for the change of the place of trial from Jefferson to Essex county, on the ground that the latter is the proper county for the trial; and thereafter they gave notice of motion, which came on to he heard at the Onondaga county special term, which was denied. The minority defendants gave notice of motion to change to Albany county.
    Lewis B. Carr, for corporate app’lts and Horace G. Young;
    Edgar T. Brackett, for minority of the forest commission;
    James A. Ward, for app’lt Nathan Strauss;
    Mullin, Griffin & Walker, for resp’t.
   HARDIN, P. J.

Plaintiff in his complaint alleges that he is “interested in the lands constituting what is known as the 'Forest Preserve’ and the ‘Adirondack Parle,’ situated in the counties of Essex, Herkimer, Hamilton, Franklin and Lewis, * * * and has a special interest in lands which are embraced within the boundaries established by the forest commission as the boundaries of the Adirondack park.” He also alleges the appointment of Strauss, Babcock, Tilden, Schuyler and Weed as eommissioners under chapter 332 of the Laws of 1893. The complaint also alleges that the Adirondack Railway Company, by Young, its vice-president, presented to the defendants, Weed, Schuyler and Tilden, who assumed to act as commissioners, a petition, which is set out in the papers, and that the commissioners assumed to act, and placed upon the records of the commission a resolution at the office of the commission on December 27, 1894, and that the resolution remains on the minutes of the commission. The complaint also alleges that when Weed, Schuyler and Tilden assumed to meet as such commission, “no lawful meeting of said commission had been called or authorized.” The complaint also alleges “that no sufficient legal notice was given to the defendants Babcock and Strauss of such meeting, and the other members of the commission had no lawful right or authority to meet or act in their absence, and all the acts done by said defendants at said meeting, with reference to said petition, resolution, and acceptance thereof, were without authority and void.” The complaint further alleges that “the lands described in said petition and resolution constitute the most valuable part of said park and preserve. * * * It is the purpose of said defendants the said railway companies and the said Young to enter upon said lands and denude them of their timber and of growing trees, and devastate said lands, and not only destroy what may be growing thereon, but also to prevent any future growth of timber and trees thereon.” Plaintiff claims to bring this action in his own behalf, and “in behalf of all the other people of the state who are interested in the preservation of said park and preserve.” The complaint further avers that the petition, resolution, and acceptance of the defendant railway companies, “so long as they exist and remain upon the files and records of the said forest commission, constitute a cloud upon the title of the plaintiff, and of the people of the state, to said lands, and, if not canceled, will seriously interfere with the vested rights and privileges of the plaintiff in and to said lands, and embarrass him in his enjoyment of the same, because, under color thereof, the said railway companies will seek to exclude him from the free use of said lands in the manner provided for by law.” In the prayer for relief the plaintiff demands judgment “that it be decreed that the aforesaid resolution, * * * and the acceptance thereof by the defendant railway companies, * * * and the filing and record thereof, and all entries upon the files and minutes and records of the said forest commission relating thereto, be declared null and void, and be canceled and expunged from the files and records of said forest commission, .and that the defendant railway companies and the said Young be perpetually enjoined and restrained from entering on the lands described therein, or any part thereof, and from using the same for any uses and -purposes of the defendant companies, and from asserting or attempting to assert any claim of possession or right of possession to said lands under or by virtue of said resolution and acceptance.”

It appears that the defendant corporations, as soon as the resolution was passed, accepted the grant of a right of way mentioned in the resolution, “subject to the terms and conditions in such grant imposed, and hereby on them part promise and agree to conform thereto and comply therewith.”

In the answer of the corporations they aver that the commission convened, pursuant to due notice 'of such meeting, and that the commissioners were acting in conformity with law in the discharge of their duties, and that the “forest commission had full power and authority to grant the defendant companies a right of way over said lands for railroad purposes, on such terms and conditions as to that body might seem proper.” The answer of the defendants Weed, Tilden and Schuyler contains similar averments to the answer from which quotations have already been made, and they deny “that there was anything improper or irregular or illegal in their action; but, on the contrary, they aver that said action was strictly within their legal power, that the" same was and will result in a great good to the people of the state, including this plaintiff, and will not in any degree impose any tax upon the plaintiff, nor will it result in any diminution of rainfall, or in any storage for rainfall or for the head waters of the streams of the state, different from what existed prior to said grant.” The defendant Babcock, in his answer, seems to question the validity of the action of the majority of the board of forest commission, and demands judgment “that the aforesaid resolution, * * * and the acceptance thereof by the defendant railway companies, * * * and the said petition, the filing and record thereof, and all entries upon the files and minutes and records of the said forest commision relating thereto, be declared null and void, and be canceled and expunged from the files and records of said forest commission.” The defendant Strauss served an answer containing somewhat similar allegations, and demanding somewhat similar relief to that mentioned in the answer of the defendant Babcock.

It. seems, from the complaint and answers, that the subject-matter involved is a right of way over lands situated in the county of Essex, and that the relief sought is the annulment of the grant of the right of way made by the forest commission. It is clearly averred that the action of the forest commission and of the corporate defendants creates a cloud upon the title of the states to the lands, and it is apparent that the plaintiff seeks a judgment 'declaring the resolution and acts void. If the petition, resolution and proceedings under it are void on their face, it is difficult to see how the plaintiff can sustain an action to have the same canceled as a cloud upon title. Scott v. Onderdonk, 14 N. Y. 9. In Fonda v. Sage, 48 N. Y. 179, it is said:

“There is one rule, however, which is fully settled and now uniformly followed in this state, and that is, if the instrument claimed to constitute the cloud is void upon its face, a court of equity will not interfere to remove it, because such an instrument can work no mischief; and the same is true, although the invalidity does not appear upon the face of the instrument, if it necessarily appears in some one of the links of title which the claimant would have to establish in order to give the instrument force and effect.”

However, it is not necessary for the purposes of this appeal to determine whether the plaintiff can succeed in maintaining an action on the'equity side of the court to have canceled the petition, resolution, 'and acceptance thereunder, referred to in the complaint, and that question will more appropriately be determined when the issues are brought to trial.

Apparently the scope of the plaintiff’s complaint brings the case within section 982 of the Code of Civil Procedure. In that section it is provided that an action “to recover, or to procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting any estate, right, title,-lien or other interest in real property or a chattel real,” must be tried in the county in which the subject of the action or some part thereof is situated. In that aspect of the case the plaintiff seeks to remove a cloud on title, and seeks to invoke the aid of equity to guard the title to the lands mentioned in the complaint. If liberality is extended to the interpretation of the plaintiff’s complaint, it brings the conclusion that it is an equitable action brought to secure the power of the court to prevent the corporate defendants from taking possession of the lands mentioned in the resolution. It would seem, therefore, that the plaintiff’s cause of action falls within the provisions of section 982 of the Code of Civil Procedure. In the course of the opinion delivered in Hogg v. Mack, 53 Hun, 463; 25 St. Rep. 374, which was an action to recover money, it was observed that the clause to which reference has been made refers to actions “in which the judgment which is sought is one that, by its very terms, or by reason of its form, and by virtue of the express provisions therein contained, will affect the title to real property or some interest therein.” See, also, Kearr v. Bartlett, 47 Hun, 254; 13 St. Rep. 580.

The foregoing views seem to lead to the conclusion that the corporate defendants were entitled to have the cause of action alleged against them brought to trial in the county of Essex, unless, by reason of the rights of the other defendants, the action ought to be tried in the county of Albany, where the proceedings'on the part of the forest commission were had. In determining the rights of the two nonconsenting. defendants, effect should be given to the fact that a majority of the commission, by the position taken upon the motion, seem to consent and request that the place of trial be had in the county of Essex. This presents an interesting question as to whether a majority of the commission can control the place of trial against a minority claiming to have some certain rights which allow them to assert that the trial should be in the county in which the alleged official acts were performed. Apparently that question was not so presented to the special term that it. could be authoritatively determined. It does not appear that the respective parties moving for chang’e from Jefferson to Essex gave notice of their motions to their codefendants; and, situated as this case was after the answers were served by the several defendants, we are of the opinion that the motion could not properly be determined when made by the corporate defendants to change the venue to Essex county without notice thereof to Babcock and Strauss; nor could the motion made by Babcock and Strauss to change the venue from Jefferson to Albany county be properly determined until notice thereof was given to the other defendants. It is apparent that the notices of motions given by Babcock and Strauss were served only on the plaintiff’s attorneys. In the absence of such notices as we have alluded to, we are of the opinion that we ought not to conclusively determine the merits of the motions until each party shall have received notice of the motions made by the several defendants. We are therefore of the opinion that both orders appealed from should be set aside, without prejudice, however, to the defendants, respectively, upon proper notice of motion, to apply to have the place of trial changed from Jefferson county.

Orders reversed, without costs to either party, and without prejudice to further applications to change the place of trial from Jefferson county, after notice shall be given of the claims of the respective'parties to all persons appearing in the action.

All concur.


text:
    George Borgfeldt and Co., App’lt, v. George B. Wood et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Replevin—Vendor—Chattels.
    Where, prior to any act on the part of the vendor showing an intention to rescind, the goods had been levied upon by virtue of an attachment against the purchaser, an action of replevin to recover the goods is not maintainable. ,
    2. Sale—Rescission.
    The mere statement of the vendor to the purchaser, at a meeting of the purchaser’s creditors, that he believed that the purchaser was insolvent before he bought the goods and that he received them fraudulently, is not notice of an intention to rescind the sale.
    Appeal from a judgment entered on- a verdict directed by the court in favor of defendant, dismissing the complaint, and for a return of the goods replevied, or for their value, with damages for detention.

    James Dunne, for app’lt;
    C. W. Andrews, for resp’ts.
   MERWIN, J.

In and prior to September, 1893, the plaintiff was a corporation engaged in the mercantile business in ISTew York city, and the defendants George B. and Charles W. Wood were merchants doing business in Syracuse, under the firm name of Reuben Wood’s Sons. Between January 1, 1893, and September 1, 1893, the plaintiff sold and delivered to the Woods goods to the amount of $4,000 and upward. On or about September 14, 1893, the Woods failed in business, having been for some time insolvent; and on the 15th of September, 1893, several judgments were obtained against them, and entered in Onondaga county- and on the same day executions were issued to the sheriff of that county, and levy made by him on the property described in the complaint, with other property. On the 16th September, 1893, the plaintiff commenced the present action in replevin against the Woods and the sheriff to obtain the possession of a portion of the goods previously sold and delivered by plaintiff to the Woods. In the affidavit upon which the requisition was based, it is alleged that, at the time the Woods obtained the goods, they knew themselves to be insolvent, and obtained the goods with a preconceived intent not to pay plaintiff therefor. It was also alleged that the defendant, the sheriff, claimed to hold the goods by virtue of executions issued to him against the Woods. The goods were taken on the requisition from the possession of the sheriff, and the value was at the trial agreed on at $2,475.98. At the close of the evidence, the court directed a verdict for the defendants, dismissing the complaint, and for a return of the goods replevied, or for the value, fixed at $2,475.98, and interest on that sum from September 16, 1893, as damages for detention.

_ The main question on this appeal arises over the application of the provisions of section 1690 of the Code of Civil Procedure. By that section, as it stood in 1893, it was provided that an action to recover a chattel cannot be maintained “(3) where it was seized by virtue of ah execution, or a warrant of attachment, against the property of a person other than the plaintiff; and, at the time of the seizure, the plaintiff had not the right to reduce it into his possession.” There was no doubt about the right of a vendor of goods to rescind the sale for fraud, but until the vendor has exercised his option to rescind, either directly or by some act in disaffirmance of the sale, the purchaser has a leviable interest in the"goods; and, if they are levied upon by attachment or execution against the purchaser prior to rescission, the provision of section 1690 above quoted applies. Wise v. Grant, 140 N. Y. 593; 56 St. Rep. 496. In that case it was held that where, prior to any act on the part of the vendor showing an intention to rescind, the goods had been levied upon by virtue of an attachment against the purchaser, an action of replevin to recover the goods were not maintainable. It was there conceded that the bringing of the replevin was an act of rescission, but, as that did not occur until after the levy on the attachment, the provision of section 1690 applied. In the present case the replevin was not brought until after the levy by the sheriff, and the Wise Case is authority to sustain the judgment, unless, as the plaintiff claims, there was, in substance, a rescission prior to the levy by the sheriff in afternoon of September 15th. Upon this subject it appears that on the 8th September the Woods called a meeting of their creditors for the 14th September in blew York city. At that meeting the defendant Charles W. Wood was present, and also, among others, Mr. Kahle, representing the plaintiff.

Mr. Kahle, as a witness for the plaintiff, testifies:

“I told him (Wood) 'that I believed they were insolvent on the 1st of January, and that he received our goods by fraud. He had no right to accept them. He denied that. He said that they were not insolvent January 1st; and they only found that they were insolvent the Saturday before calling the meeting. Then the creditors spoke about accepting a compromise of 25 per cent., which was rejected, and a proposition made that, if an offer of 40 per cent would be made, the creditors would possibly accept. That was in Mr. Wood’s presence. I then left the meeting, without acting upon the proposition. After leaving the meeting, on my way uptown, I stopped in to see our lawyer, Mr. Dunne, and consulted him in regard to our matter. I instructed you to start the same evening, if possible, for Syracuse; not to delay the matter at all, any more than you could possibly help. It was for the purpose of replevying the goods,—taking out replevin proceedings.” Upon cross-examination Kahle testifies:
“I have detailed, as far as I can remember, everything that I said to Mr. Wood on that day at that meeting. I left the meeting before he did. I said nothing to him at that time about beginning an action of replevin. * * * On my way homo from the meeting I stopped to see Mr. Dunn, our lawyer. I submitted the statement to him; stated, also, that they were largely indebted to us; what steps he would take to protect our interests. I asked, so far as I remember, whether we could recover our goods, as I had no doubt they were obtained by fraud,—false pretenses; that these people, when they received our goods, .were insolvent. I stated this to Mr. Dunne. I was convinced at that time of that fact.”

It appears, also, from the testimony of Mr. Dunne, that in the afternoon of September 14th Mr. Kahle called on him for advice, and he advised him to replevy the goods; that on the morning of the 15th he prepared an affidavit in replevin against the Woods alone, which Mr. Kahle signed; that in the afternoon of the 15th he learned from a newspaper that judgments had been entered against the Woods, and he then changed the affidavits so as to include the sheriff, and sent for Kahle, who came and signed it; that on the 16th he came to Syracuse, and replevied the goods. The summons in the action is dated the 15 th, but was not delivered to any officer for service until the 16th.

This is, in substance, the evidence from which it is claimed that there was rescission prior to the afternoon of the 15th. From this evidence it may he inferred that Mr. Kahle, in the afternoon of the 14-th, made up his mind to rescind the sale, hut he had no communication with Wood after he so made up his mind, nor were the papers for bringing the replevin suit completed until the afternoon of the 15th, and after the judgments and levy by the sheriff. There was no act by the plaintiff as to the property until the 16th. It is argued that the interview between Kahle and Wood at the creditors’ meeting on the 14th was a sufficient notice of the intention of Kahle to rescind the sale. He, however, said-nothing as to what he intended to do, and he said nothing that would at all interfere with his suing on the contract. Besides, he did not in fact know then what he would do, and did not make up his mind until he advised afterwards with his counsel, and after that he did not see or communicate with Wood. We fail to see how the interview between Wood and Kahle, as testified to by Kahle, can be construed to be notice to be notice of an intention by plaintiff to rescind. In Benj. Sales (6th Ed. § 443, it is said that the rescission is the legal consequence of the election of the deceived party to repudiate the contract, and takes date from the time at. which he announces the election to the opposite party. See, also, Stevens v. Hyde, 32 Barb. 171; 21 Am. & Eng. Enc. Law, 84. We are of the opinion that the evidence given on the part of the-plaintiff did not show a rescission before the levy of the sheriff, nor would it authorize the jury to find such a rescission. If there was an intention on the part of the plaintiff on the 14th or 15th September to rescind, it was not in any way communicated or manifested to the Woods, nor was there any act on the part of the plaintiff that committed them on the subject until the replevin suit was in fact commenced. The judgment appealed from is, therefore, correct, within the authority of the Wise Case.

Judgment affirmed, with costs. ,

All concur.