text:
    Henry A. Manly, App’lt, v. William F. Clemens, Resp’t.

      (City Court of New York, General Term,

      Filed May 8, 1891.)

    Landlord and tenant—Holding over—Evidence.
    Defendant leased from plaintiff a loft. His term expired at noon February 2, 1891. He worked from eight o’clock in the morning until twelve o’clock midnight of that day, removing his goods, and was then obliged to leave a desk and safe until the following morning. It appeared that in December, 1890, plaintiff placed a sign “ to let” upon the premises, which was not removed until February 6, 1891. Held, that defendant’s delay was not such a holding over as would warrant the direction of a verdict in plaintiff’s favor for the month’s rent.
    Appeal from a judgment of trial term.

      Stickney & Shepard, for app’lt; Kneeland, Stewart & Epstein, for resp’t.
   Fitzsimons, J.

—The defendant leased from the plaintiff a loft, being one of several in the same building. It is admitted that the term expired on February 2, 1891, at twelve o’clock noon. It is also admitted that the tenant did not remove from said premises all of his goods until twelve o’clock midnight of that same day, and even left a desk and safe until the following day.

The landlord seeks to recover the rent for the month of February upon the theory that the tenant’s failure to vacate said premises at twelve o’clock noon on February 2nd constituted a holding over, which entitled him to receive the full month’s rent.

Upon the trial a judgment was rendered in favor of the defendant.

The plaintiff claims upon the admitted fact of holding over after twelve o’clock noon, that a verdict should have been directed in his favor, and for other alleged errors that the judgment should be reversed and a new trial ordered.

It appears from the evidence that about December 6, 1890, the plaintiff caused to be placed upon the premises, in which loft in question is, a sign “ To let,” which was not removed until February 3, 1891, between two and three o’clock, and further that on December 6, 1890, the defendant wrote plaintiff a letter asking for a new lease which he declined by written answer to such letter to give, stating that he desired to rent all the lofts in the building to one person, and subsequently that his agent also declined to make such a lease; it is, therefore, quite evident that the plaintiff did not desire to have as á tenant the defendant after the expiration of his lease.

It is also quite as evident that the defendant did not intend to remain as a tenant, for the morning of February 2d, as early as eight o’clock he commenced to remove his goods and with the aid of several assistants continued to do so without intermission until twelve o’clock midnight, when all such goods were removed, except the desk and safe, and the premises vacated.

To hold the defendant liable for the rent of February it must appear that his holding over from midday to midnight was intentional and tortious, and, therefore, the trial justice was right in his submission of this' question to the jury and their finding in the negative seems to be amply sustained by the evidence. I think the law of this case is correctly stated in McCabe v. Evers, 30 N. Y. State Rep., 833.

The evidence of negotiation and conversation between the parties concerning a renewal of the lease we think was material as tending to show the intention of plaintiff to refuse such renewal and his desire to have defendant remove upon his expiration of his lease.

The rule that a tenant must vacate demised premises at the end of his term must be reasonably construed, and he should only be liable when he holds over intentionally, wrongfully and for his own benefit It is frequently quite impossible in this city owing to limited means of conveyances and the immense size of business concerns, delays and obstacles oyer which a tenant has no control, to move within a limited period, and he should only be punished where it is evident that he is an intentional wrongdoer.

All things considered, we think the verdict appealed from is a just one and in accordance with the law, and should be affirmed. So ordered.

Ehrlich, Oh. J., concurs.


source: Caselaw Access Project

author: McCarthy, J.

license: Public Domain

text:
    Mary Oliwill, App’lt, v. Daniel Verdenhalven, Resp’t.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    1. Appeal—Review of former decision.
    Where an issue has been already passed upon on appeal, it will not be reviewed on a second appeal

      2. Evidence—To impeach written agreement.
    In an action for damages, an accord and satisfaction, “ received of defendant $300 in full of all damages to date, including the charges of plaintiff’s attorney in the suit of O. v. V., which charges are paid by me,” and signed by plaintiff, was set up as a defense by defendant. The reply denied the same, and alleged that it was procured by fraud and deceit. Plaintiff testified that she could not read, and that no one read to her the clause about paying her lawyer, but that defendant said he would pay him. Held, that it was error to exclude plaintiff’s evidence, to show that she did not make any such agreement with defendant as that in the receipt.
    Appeal from a judgment of trial term, entered on a verdict for defendant, and from an order denying a motion for a new trial.

      D. H. Randall, for app’lt; G. W. Mackellar, for resp’t
   McCarthy, J.

—This is an appeal from judgment for §387.50 costs for defendant upon verdict, and from order denying plaintiff’s motion for a new trial.

The action was brought December 16, 1887, to recover $5,000 dajnages by reason of defendant’s alleged negligence, in the care and maintenance of a tenement house owned by him.

The original answer was a general denial.

A supplemental answer by leave of court was served January 24, 1889, setting up as a defense an accord and satisfaction of the cause of action between the parties for §200 paid plaintiff.

Reply denied the alleged accord and satisfaction, and alleged same was procured by defendant’s fraud and deceit, and the plaint iff’s attorney’s lien was also set up therein.

The action was first tried before Mr. Justice Edward Browne, who submitted only the issues of negligence, and as to the existence of plaintiff s attorney's lien and notice thereof to defendant, and resulted in a verdict and judgment for plaintiff for $780.44.

This judgment was reversed at general term, on the ground that plaintiff’s attorney had no lien for a percentage in action for negligence, even with notice.

The action came on for a second trial on December 8, 1890. The justice presiding submitted the issues of negligence and of fraud in obtaining the release to jury, but refused to submit the issue as to the attorney’s lien by reason of the former decision of the general term of this court.

The jury, under court’s charge, having rendered a verdict for defendant, the case comes before this court for review upon plaintiff’s appeal from the judgment, upon certain exceptions to court’s rulings at trial excluding evidence, and exceptions to court’s charge and refusal to charge plaintiff’s requests, and also upon plaintiff’s appeal from order denying motion to set aside verdict and grant a new trial.

The question in regard to the attorney’s lien for services or interest has been passed upon by this court at general term and was properly excluded. See Oliwill v. Verdenhalven, 26 N. Y. State Rep., 115.

The important question, however, to be determined, was' whether the receipt, defendant’s exhibit Mo. 1, which reads as follows:

“ Bought of D. Verdenhalven, Grocer and Wine Dealer, Lenox Ave., cor. 124th Str.
“Received from D. Yerdenhalven the sum of two hundred dollars in full of all demands to date, including the charges of the plaintiff’s attorney in the suit of Mary Oliwill against D. Yerdenhalven, which charges are paid by me.
“ Mew York, Jan. 14, ’89.
“ Mary Oliwill.”

was obtained by fraud and deceit and without the knowledge or assent of the plaintiff as to its contents; this particularly when the paper was prepared by the defendant’s son, who was necessarily interested in securing his father from litigation and perhaps heavy damages. This bring the contention of the plaintiff.

The testimony of the plaintiff is :

“ Q. The court: Did you read that paper before you signed it? A. No, sir; I could not read it. It was read to me, but I did not understand it, and I said to defendant that I didn’t -know what it meant. I went over to the desk and wrote my name to a paper. The defendant did not read to me, nor did any one else for him read to me that I was to pay my lawyer out of the $200. He said he would pay my lawyer.
“Q. Can you read or write? A. No, sir; but defendant read that paper to me that I did not understand it, and I could not read the handwriting.”

We think the trial judge erred in excluding the following questions :

“ Q. In that conversation did you make any such agreement as in this respect?
“ Defendant’s counsel objects; objection sustained; plaintiff excepts.
“ Q. In that conversation was anything said by you that for $200 you would settle your claim against him and pay your lawyer’s fees and charges ?
“ Defendant’s counsel objects; objection sustained; plaintiff excepts.
“ Q. Did he read anything to you in connection with this instrument which stated that any part of that $200 to be paid by you should be paid by you to your counsel ?
“Defendant’s counsel objects; objection sustained; plaintiff excepts.
“ Q. Then you never did agree to take $200 on settlement of this claim and pay your counsel fees ?
“Defendant’s counsel objects; objection sustained; plaintiff excepts.
“ Q. Did you have any conversation of that kind with defendant by which you agreed to take $200 in accord and satisfaction of your claim against the defendant, and pay your counsel fees?
“ Defendant’s counsel objects; objection sustained; plaintiff excepts.
“A. When the defendant told me that he would pay in addition to the $200 a thousand dollars or more to my counsel, or whatever sum his fees might be, I believed him.
“ Q. Did you send your husband to the defendant’s next day with that $150 ?
“ Defendant’s counsel objects; objection sustained; plaintiff excepts.”

And also the following of Patrick Oliwill:

“ Q. Was Mr. Mackellar present at the time of the talk was had between you, your wife and the defendant as to the $200 payment and the payment of the lawyer’s fees ?
“Defendant’s counsel oojects; objection sustained; plaintiff excepts.
“ Q. Did Mr. MacKellar, at any time, read this receipt which you heard read here to-day, to you, or to your wife?
“ Defendant’s counsel objects; objection sustained; plaintiff excepts.”

The plaintiff says that the understanding was that the defendant was to pay her lawyer his compensation, even if it amounted to $1,000, and that she never signed a receipt agreeing to pay her lawyer's compensation.

These questions, therefore, had reference to the most important issue in the case. Since, if there had been no fraud or mistake in the making and signing of defendant’s exhibit 1, the plaintiff would have no standing in court.

A party who, upon the receipt of a sum of money, supposing he is simply receipting therefor, signs without reading it a receipt in full of all accounts, is not concluded thereby from recovering any other sum due him. Boardman v. Gaillard, Jr., 60 N. Y., 614.

If defendant’s exhibit 1 is claimed to be an accord and satisfaction, then these questions and the answers to them were important for the'jury to hear.

Andrews, J., in Kromer v. Heim, 75 N. Y., 576, says: “Accord," says Sir Wm. Blackstone, ‘is a satisfaction agreed upon between the party injuring and the party injured; which, when performed, is a bar to all actions upon this account’ 3 Bl. Com., 15. An accord executory, without "performance accepted, is no bar; and tender of performance is insufficient. Bac. Abr., tit. Accord and Satisfaction, C. So, also, accord with part execution cannot be pleaded in satisfaction. The accord must be completely executed to sustain a plea of accord and satisfaction. Bac. Abr., Accord and Satisfaction, A; Cock v. Honychurh, T. Ray., 203 ; Allen v. Harris, 1 Ld. Ray, 122; Lynn v. Bruce, 2 H. Bl., 317.

“ In Peytoe’s Case, 9 Co., 79, it is said: ‘And every accord ought to be full, perfect and complete; for if divers things are to be done and performed by the accord, the performance of part is not sufficient, but all ought to be performed.” Fraud invalidates all instruments both at law and equity.

The plaintiff may avoid and overcome the effect of a receipt in full, or release, by evidence showing it to have been procured by fraud ; and this may be by any evidence properly attended with that result. Dambman v. Schulting, 4 Hun, 51 ; Marsh v. McNair, 99 N. Y., 180.

Without commenting on other errors at the trial, we think the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ehrlich, Ch. J., concurs.


text:
    Katharine Hoffman, Resp’t, v. Hartman F. Gundrum et al., App’lts.

      (City Court of New York, General Term,

      Filed June 19, 1891

    1. Bill of sale—Fraud—Intent—Question for the jury.
    In an action to recover the value of certain chattels taken on an execution against the property of plaintiff’s husband, after their transfer to plaintiff by a bill of sale from him, plaintiff testified that her husband, being indebted to her in a large amount, executed and delivered to her a bill of sale of. the property in question in payment thereof; that the possession of the same changed immediately, and that the bill of sale was recorded on the following day. Defendant introduced testimony to show that the husband remained in possession of the shop and continued to have his sign in front, and issued bills for work done and gave receipts in his own name, after the bill of sale. Held, that under 4 Rev. Stat., 8th ed., § 4, it was error to charge the jury that the plaintiff's testimony overcame the defendants’, so that it was a question of fact to be determined by them wholly and solely, who was, in reality, the owner of these goods and chattels.

      2. Sale on execution—Not conclusive as to value in action oe REPLEVIN.
    The price brought at execution sale is not conclusive nor binding in an. action to replevin the goods sold.
    . •Appeal from a judgment entered on a verdict for plaintiff, at trial term, and from an order denying a motion for a new trial.

      Henry Hoyt, for app’lts ; B. Metzger, for resp’t.
   McCarthy, J.

—This action was brought to recover the sum of $1,500, the alleged value of certain chattels in replevin. The plaintiff claimed that she became the owner of said chattels, consisting of stock, tools and fixtures of a wheelwright and blacksmith shop in the city of New York, under a bill of sale made to her directly by her husband, for the expressed consideration of one dollar.

The property was levied upon by the sheriff of the city and county of New York, .under a warrant of attachment issued by the Hon. David McAdam against Franz Hoffman, plaintiff’s husband, at the suit of Hartman F. Grundrum, to recover $512, the other two defendants being the indemnitors who were impleaded. The defendants interposed, separate answers, denying the title of the plaintiff and the value of the chattels, and setting up that the bill of sale upon which the plaintiff relied was fraudulently made as between husband and wife, to cheat and defraud the husband’s creditors. Upon these issues the action proceeded to trial on October 21, 1890, and resulted in a verdict for the plaintiff of $1,200. The usual motion for a new trial was thereupon made and an order denying same entered thereon, and from the judgment entered upon the verdict and said order this appeal is taken.

The proof shows the plaintiff’s husband, a blacksmith and wagonmaker on West Fifteenth street, being insolvent and largely indebted at the time, on the 8th day of February, 1889, made the bill of sale referred to, direct to his wife, of said business, and that subsequent to that date he remained and continued as before in possession of the business, which was transacted and carried on by him as before. His name continued on the front of the premises, and bills for work done at the shop continued to be rendered to the customers in his name, the receipts given in his name, and the bills made out even by the daughter, who claims to know of the transfer, were made in his name, and when inquiry was made as to the ownership of the business, the vendor, plaintiff’s husband,, stated he was the owner.

In fact everything appeared to be the same as before the making of the bill of sale.

Section 5' of tit. 2, chap. YII of Revised Statutes, Banks & Bros. (8th ed.), p. 2591, reads : “ Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels by wav of mortgage or security, or upon any condition whatever, unless the same be-accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith, and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale or assignment, that the same was made in", good faith and without any intent to defraud such creditors or purchasers and §§ 4 and 5 of tit. 3, same chap., p. 2593, are as follows:

“Sec. 4. -The question of fraudulent intent in all cases arising under tiie provisions of this chapter, shall be deemed a question of fact and not of law; nor shall any conveyance or charge be adjudged fraudulent, as against creditors or purchasers, solely upon the ground that it was not founded on a valuable consideration.
“ Sec. 5. The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.”

There must be an immediate delivery and followed by an actual and continued change of possession of the property sold, and not constructive.

There was not a continued change of possession of the property sold. It was found after the sale in possession of the vendor by the act of the plaintiff. The change of possession into the vendor did not continue and was a mere form. With no other title in the meantime claimed to it than that of the plaintiff, who was the wife of the vendor, it had come with her knowledge and assent into the open and notorious control and possession of the vendor.

The law will not measure the lapse of time from the sale and delivery to a renewed possession by the vendor directly from the vendee and say that a change of possession for any period will satisfy the statute. The statute is imperative that the sale must be followed by a continued change of possession or it shall be presumed to be fraudulent.

It is then upon the vendee to make it appear that the transaction was in good faith and with no intent to defraud. Tilson v. Terwilliger, 56 N. Y., 276.

The trial judge in his charge to the jury, said:

“How, the evidence upon the part of the plaintiff is this, that on the 8th of February, 1889, her husband was indebted to her, with interest added, between $1,700 and $1,800; that in payment of that.indebtedness a bill of sale was executed and delivered, of the entire blacksmith shop, with its contents and plant, if that may be a proper expression, to the wife, the plaintiff in this case, by her husband, one Franz Hoffman. And the testimony further shows that possession was changed immediately, and that it continued in possession of the plaintiff. There is testimony, too, that the bill of sale was filed in the register’s office, I believe the following day, the 9th of February, 1889.
“ That, gentlemen, is in substance the testimony on the part of the plaintiff.
“ The defendants endeavor to overcome that by testimony seeking to show that Franz Hoffman remained in possession of the premises and continued to have his sign in front of said premises, and issued bills for work done at said premises in his own name, after the bill of sale to his wife.
“ Now, gentlemen, it is but fair to say in regard to that, that the plaintiff’s testimony overcomes this, so that it is a question of fact to be determined by you, wholly and solely, who is, in reality, the owner of these goods and chattels.”

This was error. The evidence showed clearly that there had not been an actual and continued change of possession; and if the evidence did not show this, the judge should not have -passed judgment on the facts, but have left it to the jury. He practically told them that there was no evidence on that point for their consideration, and in fact directed them to disregard the effect and weight of all testimony on that branch of the case, because in-his opinion the plaintiff’s testimony had overcome whatever testimony had been given on the part of the defendant

This was not within his province. The testimony was important for the jury to consider in determining the questions of good faith and the intent to defraud, which were questions of fact.

This could not be cured by any charge of the judge on the principles of law, since he had already told them there were no facts to consider.

The trial judge erred in refusing to charge the defendant’s sixth and seventh requests to charge. Betz v. Conner, 7 Daly, 553; McCarthy v. McDermott, 10 id., 450.

James T. Moynegh was called in behalf of the defendant, and after he had testified that he was a truck manufacturer and doing business at No. 127 King street, and stating his knowledge and. so forth, was asked:

“ Q. Do you remember whether you gave Mr. Gundrum the amount that, in your opinion, was the market value of these five wagons ?
“Objected to; objection sustained; exception taken.
“Q, Were you present at the sale ? A. Yes, sir. The wagons realized at the sale about $600.
“Q. Was that a fair price for them?
“Objected to; objection sustained ; exception taken.”

The price obtained at a sheriff’s sale or at a public auction is some evidence of value, slight or cogent, according to the circumstances, to be considered by the jury in arriving at their value, but is neither conclusive nor binding. We think the judge erred in this, and the evidence should have been received. In many cases the result of a forced sale of goods ought not to influence the jury in assessing the damages. Campbell v. Woodworth, 20 N. Y., 500; Gill v. McNamee, 42 id., 46.

On the merits of the case we think that the plaintiff failed to show by a preponderance of evidence that the transaction was in good faith and with no intent to defraud. ' Savage v. Murphy, 34 N. Y., 509 ; Carpenter v. Roe, 10 id., 231 ; Case v. Phelps, 39 id., 164; Adams v. Davidson, 10 id., 309 ; Billings v. Russell, 101 id., 230.

Other errors were committed dm’ing the progress of the trial, but we deem those already referred to as sufficient for the purposes of this appeal

Judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ehrlich, Oh. J., and McG-own, J., concur.


author: McGown.

text:
    Fred W. Davey et al., Resp’ts, v. Ernst A. Lohrmann App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    1. Evidence—Offer of settlement made pending suit not admissible.
    Upon the trial of an action, evidence to show that defendant, after the suit was commenced, offered to settle it is inadmissible.
    2. Same—Records—Must be authenticated.
    Plaintiff offered in evidence, for the purpose of affecting defendant’s credibility,- a paper described as a record of the conviction of defendant of larceny, but without proof of its genuineness. Feld, error to admit it.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiffs and against the defendant.

      Uriah W. Tompkins, for app’lt; J. George Flammer, for resp’ts.
   McGown.

—The action was commenced by plaintiffs to recover from defendant the sum of $275, the reasonable worth of fifty cases of eggs, containing 1,500 dozen, at twenty cents per dozen, the reasonable worth thereof, sold by plaintiffs to defendant The complaint alleges the sale and delivery thereof on the 27th day of December, 1889, and that the defendant agreed to pay the reasonable worth thereof.

The defendant, in his answer, admits ordering twenty-five cases of eggs at twenty cents per dozen; the receipt of a portion of said twenty-five cases, of which a part thereof he alleges was unmerchantable and worthless. That defendant, before the commencement of the action, tendered to the plaintiffs the sum of $98.80, the amount due for the merchantable eggs delivered. That plaintiffs had refused to receive the same, and that defendant had paid that amount into court

After the closing of the testimony, the case was submitted to the jury under the charge of the trial justice, and the jury rendered a verdict in favor of the plaintiffs for the sum of $218.65.

After the plaintiff had introduced evidence and rested his case, the defendant was examined as a witness on his own behalf, and upon his cross-examination by plaintiffs’ attorney, testified that after the suit was commenced he called upon the plaintiffs. The following question was then asked him:

“ Q. And you offered to pay them forty dollars, in addition to the sum of $98.80, did you not?
“ Defendant’s counsel objected as a matter of settlement between the parties.
“ The court: I think the law only applies to offers made as provided by the Code. If it is made voluntarily, it may be considered as an admission against interest.
“ Defendant’s counsel: I object to it as incompetent and immaterial, and on the ground further, that it was after the commencement of the action, and that any efforts to settle a disputed claim after the commencement of an action, cannot be considered as an admission against the party seeking to make the settlement, and I take an exception.”

The exception was well taken, and the admission of the evidence was clearly erroneous, as such evidence would undoubtedly have the effect of influencing the jury in the rendition of their verdict. The defendant had a perfect right to buy his peace by endeavoring to settle the suit, and thus save himself the loss of time and expense of defending, and the admission of the evidence was clearly improper.

At folio 69 of the case the following occurred:

“ By plaintiff’s counsel:
“Were you tried in the court of general sessions on February 9th, 1877, upon a charge against you of grand larceny?
“ Defendant’s counsel objects as incompetent and immaterial.
“ Plaintiff’s counsel: I merely wish to identify it; I have the record of conviction here.
“Admitted. Defendant excepts
“A. Yes, sir.
“ Plaintiffs’ counsel; I offer in evidence the conviction.
“Defendant’s counsel: I object to the paper; it is not explained, and it is not shown from whence it came; there is no proof of what the paper is, or from whence it came, whether it be a record of the court or not.
“ Admitted. Defendant accepts.
“Marked plaintiffs’ Exhibit A.”

The admission of the paper was clearly erroneous. ¡No proof was offered to show that it was a record of the court of general sessions, or that it was produced from the files of the court. The mere statement of counsel that “he had the record of conviction in court,” was not evidence. Before the record of a court can be admitted in evidence, the law requires certain proof of its genuineness. ¡No such proof was offered. The paper was offered generally, without any restrictions, and even had it been properly proved, it could not be offered generally, but only for the purpose of discrediting the witness. Rosenberg v. Salvators, 1 N. Y. Supplt., 327, 328 ; 16 N. Y. State Rep., 801.

The improper admission of such record would, beyond doubt, affect the minds of the jury in determining upon the credibility of the defendant.

The ruling of the trial justice upon the admission of the testimony above referred to, being erroneous, and the exceptions being well taken, it is not necessary to pass upon the other exceptions taken by defendants upon the trial, and the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ehrlich, 0. J., and McCarthy, J., concur.


author: McGown, J.

text:
    Jacob Schapierer, Resp’t, v. The Third Avenue Railroad Company, App'lt.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    Damages—Excessive.
    In an action for damages for personal injuries sustained by reason of defendants’ negligence, the uncontradicted testimony of the plaintiff showed that he was a married man, a tailor, worked for himself; that his leg was broken; that he was taken by an ambulance to a hospital, where he remained eight weeks; that at the time of the trial he still suffered pain and was unable to work. Held, that a verdict for $350 was not excessive, and would not be disturbed on appeal.
    Appeal from a judgment entered on the verdict of a jury, rendered in favor of the plaintiff, for the sum of $350, on the 11th day of November, 1890, and from an order made on the 3d day ■of December, 1890, denying defendant’s motion for a new trial.
    Hoadley, Lauterbach & Johnson, for app’lt; Samuel D. Levy, for resp’t.
   McGown, J.

—This action was brought to recover for damages alleged to have been sustained by plaintiff while a passenger on the cars of defendant’s company, on the 25th day of July, 1889, by reason of the carelessness and negligence of defendants, its .agents and servants.

The action was tried before Justice Van Wyck and a jury on the 11th day of November, 1890, and the jury rendered their verdict in favor of the plaintiff for the sum of $850. The defendants made a motion on the 12th day of November, 1890, before ■Justice Van Wyck to set aside the verdict and for a new trial; on the minutes, and exceptions taken in the case and further, upon the ground that the verdict was against the law, and the evidence and the weight of evidence, which motion was denied. Defendants thereupon appealed from the judgment herein, ■and from the order denying the motion for a new trial.

The plaintiff was examined as a witness on his own behalf, no other evidence being offered on his part, and rested.

Defendants examined one David Salter, the conductor in ■charge of,-and one James Wells, the driver of, the car at the time plaintiff sustained the alleged injuries, and rested.

The trial judge thereupon charged the jury, who rendered their verdict in favor of plaintiff.

The issues raised by the pleadings and tried were issues of fact ■only. The evidence of -the witnesses on the part of the defendants was contradictory to the evidence of the plaintiff on many material points. The trial justice in his charge fully and fairly ■submitted the case to the jury, calling its attention to the evidence ■of each of the witnesses; that plaintiff must prove his case by a preponderance of evidence; fully instructing the jury as to the meaning of the word preponderance, and also charged them upon the question of negligence and contributory negligence. No exceptions were taken by defendants to the charge, and the jury rendered its verdict on a conflict of evidence.

Injuries'to the person are without precise pecuniary measure, and therefore the amount of damages to be awarded in an action to recover damages for personal injuries has been left to the experience of jurors. If the verdict rendered by them may reasonably be presumed to have resulted in an honest and intelligent exercise of j udgment on their part, the court will not interfere with their conclusion. In such actions a verdict will not be set aside as excessive, unless it manifestly appears to be the result of passion, partiality, prejudice or corruption.

The uncontradicted testimony of the plaintiff shows that he is a married man, a tailor, and works for himself; that he was hurt about his ankle and that his leg was broken; that he was taken by an ambulance to the Chambers Street Hospital, where he remained until next morning, after which he was taken to Bellevue Hospital, and from thence taken to the Charity Hospital, where he remained eight weeks; that he suffered much pain; that he still suffers pain and that he is not able, even at the present time, to work.

The defendant’s witness, Salter, was asked on cross-examination :

“Q. Was he in pain? A. Apparently, he was, because he was moaning. ”

The jury, by their verdict, found, as a matter of fact, that the plaintiff was entitled to recover damages,- and we do not think, under the circumstances, that the amount they awarded him was excessive. It was the province of the jury to pass upon the entire evidence, .to consider how far any interest the witnesses might have, if any, which might influence their verdict; to give the evidence of each witness such weight as they considered it entitled to, and the jury had a perfect right to disbelieve either of the witnesses unless such witness was corroborated.

The policy of our law tends to make the jury the sole arbiters of conflicting evidence, and hence their verdict ought, as a rule, be accepted as conclusively establishing the disputed questions they are called upon to decide. The jury have settled the facts in this case adversely to the defendants, and we can see no good reason why we should disturb their verdict. Where the evidence is conflicting, and the motion for a new trial has been denied, the judgment on the verdict will be affirmed. Halpin v. Finch, 24 N. Y. State Rep , 884.

There is no merit in any of the exceptions taken by defendants’ counsel.

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

McCarthy, J., concurs.


author: Ehrlich, Ch. J.

text:
    Hyman Schnitzer, Resp’t, v. Sabina E. Heusted et al., App’lts.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    Evidence—Usury—Inception of debt.
    Where, in an action against the maker and endorser of promissory-notes, the defense is usury, and the endorser procured their discount by plaintiff, the defendants have the right to show by the testimony of the endorser that the notes had no inception until the time of their discount by plaintiff.
    Appeal from judgment entered at trial term on direction of verdict in favor of plaintifE.
    Action on two promissory notes ; the defense usury.

      H. Y. Stillman, for app’lts; D. Leventritt, for resp’t.
   Ehrlich, Ch. J.

—Peter Y. Husted, one of the defendants, testified that he asked the plaintiff to discount the notes for Mrs. Husted (the maker) and himself. He was afterwards asked to state the circumstances under which he got the notes from Mrs. Husted. The question was objected to and excluded. This was error. The defendants had the right to show that the notes had no inception at the time of the discount, and the answers interposed are broad enough to admit such proof The plaintiff was not asked by Mr. Husted to purchase from him existing obligations, but to discount for Mr. and Mrs. Husted the notes presented, which implied that they had not as yet been negotiated or discounted for either of them.

This is the fair import of the language, and brought home knowledge to the plaintiff respecting the character of the paper offered. See Baker v. Union Mut. L. I. Co., 43 N. Y., 283. In order to create an estoppel in pais, it must appear that the party caused the other to believe the existence of the facts to which the estoppel relates, and also that the other has acted upon such belief. Lawrence v. Brown, 5 N. Y., 394. An equitable estoppel never takes place where one party does not intend to mislead, and the other party is not actually misled. Jewtt v. Miller, 10 N. Y., 402. The evidence, showing the circumstances connected with the making, delivery and negotiation of the notes, should have been received, and it was then a question for the jury to determine whether the plaintiff relied upon the representation, and whether he would be wronged if the defendants were not held to it The defendant recalled the plaintiff as a witness, and he gave testimony that the defendants thought proper to contradict, and the trial judge refused to permit them to do so, on the ground that they were attempting to contradict their own witness. The defendants had the right to contradict him, but not impeach his credibility. Thompson v Blanchard, 4 N. Y., 303.

For these reasons the judgment appealed from must be reversed ■and a new trial ordered, with costs to the appellant to abide the event.

McG-own and McCarthy, JJ., concur.


author: Van Wyck, J. McGown, J.

text:
    Simon Auerbach et al., Resp’ts, v. Henry C. L. Peetsch et al., App’lts.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    'Trial—Appeal.
    When both plaintiff and defendant request the court to direct a verdict the trial judge becomes the trier of both the law and facts and his judgment as to disputed questions of fact will not be disturbed on appeal.

      Appeal from judgment entered upon verdict directed by the-court for the plaintiff.

      Meyer Auerbach, for resp’ts; Edward W. S. Johnston, for app’lts.
   Van Wyck, J.

—This action was upon a promissory note-made by defendants to the order of one Moonelis, endorsed and delivered by him to plaintiff for full value before maturity. The defendants’ answer alleged that the note was not delivered toMoonelis or to any one else for value. The plaintiffs put the note in evidence and one of them testified that they received it. from Moonelis before maturity in payment of two of Moonelis’ notes held by them which together equalled the amount of the note-in suit, and that thereupon they surrendered to Moonelis his two-aforesaid notes. These transactions, if truthfully stated, made the plaintiffs, under the New York law, bona fida holders for value. To substantiate the defense the defendant Peetsch testified as follows :

“The signature to this note is my signature; that note was delivered to me by Mr. Moonelis and after that delivery it was. returned ; two days afterwards he came to my office and told me that the bank would not discount such a big note; that they were tight of money, and to make two small notes in place of it; this, note was returned to me and I never again delivered it to him or-to anybody else; he came with that note to my office and wanted two notes in place of it; after that note of $1,351.20, dated September 3, 1890, being plaintiffs’ Exhibit ‘A.,’ was returned to me by Mr. Moonelis, I never delivered it to him or to anybody else; I say that I never parted with that paper after it was returned to me ; I know how it left my possession; I never saw it afterwards in the hands of Mr. Moonelis or in anybody’s else hands; I did not see it after it left my possession; it was left on the table and I was called out and when I came back the note was gone and when I asked him afterwards about the note he told me he had the note destroyed; that lie unintentionally took it along.”

This is all of the evidence offered by the defendants except as-to the original consideration for the note.

At the close of the testimony in the caséis found the following r “ Defendants’ counsel asks the court 'tó direct a verdict in favor of the defendants.” “ Motion denied. Exception.” And “ plaintiffs’ counsel then asked the court 'to direct a verdict in favor of plaintiffs. The court thereupon directed a verdict in favor of the plaintiffs for $1,359.30. The defendants, excepted. ” This exception can be of no avail to the defendants' on appeal, for the reason that when both parties requested the court to direct a verdict, they thereby conferred upon the judge all "of the authority over the questions of fact which the jury would have otherwise had. And unless some merit can be found in the defendants’.; other exceptions, they cannot prevail. But these other exceptions are directed against the rulings of the court excluding evidence^ offered by defendants tending to show what was the original consideration! for the note. These rulings, however, seem' proper,1 ásfthe defensa was that the note, some time after making and delivery; and.aiter: its redelivery to the maker in exchange for two other notes, was, say, stolen from the maker. Here the substance of the defense is the felonious taking of the note from the maker by its payee; and if this is a good defense against a bona fide holder for full value, it would be such even though the note had been originally given by the maker for full value; and as a good defense cannot be made better, of what consequence can it be that the note was originally given without any consideration; and moreover, if it .had been originally given by the maker without consideration, it would be, except for this intervening defense of felonious taking, good in the hands of a bona fide purchaser; and the court, in the exercise of the functions of a jury, has held both that the plaintiff is a bona fide purchaser, and that the note was not delivered, redelivered and retaken, as testified to by a party, to the action.

Such determination was justified by the evidence, and the judgment is affirmed, with costs.

ITewburg-er, J., concurs.

McGown, J.

—This action was upon a promissory note made by the defendant Peetsch to the order of defendant Moonelis, bearing date September 3, 1890, payable four months after date,

• and endorsed and delivered by him to the plaintiffs, for full value before, maturity.

The defendant Peetsch appeared, and in his answer admits the making of the note, and alleges:

First. The said pote “was not delivered by this defendant Peetsch to the defendant Moonelis, or to any other person or persons, nor did. this defendant ever receive any value from the defendant. Moonelis, or from any other person or persons, of all of which the plaintiffs had notice.”

Second. “ This defendant alleges, upon information and belief, that the plaintiffs did not purchase said note for value in good faith from the defendant Moonelis, nor did they part with any value therefor, and that they are not the lawful owners or holders thereof as against this defendant.”

The plaintiff thereupon put in evidence the note in question, and Meyer Auerbach, one of the plaintiffs, testified that plaintiff received the note from Moonelis, before maturity, in payment of two notes of Moonelis held by them, which- became due September 25th and October 24th, respectively, which, together with the sum of seventy dollars paid by Moonelis on account of one of said notes, and together with the interest on the two notes, made up the amount of the note in suit, and that plaintiff at the same time surrendered and returned, the two notes to the defendant Moonelis. That, at the time of the delivery of-the note, plaintiffs had no knowledge that the note had been diverted by the defendant Moonelis, or wrongfully taken by him. This transaction if truthfully stated made the plaintiffs, under the laws of this state, bona fide holders' for value. Phoenix Insurance Co. v. Church, 81 N. Y., 225; Nickerson v. Ruger, 84 id., 676; Grocers' Bank v. Penfield, 69 id., 505.

To sustain his defense, Peetsch testified as follows: “The signature to this note is my signature. That note was delivered by me to Mr. Moonelis, and after that delivery it was returned. Ten days after that he came to my office and told me that the bank would not discount such a big rióte ; that they were tight of money and to give him two small notes in place of it. This note was retained by me and I never delivered it to him or to anybody else. He came with that note to my office and wanted two notes in place of it. After that note of $1,351.20, dated September 3, 1890, being plaintiff’s exhibit A, was returned to me by Mr. Moonelis, I never delivered it to him or to anybody else. Again I say that I never parted with that paper after it was returned to me. I know how it left my possession. I never saw it afterwards in the hands of Mr. Moonelis or anybody else’s hands. I did not see it after it left my possession. It was left on the table, and I was called out, and when I came back the note was gone, and when I asked him afterwards about the note he told me he had the note destroyed; that he unintentionally took it along. ” No other testimony was offered except as to the consideration of the original note surrendered.

Defendant’s counsel thereupon asked the court to direct a verdict in favor of the defendant, which motion was denied. Plaintiffs’ counsel then asked the court to direct a verdict in favor of the plaintiffs. The court thereupon directed a verdict in favor of the plaintiffs for $1,359.30, and the defendant excepted. This exception, however, can be of no avail to the defendant on appeal, for the reason that where both parties request the court to direct a verdict, they themselves conferred upon the trial judge all of the authority over the questions of fact which the jury would have otherwise had, including the power to discredit the testimony of either party, unless Peetsch’s testimony was corroborated by other testimony, and the court below was not bound, as a matter of law, to credit the statement of the defendant, an interested party, and given in his own behalf, though not contradicted by any other witness. Kearney v. The Mayor, etc., 92 N. Y., 621 ; Elwood v. Western Union Telegraph Co., 45 id., 553 ; Sipple v. The State, 99 id., 290.

There was no request on the part of the defendant to submit any question of fact to the jury. There was no evidence offered on the part of the defendant to contradict the testimony of the plaintiff Auerbach, as to the transaction between himself and Moonelis, when plaintiff received the note upon the surrender of the original note.

The trial justice having directed a verdict, there was no error under the circumstances.

In Stratford v. Jones, 97 N. Y., 589, Rapallo, J., says: “We do not think that the testimony conclusively proved the fraud alleged, so as to entitle the plaintiff to a direction of a verdict in his favor. At most, the evidence raises a question of fact which might have been submitted to the jury. No request to that effect was made, but both parties requested the court to direct a verdict.

“ Under these circumstances it has often been held that the parties must be deemed to have submitted the questions of fact, if any, to the decision of the court, and waived the right to go to the jury. The decision of the court, therefore, stands in the place of a verdict of the jury, the evidence being such that a verdict for the defendants could have been ‘sustained. The direction to find such a verdict was no error under the circumstances.” See, also, Provost v. McEncroe, 102 N. Y., 650 ; Kirtz v. Peck, 113 id., 225; 22 N. Y. State Rep., 733.

In Royce v. Watrous, 7 Daly, 88, where a question arose as to the direction of a verdict, Daly, Oh. J., says: “A judge having ordered a verdict for the plaintiff he must be regarded as ruling that the plaintiff was entitled to recover even upon the case as presented by the defendants’ testimony, and in view of any inference which a jury might legitimately draw from the defendants’ testimony from the whole of the evidence in the case.”

Unless some merit can be found in the other exceptions taken by defendants, they cannot avail, and we shall, therefore, consider the exceptions in the order taken.

Defendants’ counsel, at folió 16 of case, “Asked the court for the affirmative of the issue before the jury. Motion denied. Exception.”

The plaintiff before he could recover must show, as alleged in his complaint, that he was the lawful owner and holder of the note.

The answer admits the making of the note, but alleges that the same was not delivered by the defendant Peetsch to the defendant Moonelis, or to any other person or persons, and that defendant never received any value therefor from the defendant Moonelis, or from any other person or persons, of all of which the plaintiffs had notice. Also that the plaintiffs did not purchase said note for value in good faith, from the defendant Moonelis, and did not part with any value therefor, and that plaintiffs are not the lawful owners or holders thereof.

It became necessary, therefore, for plaintiffs to produce the note to show delivery by defendant Peetsch to defendant Moonelis, from whom plaintiff received the note, and also to show that he had no knowledge or notice that the note had been diverted by Moonelis or wrongfully taken by him. Vosburgh v. Diefendorf, 119 N. Y., 365; 29 N. Y. State Rep., 448.

There is no merit, therefore, in this exception.

At folios 17 and 19, defendants’ counsel asked defendant Peetsch, a witness:

“Q Under what circumstances was this note made? Objected to, that no such -defense was offered or pleaded.”
“The Court: The only defense in the case under the pleadings is the non-delivery of the note. Objection sustained. Exception.”

There was no error, we think, in this ruling. There are no merits in the fifth exception taken at folios 19, 20 and 25.

The judgment appealed from must, therefore, be affirmed, with costs to the respondent


text:
    Joseph Walsh, App’lt, v. Thomas F. Dolan, Resp’t.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    1. Complaint—Several causes oe action—Averment oe damages.
    In an action to recover damages for an alleged assault and battery and for false imprisonment, the complaint alleged “for a first cause of action,” _“ (I) that ata certain time and place, the defendant violently assaulted plaintiff,” “for a second cause of action,” “(2) that at the same time and place the defendant imprisoned plaintiff,” and “ (3) that plaintiff has been damaged by reason of the premises in the sum of $2,000.” Held, that it was not necessary to allege specific damages for each cause of action; the complaint was properly drawn, and it was error to charge that no recovery could be had under the first cause of action.
    2. Witness—Question to test credibility.
    Where the defendant offers himself as a witness in his own behalf, it is error to disallow questions on cross-examination, to test his credibility.
    Appeal by the plaintiff from a judgment entered in favor of the defendant for $70.25 costs, entered on the 26th day of April, 1891, on the verdict of the jury, and also from an order denying plaintiff’s motion for a new trial.

      Jacob Fromme, for app’lt; William H. Clarke, for resp’t.
   McGown, J.

—This action was commenced by the plaintiff to recover damages for an assault and battery alleged to have been committed by the defendant, a police officer, upon the plaintiff, on the 5th day of May, 1889, and for false imprisonment of the plaintiff, alleged to have been made on the same day by defendant. The complaint alleges:

“ For a first cause of action:
“First. That on the 5th day of May, 1889, at Third avenue near Fifty-ninth street, in the city óf New York, the defendant above named violently assaulted said plaintiff, and kicked said plaintiff in.the back.
“ For a second cause of action:
“ Second. That on the 5th day of May, 1889, at said Third avenue and Fifty-ninth street, the defendant * * * imprisoned said plaintiff, etc.
“ Third. That said plaintiff has been damaged by reason of the premises in the sum of $2,000.
“ Wherefore, said plaintiff demands judgment against said defendant for the sum of $2,000, besides the costs of this action.”

The defendant in his answer:

First. Denies the allegations in the complaint contained in and constituting said first cause of action,” etc.

Upon the trial the plaintiff was called as a witness on his own behalf, and testified as to the alleged assault, as charged in the first cause of action, and also as to the false imprisonment, etc.

Peter Wendell and Edward J. White, on the part of the plaintiff, also testified as to the assault. While on the part of the defendant, Isaac Wagner and Sarah Wagner testified that they were present, but did not see any assault; while Charles 0. Lynch, although called on the part of the defendant, testified that he saw the defendant “ pushing him (the plaintiff) with his hand along as far as the corner," while the defendant, on his own behalf, testified that “ I did not kick Mr. Walsh in the back; I did not strike him with my fist or club.”

Mo objection was made by the defendant’s attorney to the admission of evidence as to the assault as charged in the first cause of action.

Upon the closing of the testimony, the court charged the jury as follows:

“ Gentlemen of the Jury: Evidence has been given during the trial of the assault alleged to have been committed by the defendant upon the person of the plaintiff. That evidence I must request you to eliminate from your minds; for even should you find a verdict for the plaintiff upon the second cause of action, you cannot award him damages for an alleged assault, for the reason that the complaint is so drawn that the court could not permit any verdict to be rendered upon that cause of action.”
“ Plaintiff’s counsel: I except to that part of your honor’s charge in which you say that plaintiff cannot recover for the first cause of action, the assault and battery.”

There were two issues of fact raised by the pleadings to be passed upon by the jury. First, whether the defendant assaulted the plaintiff, and second, whether the defendant falsely imprisoned the plaintiff. 0

The alleged assault took place on the 5th day of May, 1889, and was immediately followed by the alleged false imprisonment. The two occurrences having taken place at the same time, the alleged false imprisonment following immediately the assault, the complaint was properly drawn. The two causes of action were separately stated as required by the Code, § 483, and the two causes of action were properly united in the complaint Code, § 484.

It was not necessary to allege specific damages for each cause of action. Plaintiff alleged in the third paragraph of his complaint that “ he had been damaged by reason of the premises in the sum of $2,000.” The “premises” referred to were the first and second causes of action. The plaintiff’s claim as stated in the complaint was for damages for the assault and for the false imprisonment. Even if the complaint was defective, the fact that the defendant answered and proof of the assault was admitted without objection; the plaintiff was entitled to judgment consisent with the case made out by the complaint and embraced within the issues. Murtha v. Curley, 90 N. Y., 372; Wells v. World's D. M. A., 120 id., 630; 30 N. Y. State Rep., 909.

In Schultz v Third Avenue Railroad Co., 89 N. Y., 242, the complaint set forth three counts or statements of action, all having ¡reference to the same transaction in which in each count specific damages was alleged. Earl, J., in his opinion, states: “But,we think that the general prayer for damages at the conclusion of the complaint must control in this case. * * • * The action was commenced to recover on account of the one injury caused by defendant at the time and place named in the complaint, and in such case the allegation at the end of each count of the damages which plaintiff sustained, may be disregarded, the general prayer for judgment being sufficient to authorize and uphold the verdict."

It was the province of the jury to say from the evidence whether any assault had been committed. Had the evidence been submitted to the jury, they could have found the assault proven, and no sufficient evidence to prove the false imprisonment, in which case they could have rendered their verdict in favor of the plaintiff for damages for the assault alone for any amount they saw fit within the amount claimed. The charge of the trial justice was a clear and direct direction to the jury to disregard all evidence of the assault and not to render any verdict for the plaintiff for damages for the assault.

With the evidence of the assault taken from the jury, the jury had little, if any, evidence upon which they could determine whether the imprisonment, if any, was false or not We think that the plaintiff was entitled to have all the evidence go to the jury to pass upon the same, and to determine whether any assault or imprisonment had taken place, and if so, what damages plaintiff had sustained, and the ruling of the trial justice in withholding such evidence from the jury was erroneous, and the exception to such ruling was well taken.

The defendant, oa cross-examination, testified that, on the 27th day of September, he and the police department severed connection, and was asked by plaintiff’s counsel:

“ Q. You were dismissed, were you not?
“Defendant’s counsel objects; objection sustained; exception."

This ruling was also, erroneous. The defendant having offered himself as a witness in his own behalf, the question should have been allowed as competent, to test his credibility. It is unnecessary to pass upon the other exceptions taken by the defendant’s attorney upon the trial, and the judgment and order appealed from must be reversed and a new trial granted, with coste to the appellant to abide the event.

McCarthy, J., concurs.


text:
    The Bradley Fertilizer Company, Resp’t, v. The South Publishing Company, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    Trial—Request by both parties to direct verdict.
    Where hoth parties request the court to direct a verdict, they confer upon the trial justice all the authority over the questions of fact which the jury would have otherwise had.
    This action was brought to recover abalance of account alleged to be due plaintiff for goods sold and delivered to the defendant. The defense set up was a denial of the sale and delivery to defendant of the goods, etc., as alleged in the complaint, and that the defendant was not an incorporated company at the time of the alleged sale.
    Judgment was entered on the second day of February, 1891, upon the verdict of a jury, by direction of the court, in favor of the plaintiff, for the sum of $377.92. Defendant appeals from the judgment,

      Herbert H Gibbs, for app’lt; George Walton Green, for resp’t.
   McGown, J.

—The issues raised by the pleadings were issues of fact only.

After the closing of the testimony defendant’s counsel asked for a direction of a verdict for the defendant, which motion was denied.

Plaintiff’s counsel thereupon asked for a direction of a verdict in favor of the plaintiff, which motion was granted and to which rulings defendant excepted.

JSTo motion was made by defendant’s counsel to go to the jury on any question of fact

Both parties having requested the court to direct a verdict, they themselves conferred upon the trial justice all the authority over the questions of fact which the jury would have otherwise had, including the right to discredit the testimony of any of the witnesses unless corroborated by other testimony. Kearney v. The Mayor, etc., 92 N. Y., 621; Elwood v. Western Union Tel. Co., 45 id., 553; Sipple v. The State, 99 id., 290.

There was no error on the part of the trial justice in directing the verdict,- and we think he was justified by the evidence in directing the verdict.

We have examined the several exceptions taken by defendant’s counsel to the ruling of the trial justice, and we do not think there is any merit in either of them. The amendments allowed were in the discretion of the trial j ustice, and they did not change substantially the claim or defense, nor did they affect th'e substantial rights of the defendant, and it was his duty, under the circumstances, to conform the pleadings and other proceedings to the facts proved.

Judgment appealed from must be affirmed, with costs to respondent

McCarthy, J., concurs.


text:
    George P. Ely, Resp’t, v. Reuben A. Britton, Impl’d, et al., App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    Usury—Accommodation paper—Evidence.
    In an action brought to recover on a promissory note, the defendant alleged that he was an aceommodation endorser, and that the note was delivered by the maker to plaintiff upon a usurious agreement made before it had any inception. Plaintiff testified as a witness for defendant that the maker of the notes wished to borrow money of him, and said he would give plaintiff his note for $100, endorsed by defendant, in return for ninety dollars cash, and that he advanced the ninety dollars. Held, that the direction of a verdict for plaintiff was error, as the note was an accommodation one, and had no inception until its delivery to plaintiff, and it was a question of fact for the jury whether the usuriou agreement was made.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict by direction of tbe court.

      George W. Miller, for app’lt; Purdy Van Vliet, for resp’ts.
   McGown, J.

—This action was brought to recover the amount of three promissory notes for $100 each, made by defendant, John C. Griger, to his own order, and endorsed by the defendant Brit-ton, and sold and delivered to the plaintiff before maturity.

The defendant Britton appeared, and m his answer admits the making of the notes and his endorsement of the same, and alleges that the notes were delivered by the maker, Griger, to the plaintiff upon a usurious agreement made before the notes were made or had any inception, that plaintiff should loan to the defendant Griger the sum of $300 upon said notes, and should receive the sum of ten dollars on each of said notes; a greater sum than at the rate of six per cent per annum for the loan of each $100.

After the closing of the testimony, plaintiff’s counsel asked for a direction of a verdict in favor of the plaintiff. Defendant’s counsel asked to go to the jury upon the question of what agreement was made between plaintiff and the defendant Griger, and as to whether it was an agreement to loan money at a usurious rate. The court directed a verdict in favor of the plaintiff for the amount of the notes and interest, to which direction defendant excepted.

The affirmative was conceded to be with the defendant, and plaintiff was called as a witness on the part of the defendant, and testified, in substance, that Griger, the maker of the notes, wanted to borrow money of him, and told him that defendant Britton was good, and that he, Griger, would give plaintiff ten dollars a hundred for the accommodation; that he would give his notes endorsed by Britton for $100 in return for ninety dollars cash, and that he took the notes on that agreement and gave the money to Griger, and not to Britton, and that this agreement was made before he brought the notes endorsed by Britton, and that the same arrangement was made in regard to the third note.

The defendant Griger was also examined on the part of the plaintiff Britton as to the agreement made when the loan was made. The plaintiff, as appears from his own testimony, knew at the time the loan was agreed upon that Britton, the endorser, was only an accommodation endorser; and the notes had no inception until delivered to plaintiff under the alleged usurious agreement

After the testimony had closed, plaintiff’s counsel asked that the court direct a verdict in favor of the plaintiff. Defendant’s counsel objected to such direction.

“ The Court: A verdict will have to be directed.

“Defendant’s Counsel: I ask now to go to the jury upon the question of what that agreement was, and as to whether it was an agreement to loan money at a usurious rate. Denied. Exception.

“ The Court: A verdict will be directed for the plaintiff, for the reason that the evidence of the defendant thus far produced, the defendant having closed his case, shows that the plaintiff in this suit discounted the notes in question for ninety dollars, the face value of each note being $100.

“ Defendant’s Counsel: To which direction of the court the defendant takes an exception.”

The making and endorsement of the notes "being admitted, it was the duty of the defendant to introduce evidence to establish the defense set up, namely: that there was a usurious agreement entered into between the parties, at the time of the making of the notes, that the plaintiff should receive the sum of ten dollars on each of said notes for the loan of each $100 for thirty days.

The testimony of the plaintiff and also of Grriger, the maker of the notes, was offered and taken for that purpose. Whether a usurious agreement was made, as alleged in the answer, was a question of fact to be determined by the jury upon the evidence, and the defendant was entitled to have the case go to the jury upon the evidence, and to have the jury pass upon it as a question •of fact.

The trial judge erred in directing a verdict, and in depriving the defendant of his right to have the jury pass upon the question of fact, and the exception taken by tne defendant to the ruling of the court was well taken, and the judgment appealed from must be reversed and a new trial ordered, with costs to appellant, to abide the event

Ehrlich, Ch. J., and McCarthy, J., concur.


text:
    Robert Hoe, App’lt, v. John Hoey, Resp’t.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    Appeal—Review—Weight op evidence.
    In an action to recover the reasonable value of the use and occupation of plaintiff’s premises, the only evidence of a contract, or of such value, was that of plaintiff’s agent, who testified that defendant called on him, and asked permission to have the premises in question for about three days; he was told that he could have it, but must pay rent at the rate of $250 per month. He took possession and occupied the premises for nearly two months, the value of which use and occupation was $475. Tlie evidence was uncontradicted. The answer alleged that a fair and reasonable sum for such use and occupation was $100, but no evidence was given lo support the allegation. Held, that a verdict of $100 for plaintiff was clearly against the weight of evidence, and would be set aside on plaintiff’s motion.
    Appeal by plaintiff from a judgment entered upon the verdict of the jury rendered in favor of the plaintiff for the sum of $100, on the 24th day of June, 1890, and from an order made on the •same day (on a motion of the plaintiff on the ground that the verdict was for an insufficient amount of damages, and was contrary to the evidence and contrary to law, and exceptions taken during the trial) denying the motion for a new trial.

      James Flynn, for app’lt; Seward, Da Costa & Guthrie, for resp’t
   McGown, J.

—This action was brought by the plaintiff to recover from the defendant the sum of $475, the alleged reasonable value of the use and occupation of the first or store floor of plaintiff’s building, No. 8 West Twenty-eighth street, New York city, from the 29th day of April, 1889, to the 26th day of June, 1889.

Defendant on the 16th day of April, 1890, offered in writing to allow judgment to be taken against him herein for the sum of $100 and costs. The offer not having been accepted, defendant in his answer verified on the 8th day of May, 1890, denies all the allegations in the complaint, except as to non-payment and demand, and alleges that one Charles S. Peck, the agent of the plaintiff, agreed with the defendant to permit him to keep certain furniture on said premises for a reasonable time. That defendant did not, at the time said agreement was made, agree to pay any compensation for the use and accommodation of said premises, or for the storage of said goods. That on or about the 1st day of June, 1889, at the suggestion of one Charles S. Peck, he, the: defendant, agreed to pay a reasonable sum for storage of said goods, and that a fair and reasonable sum for such storage or for the use and occupation of said premises for such purpose would be the sum of $100. Charles S. Peck, the agent of the plaintiff in respect to the premises in question, testified that on the 29th of April, 1889, the defendant called and asked permission to have the store for about three days, and stated that he would want it for about three days, that he had some goods there at that time, and that he said he would move the goods out after the centennial holidays ; that the witness informed him that he could have it, and said to defendant: “ But as agent I must say to you that it is a matter of dollars and cents ; a matter of rent.” That defendant asked: “ What should you charge for it ? I said we had been getting at the rate of $250 a month. We have let it for $250 a month, and I could not consent to your having it for less than that amount.” Mr. Hoe said : “We will make it all right; very much obliged, and we shall bother you but three or four days until after the holidays are over. ”

The witness Peck further testified that there was no arrangement made for any definite time; that defendant occupied the store from the 29th of April until the 26th of June, 1889, three or four days short of two months; and on cross-examination witness testified that at the rate of $250 a month that would amount to $475 ; that he had six or seven subsequent conversations with defendant in reference to the place; that the store was occupied for keeping furniture there, and that defendant’s workmen were overhauling and repairing furniture and disfiguring the floors terribly, and the walls.

Upon direct examination he testified that the rental value of the store, while defendant occupied it, was at the rate of $250 a month, and that he. received the keys from the defendant on the 26th day of June.

On cross-examination he further testified that no one else occupied any portion of the store by any knowledge or consent of his.

This testimony of the witness Peck was not, in any respect, contradicted by any of the witnesses on the part of the defendant.

The defendant was not called to contradict the witness Peck as to what took place between Peck and the defendant on the 29th of April, 1889, or at any other subsequent time.

The defendant’s witness, Marratt, testified, at folios 39 and 40, that “about the last of April there was an exhibition of some historical painting, by some parties, held at Ro. 8 West Twenty-eighth street. There was an admission charged to that exhibition. Mr. Peck told me that he was getting seventy-five dollars for the use of the place for one week.” This testimony was positively contradicted by the witness Peck.

Witness Marratt further testified that he worked there “ during the time altogether less than two months under the employ-of defendant, in repairing furniture,” etc.

After the testimony had closed plaintiff’s counsel asked for a •direction of a verdict in favor of the plaintiff, which request was denied, and plaintiff’s counsel excepted.

Recognizing the fact that appellate courts seldom interfere with the verdict of a jury rendered on conflicting evidence, yet there are cases where to allow a verdict to stand would work a great hardship and injury to a party, and in such cases we think it the duty of the court to interfere so as to protect the substantial rights of a party.

In this case the only evidence which would authorize any verdict in favor of the plaintiff was the uncontradicted evidence of the witness Peck. While we concede that the jury had a right to discredit the testimony of the witness Peck as an interested party, and not corroborated, yet it is evident that they did not discredit his testimony, from the fact that had they done so there would have been no legal evidence whatever which would warrant a verdict for any amount in favor of the plaintiff. The jury had no other evidence of the contract or value. If they did not find their verdict on the evidence of Peck, they found it without any evidence whatever, and finding it on his evidence, they have found it contrary to his evidence, and therefore contrary to evidence.

The jury evidently based their verdict for $100 upon the fact that defendant had alleged in his answer “ that a fair and reasonable sum for such storage, or for the use and occupation of said premises for such purposes would be the sum of $100.” Ho evidence, however, was offered by defendant to show that said sum was the fair and reasonable sum for such storage or use and occupation, while the uncontradicted evidence of the witness Peck was .that such value was $250 per month.

We do not think it can be claimed that had defendant fixed such value at the sum of ten dollars instead of $100, that the jury would have been justified upon the evidence in the case in rendering their verdict for that amount.

In McDonald v. Walter, 40 N. Y., 553, Woodruff, J., says: “ And, therefore, the deliberate conclusion of the jury upon the facts is very rarely interfered with, nevertheless, it would be strange, if true, that no instance should occur in which, through misapplication of the law to the facts which they found proved, or through prejudice or passion or mistake, injustice is done, which it becomes the duty of the court to correct. While the general rule should be preserved,it would not be safe to assert the uncontrollable ¡supremacy of the jury. Both in England and in this country, therefore. the court has always exercised the power of reviewing the evidence on a case made for the purpose, and of granting a new trial where, upon a cool and deliberate examination the ends of justice seem to require it; and this is always the plain duty of the court where the verdict is palpably against the law applied k> the facts found.”

Upon the nneontradicted evidence upon the part of the plaintiff, the plaintiff was entitled to recover the sum of $475 as the fair and reasonable value of the use and occupation of the premises. They also had the right to deduct therefrom the sum of seventy-five dollars, provided they found upon contradictory evidence-that plaintiff had received the sum of seventy-five dollars from other parties for the use of the premises for the exhibition of the painting; but we do not find any evidence in the case which authorizes the jury to return the verdict rendered for the sum of $100.

We think, therefore, that the verdict was clearly against the weight of evidence.

In Brockman v. Buell, 9 N. Y. Supp., 895; 30 N. Y. State Rep., 856, the action was brought to recover the value of a horse valued at $200. Judgment was rendered in favor of the plaintiff for forty dollars. On appeal to the general term of the court of common pleas, Larremore, Oh. J., in his opinion, says: “As the court below found in favor of the plaintiff, thereby establishing his right to recover the property, or its value, it is somewhat difficult to understand the reason for the amount awarded. The testimony appears to be undisputed that the value of the horse was $200. Evidently the court did not take this into consideration in assessing damages. We are asked to render a verdict in plaintiff’s favor for the value of the horse. This is not the province of the appellate court. The judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.”

In Oliver v. Moore, 12 N. Y. Supp., 343 ; 35 N. Y. State Rep., 131, where the jury disregarded the evidence, Van Brunt, Ch. J., presiding at the general term of the supreme court, in his opinion, says: “ The jury are to be guided by the evidence.' They cannot guess at an amount which should be due the plaintiff. They must find their verdict upon the evidence, and upon the evidence alone, and if there is no evidence to support their verdict, it has no foundation and must fail. There is nothing whatever to justify a deduction of $126, and it seems to be evident that such deduction was made without realizing the relation of the parties or the effect of the evidence, and that the verdict was not an intelligent deduction of the jury from the evidence introduced on the trial. The judgment must be reversed, with costs to abide the event.”

The plaintiff having moved for a new trial upon, among other-grounds, “ the ground- that the verdict was for an insufficient amount of damages,” and said motion having been denied, and an order entered thereon and an appeal taken from said order, the whole case is before the appellate court upon the law as well as the facts. Tate v. McCormick, 23 Hun, 218.

The verdict being against the weight of evidence, the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ehrlich, Oh. J., and McCarthy, J., concur.


text:
    Alex R. Brown, Resp’t, v. Christopher B. Keogh, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    Attachment—Sufficiency of affidavit.
    An affidavit for an attachment, in which the allegations of intent to defraud are simply conclusions without there appearing any evidence to support them, is insufficient, even though one of the allegations is made positively, apparently upon the knowledge of the affiant.
    Appeal from order of special term.

      M. A. Vosburgh, for app’lt; H. G. Harris, for resp’t,
   McCarthy, J.

—This is an appeal from an order denying a motion to vacate an attachment on the original papers, the same being insufficient and defective. In disposing of this appeal we are to consider and examine the papers and affidavits on which the attachment was granted, and not the additional affidavits or papers printed in plaintiff’s points The plaintiff must stand or fall on the original papers. They are clearly insufficient and defective in that they contain conclusions and not facts or circumstances tending towards such conclusions. In the language . of Van Brunt, P. J., in Mechanics & Traders' Bank v. Loucheim, 29 N. Y. State Rep., 189, “It would be undoubtedly true that if the conclusions sworn to by the person who made the affidavit upon which the attachment in, this case was granted had evidence to support them, the attachment would have been properly granted.

“ The office of an affidavit is to set forth the evidence from which the court may draw conclusions of fact, differing in this respect radically from a complaint, which should only set forth conclusions of fact and not the evidence of the correctness of these conclusions.”

The affidavit in this case, among other things, alleges as follows :

III. That the said defendants being indebted to the said plaintiff for said goods, wares and merchandise, which consisted of dressings, doors, moulding and other articles delivered to said defendant between August 1, 1890, and October 81, 1890, by said defendants’ direction, at certain buildings in and about the city of Xew York, and for which the said defendants were in part contractors ; and said defendants contracted to pay said plaintiff for same, as delivered, or immediately thereafter, as the defendants should receive payment on their said contracts; the said defendants have received large sums of money in payment for said goods and merchandise so furnished, and have secreted portions thereof with intent to defraud their creditors.

IV. That the defendants being so indebted to plaintiff, have assigned and disposed of a large portion of their property, consisting of goods, merchandise, machinery, book accounts and effects of their said business with intent to defraud their creditors.

V; That the defendants continued to order and receive goods and merchandise of said plaintiff up to and including the 6th day of November, 1890, and on the 10th day of November served plaintiff with a printed letter, dated November 7, 1890, stating said co-partnership had been dissolved, and thereafter, upon demand being made for payment, the said defendants refused to pay any portion of said indebtedness; that plaintiff is informed and believes that a portion of said goods were received in contemplation of the assignment and disposal by defendants of their property, and were received and purchased in fraud upon the said plaintiff.

YI. That on November 5, 1890, a certificate of incorporation of a manufacturing company called the C. B. Keogh Manufacturing Company, was filed in the county clerk’s office of New York city, and the said company claims to occupy the premises Nos. 6 and 8 Howard street, and to own the effects, merchandise and machinery late of said defendants, and to be in no way liable for the debts of said defendants, nor to make any provision therefor.

Y1I. That the transfer, assignment and disposal, by said defendants, of their goods, premises, book accounts and business, together with their refusal to pay any portion of their said contract, or to provide for the performance of said contract, is a fraud upon their creditors, entitling plaintiff to an attachment.

These allegations of intent to defraud are simply conclusions, without there appearing in the affidavit any evidence to support them.

It may be contended that because one of the allegations is made positively, apparently upon the knowledge of the affiant, that the court is bound to act on it.

We do not think this is the rule; upon the contrary, where from the situation of the parties the presumption is that the affiant has not personal knowledge of the facts alleged, it is the duty of the court to reject the allegation unless the affiant set forth the facts and circumstances showing why he has personal knowledge. Tim v. Smith, 93 N. Y., 91.

Fraud is not to be presumed. ,

If a party claim fraud, he must put before the court legal evidence of the fraud, and not merely his conclusions that fraud has been committed.

Ruger, Ch. J., in Morris v. Talcott, 96 N. Y., 107, says:

“ While it is true that it may be proved by circumstantial evidence, and the inferences legitimately deducible therefrom, yet the defendant is entitled, in the judicial consideration of the proofs, to the application of the rule that the presumptions of the law are in favor of the innocence of the person accused. A party, therefore, relying upon the establishment of a dause of action, or a right to a remedy against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt in order to maintain his claim. When the evidence is capable of an interpretation which makes it equally as consistent with the innocence of the accused party as with that of his guilt, the meaning must be ascribed to it which accords with his innocence, rather than that which imputes to him a criminal intent.” Stow v. Stacy, 30 N. Y. State Rep., 308.
“ It is well settled in this state that an intent to defraud cannot be imputed to a party who contracts a debt knowing that he is insolvent, merely from the fact of his insolvency, and his omission upon a purchase of property upon credit to disclose such condition to his vendor. Nichols v. Pinner, 18 N. Y., 295; 23 id., 264; Wright v. Brown, 67 id., 9 ; People's Bank v. Bogart, 81 id., 108. A condition of known insolvency on the part of an intending purchaser of property, accompanied with an intention to acquire the property of his vendor without paying for it, constitutes such a fraud as will make the vendee liable to arrest in an action for the debt; but the intention not to pay can no more be inferred from the mere fact of insolvency than the fact of insolvency can be inferred from the existence of an intention not to pay. In either case it is essential that the necessary facts be made out by competent evidence.”

The plaintiff does not give the name of the person from whom he received the information relied upon, nor furnish his affidavit nor explain why such affidavit of corroboration is not furnished.

It is a well settled rule in this state that such must be done. The affidavit is clearly insufficient and defective.

I have examined with care 'the authorities cited in plaintiff’s brief, but do not find that either of them supports his contentions.

In Van Loon v. Lyons, 61 N. Y., cited by plaintiff at page 24, Reynolds, C., says : “ It was proved by the affidavit of * * * that the defendant owed him for rent; that she (defendant) told him she would not pay and had disposed of her property and was about going to Ganada. * * * That the affidavit of the plaintiff showed * * * and added that the said Agnes Lyons is about to depart from this State, to wit, to Canada, as the defendant has informed this deponent, and that said defendant is about to secrete or dispose of her property for the purpose of defrauding deponent.

“ The allegation of intent is positively made by the plaintiff and with other evidence seems sufficient to confer jurisdiction.”

No such evidence, circumstances or admission from which a legal conclusion can be drawn appears in the case at bar.

The order should be reversed and the attachment vacated, with costs to appellant.

Ehrlich, Oh. J., and McG-own, J., concur.


author: Daniels, J.

text:
    Walter S. Johnston, Receiver, etc., Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (Supreme Court, General Term,, First Deportment,

      Filed June 12, 1891.)

    1. Eminent domain—Property taken by elevated railroad—Rental value.
    The loss sustained by owners of property fronting upon streets devoted in part to the structure and trains of the elevated railway company, through the reduced rental value of the real estate, may he recovered in an action against the company, though the property was in possession of tenants.

      2. Same—Evidence—Expebt testimony.

      A. witness after testifying that he is in the real estate business, and has had twenty years experience in dealing in property in the vicinity of plaintiff’s property, is competent to give his opinion as to the depreciation in its rental value.
    3. Same.
    One who has owned and occupied a building in the same street was asked what effect the building of the railroad had upon liis property and answered: “It destroyed my business entirely.” Held, responsive to the question.
    Appeal from a judgment in favor of plaintiffs entered upon the report of a referee. ÍTpon the trial a witness named Thompson testified in regard to the real estate in the vicinity of plaintiffs’ property as follows:
    “ I am in the real estate business, and have been for three or four years. Before that I had charge of and owned real estate in the city of Mew York. I also appraised real estate in the city of Mew York, and rented and sold real estate. I am acquainted with the building No. 166 Pearl street, and with that neighborhood. I have followed the sales and rental values in that neighborhood since 1866, and am acquainted with a good many of the sales that have taken place there, and the rental values of different buildings in that neighborhood during that period. I have had charge of the renting of the building adjoining this, Mo. 166 Pearl street, since 1866. I have had charge of the renting of that building during all that period. I have examined Mo. 166 Pearl street. I know it well. It is in size a similar building to mine, No. 168, next door; otherwise not. It has the same frontage on Pearl street.” The witness Wenman testified as follows : “ My business is that of a cotton broker. I have been a cotton broker for forty-nine years. I carried on business from, say, 1865 up to 1884, at 146 Pearl street, the building in suit. I purchased that building in 1865 for $40,000. I made some changes in the building at the expense of $12,000. I put in a new front, and lowered the floors, and improved the property. I occupied it myself in my business as cotton broker from the time I bought it up to 1884. (Letter was handed witness, and asked if his recollection was so refreshed by that that he could state what he had sold that property for.) I sold it to the bank in liquidation of an indebtedness of $41,500. That was in 1884, the 1st of May. * * * I have been acquainted with Pearl street and its occupation all the time that I owned this property, and up to the present time, and the occupation of Water street in .that vicinity, and also of Beaver street; and I have a general knowledge of the business that was congregated in these different streets prior to the elevated railroad. It was once a silk mart of Mew York; afterwards, crockery, tobacco, and cotton ; dry goods also. I am acquainted with Pearl street to-day. Prior to the elevated railroad, Water street in this vicinity was inferior to Pearl street; also Beaver street. To-day they are superior to Pearl street as a business street. My office is there at 113 Pearl street, on Hanover square. It is about 100 feet from the elevated railroad station.

      “ Q. Please describe Pearl street during the time sued for, from 1884 to March 12, 1889; what kind of a street it was after the railroad came in the street, as regards business. A. The character of the business changed.
    “ Q. Specify in what way. A. It drove the leading merchants out of the street, and it brought small offices there. (Counsel for the defendants moved to strike out the answer of the witness as not responsive, and as stating a conclusion of the witness as to the effect of the railroad upon individuals. The referees denied the motion, and counsel for defendants duly excepted.) I was occupying that building when the elevated railroad came there. I left the building in 1884. The consideration, $8,000, mentioned in the deed of this property to James D. Fish, was not the true consideration. The true consideration was what I have already testified to.

      “ Q. What effects, if any, did you observe from the construction and operation of the elevated railroad in front of that property ? A. It destroyed my business entirely.”

      Davies & Rapallo, for app’lts; John A. Weeks, Jr., for resp’t.
   Daniels, J.

—The plaintiff was appointed receiver of the property and assets of the Marine National Bank of the city of New York by the comptroller of the currency of the United States, and he brought this action to recover the damages caused by the elevated railway, to premises known as 146, on the southerly side of Pearl street, in the city of New York. They were conveyed in trust to James D. Fisfi, the president of the bank, on the 26th of September, 1882, and were conveyed to the receiver by his general assignee, in February, 1885, and finally sold by the receiver in the early part of the spring of 1889.

The elevated railway was constructed through the part of Pearl street upon which the premises were situated as early as 1878, and it was afterwards used by the defendants for the passage of its railway trains. The structure extended above and nearly across the street, between the sidewalks and in front of the building, which was four stories in height, situated upon and forming part of the premises. The occupancy and use of the building were diminished in value by the noise, smoke and cinders from the trains passing along the railway, and the interruption and disturbance of the light, which otherwise would have been uniformly received by the premises. On this account it was alleged that their rental value had been materially reduced from the 21st day of October, 1883, to the 30th of March; 1889, which was the period for which the plaintiff was allowed to recover by the judgment which had been entered. .The action was referred to three referees, and two of them joined in the report, assessing the plaintiff’s damages at the sum of $3,109.15. This allowance of damages has been objected to as excessive!

But evidence was given, which was accepted as credible by the referees, tending to prove that the rental value of the premises had been materially reduced by the elevated railway structure, and the use made of it, in the passage of the defendants’ railway trains; and by a stipulation made on the trial, the referees were permitted to inspect the premises for themselves, and act upon the observations made by them, as a part of the proof in the action. And that they did inspect the premises is a fact stated in their report, and it was founded as well on that inspection as on the evidence given by the witnesses upon the trial. What degree of dependence was placed upon their own observations of the locality, and how much upon the evidence of the witnesses, the case does not disclose, and it cannot, therefore, be determined on this appeal that the conclusion reached as to the amount of the damages was for any cause erroneous. What the damages were allowed for was the diminished rental value and loss of rent for the period of five years and five months. And it cannot be said that this was an excessive1 amount. This was produced by the structure and the use to which it was devoted, and not by any loss arising from the failure of the tenant to pay the rent he covenanted to pay under the lease by which the premises were denised. That appears by the report and the effect of the structure and its use upon the premises, and for which alone the damages were awarded. It was for the loss occasioned by these causes that the recovery was directed. And it seems to have been within the rule maintained by the authorities. Francis v. Schoellkopf, 53 N. Y., 152; Hussner v. Brooklyn City R. R. Co., 114 id., 433 ; 23 N. Y. State Rep., 856.

During the most of the time when these damages accrued the premises were occupied by tenants, and that has been urged as an obstacle standing in the way of their recovery. But the loss sustained from these causes by the owners of property fronting upon streets devoted in part to the structure and trains of the elevated railway company has in other cases been allowed to be recovered, where it has arisen out of the reduced rental value of real estate, and this case seems to be within the rule which these authorities sustain. By means of these causes the owner is prevented from obtaining the amount of revenue he would otherwise obtain from his property. And no sound principle seems to stand in the way of the recovery of this difference. The causé of the loss is directly traceable to the acts of the defendant. By reason of it the owner was obliged to lease his property for sm'aller returns than he would have otherwise obtained. The cause of the difference is the wrong of the defendants, and against that the law should afford him reasonable indemnity. It does so in other cases of losses created by the wrongful acts of others, and the defendants should be held to the same measure of accountability for wrongs of this description.

The witness Thompson was sufficiently conversant with the sales and value of real estate to be allowed to express his judgment on that subject. His experience had extended through many years in that vicinity, and his business required the devotion of his attention in that direction. The referees were, therefore, entirely right in receiving his estimate of values and rentals. Oties v. Cowles, etc., Co., 26 N. Y. State Rep., 869. And beyond that, the answers received, and now pressed as improper, do not appear to relate to this particular parcel of land.

The answer given by the witness Wenman that the elevated railroad had destroyed his business, was responsive to the question, which without objection he was allowed to answer, and so was his answer that it drove the leading merchants out of Pearl street and brought small offices there. And whether the referees should strike them out when the defendant requested that to be done, was a matter of discretion with them, the.refusal to exercise which, cannot be assigned for error. Marks v. King, 64 N. Y., 628; Pontius v. People, 82 id., 340, 347; Matter of Morgan, 104 id., 75, 85, 86. The answers also were without any materiality to the case. It could have no effect upon any point m it that the business of the witness had been destroyed, or that the leading merchants had been driven from the street. The question here was the effect of the railway and its use upon this particular building, which these answers did not apply to. And the report of the referees demonstrates the facts that it was in no respect influenced by this evidence. For it proceeded wholly upon the effect of the structure itself and the use made of it by the defendant’s engines and trains. The defendant was not, therefore, injured in the least by these answers.

Ho other objections have been urged as reasons for disturbing this judgment, and none of any merit are contained in the case.

The judgment, therefore, should be affirmed.

Van Brunt, P. J., and Lawrence, J., concur.