author: Clearwater, J.

text:
    In the Matter of the Application of Anthony Dimock, an Insolvent Debtor.

      (Ulster County Court,

      Filed March 12, 1895.)

    1. Insolvency—Discharge.
    An application for the discharge of an insolvent debtor must be made to the county court of the county in which he has his domicile.
    2. Same.
    The insolvent debtor was held, under the facts and circumstances of this case, not to reside in Ulotor county, within the meaning of § 2150 of the Code.
    Application of an insolvent debtor for his discharge from his debts.

      Bradbury C. Chetwood, Mr. English, and Millard F. Powers, for the insolvent and the application; Turner, McClure & Rolston and Frederick Geller (David McClure, of counsel), for Farmers’ Loan & Trust Co.; Butler, Stillman & Hubbard and Arthur H. Van Brunt, for United States Nat. Bank, nonconsenting creditors, and opposed.
   Clearwater, J.

The petitioner, an .insolvent debtor, seeks to be discharged from his debts, under the provisions of article 1. tit. 1, of chapter 17, of the Code of Civil Procedure, sections 2149 to 2187, inclusive, commonly known as the “ Two-Thirds Act.” The discharge is opposed by creditors whose claims aggregate $138,427.31, upon the grounds, among others : First, that the insolvent, at the time of presenting his petition, was not a resident . ot the county of Ulster ; second, that he did not, at the time of filing his petition, present consents executed by creditors, as required by the act; third, that he has been guilty of such misconduct relative to matters involved as should bar his discharge; fourth, that the petition and the proceedings are not in accord with the provisions of the statute, in that they are faulty, both in substance and in form.

In support of this last contention so many objections have been urged that their mere enumeration would occupy almost as much space as is ordinarily devoted to an opinion, and, while it must be conceded that in some respects the proceedings upon the part of the petitioner are slightly original and inartificial, the view taken of the merits of the application makes is unnecessary to discuss them at length. It appears from the evidence, which is voluminous, if not exhaustive, that the petitioner, in the year 1884, was the president of the Bankers’ & Merchants’ Telegraph Company, a corporation having its principal place of business in the city of Eew York; that he was also interested in so-called “ financial operations ” in Wall street, and was largely indebted to various banks, bankers, brokers, and trust companies; that on the 15th day of May of that year he failed, and executed a general assignment for the benefit of his creditors, his indebtedness at that time being stated at $2,633,895.37, and his assets of the nominal value of $3,848,932.06. This assignment was subsequently adjudged to be void, and was set aside in an action brought for that purpose, it appearing that the result, if not the purpose of that suit, was to vest the title of such assets as:- he did have in his wife. It is claimed here that the assignment and the action were so collusive and tainted with fraud as to bar his discharge in this proceeding. The statute provides that the application for the discharge of an insolvent debtor must be addressed to -the county clerk of the county in which the insolvent resides (Code Civ. Proc. § 2150); that the insolvent must annex to his petition written instruments, executed by his creditors residing within the United States, having debts owing to them in good faith, then or thereafter to become due, which amount to not less than two-thirds of all the debts owing by him to creditors residing within the United States (Id. § 2152) ; and that the court shall grant the discharge when it satisfactorily appears, among the other things required by the statute, that the petitioner is justly and truly indebted to the consenting creditors in sums which amount in the aggregate to two-thirds of all his debts as hereinbefore specified (Id. § 2174). It would seem, therefore, as conditions precedent to the petitioner’s discharge, that.he must affirmatively establish (1) that at the time of presenting his petition he was a resident of the county of Ulster ; (2) that creditors having debts owing them in good faith amounting to not less than two-thirds of all the debts owing by him to creditors in this country shall, at the time of the filing af the petition, consent to his discharge ; (3) that he'is justly and truly indebted to the consenting creditors in a sum which amounts in the aggregate to two-thirds of all his debts. It is claimed by the insolvent that his debts now amount to $2,442,073.84, that creditors whose claims aggregate $2,303,646.53, consent to his discharge. and that he has assets to the amount of $187.62 applicable to the payment of this indebtedness. The nonconsenting creditors, upon the other hand, claim that the true amount of the insolvent’s indebtedness exceeds three millions of dollars, and that the consenting creditors do not truthfully represent, within many hundreds of thousands of dollars, two-thirds of that sum.

As to the first point, it is well settled that in all cases where a, statute prescribes residence as a qualification for the enjoyment of a privilege or the exercise of a franchise, the word “residence" is equivalent to “place of domicile" of the person who claims its benefit. People v. Platt, 117 N. Y. 167; 27 St. Rep. 149; Silvey v. Lindsay, 107 N. Y. 55, 61; 11 St. Rep. 185; Jac. Domicile, §§ 72, 75, 86, 92, 114, 125, 136, 181, 310, 393, 396, 435; De Bonneval v. De Bonneval, 1 Curt. Ecc. 856, 864; Jopp v. Wood, 2 De Gex, J. & S. 326; State v. Grizzard, 89 N. C. 115, 120; State v. Aldrich, 14 R. I. 171; Roberts v. Cannon, 4 Dev. & B. 256, 269. “Domicile" is succently and accurately defined by a scholarly writer as follows: “In a legal sense, that is propeily the domicile of a person where he has his true, fixed, permanent home, and principal establishment, and to which whenever he is absent he has the intention of returning." Story, Confl. Law (Ed. 1846) c 3. p. 31. See, also, Burrill, Law Diet.; 5 Am. & Eng. Enc. Law. p. 857; and the Standard, Worcester, Webster, and Stormonth Dictionaries. Whatever be the doctrine of the civil law. it has uniformly been held to be the rule of the common ltyv that that place is a mar/s domicile which is his home; that it will be presumed so to continue until a new one is acquired; that it is in no way affected by a temporary residence els where; and that, to effect a change, there must not only be a change of residence, but an intention to abandon the former domicile,accompanied by an actual abandonment, with the intention not to return, and the taking up of a residence in another place, with the intention of staying there permanently. Depuy v. Wurtz, 53 N. Y. 556; Frost v. Bisbin, 19 Wend. 11; Von Hoffman v. Ward, 4 Redf. Sur. 244; Bartlett v. City of New York, 5 Sandf. 44; Graham v. Public Administrator, 4 Bradf. Sur. 127; De Meli v. De Meli, 67 How. Pr. 20,—apparently settle the rule in this state, which, however, is not different from that held elsewhere, where the common law prevails. The Lauderdale Peerage, 10 App. Cas. 692, 758; Gillis v. Gillis, 8 Ir. R. Eq. 597; Capdeviellev. Capdevielle, 21 Law T. (N. S.) 660; Hodgson v. De Beauchesne, 12 Moore, P. C. 285; Munro v. Munro, 7 Clark & F. 842. Did, then, within this rule, the petitioner have a legal residence in the county of Ulster at the time of filing his petition in this court, on the 7th day of August, 1893? It appears from the evidence that at that time, and for some years, he had been a member of the Peekamose Fishing Club, an organization then composed of four members, owning many acres of mountain land, and having an extensive fishing preserve on the headquarters of the Rondout, at the foot of the Peekamose Mountain, in a wild and unfrequented part of the Catskill Mountains, but within the territorial limits of the town of Denning, in this county. Its purpose is the protection, increase, and capture of brook trout, and the promotion of social intercourse and rational amusement among its members. There is upon the grounds a clubhouse, divided into nine bed rooms, a dining room, and a kitchen, having a frontage of 38 and a depth of 25 feet, with two small extentions in the rear. It is constructed in part of lumber, in part logs, and is principally used during the summer months. The constitution and by-laws of the club provide that a room in the clubhouse shall be assigned to each member, and that the privilege of the clubhouse may be extended to the families of members. The petitioner’s family consists of his wife, her mother, a daughter, a son, and himself. The other members of the club, with their families, visit the clubhouse from time to time, and are assigned rooms as provided by the by laws. All the members, when at the clubhouse, have their food cooked in common, and eat together in the club dining room, being waited upon by such servants as the members take with them to the mountains, there being no clubhouse servants. The clubhouse is some distance removed from any of the mountain settlements, in fact from any human habitation; the nearest hamlet on the east being Watson’s Hollow, four or five miles distant, and there being a single mountain cabin at Bull Bun, on the Bondout, about four miles to the westward, while the wilderness to the southwestern Catskills stretches in unbroken solitude for miles to the north and south. There are, of course, no church, no schools, no neighbors, and no society other than that consisting of the members of the club, their families, and guests. The petitioner and his family for some years have spent the summer, and occasionally the late spring and early autumm, at this place, with such other members of the club and their families as went there. The residue of the year has been passed at Elizabeth, in the state of Hew Jersey, where they occupy a house, the title to which is vested in the petitioner’s wife. This house is about forty feet in front, is two stories in height, with the ordinary mansard roof, and has the usual rooms of a city dwelling of that class. It is occupied solely by the petitioner, his family and their servants, and is fully furnished with the furniture owned by the petitioner during the years of affluence which preceded his failure. For some years prior to living in this house the petitioner and his family occupied another dwelling at Elizabeth, of much the same character, the value of which can to some extent be estimated from the fact that'the Equitable Life Assurance Society of Hew York loaned $20,000 upon it. The relatives of the petitioner and of his wife live at Elizabeth, and his wife and children are connected with a church and Sunday school and some of the social organizations of that city. It is to Elizabeth they have always annually returned when the approached of winter deprives the atmosphere of the Catskills of that balsamic softness for which the region is noted. As the petitioner swore in support of this plication that he had been a resident of Ulster county for the last fifteen years, it is claimed by the learned counsel who represent him that the court is precluded by that testimony from finding otherwise. This contention can, however, hardly be said to be well founded, in view of the fact that he is an interested party, it having always been held since the passage of the act permitting parties in interest to testify in their own behalf that, even though their testimony be uncontradieted by other witnesses, yet their interest in the event creates such a question as to credibility as to justify the court in disregarding it, if all the evidence in the case requires its rejection. Govin v. De Miranda, 140 N. Y. 662-666; 55 St. Rep. 840; Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191-200; 33 St. Rep. 389; Joy v. Diefendorf, 130 N. Y. 6-9; 40 St. Rep. 491; Honegger v. Weitstein, 94 N. Y. 252-261; Wohlfahrt v. Beckerl, 92 N. Y. 490-497; Elwood v. Telegraph Co., 45 Id. 549; Goldsmith v. Coverly, 75 Hun, 48 ; 56 St. Rep. 857. The strength of the insolvent’s testimony is, however, somewhat lessened by the following admitted facts: In the general assignment executed by him in 1884 he states that he is a resident of the city of New York. In the action brought to set aside that assignment it was by his procurement alleged and adjudged that in December, 1885, he was a resident of that city. In a deed executed by him at Elizabeth in October, 1892, to Josiah W. Went-worth, one of his fellow members in the Peekamose Fishing Club, and conveying an interest in land in Ulster county, he describes himself as being a resident of Elizabeth. In a deed executed by his procurement in February, 1893, to his wife, she is described as residing at Elizabeth. During the last ten years, when away from home and registering at hotels, he has registered his residence as at Elizabeth ; never at Peekamose. In the testimony given by him in an action brought by one of the contesting creditors he testified that for the last ten years he has,resided in the cities New York and Elizabeth. And he testifies that, in event of this application being granted^ it is his intention once more to engage in business in Wall street, in the city of New York, which is but a few pilles distant from Elizabeth.

Under all these undisputed facts, it would hardly seem that even within the most elastic construction which the court is justified in giving to the terms “residence’’ and “domicile,” the petitioner can legally be said to had been a resident of Ulster county, at the time of filing this petition.

It is quite true that the two-thirds act is a remedial statute intended to accomplish a beneficent result, and should therefore be liberally construed. Also it is true that much power and discretion is vested in the court to which this application is addressed. But all discretion vested in courts and judges is judicial, and not arbitrary; and it is an abuse, not an exercise, of judicial discretion to permit the provisions of even a remedial statute to be enlarged to such an extent as to bring within its terms a class of cases expressly excluded by the legislature. Such a construction, in the end, produces results more harmful in their effect than the fancied wrong it improperly seeks to remedy. This conclusion renders an extended discussion of the remaining questions involved unnecessary, although it may not be amiss briefly to say that the evidence falls far short of satisfying me that the petitioner has either produced the consents of creditors required by the statute, or that he is justly and truly indebted to the creditors who have consented to the amount he and they claim. Upon the contrary, I am at a loss to understand upon what view of the law an indebtedness to John B. Yale, one of such creditors, to the amount of $331,815.62, can justly and truly be said to exist, in view of Mr. Yale’s own testimony as to the facts out of which it is claimed to have arisen. The claim of John R. Hageman, another consenting creditor, to the amount of $171,212.78, does not appear upon the schedule of the insolvent’:: creditors filed with his general assignment in 1884, and the debt' now claimed to be due is also claimed to have matured before that time. While this omission could not of course, prejudice the creditor, who was not consulted regarding the preparation of those schedules, and whose testimony on this proceed-•was, I think, frankly and fairly given, yet its omission at that time is some evidence as to the view then taken by the insolvent of the transactions out of which it is now claimed the indebtedness arose. It would seem also that there were included in those schedules claims aggregating considerably over $1,000",000, not included in the schedules of the insolvent’s creditors now filed. It is urged that of those claims upwards of $777,000 have been absolutely, and upwards of $247,000 conditionally, released, but it is doubtful whether the authority to make the release executed by Russell Sage, the Third National Bank of the city of New York, and Hague & Harris for claims aggregating about $120,000 is sufficiently proven for the purpose of this application; and it is by no means clear that the claim of the Quebec Bank'for $48,817 is not within the statute. In fact, the marshaling of the alleged claims of the consenting creditors, the reasons assigned for the failure to include claims admitted once to exist and never paid, the insistence that the statute of limitations bars the consideration of claims of creditor.: to the amount of hundreds of thousands of dollars, who have not been afforded an opportunity to be heard in their own behalf, and an equally strenuous insistence that claims of friendly creditors, standing upon precisely the same legal footing, are not barred by that statute, is an attitude hardly calculated to produce an unduly favorable impression upon the mind of the court. It is unnecessary to discuss the allegation of collusion aud fraudulent intent to which much attention has been devoted by counsel upon both sides, as upon the whole case I am of the opinion that the decree prayed for should be refused, and an order may be entered denying the application and dismissing the proceeding upon the merits, with costs to the opposing creditors and against the petitioner.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Albert Ritchie, as Receiver, etc., App’lt, v. Seaboard National Bank, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)
    Trial—Preferred cause.
    A cause cannot tie preferred, under § 793 of the Code, where no notice of trial has been served.
    Appeal from so much of an order as denied the motion for a preference of the cause.

      William D. Tyndall, for app’lt; Herman Asron, for resp’t.
   Bischoff, J.

The determination below that the plaintiff's motion for a preference should be denied is clearly to be supported. In order that the right to a preference under section 791 of the Code of Civil Procedure may be preserved and successfully invoked, it is essential that the party desiring the preference " serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court at the opening thereof, tor leave to move the same as a preferred cause.” Code Civ. Proc. § 793. In the present case, no notice of trial having ever been served, it results that the plaintiff’s failure to comply with the' statutory requirements deprived him of the benefit sought to be availed of. Fox v. Quinn, 12 Supp. 725.

Order affirmed, with costs.


text:
    Moses Zimmerman et al., App’lt, v. Charles Bloch, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 189.)

    1. Appeal—Time op taking.
    An order, setting aside a judgment and granting a new trial in the dis-trice court of the city of New York, does not stay the time within which an appeal mnst be taken from such judgment.
    ,2. Judgment—Vacation—Power op district court.
    Section 1, chap.'750 of 1894 relates only to judgments rendered by default.
    Appeal from a judgment in favor of defendant rendered by the justice without a jury.

      Samuel D. Levy, for app’lts ; Julius Levy, for resp’t.
   Bischoff, J.

After active litigation, judgment in favor of the defendant in this action was rendered by the justice below, and entered on the 22d day of September, 1894. Within twenty days thereafter the plaintiffs moved before the justice that the judgment be set aside, and a new trial ordered, which motion was granted. Subsequently, on motion of the defendant, that order was vacated, and on the 15th day of December, 1894, plaintiffs instituted this appeal from the order last made. It thus appears that the appeal, if considered as taken from the-judgment, was not seasonably instituted, a period of more than twenty days having elapsed since its entry upon the docket (Code Civi IProc. §§ 8046, 3213 ; Consolidation Act, § 1438), and from the respective orders no appeal would lie to this court, Jacobs v. Zeltner 9 Misc. Rep. 455; 61 St. Rep. 104; Wensley v. Randolph; 9 Misc. Rep. 457; 61 St. Rep. 131. But appellants contend that the date of the second order must be taken as the date of the judgment by reason of the fact that, pending the expiration of the time to appeal therefrom, it became a nullity by the force of the order vacating it, and that the second order, by vacating the first, revived the judgment and fixed the date of its final rendition. If this view were to be adopted, it would necessarily involve the result that the judgment, as of that date was void, as being rendered after the lapse of eight days from the date of the trial, Consolidatian Act, § 1384 ; Bloomer v. Merrill, 1 Daly, 435 ; but is clear that the order setting aside the judgment and granting a new trial was beyond the power of the justice to make, and the judgment .as rendered was in no way affected. Therefore the appeal comes ■to late, and must be dismissed.

Prior to the late amendments of section 1367 of the Consolidation Act (Laws 1882, c. 410) by chapter 750 of the Laws of 1894, a justice of a district court unquestionably had no jurisdiction to set aside a judgment and order a new trial of a cause tried before him, Bloomingdale v. Adler, 7 Misc. Rep. 182; 57 St. Rep. 524; Schwartz v. Wechler, 49 St. Rep. 145 ; but it is claimed that this power has been given by the amendatory act noted. Such is not its effect. The act cannot be construed as relating to judgments other than those rendered upon a default. Nothing therein contained gives a justice power to order a new trial, and the jurisdiction to “ vacate, modify, and set aside ” clearly appears to have been intended as but auxiliary to the power to set aside a default. If the first sentence of the statute leaves any doubt as to the question, it is removed by the last, which provides: “He [the justice] may likewise, as a condition for opening any such default, or vacating, modifying or setting aside any judgment, order any defendant in default to give an undertaking,” etc., that he will not delay plaintiff’s collection of his claim “ if the plaintiff shall prevail on the trial of such action.” We may well point out the situation which would be presented by the opposite construction of the act. A defeated litigant would be required to await the expiration of the time within which the justice would have power to vacate or modify the judgment in order that a definite position upon appeal might be intelligently assured, yet the expiration of this period would mark the limit of the time to appeal. Our conclusion is that by the judgment originally rendered upon the trial of this action the cause was determined. The first order made thereafter was a nullity, and that from which this appeal is taken was necessarily without significance. Appeal dismissed, but under the circumstances of the case, without costs.


text:
    Joseph Lamb et al., App’lts, v. Benjamin D. Traitel et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Sale—Excessive delivery.
    Upon the delivery by the vendor of a quantity of goods exceeding the amount called for by the contract, the purchaser may, upon discovery of the fact, repudiate the delivery as to the excess and tender such excess to the vendor'.
    Appeal from a judgment on favor of plaintiffs, rendered by the justice without a jury.

      Albridge C. Smith, for app’lts; P. C. Talman, for resp’ts.
   Bischoff, J.

This action was brought to recover the agreed price, as alleged, of 19,718 pounds of lithographing stone sold and delivered by plaintiffs to defendants. The facts in the case appear to be that the defendants, being in need of some small quantity of this stone, approached the plaintiffs with an offer to purchase. Plaintiffs declined to sell the small amount required, but proposed a sale at the price of one cent per pound, should defendants take áll in stock at that price. The amount in stock was approximated by plaintiffs to be “ between two and three tons,” and defendants thereupon concluded the agreement upon the terms stated. The stone was then carted from plaintiffs’ places of storage by defendants’ employe, whose duties comprised merely the mechanical acts of loading and transferring what was offered; and the amount so taken was checked off by plaintiffs’ servant, but no tally was made by defendants. Thereafter a bill for the price of 19,718 pounds, the amount which was actually taken, was sent to defendants, who replied by letter, wherein, after stating the agreement, they concluded as follows :

“ If we have received more than 3,000 pounds, this is the first intimation of it. We don’t want more. This is all we agreed to purchase. Balance is at your disposal, and we shall expect to be reimbursed for the cartage on this balance.”

The defendants shortly afterwards wrote again, correcting the mistake which was made in the statement that a sale of but 3,000’ pounds was agreed upon, and stated that they were prepared to pay for “ between two and three tons.” The justice rendered judgment in favor of the plaintiffs for the value of three tons, which sum had been tendered by defendants, and paid into court, and the plaintiffs have taken this appeal.

In our view the determination below is clearly to be given support. Defendants agreed to take plaintiffs’ whole stock of stone, of which they accordingly accepted delivery without actual examination into the quantity received ; but this was in reliance upon plaintiffs’ representations that the amount thus to be purchased was between two and three tons, and upon this representation they had a right to rely. Certainly, they were not required to retain and pay for a quantity so greatly in excess of the agreement as that delivered,—between nine and ten tons. Immediately upon discovery of the facts, they disaffirmed the sale, as to the excess, and tendered such excess to plaintiffs. This tender was sufficient, without an actual return. Hayden v. Demets, 53 N. Y. 429; Coplay Iron Co. v. Pope, 108 N. Y. 236; 13 St. Rep. 480 ; 21 Am. & Eng. Enc. Law, p. 557, and cases cited. Nor were defendants in fault in that they did not tender back the whole quantity received. Upon a delivery excessive of the quantity called for by the contract, they had a right to stand upon the agreement, and repudiate the delivery as to the -excess. Hart v. Mills, 15 Mees. & W. 85 ; Benj. Sales, §§ 689, 691; 21 Am. & Eng. Enc. Law, p. 540; Cross v. Bylin, 2 Barn. & Adol. 106. Similarly, in Scott v. Warner, 2 Lans. 49, a recovery was had in the case of mutual mistake resulting in the delivery of a smaller quantity than that intended, where the plaintiff had not rescinded the sale, nor returned the goods delivered. The judgment must be affirmed, with costs.


author: Osborne, J.

text:
    Edward McNamara, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed March 25, 1895.)

    1. Master and servant—Appliances.
    A master cannot discharge itself from the consequences of a failure to furnish adequate brakes for its cars by directing its servants or agents to do it, and shield itself from liability on the ground that the injuries were due to the negligence of a fellow servant.
    2. Appeal—Conflicting evidence.
    A verdict, on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Jas. & Thos. H. Troy, for resp’t.
   Osborne, J.

Plaintiff was a conductor on one of defendant’s trolley cars running on its Third avenue line to Ft. Hamilton, when, on October 11, 1892, another trolley car of the same line-(No. 800) approached from the rear, and crashed into the car of which plaintiff was conductor, and severely injured him. This-action was brought to recover damages for such injuries, on the ground that the collision was due to defective brakes on the car which ran into plaintiff’s car, and that, by reason of such defective brakes, the motorman in charge of the colliding car was unable to stop his car in time to avoid a collision. The evidence of the-motorman who had been running the car with the alleged defective brakes was to the effect that on a previous trip he had found that the brakes on his car would not work properly, and had so informed his conductor; that on a subsequent trip he started from Twenty-Fifth street and Third avenue to go to Ft. Hamilton; that, by the time he got as far as Sixty-Fifth street, he found his brake so inefficient that he determined to turn back; that he returned to the defendant’s repair shop on Twenty-Sixth street, ran his car in there over a pit, called the attention of the man in' charge there to the condition of the brakes, and one of the workmen was then directed by the man in charge to examine the car, and see what was the matter with it; that this workman got under the car, and, after examining it for four or five minutes, told the motorman the car was all right, and to run it; that the motorman accordingly started out again with the car, still finding trouble with his brakes, and on the second trip thereafter, as he approached plaintiff’s car next in front of him, he was unable to stop his car on account of the failure of the brakes to work, and the collision ensued by which plaintiff was injured. Defendant put a number of its employes on the stand to disprove this story of the motorman, including the conductor of the alleged defective car, starters at Twenty-Fifth and at Sixty-Fifth streets, and the man in charge of the repair shop, all of whom contradicted the motorman’s evidence. It also called other motor men as witnesses, to endeavor to show that, when they used the car in question the preceding month, its brakes were in good order.

"We are asked to reverse this judgment on the ground that it was against the weight of evidence. It does not seem to us to be ■our duty so to do. There was some corroboration of the story of the motorman in the evidence of the conductor. The latter admitted that in the morning on an earlier trip, he found fault with the motorman for not promptly stopping the car when signaled to stop, and that the motorman then told him that he could not stop the car because the brakes failed to work properly; and the conductor likewise admitted that in such case it was his duty to report the car, but that on this occasion he failed to do so. The conductor’s trip slip for that day was also put in evidence by defendant, and that contained some corroboration of the motorman’s testimony as to his returning to Twenty-Fifth street before making a round trip. Notwithstanding the preponderance in numbers of witnesses for the defendant, there is no such preponderance of evidence here as would justify us in setting aside, as against the weight of evidence, the verdict of a jury, who saw the witnesses on both sides, heard them testify, and who are better qualified to judge of their credibility from their appearance and conduct •on the witness stand than we are from reading their evidence in print.

There can be no question but that the evidence adduced by the plaintiff, credited as it was by the jury, made out a condition of ■affairs which would render the defendant liable. Its duty, unquestionably, was to furnish adequate brakes for its cars, and to keep them in proper order; and it cannot discharge itself from the consequences of a failure to perform that duty by directing its servants or agents to do it, and then, when the duty is left unperformed, shield itself from liability on the ground that the injuries complained of were due to the negligence of a fellow servant. Booth v. Railroad Co., 73 N. Y. 38 ; Lilly v. Railroad Co., 107 id. 566 ; 12 St. Rep. 468.

No exception was taken to the charge as requested by plaintiff’s -counsel -at folio 296, and we are not therefore called upon to consider it.

The judgment appealed from and order denying motion for a new trial must be affirmed, with costs.


author: Van Brunt, P. J.

text:
    People ex rel. Adam A. Cross, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    1. Municipal corporation—Police—Proof.
    The decision of the police commissioners discharging a policeman, which is supported only by the uncorroborated and self-contradictory testimony of the keeper of a house of prostitution, will be reversed.
    2. Witnesses—Cross-examination.
    Where a witness has testified as to her occupation at the time of the occurrences narrated by her, a refusal to allow her to be cross-examined as to her present whereabouts and occupation cannot be justified on the ground that she has reformed and should be protected from exposure as to her past life.

      3. Evidence—Judicial notice.
    The court may take judicial notice of the fact that persons, who are engaged in business and cannot read and write, have their faculty of memory more acutely educated.

      Certiorari to review the action of the board of police commissioners in dismissing the relator from the police force.

      Elihu Root, for relator; Francis L. Wellman, for resp’ts.
   Van Brunt, P. J.

On the 13th day of August, 1894, certain charges, forty-six in number, were presented to the respondents against the relator, who was then a captain of the police force of the city of New York. Notice of the preference of said charges, and of the time and place when the same would be publicly examined, was served upon the relator; and thereafter, on the 15th day of August, 1894, and subsequent days, a trial was had, and on the 31st day of August it was by the said police commissioners resolved, declared, ordered, and adjudged that the said charges are true, and that the said Adam A. Gross be, and he hereby is, dismissed from the police force of the police department of the city of NewYork.” It appears upon inspection of the record of the trial that upon charges thirteen to twenty-three, inclusive, and twenty-five to thirty-five inclusive, no evidence was offered, and it would seem that the police commissioners had dismissed such charges ; but in their judgment they find the same to be true, notwithstanding such dismissal. It might be a subject of interesting inquiry, perhaps, to know whether, in the punishment of the relator, the whole of the charges had not been considered, instead of those only in respect to which proof had been offered. The first twelve of the charges relate to the accepting of money for permitting to be kept open a disorderly house at No. 144 - Christie ■ street, kept by one Katie Schubert. The thirteenth charge was founded upon alleged neglect of duty in permitting said house to be kept open. The twenty-fourth charge was founded upon alleged neglect of duty in allowing a similar house to be kept open at No. 28 Bayard street. The thirty-sixth charge was founded on an alleged neglect of duty ip allowing a similar house to be kept open at No. 6 Delancey street. The thirty-seventh to the forty-fourth charges were founded upon the alleged taking of money for permitting a similar house to be kept open at No. 24 Bayard street, by one Rhoda Sanford: The forty-fifth charge was founded upon alleged neglect of duty in permitting said house No. 24 Bayard street to be kept open. And the forty-sixth charge was founded upon on allegation of a complaint having been made by one Hendrickson to the relator of money being taken by a patrolman of the police force named Kelly to influence him in the performance of his duty, and a failure and omission upon the part of the relator to report said dereliction of duty upon the part of said patrolman' to the inspectors of his district, and a failure or omission to take any steps or measures to investigate said dereliction of duty upon the part of the patrolman, or to punish him therefor.

It appears from the evidence in the case that some time in April, 1892, the relator became a captain in command of the eleventh precinct in the city of New York, and remained in such command until some time in February, 1893,—a period of about nine months; and it is claimed to have been" established by proof, produced upon the trial of these charges that during said times he received, as a bribe from said Katie Schubert, the sum of $500, and $50 a month for each of the months while he was in command of the precinct, he, in consideration thereof, agreeing to permit said Katie Schubert to carry on her business of maintaining a house of prostitution. It is also claimed to have been established by the evidence that some time in October, 1892, the said Rhoda Sanford paid the relator $500, and $50 a month thereafter, in order that she might be permitted to carry on her business, which was of a similar character, at the premises No. 24 Bayard street. And it is also claimed that the evidence establishes the charge in respect to dereliction of duty in reference to permitting these houses to exist, and also in respect to the complaint which was made against the patrolman Kelly. There is no evidence that the woman Sanford had anything to do with the relator, Cross. According to her testimony, all her business relations in reference to protection from police interference were had with one Smith, who was the wardman in the precinct. ¡The evidence connecting Smith with the relator is that of Katie Schubert, the keeper of the house of prostitution at No. 144 Christie street; and consequently, if her evidence is of such a character that conviction cannot be predicated upon it, there is no evidence whatever against the relator in respect to the premises No. 24 Bayard street, except that of a general character in preference to the business being permitted to be carried on. The witnesses to the bribery in reference to No. 144 Christie street were the proprietress of the establishment, claimed by the prosecution to be a very respectable married woman, and one Alice Ryder, another respectable married woman, who for a period of eighteen months was an inmate of the premises No. 144 Christie street, and furnished' part of the material with which business in that house was carried on. As has already been suggested, the claim was made before the police commissioners that, whatever idiosyncrasies, these ladies had indulged in for the period under consideration, they had since that, time led creditable and respectable lives, both the ladies in question having married and settled down. When the counsel fbr the defense endeavored to get some information from these witnesses in regard to their present surroundings, their present location, their names and history, he was prevented from obtaining any-information whatever upon this subject; and hence it was impossible for him to make any investigation in respect to the verity of these pretensions to virtue upon the part of these women, who acknowledged that they had been engaged in this immoral business. Their evidence was placed before the tribunal, in which the relator was being tried, as that of credible and respectable witnesses ; the board was asked to believe such evidence because they were credible and respectable; and the relator was given no opportunity, as already suggested, to identify the witnesses, so as to be able to ascertain to what extent these pretensions were true. It is perfectly clear that in a trial before a civil court no judgment could possibly stand which was founded upon evidence of witnesses in respect to whose identity such rulings had been made.

It is, however, to be considered that, in proceedings before the board of police, entirely strict and accurate rulings in regard to questions of evidence are not always to be expected; and, in determining the question as to whether a conviction should be sustained or not, the record generally should be examined, and the appellate court should determine upon such examination whether it discloses reasonable grounds for the conclusion arrived at, and one which has not been the result of the erroneous rulings in respect to the admission or exclusion of evidence. Therefore, if, upon an examination of this record, notwithstanding this extraordinary position in regard to the protection of witnesses from the ordinary investigation to which such witnesses are subjected in order that their credibility may be properly weighed, we should be satisfied that there was sufficient evidence to justify the conclusion at which the board arrived, we should not disturb the same.

When we come to examine the evidence of Katie Schubert, the principal witness for the prosecution, we are confronted with the fact that there is hardly a circumstance alleged to have surrounded the taking of this money in respect to which this witness Schubert has not given two diametrically opposite versions, or has not been contradicted pointedly by incontrovertible evidence. It would be impossible, within the limits of an ordinary opinion, to go through the testimony of this witness, and refer to the numberless contradictions which the record discloses therein. We will therefore advert to only a few of the more prominent examples, which will be sufficient, it seems to us, to show that the witness was utterly unreliable and unworthy of belief.

Upon her examination when first examined on the part of the prosecution, the witness testified that she was a respectable married woman; that she lived at one time on Christie street, where she had lady boarders, and the house was kept as a house of prostitution, and that, while she was in that business, Captain Cross was one of the captains of the precinct, and was there for about six months, and that was in the year 1892 ; she did not remember whether it was the latter part or the first part, but it was after McLaughlin left, and before Devery came; that she gave Captain Cross some money in the spring; and that Cross called on her with his wardman, Smith. The witness was then asked the question:

“Q. How often did you see Captain Cross ? [Her answer was:] He was only once at my house. Q. How often did you see him after that, at any place, in the street, or where ? A. I have never seen him to speak to. I have often seen him pass in the street, but not to speak to.”

The witness then pointed out Captain Cross, and was asked:

“Q. The first time that you saw him, was it in your house ? A, Yes, sir. Q. Smith was with him? A. Yes, sir. Q. Evening or daytime? A. Evening. Q. State the conversations that you bad. A. He just came in, and Officer Smith introduced him as our new captain, and that I had to give up $500. Q. Just state what was said. A. There wasn’t much of a coversation. Officer Smith just introduced the captain, and told me: ‘This is the captain, and I will be his man, and you have got to give up $500, and then I will come every month after the $50.’ Q. Did he say, if you did not do that, what would take place? A. Then I didn’t have the money, and we set a date, and I do not know how many days after it was that I got the money, and Captain Cross called for it again ; and, as I handed him the money, he gave me a very sarcastic laugh, and asked me did I get small bills on purpose, and couldn’t I get it in big bills, that it made such á big roll. I said that I was glad enough to get that; I had to borrow it.”

Thus, within five minutes the witness contradicted herself in regard to her seeing the relator, swearing, first, that he was only once at her house, and immediately thereafter swearing to two' interviews in her house.

In another part of her testimony the witness testified as follows :

“Q. Then Captain Cross was in your place more than once? A. He was only there when he took the money. Q. Only there when he took the money ? A. That is all. Q. Was that the occasion when this officer introduced him, as you have testified? A. No; he introduced him about a week before, because I didn’t have the money at the same time as he introduced hitn. Q. Where did he introduce him ? A. In my front parlor. Q. Then Captain Cross was in your place twice? A. Well, twice. Q. Once before when you paid him the money ? A. Once when he was introduced, and next time he got the money. Q. What time of day was it? A. Half past eight in the evening.”

It is to be observed that she testified that this money was paid in the spring, and that the captain had been in the precinct but a few days.' She further testified that she paid Smith $50 a month thereafter. The witness was then asked ;

“Did Captain Cross raid you at all? A. Yes, sir; once. Q. When ? A. Once when he first came to the precinct. Q. Before you had given him any money? A. Yes, sir. Q. How long before ? A. It was about three weeks. Q. About three weeks ? A. About three weeks before I gave him the money. Q. And were you taken to the station house? A. Taken to the station house. Q. Was he then captain? A. Yes. Q. And what was done to you? Were you fined? A. Yes, sir. Q. How much ? A. I was fined $50. Q. How soon after you paid your fine did you see the captain ? A. I have seen him in a few days after. Q. A few days after you paid your fine, then the captain and Smith called? Is that it? A. Yes. Q. Did you have any talk about the raid at all? A. Ho; I didn’t ask anything; didn’t have any talk about it.”

There is no dispute about the fact that on the 30th of May,, about five weeks after coming to the precinct, Capt. Cross did raid the premises of the witness.

As an instance of the manner in which this witness testified, it. may be proper to call attention to tfie following bit of testimony ;

“Q. When did you first move to 144 Christie street ? A. 1892. Q. What time in 1892 ? A. I moved there in July. Q. In July, 1892 ? A. Yes. Q. You moved to 144 Christie-street ? A. Well, I had moved there before that. Q. Answer my question. A. I had moved before. I had been in the house longer than that, but I didn’t keep it in that style ; didn’t keep no-ladies. Q. You moved to the house 144 Christie street in July, 1892. That is true, isn’t it ? A. Yes, sir. Q. And from that time on you carried on business as keeper of a house of prostitution? A. Yes. Q. Until when ? A. Until six months ago. Q. Until six months ago ? A. Yes. Q. That was about February, 1894? A. Yes. Q. Then, did you leave 144 Christie street? A. Yes, sir. Q. Where did you go? A. Moved away. Q. Where to? A. I refuse to tell.”

Subsequently the witness swore that she lived at 144 Christie-street in January, 1889, and lived there continuously until she left there, about six months ago,—a period of four and a half or five years; that it was first kept as a gentlemen’s boarding house, and then was turned into a ladies’ boarding house, about two and. a half years before the trial. But although the witness was keeping a gentlemen’s boarding house in 1889, according to her testimony, it appears that her place was raided by the Society for the-Prevention of Cruelty to Children, and the witness indicted. In another place in her testimony the witness says that this raid took place about two and a half years before her examination, when she first turned her house into a house of prostitution. Another instance of the unreliable character of the evidence of this witness is shown by her continual contradiction as to whether she paid this money to the captain before or after she was raided by him. The witness having, testified thát the money was paid after she-was raided and after her trial, the raid occurring on the 30th of May, 1892, and the trial on'the 21st of June, she testified in one place that the money was paid in May, 1892, and in several other-places that the payment was made before she was “pulled.”' And it would seem in connection with this matter that the witness was perfectly willing to swear either way upon this subject, because we find this testimony near the close of her examination i

“By the counsel for the prosecution : Q. Captain Cross, I understood you to say, raided you ? A. Yes. Q. And then sent, for you to come to him, and told you, if you paid, it would be all right ? A. Yes. Q. Mow, how long after he had raided you or ‘pulled’ you was it that he sent for you, and told you, if you paid your money, it would be all right? A. I don’t exactly remember, but it was after my trial was over. Q. Then, after your trial was over, it was that the captain sent for you, and told you, if you paid, it would be all right? A. Yes. Q. How soon after he came into the precinct did he raid you ? A. I 'think he was-only there about two or three weeks. I don’t exactly remember, but that is as good as I can remember. Q. And two or three-weeks after he raided you ? A. Yes. Q. And after your trial he sent for you, and told you, if you paid your money, it would be all right ? A. Yes. Q. And you fixed it up by payment, and it was all right ? A. Ybs.
“Recross-examination by counsel for the defendant: Q. Didn’t you testify, in answer to my question, that you paid this $500 before Captain Cross raided you ? Do you understand me ? A. I understand you. Q. Please answer the question. A. "I don’t exactly remember if I gave him the $500 before, or after I was raided. I think before I was raided. Q. Didn’t you testify on the cross-examination, in answer to my question, that you paid Captain Cross $500 at yóur house before he raided you ? A. And then I was raided. Then he sent for me, and told me to keep a little quiet until my trial was over, and, when my trial was over, come to see him, and he would fix me all right. Q. But you had paid Captain Cross the money before you were raided by him ? A. Yes. Q. There is no mistake about that ? A. No.”

It seems to be thus apparent that within a very few moments the witness flatly contradicted herself in respect to the time of the payment of this money, and the circumstances attending the payment. It was urged upon the part of the counsel for the prosecution that the witness might very well make a mistake in' reference to the time at which this money was paid to the police captain, in that there were three captains there within thirteen or fourteen months ; and she claimed to have paid $1,500 to those three captains,—to McLaughlin $500, to Cross $500, and then to Devery 500 ; and, in speaking of the payment of the $500, she might have referred to the $500 first paid to McLaughlin as paid before the raid. But the difficulty with this explanation is .that it hardly harmonizes with the testimony of the witness. It is true that she testified that she paid $500 to McLaughlin before Cross came; but she also testified, in equally positive language, that Cross was the first captain that she had dealings with.

The testimony of the witness in regard to the manner in which she got the $500, and her bank accounts, is of an equally interesting character. During the course of her cross-examination, she was asked, referring to. the time when she furnished the house in Christie street:

“Q. Did you have any' money in bank? A. No. Q. Did you ever have money in bank? A. Yes. Q. What bank? A. Down town. Q. Where down town ? A. In Park Row. Q. There is Simpson’s and two or three other places down there. What bank have you reference to? A. I haven’t got'it now any more. Q. You kept some money in a bank in Park Row ? A. Yes. Q. How long did you keep the money there ? A. Two or three months. Q. Do you know the name of the bank ? A. No, I don’t, for I ain’t got it no more, and I forget the name of it, too. Q. When did you draw out your last money? A. About two years ago. Q. You don’t remember the name of the bank? A. No. Q. Do you remember how much you finally drew out? A. I don’t remember that. Q. Was it $500 or $1,000? A. I don't remember. . Q. Was it $5,000? A. No, sir; never got as rich as all that. Q. Haven't you any idea how much money you drew out of the bank ? A. I don’t remember exactly; about $500 or $600. Q. And that you drew out, you say, when ? A. About two years ago. Q. What did you do with the money ? A. Spent it.”

The witness further testified that she had borrowed the money which she paid to Captain Cross from Jacob Wolf and Isidore Kraushauer. Subsequently she was recalled, and was asked by the prosecution:

“ Q. Did you have any bank account at all when you were keeping 144 Christie street? A. I did. Q. Where was it? A. I had some money once in Canal street. Q. At the Canal Street Bank ? Mow, other than that, did you have any bank account at all? A. Mo.”

Upon examination by the counsel for the relator, the witness was asked:

“ Q. You don’t remember having kept an account in 1892? A. I kept it, but I don’t exactly remember when it was. Q. Was this the same bank that you testified to having kept an account in on my cross-examination ? A. Mo, sir; that is a bank I kept a bank account in, a small bank account, before I kept that house; and I did not think it was necessary for me to mention it. Q. You did keep another bank account ? A. I did. Q. And it was a small bank account, which you started before you kept that house? A. Yes, sir. Q. About how much? What do you call a small bank account ? A. I don’t know. I don’t remember. Q. $250 ? A. I don’t know.”

The witness was further asked:

“ Q. You did not have that account in 1892? A. I don’t remember when I had it. Q. You don’t remember when you had it? A. Mo. Q. And you don’t know how much you had in 1892 ? A. Mo.”

The witness was then asked:

“ Q. Did you keep an account in the Citizens’ Bank ? A. Mo. Q. Sure about that? A. I don’t know anything about it? Q. Did you keep an account in the Citizens’ Bank in 1892 ? (Counsel for prosecution states, ‘On Canal street.’) A. Mot that I know of. Q. Did you keep an account at the Bowery Savings Bank in 1892, or at any time ? A. I did. Q. How much did you have there in 1892 ? Do you remember ? A. I don’t know. Q. Was it more than $500? A. I don’t remember. Q. Was it $5,000 ? A. Mo ; I don’t remember of having $5,000. Q. About how much was it? A. I could not tell you. Q. Did you draw any money out of the Bowery Savings Bank in 1892? A. I drawed it just to pay back these people from whom I borrowed it.”

The witness then further testified to having kept an account in the Bowery Savings Bank, as well as in the Citizens’ Bank and the Canal Street Bank. But in this connection it may be proper to state that probably the witness confused the Bowery Savings Bank, the Citizens’ Bank, and the Canal Street Bank, because the name of the bank was the Citizens’, and its location was at the corner of the Bowery and Canal street. The witness was then asked:

“ Q. Don’t you know 'that in the three banks in which you kept an account in 1892, that there was to your credit over $5,000 ? A. No, sir; I did not exactly know. Q. Or about $5,000 ? A. Maybe it was. Q. What did you mean by telling this board, on your cross-examination, that you did once keep a bank -account in a bank on Park Row, but that, since you closed your account there, you have kept no bank account anywhere. What did you mean by that ? A. Because I have had that bank account pretty near all— It was when my husband was alive, and he kept them, and I know nothing about it. They were left to me when my husband died, and I did not think it was necessary to mention them. Q. Were not these deposits with the banks I have mentioned kept in the name of Kate Wendt (the name of the witness’ first husband being Wendt)? A. Certainly. Q. And didn’t you open those accounts in all the banks I have mentioned? A. No, sir; I had them signed over to me after my husband died. Q. You are sure about, that? A. Yes, sir. Q. And you cannot be mistaken about that?' A. No ; not at all. Q. Can you now tell us how much money you drew from any one of those three banks, or all three of those banks, in the year 1892? A. No, sir; I could not tell you. I don’t remember. Q. Did you draw any money out of the Citizens1' Savings Bank in the year 1892 ? A. No ; I have drawed it every time I wanted money out of the Canal Street Bank. Q. Every time you wanted money you drew that from the Canal Street-Bank? A. Yes, sir. Q. Can you tell how much money you had on deposit to your credit in the Canal Street Bank at the time you say you gave $500 to Captain Cross? A. I have had $3,000. Q. You had $3,000 ? -A. Yes, sir. Q. Then at the time you say ■you paid Captain Cross $500, you had to your credit in the Canal Street Bank $3,000 ? A. Yes, sir; I had it. Q. Now, having that large amount of money to your credit in the savings bank, why did you borrow $1,100 from Wolf and Kraushauer? Why didn’t you draw it from the bank ? A. Because it was around the time that there was some trouble in the bank, and I could not. get any money. Q. There was some trouble with the bank in 1892, and that is why you could not get any money ? A. From what I can remember, I went to get the money and could not. * * * Q. You never personally knew anything.about trouble with that bank ? A. I knew nothing; only I went there, and there was a crowd of people, and they said I could not get in and get my money.”

Subsequently the witness stated that she had handed over her bank book' to somebody who went bail for her, and that he had the bank book, and she could not draw the money ; and she further testified that after she had been released, and paid her fine, and discharged, she borrowed the money to pay Capt. Cross..

The character of this evidence shows that the witness did nob seem to think it necessary to testify to any fact which existed because she was questioned in respect thereto; and it is apparent that she had testified knowingly falsely in regard to the existence of this account in the Citizens’ Bank ; and it is also equally clear that she testified knowingly falsely as.to the reason she gave for not drawing the money from the bank. It appears that in 1890 there had been a run upon the Citizens’ Bank, but subsequent to that time no trouble; and that, instead of the witness going there, she testifies, in another place, that she did not go, and could not get her money, because her bail had her bank book as security, and then further testifies that this money was borrowed and paid over weeks after she had been tried and discharged. It appears upon an examination of this bank account in the Citizens’ Savings Bank that she had never drawn a dollar at the time she said she had drawn the money for the purpose of paying back the money which she had borrowed. It further appears from the testimony of the clerk of the bank that her testimony as to the account ever being in the name of her husband was absolutely false; that it was opened by her in March, 1887; that on the 1st of July, 1893, she had $3,210 to her credit; and that from the 10 th of August, 1891, she liad not drawn a dollar from that account. It does not seem necessary to multiply instances of the absolute unreliability of this witness. It was attempted to excuse her manifest prevarications and remarkable lapses of memory by the assertion that she could not read and write, and that, therefore, her mistakes in regard to her financial affairs and her bank account, and the times of the happening of these various transactions, arose from the fact that she had no means of refreshing her memory by any memorandum or writing which had been made.

It has been held by the court of appeals in the case of Frace v. Railroad Co., 143 N. Y. 182; 62 St. Rep. 166, which was an action to recover damages for the destruction of plaintiff’s property by a fire alleged to have been kindled by sparks which escaped from an engine passing on defendant’s road, that the court may take judicial notice of the fact that diamond stack and straight stack spark arresters are in very general use upon the railroads of the country, and that they are both well known systems for arresting sparks, while no system that has yet been invented can wholly prevent the emission of live sparks from an engine under certain circumstances. And we think that we may equally take judicial notice of the fact that persons who are engaged in business who cannot read and write have their faculty of memory more acutely educated, for the reason that they are compelled to depend upon their memory, and cannot rely upon written memoranda. The fact that this woman could not read or write would, according to common experience, tend to create in her a more accurate and retentive memory, because it would be upon that faculty that she must rely in the conduct of her affairs. Instead, therefore, of her incapacity to read aud write accounting for her loss of memory, it seems to make it the more remarkable. It is evident, upon "a consideration of the whole of her testimony, that she was willfully forgetful, and had not the slightest regard for the truthfulness of her testimony.

But it is claimed that the evidence of the witness Schubert was corroborated by that of the witness Alice Ryder, who, as we have seen, was also one of the virtuous inmates of this establishment. It was claimed that this woman had seen Capt. Cross upon one of the visits which he is alleged to have made to this house, No. 144 Christie street. The witness was asked : “ Q. Did you ever see .Captain Cross? A. I never saw him. I don’t know that I saw him.” And then, after having testified to having been an inmate of that house for eighteen months, she testified to the counting out of $500 in bills for Mrs. Schubert, and giving them to her; and that on the same evening two gentlemen called, one of whom she described as being dark complexion, rather stout, very stout, tall, and with a dark moustache. She stated that she did not get a good look at him ; she just had a passing glance, as she was going from the back parlor to the kitchen, and as Mrs. Schubert was taking them into the front parlor. She also testified that she only saw this man that one evening, and then didn't get a good look at him. She was asked this question : “ Q. Look around, and see if you can pick him out. A. This is the one that seems to me (placing her hand on Captain Cross) he looks very much like him. Of course, I did n’t see him full face, but only side face.” The witness subsequently testified thatshe nevérsaw this man before or after that night. It appeared that she had been arrested, with the other girls in the house, at the time of the raid by, Capt. Cross, and that he was at the desk, and their names, etc., were taken down in his presence. She further testified to having, at Mrs. Schubert’s request, written on .certain envelopes the words “ From Mrs. Schubert,” which envelopes Mrs. Schubert testified she had put money in, and left at the station house for the captain. This was all the corroboration that there was of the testimony of Mrs. Schubert. It seems to us that it was wholly insufficient. It amounted to no corroboration at all, because, on the question of identity, she must have testified falsely, as she saw the captain at the station house, and was undoubtedly familiar with his presence.

It further appears, as has already been stated, that the relator was prevented from ascertaining as to whether this girl was still carrying on her business, or whether her statement that she was a respectable woman was true. In fact, all her testimony could be entirely correct (with the exception of the question of identification, which evidence does not seem to be very reliable) without its bearing at all upon the question of the guilt of the relator upon the charges preferred. An examination of this testimony necessarily leads to the conclusion that no man should be held guilty of the crime of bribery, and forever disgraced, upon such evidence.

It is undoubtedly true that much of the evidence upon which we must rely, if crime is to be punished, comes from polluted sources. Crime is not committed ordinarily with respectable and reputable witnesses looking on, who can testify to the facts; but it has its birth largely in secret, and among the disreputable; and the proof of its commission must be established, if at all, by proof taken from this class of the community. These facts should be no reason for allowing crime to go unpunished. It necessitates,, however, a closer examination of the evidence, and some corroboration of the witnesses, either from the nature of their testimony given, or by the testimony of other witnesses. If the story of such a witness is of such a character, and so consistent in its details, and harmonizes so well with surrounding circumstances, as to carry conviction, even where there is no corroborating testimony, it may afford satisfactory proof of guilt; but, where such evidence is not consistent, abounds in contradictions, and shows a disregard of the truth, clearly it cannot form the basis of a judgment establishing crime.

The evidence of Mrs. Schubert and Alice Ryder, as we have seen, shows certainly considerable recklessness of assertion, and lapses of memory which cannot have had an honest origin. As has been already stated, the claim was and is made by the prosecution that these, women were respectable women, and that the weight due to good repute should be given to their testimony; but the relator was refused the right to test, by the methods well recognized in the law, these claims upon the part of the prosecution. The identity and location of these witnesses was studiously concealed ; and the relator was refused the right to examine them as to their present whereabouts and occupation. It may well be, had the ordinary opportunity of cross-examination been offered, that the relator might have been able to have shown by their neighbors that this claim of respectability was all a sham and delusion. The attempt to justify this ruling upon the plea that it was to protect these witnesses from exposure as to their past life, they having reformed, cannot prevail, because, having testified voluntarily to their disgrace (we say voluntarily, because they could have shielded themselves under their privileged claims to have reformed), the relator had the right to test the truth of the claim of reformation. Under such circumstances, in order that it may be said that the relator has suffered no harm because of this ruling, the evidence of guilt should be of a very satisfactory character, instead of being of the unreliable character exhibited in the case at bar. The same ruling was made in the case of Rhoda Sanford, who did not claim that she had reformed; and the relator was even in her case deprived of the benefit of showing her surroundings, and the influences under which she was testifying.

As has already been suggested, the charge, so far as the taking of money from Rhóda Sanford is concerned, depends upon the testimony of Mrs. Schubert, connecting the captain with the ward-man Smith. Mrs. Sanford swears that she never paid any money to the captain; that all her transactions were with the wardman. It appearing that the woman Schubert is entirely unworthy of belief, there is nothing to connect the relator with the charge of bribery in regard to the house of Mrs. Sanford, No. 24 Bayard street.

As to the charge of failing to report these disorderly houses, there was a conflict of testimony, and different conclusions perhaps might be drawn therefrom. But, as it seems to be probable that the charges for which the relator was dismissed were as to the receiving of these alleged bribes, the mere fact that a finding of neglect of duty might be sustained upon the evidence should not prevent a reversal of the judgment of the police commissioners convicting the relator of an infamous crime.

It is claimed upon the part of the relator that the reason the charge against Kelly was not pressed was because he had been retired from the police force a few days before the complaint of Hendrickson. It may be a question as to whether this was a sufficient excuse for entire neglect to investigate the matter; but, as already suggested, it does not appear that the sentence was pronounced because of a conviction upon this charge.

Upon the whole case, therefore, we think that the judgment of the police commissioners should be reversed, and the relator reinstated, with costs.

All concur.


text:
    People ex rel. George Smith, App’lt, v. James J. Martin et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Witness - Corroboration.
    A witness cannot "be corroborated by the entries in his books.
    Certiorari to review the decision of the board of the police commissioners, dismissing the relator from the police force.

      Elihu Root, for relator; Francis L. Wellman, for resp’ts.
   Van Brunt, P. J.

Upon the argument of the writ of certiorari in the cases of Capt. Cross and of the relator in this proceeding it was conceded that the testimony as against "both relators was of the same character, and that the disposition of the one case would necessarily control the other. But, in view of the conclusion at which we have arrived in the Case of Cross, 66 St. Rep. 362, it may be necessary to consider some testimony which was offered against both of these parties, but which is only competent against the relator, Smith. We refer to the testimony of Rhoda Sanford and that relating to the alleged corroboration of her evidence. It appears that Rhoda Sanford was a keeper of a house of prostitution at No. 24 Bayard Street, and she claims to have paid the relator certain sums of money. The same course was pursued upon the cross-examination of this witness to prevent the relator from showing the then present whereabouts of Rhoda Sanford, and the influences by which she was surrounded shortly prior to giving her testimony; thus precluding him from having applied the ordinary tests in respect to the weight to be given to the testimony of this witness, who, it is worthy of remark, did not claim to have reformed. It is to be observed that the invasion of this right tended manifestly to produce injury to the relator, because of the fact that it is admitted that this witness, in her examination before the Lexlow Committee, testified deliberately falsely, but it is now claimed that her testimony is correct. The circumstances causing such change ef heart might very well be inquired into, in order that her testimony should be properly weighed. It was claimed that Rhoda Sanford’s testimony was corroborated by the evidence of witnesses showing that she kept a house of prostitution,—about which there was no dispute,—and also by entries in certain alleged books which she claimed to have kept. The evidence in regard to the fact of the existence of the house of prostitution certainly did not corroborate the witness in respect to the disputed facts. The alleged books of account were of the most suspicious character, even if they could be considered as evidence in the case at all. She first commenced keeping the books five or six months before the happening of these events. There is no evidence that she ever kept books before, and an inspection of the entries therein shows beyond question that they were not .an account of all the expenditures of her establishment, neither were they books of account showing the receipts and expenditures which she had made. An inspection of these entries necessarily renders one suspicious as to the authenticity of more than one of such entries. The fact that these books were taken away from her sometime prior to her examination before the Lexlow Committee, and that she had not seen them since, argues but little in favor of their verity. But we have yet to learn that a witness can be corroborated by the entries in his or her own books. It would be a novel method of manufacturing testimony to allow one’s own letters and entries in one’s own books to be offered in evidence as corroborating the statement of such witness. A written memorandum or entry made by a witness at or about the time of the transaction, where such entry is known at the time by the witness to be correct, may be referred to by him for the purpose of refreshing his memory; and it is only where the witness has no memory in regard to the transaction, but is willing to swear to the truth of the memorandum, and that it was made at or about the time of the occurrence, and that although the witness has no present recollection he or she is confident that it truly related the circumstances, that such a memorandum may be admitted in evidence. In the case at bar it is claimed that the evidence of this discredited witness is to he supported by entries in these books, which it is alleged were her business books,—it appearing that she had never kept any books until just previous to these transactions, —and credit is claimed for her upon this ground. It would be very easy for witnesses to manufacture any desired amount of corroborating evidence, if such a rule were to be adopted. It is apparent that there was no corroboration of the testimony of this witness, and that an inspection of these entries shows that they are suspicious in themselves. The witness was thoroughly discredited, and shown to have no regard for her oath, even aside from her occupation ; and, as this was the only additional evidence against Smith, it would seem that her testimony must be rejected, and the same judgment pronounced as in the Case of Cross. The judgment of the police commissioners should be reversed, and the relator reinstated, with costs.

All concur.


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    Pacific Mail Steamship Company, Resp’t, v. Panama Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895).

    1. Contracts—Construction.
    A contract of sale of a line of ships, together with all the property used in operating such line and the good will of the business, does not give the vendee the exclusive right of issuing through bills of lading, though, at the time of the sale, the vendor had agreements with the connecting lines for issuing such bills.
    2. Same—Revocation.
    A provision, abrogating all previous contracts and regulating the transaction of business thereafter to be done, was held not to revoke the terms of the above agreement of sale, but only such contracts as regulated the traffic between the parties.
    Appeal from a judgment, entered on a decision making permanent a temporary injunction.

      F. R. Couderl, for app’lt; E. Lauterbach, for resp’t.
   Van Brunt, P. J.

The plaintiff is a domestic corporation, organized and existing under chapter 266 of the Laws of 1848, and the-acts amendatory thereof, for the purpose of building, purchasing, and operating a line or lines of vessels, to be propelled solely or partially by the power or aid of steam, or other expansive fluid or motor power, and to be run and propelled in navigating the Atlantic and Pacific Oceans. The defendant is also a domestic corporation, organized and existing under chapter 284 of the Laws of 1849, and”the acts amendatory thereof, for the purpose of constructing and maintaining a railroad, with necessary appurtenances,, across the Isthmus of Panama, and of purchasing and navigating such steam or sailing vessels as may be proper and convenient to-be used in connection with the railroad to be constructed. Ever since its incorporation the plaintiff has operated lines of steamships between the Isthmus of Panama and the port of San Francisco, on the Pacific Ocean, and between the city of New York and the port of Aspinwall or Colon, on the Atlantic side of the Isthmus. The Pacific service has included, and still includes, various intermediate ports between and inclusive of Panama on the south, and Acapulco on the north. Since 1885 the defendant has operated its-line of railroad between the ports of Colon and Panama, transferring freight, passengers, and mail between those points which were almost wholly destined for points and places beyond the Isthmus, and a great part of the freight and a large proportion of the passengers transported by the defendant have been carried beyond the Isthmus by the plaintiff company. In 1870 the defendant, pursuant to powers granted by its charter, established a line of steamships running between the ports of Panama and Acapulco, stopping at intermediate -points, which line was known as the “Central American Line,” and continued to operate until the making of the agreement hereinafter mentioned, on or about the 1st of October, 1872. Prior and up to the making of this agreement between the plaintiff and the defendant, in 1872, agreements existed between the defendant and certain connecting lines, including the plaintiff, for the issuance of through bills of lading, and for favorable rates for the carriage of merchandise from, to, or through said ports by such connecting lines. On the 1st of October, 1872, a formal agreement was entered into between the plaintiff and the defendant, whereby the defendant sold to the plaintiff this Central American Line, including the ships used therein, and their appurtenances, afloat and ashore, and its service, business, and good will, for the price of $700,000 in cash. By the first paragraph of this agreement the defendant “grants, sells, assigns, and conveys unto the said steamship company [the plaintiff] all and singular the docks, wharves, piers, structures, lighters, loading and unloading facilities, appurtenances and appliances, afloat and. ashore, used, owned, or controlled by it, in its said Central American Line, about and for each and every port upon the said Pacific Ocean, between the said ports of Panama and Acapulco; to have and to hold the same unto the said Pacific Mail S. S. Co., its-successors and assigns, forever.” By the second paragraph of said agreement the defendant “ further hereby grants, sells, assigns, and conveys unto the said steamship company [the plaintiff], its successors and assigns, entirely and absolutely its good will in the service and carrying trade between the said ports of Panama and Acapulco, and any and every intermediate port on the Pacific Ocean, and between any and every one or more of such intermediate ports; and it hereby, for itself, its successors and assigns, covenants and agrees, to and with the said steamship company, its successors and assigns, that it shall not and will not, at any time or times hereafter, engage, directly or indirectly, or in any manner concern itself, in carrying on or conducting any service whatsoever by vessel, in whatsoever manner propelled, from any of such ports to any one or more of the others thereof lying between the said ports of Panama and Acapulco.” From the-time of the execution of this agreement until the 25th of August, 1875, there appeared to have been various agreements, written- and verbal, entered into between the parties to this action, regulating the conduct of the business which was being transacted by them, and the prices to be realized therefor. On said 25th of August, 1875, an agreement in writing was entered into between the parties to this action, the first paragraph of which is as follows:

“All agreements, written or verbal, heretofore made between the parties hereto, are hereby abrogated and terminated by the consent of both parties hereto, and all business between the parties after the 31st day of March, 1875, to be done and settled for under this agreement, provided that all business prior to March 31, 1875, is to be settled for under the then existing agreement.”

It is evident, when we consider the balance of the agreement, that it was not the intention of the parties to abrogate every and all written agreements winch had been entered into between them and that it was not intended to abrogate the agreement of 1872, above referred to, and that the only agreements which it was intended to do away with were those regulating the traffic between the two companies, because it will be seen, upon an examination of the agreement of August 25, 1875, that it relates solely to details regulating the traffic of the two companies and the division of the moneys receive therefor. This agreement provided that it should continue in force for five yéars, unless sooner terminated by the giving of a notice by either party of its jntention to term. in ate the same in three months from the date of the giving of such notice. On the 27th of August 1875, a supplemental agreement was made, embracing a branch of the same subjects. Prior to November, 1875, serious disagreements had arisen between the Panama Railroad Company and the Pacific Mail Steamship Company, and in consequence thereof the railroad company had attached the ships of the steamship company for debt due it, and was threatening to take possession of its ships by which it carried on its business between New Yo.ik and Aspinwall. In January, 1876, the defendant railroad company entered into an agreement with one Clyde, living in Brooklyn, whereby it was agreed that said Clyde should, during the existence of the contract, act as the sole and exclusive agent of, the defendant at New York and at San Francisco, and at all other ports or places, to or from which steam vessels might be run by said plaintiff during the continuance of said ■contract, and that Clyde should have the exclusive right to issue all through receipts and bills of lading, and all through passengers tickets, etc. The contract between Clyde and the railroad company gave to Clyde the advantages which the Pacific Mail Company had formerly enjoyed, and practically enabled him to control the carrying business between New York and San Francisco by way of the Panama Railroad, which contract was transferred to the Panama Transit Company, and was on the 13th of November, 1876, in full force and effect. On the 31st of May, 1876, the Panama Transit Company granted to the Pacific Mail Company certain benefits secured to it by its contract of January, 1876, with the railroad company, upon condition that there should be an equitable division between the parties of the profits of the business, etc: Thereupon the transit company, with the consent of the railroad company, granted to the Pacific Mail Company an equal interest in the benefits and advantages therein specified and granted, to endure until the 1st day of October, 1879. On the 13th of November, 1876, a traffic agreement was entered into between the Panama Railroad Company of the first part and the Pacific Mail Company and the Panama Transit Steamship Company of the second part. At the time of the making of this agreement the.Pacific Mail Steamship Company was largely indebted to the Panama Railroad Company, and one of the provisions of the agreement was that its net earnings should be applied each month by , the transit company towards ■ the payment of the indebtedness of the Pacific Mail Company to the Panama Railroad Company. This agreement made between the ■defendant, the plaintiff, and the transit company continued to endure until the month of February or thereabout. On the 1st of February, 1878, another formal agreement was entered, into between the parties to this action, in which the purposes of the organization of the railroad company are recited, and that in order to secure to said railroad the permanent and regular control of the business which naturally sought the Isthmus, and to prevent the embarrassments, delays, and loss of business which it had in past times suffered by reason of its want of control of the management of the main ocean line from and through which its principal business was derived, it had been found necessary, proper, and convenient for said railroad company to own or control such ships and property as were necessary for a continuous line between San Francisco and Hew York, and to and from such other ports, in connection with said Isthmus, as its business might from time to time demand; and after further reciting that said steamship company, meaning the Pacific Mail Steamship Company, was then engaged in business on both the Atlantic and Pacific Oceans, and was running a regular line between San Francisco and certain ports northward thereof and Hew York, and also a branch line to certain Central American and Mexican ports, which business was valuable to it, and that it was desirous of arranging for a continuance of the same on a permanent basis in connection with said railroad company, and was also desirous to procure from said railroad company the means necessary to purchase the steamships of the Panama Transit Steamship Company and the rights and privileges which said transit company then enjoyed by reason of the contract with said railroad company, whereby a large and valuable portion of the business of said steamship company was lost to it, etc.,—the steamship company, the plaintiff, agreed to sell and deliver to the railroad company, the defendant, certain steamships and other property for a price therein named, and further agreed, in respect to the maintenance of the steamship service for the full term of fifteen years from the date of the agreement, to pay to the railroad company certain sums of money and proportion of earnings arising from transportation. It was also provided, among other things, in said agreement of February, 1878, that said steamship company should have the exclusive right to issue all through receipts and bills of lading, and all through passengers tickets, between all ports and places to and from which steam vessels might be run by the steamship company to the railroad and in connection therewith, and that the said company should attend to and perform all the ordinary duties appertaining to such agency; but that said agency of the steamship company should not extend to either of the ports of Panama or Aspinwall. It was also provided by said agreement that under certain contingencies the railroad company might declare that the agreement of the 1st of October, 1872, made between the parties thereto witli respect to certain business on the Central American and Pacific coast, should be abrogated, and that the same should thenceforth be absolutely void.

During the continuance of said agreement of 1878 the plaintiff made an agreement with eighteen railroad companies, known as the “ Transcontinental Association," the business of which entered largely in competition with the business of the defendant company, and had abandoned the practical control entirely, so far as its through business was concerned, between Hew York and San Francisco, to the Transcontinental Association, and had agreed that it would not run more than three ships per month between New York and Aspinwall on the Atlantic Ocean, and between Panama and San Francisco on the Pacific Ocean, in consideration of which it was to receive the sum of $75,000 per month from the Transcontinental Association, which payment enabled it to carry out its agreement above referred to, and to make its monthly payment to the Panama Railroad Company. Some months prior to the termination of the agreement of 1878, by its own limitation, negotiations were initiated between the parties, with the expectation and hope of effecting some new contract for the adjustment of their relations and for their mutual good, and an agreement was infactreached,when,shortlypriortothetimewhenthe contract was to be executed, the Pacific Mail Company declared that it had become unable to guaranty any fixed sum of business, and to make the cash payment which had constituted one of the principal conditions of the former agreement. The Pacific Mail Company was induced thus to withdraw from the conditions orally agreed upon by a notification received from the Transcontinental Association that it would no longer continue its monthly allowance. Without this aid the Pacific Mail Company was unable, it asserted, to stipulate any fixed payment, and it therefore insisted that the conditions of the contract should be accordingly modified. The Pacific Mail Company was not at this period in prosperous circumstances, and was slow in paying its debts. Notwithstanding this fact, efforts were made in good faith by the defendant to arrive at some just agreement which would secure the rights of the company and enable it to go on harmoniously; but the parties finally split upon the question as to who should have the right to make the rates; it being insisted by'the railroad company that it. could not safely permit the steamship company so to do, and the steamship company refusing to abdicate its right, real or supposed, to fix the rates, in favor of the railroad company. Prior to the 1st of February, 1893, the day of the termination of the agreement of February, 1878, by expiration of time, the defendant notified the plaintiff that it would not permit it, on and after said February 1, 1893, to issue through bills of lading, and the defendant sought to find some other corporation that was able and willing to act as its agent in the procuring of business'and in-the issuing of through bills. The Chilian Steamship Company was organized and had had business relations with the railroad company as the carrier of freight and passengers between Chili and Panama, and with that company negotiations were commenced by the defendant, and were pending, but undetermined, at the time of the issuing of the injunction in this action, for a traffic agreement which would have conferred upon the Chilian Company certain exclusive privileges in reference to its business with the defendant company which would necessarily give it an advantage in the transaction of such business; but it was not intended to make any discrimination against the Pacific Mail Company in respect to the privileges enjoyed by it from those enjoyed by all other persons or corporations in the world, excepting such Chilian Company. This action. having been commenced by the plaintiff, and an injunction issued as above referred to, the negotiations with the Chilian Com. pony ended.

Upon the trial of the action, the foregoing facts appearing, judgment was directed in favor of the plaintiff, enjoining the defendant from entering into any agreement with the Chilian Company, or with any other company, or with the owner of any vessel for transportation by sea of goods, passengers, or mail, between the ports of Panama and Acapulco, and substantially enjoining the defendant from entering into any arrangement with any other company than the Pacific Mail Company for the issuance of through bills of lading; and from the judgment thereupon entered this appeal is taken.

The question which is presented upon the admitted facts in the ease at bar is, does the plaintiff enjoy the exclusive privilege of issuing through bills of lading for merchandise to be transported upon the railroad of the defendant, in respect to business between the ports of Panama and Acapulco and intermediate ports? It is claimed upon the part of the plaintiff that at the time of the execution of the contract in 1872, by which the defendant company conveyed to the plaintiff the vessels, -business, service, and good will of the Central American Line, the custom and agreement as to through bills of lading were well established,as was also the right to make through rates upon a divisional basis; and it is urged that by the agreement of 1872 the plaintiff bought this right of the defendant, and is the owner thereof. Upon the other hand, the defendant claims- that no such construction can be placed upon the agreement of 1872, and, if it could, that that agreement had been abrogated by the subsequent agreements between the parties, and the course of business which they entered into, seemingly regardless of the provisions of that agreement. It seems to us, however, upon an examination of the dealings between the plaintiff and the defendant, and the other agreements entered into between the parties, that it cannot be found, as a matter of fact, that the agreement of 1872 was ever abrogated, but that it was and is a binding and subsisting agreement As has been already observed, if we considered only the language of the agreement of August 25, 1875, it might be held that the agreement in question was abrogated. But when we consider the nature of the agreement of 1875, and the purposes to be attained by it, it is manifest that it was not the intention to interfere with the substantial provisions of the agreement of 1878; and, when we take into account the language of the agreement of 1878, there seems to be no further doubt on this subject, because the existence of the agreement of 1872 is expressly recognized in the agreement of 1878, and the right is reserved by the defendant to terminate the former agreement under certain contingencies. If the agreement of 1872 had already been abrogated, and was of no effect, such a provision would certainly not have been inserted in the ageeement of 1878. From 1878 to the present time nothing has transpired which would indicate an intention upon the part of the parties to the agreement of 1872 to terminate the same. We must thus determine the rights of the parties to this litigation by the provisions of the contract of 1872; and the question is whether, by the transfer of the good will of the business referred to in that agreement, the railroad company undertook to give exclusive privileges-to the plaintiff in reference to the issuing of through bills of lading. As has already been intimated, it is claimed upon the part of the plaintiff that because the defendant, at the time of the entering into of the agreement of 1872, had arrangements with other companies for the issuing of through bills of lading, under such agreement it has succeeded to all the privileges of those other companies. We have been unable to find any provision in the agreement in question which bears out any such claim. It would seem that at this time companies other than the Central American Line were issuing through bills of lading under arrangements of a temporary character, revocable by notice given by either party ; and all that the defendant company agreed to transfer to the plaintiff were the privileges which were being enjoyed by the Central American Line, and,certainly nothing beyond that. It was the good will of that business which was transferred, and nothing more. What the defendant’s arrangements with other companies were at this time was of no concern to the plaintiff, and no contract was made in respect thereto. In fact, when we come to consider the second paragraph of the agreement of 1872, it might well be claimed that all that the Panama Eailroad Company covenanted not to do was that it should not at ariy time or times thereafter, directly or indirectly, in any manner, concern itself in carrying on or conducting any service whatsoever by vessel, in whatsoever manner propelled, from any of such ports to any one or more of the others thereof, lying between said ports of Panama and Acapulco. It seems to us, therefore, that it would be a stretching of the terms of this agreement to bold that exclusive privileges in reference to , the transaction of businesss with the Panama Eailroad Company were intended thereby to be given to the plaintiff. It would certainly be extending the meaning of the words “good will” to an extent which has never heretofore been done, by giving the words in this contract the broad and comprehensive construction which is claimed upon the part of the plaintiff. Undoubtedly the attempt on the part of the defendant to confer exclusive privileges upon the Chilian Company was a violation of its sale of the good will of this business to the plaintiff. Simply because the Panama Eailroad Company might have fears in regard to the solvency of the Pacific Mail Steamship Company, it cannot be relieved from its agreement, the consideration of which it has received, and the performance of which upon its part must therefore necessarily continue. It seems to us that the true construction of the agreement of 1872 between these parties was that no exclusive privileges in reference to the business which was there the subject-matter of agreement should be given to other parties; that, at least, the plaintiff should be upon an equal footing with any other corporations operating connecting lines; and that the railroad company should refrain from making any arrangement with any other company conducting steamship service between Panama or Acapulco, or any intermediate port, for the purpose of diverting the business between Panama and Acapulco from the plaintiffs Central American Line; but that it was never intended to .give the plaintiff of privilege of fixing the rates of transportation over the defendant’s road, which would be the result of the contraction contended for. We think that the- injunction contained in the judgment was too broad, and that it should be modified in accordance with this opinion, and, as modified, affirmed, without costs to either party.