text:
    The People, Resp’t, v. Edward Christian, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    Witness—Accomplice—Cobbobobation.
    A testimony of the accomplice, in this case, was held to have been sufficiently corroborated to sustain the conviction.
    Appeal from a judgment of conviction, and from an order denying a motion for a new trial.

      Hastings & Schoolcraft (A. A. Yates, of counsel), for app’lt; Daniel Naylon, Jr., for resp’t.
   Mayham, P. J.

The principal question raised by the appellant on this appeal is that the conviction was had solely upon the uncorroborated testimony of an accomplice in the crime for which the defendant was indicted, tried, and convicted. If that contention is supported to its full extent by the evidence, then the judgment for conviction should be reversed. The testimony of Mrs. Slocum that she set fire to and burned this house in the nighttime, after she and the defendant had together saturated the wall and floor with kerosene, and that all she did in the matter was at the request, suggestion, and direction of the defendant, is positive and unequivocal. But her connection with the crime renders her testimony insufficient, unless corroborated, to justify a conviction upon that alone. Her connection with the commission of the crime, as she details it, makes her an accomplice with the defendant, and brings her evidence under the condemnation of § 399 of the Code of Criminal Procedure, which provides that: “A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of a crime.”

Tinder this statute, it matters not how consistent the narration of the accomplice, how much it is fortified by detail in the statement itself, or how reasonable and convincing the relation of facts by her; it it not enough, unless corroborated by such other testimony as tends to connect the defendant with the commission of the crime.

The respondent calls attention to the testimony of Laura Slocum, a daughter of Martha, who is about 13 years of age, and corroborates the testimony of her mother as to the times and circumstances of the defendant’s visit to her mothef, after they moved on Veeder avenue, up to the time of the fire, and also bis visit to and interview with Mrs. Slocum on the morning after the fire, and of his inquiry about the insurance policy, and his inquiry of her as to where she was going, and her information to him that she was going to Mrs. Iveson’s, on Strong street, and as to his call at Mrs. Iveson’s, in the absence of her mother, telling her at that time that she might have to go down to court, but that she must not mention his name. This last statement, while not strictly a corroboration of any statement sworn to, is not without its significance on the general question of corroboration of the theory of the prosecution. The testimony of Lulu Slocum, a daughter of the accomplice, Martha, but nine years old, is also claimed by the prosecution as a corroboration of the testimony of her mother, in some essential particulars tending to establish the charge against the defendant. She saw the defendant at her mother’s on Schenectady street, before they moved to Veeder avenue, and saw him at the house on Veeder avenue, taking with her mother, every day they lived there, before the house burned down ; saw him there on election day, and on that day got oil for her mother while the defendant was there, -upstairs, and says defendant told her to go down the back fence, to Centre street, “so that nobody would see me. Said I should get oil, and run back.” Said her mother gave her two cents, and she got two cents’ worth of oil, and gave it to her mother; and she went upstairs, where the defendant was, and witness then went out, and afterwards saw defendant downstairs., talking with her mother. She also swears that she heard the defendant tell her mother that the best thing she could do was to send the thing up in a balloon, and if she did not she would be sorry for it. It is also insisted that Martha Slocum is corroborated by several witnesses who saw him in the afternoon before the five, in the vicinity of Veeder avenue, with a bundle under his arm similar in description to the one described by Martha as containing the rugs taken by defendant from her house. Other witnesses were called by the people, who corroborated the testimony of Martha upon the same general facts as to which she was corroborated by her children,—of his presence at and about the place of the residence of Martha, on Veeder avenue.

Without further reference here to the evidence, we think that the case does not stand alone upon the uncorroborated evidence of this accomplice, but that she is corroborated by other evidence, which a jury might fairly and reasonably consider as tending to connect the defendant with the commission of this crime. Even the defendant himself, on his examination as a witness in his own behalf, testified to some important corroborations of Martha, which the jury might fairly consider as leading up to, and connected with the commission of this crime—the pawning of the Bible and album; the meeting of her near the church, and taking a paper which she had, and reading it. These are important corroborations, and although he characterizes the act of pawning as an innocent act of accommodation, and the reading of the paper as simply the reading of a letter, she gives both acts great significance—one, the procuring of the money with which to effect the insurance; and the other, the perusal of the policy, which, as is claimed, gave a cash value to the property which was in contemplation by these persons of being consumed by fire. This evidence, we think, tended to connect the defendant with the crime charged, and was competent for the jury to consider, and thus passed into the domain of facts which may be weighed and considered by the jury, and which, if found against the defendant, furnish a support upon which their verdict must be upheld. It is true that no witness corroborates the accomplice in her testimony as to the application of the match to the oil at defendant’s direction or suggestion. But when the words of the defendant, that she must send it up in a balloon, are taken in connection with the procurement of the oil; the procurement of the policy, in connection with the pawning of the books; the frequent visits of the defendant to the place of residence of the alleged accomplice; the binding up of the rugs with the bundle seen in his possession, and othpr coincidents—we think the appellate court would not be justified in saying there were no corroborating circumstances proved, from which a jury could find that the evidence connected the defendant with the commission of this arson. In People v. Elliott, 106 N. Y. 292; 8 St. Rep. 703, Earl, J., in discussing the character of corroborating evidence, in connection with the evidence of an accomplice, sufficient to convict, uses this language: “All the circumstances, certainly, have some tendency to corroborate the evidence of the accomplice, and they seem to us to satisfy the requirements of the Criminal Code referred to. Each circumstance, taken by itself,'is quite.inconclusive; but, when considered together, they certainly furnish some corroborative evidence. It is not necessary that the corroborative evidence, of itself, should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. Hor need the corroborative evidence be wholly inconsistent with the defendant’s innocence.’’

To the same effect is People v. Everhardt, 104 N. Y. 591; 5 St. Rep. 793; People v. Jaehne, 103 N. Y. 182; 3 St. Rep. 11.

Within this rule, we think the case properly became one for the jury, and that their verdict cannot be set aside as against evidence.

"We have examined the other exceptions taken by the learned counsel for the defendant in this case, and find no error for which this conviction should be reversed. Judgment of conviction affirmed.

Putnam, J., concurs; Herrick J., dissents.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Emma M. Haskins, as Administratrix, etc., App’lt, v. New York Central and Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Master and servant—Appliances—Blocking.
    The absence of blocking between the rails does not show negligence on the part of the company, unless it had actual notice thereof, or the blocking had been out long enough to constitute constructive notice.
    Motion for a new trial on a case and exceptions ordered to be heard in the first instance at general term.

      John Gillette, for motion; J. W. Dunwell, opposed'.
   Lewis, J.

This action was brought against the defendant to recover damages for the alleged negligent killing of the plaintiff’s husband. He was at the time in the employ of the defendant as a brakeman upon a local freight train, running between Rochester and Syracuse, by the way of Canandaigua. Part of his duties as a brakeman was to assist in making up and switching trains. In doing that work he was require to couple and uncouple cars and manipulate the switches. On the 6th day of November, 1892, while thus engaged in the defendant’s yard at Canandaigua, his foot was caught between a guard rail and an adjoining rail on the main track of the defendant’s road, and, not being able to extricate it, a passing car ran over him, causing his death. The alleged negligence of the defendant upon which the plaintiff based her right to recover was the absence of an appliance called “blocking” in the opening where the deceased’s foot was caught. There was evidence tending to show that a device had been theretofore adopted by some railroads, to a limited extent, known as “ blocking.” It was done by inserting in the space between the guard rail and the main rail a piece of plank of such thickness as to permit the wheels of the locomotive and cars to pass over it. It was there fastened by driving spikes into it. There were a large number of guard rails in the Canandaigua yard, and about one year before the accident they had all been blocked. The device had not been adopted generally by railroads. One of the reasons why it had not been adopted was because of the great difficulty of keeping the blocking in place. Snow, ice, gravel, and other substances were liable to accumulate under the blocks, and the flanges of the wheels, in passing over them, were quite apt to force them out of place. The evidence tended to show that in some cases they were almost immediately forced out; in other cases they would remain in place for a considerable time, the length of time being entirely uncertain. They were to some extent a protection to the employes, although not a perfect protection, for it was not practicable to have them of sufficient thickness but what the sole of the shoes of the operative might, notwithstanding the blocking, be caught. The blocking in this yard was constantly getting out of place. Some of them were replaced, and others were not. At the time of the accident there were ■ only about one-iourtli of the blocks in position. It was found after the accident that the blocking was out of the guard rail where the deceased’s foot was caught. There was an entire absence, however, of any evidence as to the length of time it had been out. While it was the duty of the defendant to furnish a reasonably safe place and appliances for the deceased to perform the duties incumbent upon him, it is not by any means certain that the defendant was obliged to block the guard rails; but, if it be conceded that it owed the duty to the deceased to adopt the device, it was incumbent upon the plaintiff, in order to be entitled to recover, to show that the defendant had either actual notice for a sufficient length of time before the accident that the blocking was out, so that it could have been repaired, or that the blocking had been out for such a length of time as to constitute constructive notice to the defendant. There was no evidence that it was not properly constructed in the first place, or that it was negligently displaced, and there was an absence of any evidence as to how long it had been out before the accident. It may, so far as it appears from the evidence, have been knocked out of place one hour before the accident occurred. It was incumbent upon the plaintiff, before she was entitléd to have her case submitted to the jury, to show that the defendant’s negligence caused her husband’s death. This she failed to do, and was therefore properly nonsuited. The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

All concur.


author: Mayham, P. J. Herrick, J.

text:
    John J. Sheldon, as Administrator, etc., Resp’t, v. Rufus Heaton, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    Pleading—Denial on information and belief—Frivolous.
    An answer, containing a denial of any knowledge or information sufficient to form a belief as to each and every allegation in the complaint contained, cannot be stricken out on motion as frivolous.
    Appeal from an order striking out the denial in the answer as frivolous.

      James B. Stearns (6?. H. Beckwith, of counsel), for app’lt;. Wilmer H. Dunn, for resp’t.
   Mayham, P. J.

This action was prosecuted to recover upon an alleged writing, claimed to have been executed by the defendant, in the following words and figures:

“$178.33.

“Due Mrs. M. E. Shelden, one hundred and seventy-eight’ 33-100.

“ Rouse’s' Point, April 29, 1863. R. Heaton.”

The complaint alleges that the sum specified in the due bill above set out was deposited by Mrs. Sheldon, now deceased, with the defendant, at the date of that instrument, to keep for her, and that on the 20th of June, 1893, plaintiff, as administrator, demanded payment of the same of the defendant, which was refused. The answer first denied the complaint in the.following language: “ The defendant denies any knowledge or information sufficient to form a belief as to each and every allegation in the complaint contained.” The answer also sets up the statute of limitations, and also, separately, payment, satisfaction and discharge of all indebtedness to the plaintiff. The plaintiff moved to strike out this denial as frivolous, and also inconsistent with each and all of the succeeding allegations. The motion was granted on the ground that the denial was frivolous, with costs, and the defendant appeals.

More than thirty years had intervened between the date of the due bill and the demand,—a period in which the defendant might well have forgotten the giving of the note, if genuine, or having no recollection of such an event, might well hesitate to trust his memory to make a positive denial. Under such circumstances he should not be compelled to admit the truth of the complaint by failing to deny, nor should he be compelled positively to deny, when, by a failure of memory, it might turn out that his denial was false. To relieve a defendant from such a condition, the legislature provided for a verification in substance like the one under consideration. Subdivision 1 of § 500 of the Code provides that the answer of the defendant must contain: “ First, a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” This provision of the Code prescribes the method by which the defendant may put in issue the allegations of the plaintiff, and thus put him upon his proof. Failing to make such denial, the defendant is deemed to have admitted the allegations of the plaintiff’s complaint, and relieved him from making proof thereof. In whichever form the denial is made, it presents an issue such as was raised by the plea of general issue before the Code. Such an answer cannot be stricken out on motion as frivolous. Thompson v. Erie Ry. Co., 45 N. Y. 468; Wayland v. Tysen, id. 281; Abernethy v. Knight, 50 id. 673; Jones v. Ludlum, 74 id. 61. None of the cases to which we have been referred decide that an answer denying any knowledge or information sufficient to form á belief of the truth of the material allegations of the complaint can be stricken out as frivolous. It is only when the allegation of want of information relates to some affirmative allegation of defense not putting in issue the allegations of the complaint that it can be stricken out as frivolous.

Nor is the objection that the other portions of the answer are-inconsistent with the denial a good ground for striking out the same. Section 507 of the Code of Civil Procedure authorizes a defendant, in the manner therein named, to set up as many defenses and counterclaims as he may have, and, as we have seen in. Woods v. Reiss, 60 St. Rep. 794; 29 N. Y. Supp. 263, the denial cannot be stricken out as inconsistent with the other defenses. Bruce v. Burr, 67 N. Y. 237; Goodwin v. Wertheimer, 99 N. Y. 149; Societa Italiana di Beneficenza v. Sulzer, 138 N. Y. 468; 52 St. Rep. 904. The principle seems to be settled in these cases that a denial will not be stricken out because it is inconsistent with other defenses interposed in an answer. For these reasons, we think that the order of the special term should be reversed.

• Order reversed, with $10 costs and printing disbursements, and $10 costs of motion at special term, to the defendant.

Herrick, J.

I concur. See Grocers' Bank v. O'Rorke, 6 Hun, 19; Becker v. Weisner, 22 Alb. Law J. 156.

Putnam, J., concurs.


author: Mayham, P. J.

text:
    Sidney G. Marshall, Resp’t, v. Reading Fire Insurance Company of Reading, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

      1. Insurance—Agent—Revocation—Notice.
    Where an insurance company, after revoking its agent’s authority, leaves blank policies in his hands, such revocation does not affect one who receives a policy from the agent without notice of the revocation.
    2. Same—Foreign company—Non-compliance.
    Though a foreign company has not complied with the insurance laws, its policy is enforceable.
    Appeal from a judgment entered on a verdict directed in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      S. L. Wheeler, for app’lt; Shedden & Booth. {L. L. Shedden, of counsel), for resp’t.
   Mayham, P. J.

On the first day of March, 1893, the defendant, a foreign corporation, issued by its agent an insurance policy to the plaintiff, in consideration of a cash premium of $13.75, at that time paid by the plaintiff to the agent of the defendant, to indemnify the plaintiff in the sum of $1,000 on stock and $100 on store against loss and damage by fire. The person who took this risk acted as agent for the defendant, and had been so acting for several years previous thereto, was furnished with policies in blank by the defendant, signed by the officers of the defendant, and to the knowledge of the plaintiff had been in the habit of countersigning policies issued by the defendant through him as agent, the defendant receiving the premiums of him, and in some instances paying taxes on policies so made out and executed by this agent. On the thirteenth day of April, 1893, the insured property was destroyed by fire. The plaintiff thereafter made due proof of loss, and presented the same to the defendant, and demanded payment for the same, which was refused, and thereafter the plaintiff brought this action.

The main contention on the part of the defendant on this appeal is that the policy on which this action was brought was not a valid policy issued by the defendant; that the person who assumed to act as agent for the defendant, and by whom this policy was filled up, countersigned and delivered, was not, at the time of making this policy, the lawful agent of the company, and had no power or authority to issue such policy, and bind the company thereby, and that the policy was therefore void. The first ground of that contention was that the defendant had, on the 20th day of September, 1892, suspended and revoked all the powers of the agent who filled out and delivered the policy in suit, and had conferred all the powers possessed by him on another agent; and that on the 20th of March, 1893, the successor of such first mentioned agent went to the store of the plaintiff, and notified him of the suspension of such agency, and demanded a renewal of the policy, which the defendant refused; but it does not appear that the agent making that demand returned or agreed to return the premium or unearned premium paid by the plaintiff on this policy. As the defendant, at the time of the alleged revocation of the power of the former, gave no public notice of the same, and in no way informed the plaintiff of such revocation, and left with the agent the policies signed by the company, and, thus leaving in him the indicia of authority, the revocation did not bind the plaintiff, in the absence of any proof that it was known to him at the time of the receipt of the policy, he was not bound by it. The agent had acted as the general agent of the defendant upon the subject of issuing of policies, and his acts had been adopted by the company ; and, so long as the éompany left this class of policies with him, and thus enabled him to continue to deal with the public upon the strength of his previous agency and the use of its policies, no secret revocation of his power could absolve the defendant from liability to a third person dealing upon the strength of such apparent authority without any knowledge of the revocation of such authority. Post v. Ætna Ins. Co., 43 Barb. 361; Ellis v. Albany City F. Ins. Co., 50 N. Y. 407; Ruggles v. Am. Cen. Ins. Co., 114 N. Y. 415 ; 23 St. Rep. 847; Arff v. Star F. Ins. Co., 125 N. Y. 57; 34 St. Rep. 366. But is insisted by the learned counsel for the defendant that this policy is void under the provisions of § 137 of chapter 690 of the Laws of 1892. Section 31 of this chapter prohibits the agent of a foreign insurance company from transacting any business in this state until he has filed in the office of the clerk of the county where he resides a certified copy of the authority of the superintendent of insurance authorizing him to do insurance business, which certificate is also required to be filed in the office of the superintendent of insurance, a copy of which is to be printed four successive weeks in the state paper at Albany, and proof of such publication filed in the office of the superintendent of insurance. Hone of these things seem to have been done by the agent who executed and delivered the policy in this case. Section 50 of the same title imposes a penalty on any person acting as an agent of a foreign fire insurance company for acting in that capacity without first complying with the provisions, • But none of these sections, so far as I can see, renders a policy void for a failure to comply with these provisions. It is true that § 137 provides that policies shall' be held void if issued by foreign fire insurance companies, unless such companies shall have complied with the general insurance jaws of this state; but that provision does not seem to apply to the regulation of agencies of foreign insurance companies doing business,in this state.

It is urged that, as the enactment of chapter 690 operated to suspend the agencies unless the authority was renewed as required by that chapter, this relation ipso facto was dissolved, and that the plaintiff was charged with notice of that fact, as it was effected by a public statute, and all persons are bound and presumed to know the law ; and as to this class of cases the ordinary rule governing principal and agent is no longer applicable to agents -of foreign insurance incorporations. But it will be observed that this law imposes a duty upon the companies and their agents for the protection of the public and should not be so construed that it may become an instrument of fraud and oppression to those for whose protection it was intended. It presupposes that companies and their agents may assume to act without having qualified themselves by paying the excise duties imposed for the privilege of doing business in this state, and for such violation of law imposes heavy penalties. But it nowhere in terms gives the company any immunity or enables it to escape the obligations of its contract through such violations. By assuming to insure the plaintiff’s property it deprived him of availing himself of other insurances, and it should not, when a loss occurs, be permitted to allege its own violation of law as an excuse for refusing to fulfill its contract. But it is urged that the company in its policy reserved the right to cancel the policy. Such provision, to be valid, must be upon the condition of a restoration of the unearned premium, where the assured has practiced no fraud in obtaining the policy. In its application to the plaintiff to cancel this policy it adopts it as its own, but fails to give the requisite notice of its intention, as required in the policy itself, and I see nothing in the conduct of the plaintiff at the time of the proposed cancellation of the policy which can be construed into a waiver ot the required notice. I have examined the exceptions taken by the defendant to the various rulings of the trial judge, and see no ground in them for a reversal of this judgment.

Judgment affirmed, with costs.

All concur.


author: Clement, C. J.

text:
    Lena Kunzmann, App’lt, v. New York and Rockaway Beach Railroad Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    Negligence—Question of fact.
    The evidence, in an action for personal injuries to plaintiff while a passenger on a train, was held sufficient to require the submission of the case to the jury.
    Appeal from a judgment in favor of the defendant.

      Hurd & Grim, for app’lt; W. 0. Beecher, for resp’t.
   Clement, C. J.

We have carefully read the record on the present appeal, and conclude that the testimony was sufficient to require the submission of the case to the jury. The plaintiff proved that the defendant is a common carrier of passengers between Flatbush avenue station in Brooklyn and Rockaway Beach; that the defendant issued to plaintiff an excursion ticket from Bedford station to Rockaway Beach, and that on her return to Bedford station she was injured by reason of negligence of the employees upon the train; that the cars of the train by which she returned had upon them the name of the New York & Rockaway Beach Railroad. The proof seems to bring the case within the authority of Wylde v. Northern Railroad Company, 53 N. Y. 156. This case was reversed on the former appeal, 58 St. Rep. 584; 27 N. Y. Supp. 132, on the ground that there was no proof that the defendant ran, or had the right to run, on Atlantic avenue, and that there was no proof that the train on which the plaintiff was injured was in charge of the employees of the defendant. This proof has now been supplied, and. the plaintiff made out a prima facie case. Judgment reversed, and new trial granted, with costs to appellant to abide the event.


author: Osborne, J.

text:
    Charles Rosenberg, App’lt, v. John Courtney, as Sheriff, etc., Resp’t.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    1. Parties—Intervention.
    The execution debtor may, in replevin against the sheriff for chattels seized under the execution, intervene as a defendant. ■
    2. Same—Security for costs.
    The court may permit such intervention without requiring security for costs.
    Appeal from an order bringing in new defendants.

      A. H. Berriclc, for app’lt; Ira Leo Bamberger, for resp’t.
   Osborne, J.

The plaintiff appeals from an order making Jonas Salomon and Emanuel Wolf parties defendant, and permitting them to intervene in this action, and to defend the same. It appears from the papers on appeal that this action -was brought to recover the possession of certain chattels from the defendant, the sheriff of Kings county, under a requisition to the coroner, and that the sheriff had obtained possession of the same by virtue of a judgment against said Salomon and Wolf, and execution issued thereon. Wolf and Salomon claimed to be the owners of said chattels at the time said execution was issued, and their affidavit shows that the sheriff has notified them that this action will be discontinued unless they furnish him with a bond indemnifying him against all loss which he might incur in the defense of this action, which bond they allege they are unable to furnish. The plaintiff’s attorney, in his affidavit, alleges that be has no objection to said Wolf and Salomon intervening as defendants, provided they give an undertaking to secure the plaintiff for any costs which may be awarded him in case he is successful upon a final trial of this action. We think that Wolf and Salomon, on the moving papers, have an interest in the subject-matter of this action, and that interest consists in having the chattels of which, they claim to be the owners, or the proceeds thereof, applied towards the judgment against them. If this action is discontinued, it will result in the plaintiff’s obtaining possession of said chattels, to the exclusion of any rights of Wolf and Salomon, because they are unable to furnish an indemnity bond; and the}' will be left remediless. To deny their application to intervene as defendants and defend this action and contest plaintiff’s claim simply because they are unable to furnish a bond, would amount to a denial of an opportunity to defend any rights that they may have because of their inability to give security for costs in a case not provided for' by the Code of Civil Procedure. Suppose that goods in the possession of a pledgee were replevined by a party claiming to own them, and the pledgor was given notice that, unless he' gave an indemnity bond, the pledgee would consent to a surrender of the goods, it could not be seriously contended that the pledgor could be deprived of his opportunity to maintain his title by intervening in an action, unless he first gave security for the costs of defending- the same; and yet there is but little difference between such a case and the one now before' us. The same principle would underlie the rights of-the pledgor as Wolf and Salomon seek as maintain here. The case of Rosenberg v. Flack, 32 St. Rep. 449; 10 N. Y. Supp. 759, amply supports our views as to the propriety and j ustice of the order appealed from, but we do not place the authority for making, the order on the provisions of § 452 of the Code of Civil Procedure. That section relates only to actions in equity. Chapman v. Forbes,. 123 N. Y. 532 ; 34 St. Rep. 351. We think that there is an inherent power in the court to grant the order, in order to prevent-the perpetration of a possible injustice to Wolf and Salomon, who-would otherwise be deprived of an opportunity to defend their alleged rights. The provisions of § 1709 of the Code of Civil Procedure will not aid Wolf and Salomon, for they do not claim,, “as against the defendant, a right to the possession” of the chattels.. The case of A. H. King Co. v. Seed, 58 St. Rep. 116 ; 25 N. Y. Supp. 1115, heretofore decided by this court, does not conflict with these views, as in that case the plaintiff sought to bring in, as a party defendant, against his will, a third person, who claimed an interest in the property' replevined. For the reasons above stated we think that the order appealed from should be affirmed,, with $10 costs and disbursements, to be taxed by the clerk.


text:
    Kate M. Demond, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    1. Witness—Credibility—'Testifying falsely.
    The jury may, but are not obliged to, disregard the entire testimony of a witness who has testified falsely on any material point.
    2. Damages—Excessive.
    When a verdict for $3,000 for personal injuries not excessive.
    Appeal from a judgment in favor of plaintiff.

      Moore & Wallace, for app’lt; Ancho. J. Provost and Chas. J. Patterson, for resp’t
   Osborne, J.

Plaintiff brought this action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. It appeared that on the 22d day of January, 1892, between the hours of 11 and 12 in the morning, plaintiff became a passenger on one of the Lee and Hostrand avenue cars of the defendant. When she arrived at the corner of Hewes street and Lee avenue, the car was stopped by her direction, and she proceeded to alight. According to her statement, when she had one foot on the step of the car, and was about placing the other on the ground, the car suddenly started, and threw her down with great violence. In falling, her leg struck against some part of the car, and was very severely and seriously bruised. The defendant denied that any such accident occurred on said line on that morning, and, for the purpose of sustaining such denial, it produced the conductors of all the cars which passed the corner of Hewes street and Lee avenue between said hours of 11 and 12, each of whom testified that no such accident took place on his car. The jury found a verdict in favor of the plaintiff for the sum of $3,000.

The learned counsel for the appellant claims on the appeal that the plaintiff failed to show herself free from any contributory negligence. This was a question that properly belonged to the jury to determine, on all the evidence in the case. The learned trial judge charged the jury very fully as to what would constitute contributory negligence on the part of the plaintiff, and it was left to the jury to determine whether negligence on her part contributed to cause the accident, the jury being instructed that, if they so found, they must render a verdict for the defendant. Their verdict disposes of this contention of the appellant.

The appellant’s counsel further claims that the court erred in refusing to charge his fifteenth request, to which refusal counsel duly excepted. A complete answer to this exception would seem to lie in the statement that the fifteenth request is not printed in the appeal book, and we have no ¡positive knowledge as to its language or scope. It may, however, be spelled out, from the discussion with reference to the fifteenth request, that the defendant asked the court to charge that, if the jury believed that the plaintiff had willfully sworn falsely upon any material point, they should disregard her entire testimony. The court did charge that if the jury believed that the plaintiff had willfully sworn falsely on any material point, they might disregard her entire testimony. The proposition, as charged, was, in our opinion, the correct law on the subject. Hone of the authorities cited by the learned counsel for the appellant in this brief goes so far as to sustain the proposition which he apparently requested the court to charge, nor have we been able to find any authority that does support the request as a whole.. The furthest that any of the decisions have gone is to hold that, in case the jury should believe that a witness has willfully sworn falsely to any material statement, they should disregard such portion of that witness’ testimony as is uncorroborated. The exception was not well taken.

It is further urged by the appellant that the motion for a new trial should have been granted, on the ground that the damages were excessive. It does not seem to us that the sum of $8,000 was an excessive award for the injuries and pain and suffering which the plaintiff testified to, and as to which she was corroborated by her physician and other witnesses. It appeared that immediately after the accident she walked half a block, to her sister’s house; that, soon after arriving there, she became unconscious, and remained so for hours. In addition to the general shock to her system caused by being thrown to the ground while alighting from the car, she sustained a severe bruised wound on her left leg, five to six inches long, and about two and a half inches wide. This wound was of such a character as to cause the integuments covering the bruised part to slough off down to the muscles, and it was necessary, in order to promote the healing of this wound, to graft small pieces of skin on the surface of it. It required from 125 to 150 grafts to complete this process. The wound itself was a very painful one, and the clipping of the cuticle from portions of the plaintiff’s body for the purpose of grafting it on the wounded spot was likewise painful. The accident happened in January. Plaintiff was in bed for some two weeks, and was confined to her house for four or five weeks more. The grafting process continued up to May. The doctor was in attendance on her more or less regularly to the month of July, and plaintiff continued lame until September or October, and, even at the present time, claims that she still suffers from the result of these injuries, and is unable to walk as far as she formerly could. Taking all these circumstances into consideration, the pain and suffering that were caused by plaintiff’s injuries, her long confinement to her bed and to her house, and the fact that, as she states, she has not yet, after a period of nearly two years and a half, entirely recovered from the effects of this injury, it seems to us that $3,000 was a very reasonable compensation to award her. Ho other questions or exceptions are raised on this appeal. For the reasons above stated, we think that the judgment and order appealed from should be affirmed, with costs.


text:
    Abraham Denike, Resp’t, v. Charles W. Denike, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    Teial—Veedict—Iktebest.
    A. verdict, made up in part of interest to which the party is not entitled, cannot be sustained as to such part, though the jury could have awarded an amount larger than such verdict.
    Appeal from a judgment in favor of plaintiff.

      H. J. Morris, for app’lt; M. L. Towns, for resp’t.
   Clement, C. J.

The plaintiff brought this action to recover of the áfíendant the sum of $1,000, with interest from J uly 11,1883. In the complaint the plaintiff alleged that on or about J uly 11,1883, the defendant applied to him for a deed of his interest in certain real estate, and promised, in consideration thereof, to pay him the sum of $1,000 and interest from said July 11, 1883, upon the final settlement of the estate of "one Abraham Denike, who had devised the real estate in question to plaintiff, defendant, and Elizabeth A. Burnham. Plaintiff further alleged in his complaint that by reason of such promise of the defendant he delivered to him a deed conveying all his right, title, and interest in and to said real estate, and that a decree upon a final accounting of the estate of Abraham Denike was made and entered on February 6,1893. The defendant denied that he promised to pay plaintiff the sum of $1,000 at the time of the delivery of the deed, but testifies that two years afterwards, in 1885, he did tell the plaintiff that he would give him $500 if he received a distributive share in the final accounting of the estate of Abraham Denike. It appears in the final accounting that there was nothing to divide. The testimony of the defendant is confused, and it is difficult to understand what he did mean to say. The jury found a verdict for plaintiff for the sum of $500, with interest from July 11, 1883. If the jury had found a verdict for $1,000, with interest from the date of the final accounting, February 6, 1893, it would have been in accordance with the testimony of the plaintiff. The plaintiff did not testify that the defendant agreed to pay interest in addition to the $1,000, but that he agreed to pay $1,000 at the last accounting. As there was no promise to pay interest, and the defendant was not in default until the date of such accounting, on no theory of the case was it possible for the defendant to be liable for interest, except from the date of the final accounting. The jury could have found a verdict for plaintiff foYthe sum of $807.58 (the amount of damages in the judgment), and the defendant could not complain; but it appears on the face of the verdict that the plaintiff was awarded $500 of principal and $307.58 interest. The question whether the defendant was liable to plaintiff for the sum of $1,000 or a smaller amount was one purely of fact, and was properly submitted to the jury.

Judgment and order denying new trial reversed, and new trial granted, costs to abide the event, unless within ten days plaintiff’s attorney files a stipulation reducing the damages to the sum of $500, with interest from February 6, 1893, in which case judgment and order denying new trial are affirmed, without costs of appeal.


text:
    Sarah McAvoy, Resp’t, v. Charles Cassidy, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    1. Adverse possession—Inclosures.
    A person claiming land by adverse possession, where it is not cultivated or improved, must show that it was inclosed.

      2. Same—Peaceable.
    It is not error to charge that adverse possession must be peaceable.

      Appeal from a judgment in favor of plaintiff.

      Wm. J. Courtney, for app’lt; Johnson & Lamb, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover possession of a strip of land on Walworth street, in this city, ten feet three inches wide by twenty-five feet in depth; claiming to be the owner thereof, and that defendant unlawfully withheld possession of the same. The answer was a general denial. Plaintiff had a verdict in her favor, and defendant appeals from the judgment entered thereon, and also from an order denying a motion for a new trial.

From the evidence printed in the case on appeal, it appears that in and prior to 1844 one John Kelly was the' owner of a plot known as “Lot No. 116 ” on map of property belonging to Garret Nostrand. On February 21, 1844, Kelly conveyed to Margaret McAvoy the northern half of said lot, by metes and bounds. This deed embraced the strip of land in dispute. The title conveyed by this deed, by various mesne conveyances, became vested in 1869 in the plaintiff. In 1852, Kelly conveyed the southerly half of said lot No. 116 to one Charles Cassidy. The premises so conveyed were described, in part, as commencing at a point on Walworth street distant sixty-seven feet eleven inches south from the southeast corner of Walworth street and the Wallabout bridge road, “ which point is also' the southwestern corner of land conveyed to Margaret McAvoy.” This last-mentioned parcel of land was, by various deeds and wills, conveyed and demised by the-same description until, in 1884, it became vested in the defendant. In 1852, Cassidy,.the grantee of Kelly, built a house thirteen feet deep, so that ten feet and* three inches thereof encroached upon the premises that had been originally conveyed by Kelly to McAvoy, plaintiff’s predecessor in title. Subsequently, by boxing in the rear stairs, and erecting a shed, the encroachment was increased seven feet six inches. As to whether the rest of the lot was inclosed, the evidence was conflicting.

We have read with great care the very able brief of the learned counsel for the appellant, but, in consequence of the omission from the case on appeal of the statement that it contains all the evidence, we are precluded from considering the motion for a new trial on the-minutes, Cheney v. N. Y. C. & H. R. Railroad Co., 16 Hun, 415, and our review of the case on this appeal must therefore be confined to the exceptions in the case. The omission of this statement is also an answer to the exception taken by appellant’s counsel at the close of the case to the denial of his motion to dismiss the complaint on the ground that plaintiff had not made out a cause of action. But, even if this was not so, the evidence, as printed, went to show that the occupancy of the rear part of the strip in dispute had not been undisturbed, and as to that portion of the premises an issue was made which it was necessary to submit to the jury.

While plaintiff made out a clear record title to the premises in question, defendant claimed to hold by virtue of twenty years' adverse possession. The learned trial judge charged the jury that: “The occupant who claims adverse possession must claim during that time (twenty years or over) adverse to the true owner. •The possession, as said in the books, must be a possession undisturbed and open, and under the open claim of ownership, and must be adverse to the owner of record. * * * That is a' question of fact for you to decide, on all the evidence in this case, —whether the defendant, and the parties who owned before him, and occupied the premises, have peaceably, openly, and under claim of ownership, to the exclusion of the plaintiff, occupied the premises in question. * * * Another question, as I have said, may arise as to the lot,—the vacant part of the premises in question. The defendant, in order to establish adverse possession there, must prove that during the time of the alleged adverse possession the premises (the lot) was protected by a fence,—by a substantial inclosure.”

The learned counsel for the defendant excepted to the charge “ that the possession for twenty years has to be peaceable, in order to give right to any title,” and also to the charge that it must be inclosed by a substantial inclosure. Neither of these exceptions seems to us to be well taken. That, to establish a title by ad-possession, the possession must be “ undisturbed,” will not be disputed. This the learned judge charged. The possession must be peaceable, to be undisturbed ; and, taken in connection with what preceded it, the statement that the possession must be “ peaceable ” was not erroneous. Nor was the charge that it must be inclosed by a substantial inclosure erroneous. Code Civ. Proc., § 372. The only contention of the defendant, so far as the case shows, as to the rear or unoccupied portion of the strip, was that it has been fenced off from plaintiff’s land. This was denied by plaintiff, and the question as to whether it had been so fenced off was the only issue made on that branch of the case. There was ■no pretense that it had been “ usually cultivated or improved.’

The learned counsel for the defendant also excepted to that portion of the. charge in which the learned trial judge charged ■that—“ The ’ house was erected in 1852. Under what arrangement it was erected, we do not know. That may be a question ■of fact for you to decide on the evidence in this case.”

The claim is made by the learned counsel for the appellant that there was no evidence in the case of any arrangement as to the erection of the house. We cannot assume that to be so, in the absence of the statement above referred to,—that the case contains all the evidence. We might further add that we are not prepared to hold that the descriptions in the deeds to the defendant and his predecessor in title, by which their lands were described as commencing at “ the southwestern corner of land conveyed to Margaret Me A voy,” was not some evidence of recognition of the ownership of plaintiff and his predecessors in title of the premises in dispute. We think that the judgment, and the order denying the motion for a new trial, should be affirmed, with ■costs.


author: Van Wyck, J.

text:
    Henry E. White, Resp’t, v. Royal Insurance Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    Insurance—Fire—Proofs of loss.
    A statement, on information and belief, in the proofs of loss as to the cause of the fire does not estop the insured, in an action on the policy, from contradicting or explaining a mistake of his informant.
    Appeal from a judgment in favor of plaintiff.

      Shipman, Larocque & Choate, for app’lt; James L. Philip, for resp’t.
   Van Wyck, J.

This was an action to recover on a fire insurance policy. The jury rendered a verdict for plaintiff, and from the judgment entered thereupon, and. from the order denying motion for a new trial, this appeal is taken.

The action was defended on two grounds : First, that the plaintiff had omitted to protect the property at and after the fire. An examination of the testimony satisfies us that this question was properly submitted to the jury, and their decision thereupon should not be disturbed.

The second ground was that the policy had become void by the use of benzine on the premises. This defense presents the serious question in the case, for the policy contains a clause that it shall be void if benzine be kept, used, or allowed on the premises. It also provided that, in case of fire, the insured should furnish proofs of loss signed and sworn to by him, which must state his knowledge and belief as to the origin of the fire. The assured, in compliance with this provision, duly presented such statement, signed and verified by him, in which he states his belief as to the origin of the fire to' be that he was informed that while his wife was cleaning clothes with benzine it accidentally turned over and caught fire. On the trial, testimony was offered and admitted, subject to defendant’s objection and exception, to show that it was not benzine which his wife was using at the time of the fire. The defendant now insists that it was error to allow plaintiff to contradict on the trial his statement in the proof of loss of his belief on information that it was benzine. Defendant did not claim surprise, but that it was incompetent, irrelevant, and immaterial. Defendant contends that the proofs concluded plaintiff on this question from contradicting or explaining the mistake of his informant, and relies for this position on Campbell v. Insurance Co., 10 Allen, 213, and Irving v. Excelsior F. Ins. Co., 1 Bosw. 507. In Parmelee v. Hoffman F. Ins. Co., 54 N. Y. 193, the court refused to follow these authorities, though they were pressed upon the attention of the court by the counsel for the defendant therein. In Mc Master v. Ins. Co. of N. Am., 55 N. Y. 223, Judge Folger, writing the opinion, expressly dissents from the rule laid down in those two cases, and forcibly argues that all the elements of an estoppel in pais is lacking, in that defendant has not been misled to his damage, and tersely states the reason that courts disfavor the forfeiture of a contract solely on the ground of an estoppel in pais to be that “ the law loves that the truth come to light; but an estoppel hides it. It is permitted to do so only that a fraud shall not be wrought.” To hold in the case at bar that the plaintiff’s frank statement of his belief, in accordance with the requirement of the policy, concluded him from showing that it was a mistaken belief, founded upon an erroneous statement of another, would not only hide the truth, but help a fraud. The defendant could not be injured by the correction of this mistake on the trial, except it was taken by surprise, and caught unprepared; but nothing of the kind was claimed at the trial. This case differs from those pressed upon our attention by appellant, for in those cases the actual facts were required to be set forth in the proofs, whereas in this case only the belief as to what the facts are has been called for. In this respect it can be distinguished from all the cases at all favorable to the appellant’s contention. De Grove v. Met. Ins. Co., 61 N. Y. 594, simply holds that plaintiff cannot recover more than he files a claim for under proof of loss. The court certainly did not intend to overrule Parmelee v. Hoffman F. Ins. Co., 54 N. Y. 193, and McMaster v. Ins. Co. of N. Am., 55 N. Y. 223, without refering to them in the opinion. It seems to us that the ruling of the trial court complained of is fully sustained by the authorities above cited for that purpose, and by Cummins v. Agri. Ins. Co., 67 N. Y. 260; Hayes v. Assurance Co., 44 U. C. (Q. B.) 860; Insurance Co. v. Schwenk, 94 U. S. 593; Roby v. Am. Cen. Ins. Co., 11 St. Rep. 94; May, Ins. (3d E 1.) § 425, p. 981, and section 465, p. 1070, note 6. We also think the evidence fully sustains the verdict on both defenses. Judgment and order affirmed, with costs.


text:
    Richard Keenan, as Administrator, etc., Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    Negligence—Contbibutoby—Questions op pact.
    Tlie facts, in this case, were held sufficient to require the questions of negligence and contributory negligence to be submitted to the jury.
    Appeal from a judgment in favor of plaintiff.

      Morris <& Whitehouse, for app’lt; Tredwell & Catlin, for resp’t.
   Van Wyck, J.

This action was brought by plaintiff, as administrator, to recover damages sustained by the next of kin of James Keenan, who was killed by being run over by one of defendant’s electric cars. The verdict for plaintiff was $5,000 ; and from the judgment entered thereupon, and the order denying motion for new trial, on the minutes, this appeal is taken.

There is evidence which the jury was justified in believing, and from which it can be fairly inferred, that about 4 o’clock p/m. on May 12, 1893, James Keenan, a boy under six years of age, living on the northeast corner of Eighteenth street and Third avenue, received permission from his mother to go down by the door of the house he lived in; that he, childlike, crossed over to the west side of Third avenue, to a candy store between Eighteenth and Nineteenth street; that after getting his candy, when he stepped from the sidewalk, about 65 feet from Nineteenth street, to recross the avenue, the car had not quite reached the corner of Nineteenth street; that, from that time to the time of the collision, there was nothing to obstruct the motorman’s view of the boy; that the car was running at the rate of 8 miles per hour; that, as the boy reached a point between the west and east tracks, which are only 5 feet apart, he started to run, at which instant the car, continuing at the same speed, had reached a point at least 15 feet distant from the boy; that the motorman was not looking ahead, or paying any attention to his duties, but had his head hanging over the dashboard, and did not see this child thus approaching his track, but-continued his speed until his car knocked the boy down, and ran over him, as he was nearly over the east rail of his track, dragging him thereafter some 30 feet; that the motorman did not realize the presence or existence of the boy till some one, when the car was about 8 or 9 feet from the child, holloed; that the motorman then looked up and saw the boy against the dashboard of the car, and holloed also, but did not put on his brake until the boy “was away in underneath the car,” which was dragging him along and that a car going at the rate of 8 miles an hour can be stopped in about 7 or 8 feet. It was properly left to the jury to say if this child, under the age of six years, lost his life through the negligence of the' motorman: taking into consideration upon that question, whether he, in the exercise of ordinary care, should have sooner seen such child approaching his track in the front, and have apprehended and avoided the threatened danger to the young one; whether, if he had seen him sooner, what might have been proper care in his conduct toward an adult was such towards a child either non sui juris, or of limited experience and capacity to judge of the dangers surrounding him; whether the motorman would have been justified, according to the duty imposed by care, in assuming that the conduct of such child, in so approaching his track, would be the same as that of an adult in the same position ; and whether reasonable care would dictate a different exercise of judgment in the one case and in the other. Whether the child was sui juris, and, if so, whether he was negligent, were properly submitted in an unexceptionable charge, and the same can be said with regard to the negligence of the parent. The rule of damage was correctly explained, and we see no reason to disturb the verdict on any of the questions passed upon by the jury. The judgment and order must be affirmed, with costs.


author: Newburger, J.

text:
    Phoebe Blake, App’lt, v. Florence McNamara, Resp’t.
    (New York City Court, General Term,

      Filed June 20, 1894.)

    Replevin—Estoppel.
    The defendant, where he gives an undertaking for the return of the property, is estopped from denying that he had possession of the property or any part thereof at the commencement of the action, or from showing that it was different or other property.

      JCohn, Buck & Lvppman, for app’lt; George A. McDermott, for resp’t.
   Newburger, J.

This is an action in replevin to recover possession of certain personal property. The complaint alleges that the defendant wrongfully took and also, wrongfully detained possession of the said chattels, and the answer denied each and every allegation of the complaint.' Upon the property being taken by the sheriff, the defendant gave an undertaking to prevent delivery of the chattels under § 1704 of the Code, and the property was returned to the defendant. The case came on for trial and a verdict was rendered in favor of the defendant, and from the judgment entered thereon, and from the order denying the motion for a new trial, this appeal is taken. On the trial of the action, the trial justice charged the jury subject to plaintiff’s objection and exception. That the jury must find that the property must have been in the possession of the defendant. We think the trial justice thus erred in his statement of the law governing the case. The defendant gave an undertaking whioh prevented a delivery of the property by the sheriff as required by the requisition. He is therefore precluded by the recitals in the undertaking from denying that the property was in his possession. In an action to recover the possession of personal property, when the defendant gives an undertaking for the return of the property, admitting therein that plaintiff has taken the property described in his affidavit and requisition from defendant's possession, he is estopped from denying that he had possession of the property or any part thereof at the commencement of the action, or from showing that it was different or other property; he is concluded by the recitals in the undertaking. Martin v. Gilbert, 119 N. Y. 298; 29 St. Rep. 447.

The judgment appealed from must therefore be reversed, and a new trial granted with costs to appellant to abide event.

CoNLAN, J., concurs.


author: Conlan, J.

text:
    Frank Brainard, as Executor, etc., Resp’t, v. Sheppard Knapp et al., App’lts.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Lien—Apparent ownership.
    Where one bestows upon another the unrestricted possession of property, the nature of which requires food and care, such possession carries with it the right to contract for the necessary food and care even to the extent of creating a lien therefor against the true owner.
    Appeal from a judgment entered on verdict by direction of the court and from an order denying a new trial.

      Eugene F. Daly, for app’lt; Jacob Fromme, for resp’ts.
   Conlan, J.

This is an appeal from a judgment entered upon a verdict by direction of the court. This action was brought to recover possession of a horse from the defendants who were livery or boarding stable keepers in West Fifty-Sixth street in this city. The evidence shows that in the latter part of 1887, or the early part of 1888, the plaintiff who resided at Portland, Connecticut, placed in the possession of one Blodgett, who resided in the city of New York, for sale, the sorrel horse which is the subject of this action. It further appears that Blodgett put the horse in the stable of one Dickies, for keeping where it remained until the early summer of 1889, when it was removed to the stables of the defendants, remaining there until about April 20th, 1890, when It was'taken from the possession of the defendants, by the sheriff, upon a writ of replevin in this action. The horse appears to have been kept both in Dickels’ stable and the defendants as the property of Blodgett. The plaintiff knew the horse was being boarded and cared for at Dickels’ stables for over a year and that it was put there by the person to whom he had given possession for the purpose of effecting a sale. It also appeared that plaintiff learned sometime in the year 1889, that Blodgett had placed the horse for keeping in the stable of the defendant where he permitted it to remain until about the middle of April, 1890, when he learned through his son-in-law, Greo. P. Hart, that the defendants were about to sell the horse for a board bill, then this action was commenced. There is evidence that Mi1. Hart, who is admitted to be the son-in-law and agent of the plaintiff, and who made the demand and verified the complaint herein, knew that the horse was being kept at the stable of the defendant as the property of Blodgett. It is a well settled principle that where one bestows upon another the unrestricted possession of property, the nature of which requires food and care, that such possession carries with it the right to contract for the necessary food and care even to the extent of creating a lien as against the true owner for such necessity. In the case at bar, the possession in Blodgett was unqualified by the plaintiff, either as to time of sale, or price, the same being simply, take the horse to New York and sell for me. The agent, Blodgett, having the right to contract for the keeping of the horse, and there being some evidence that the said Blodgett had agreed with the defendants that they should hold the horse for their bill, it was for the jury to say whether such contract was made and what was understood by the parties. It is equally well settled that where one stands by and permits another to deal with his property as owner, he will be estopped from denying such ownership as to innocent parties dealing on the faith of such ownership. It was therefore a question for the jury to say whether or no, the plaintiff by permitting Blodgett to keep the horse in a'public stable for about eight hundred' (800) days, or until his reasonable keeping would amount to considerable more than his value which was six hundred dollars ($600.00), and this with his knowledge and the knowledge of his agentand son-in-law was not such a holding out of ownership in Blodgett as to estop him from denying it, as against these defendants who dealt with Blodgett on the faith of such ownership. Without discussing the question of statutory lien, we are of the opinion that the questions of fact arising in the case should have been submitted to the jury.

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

Fitzsimons, J., concurs. -


text:
    Harriet E. Burke, Resp’t, v. Terry J. Tindate, App’lt.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—Direction—Opening.
    Where allegations of the answer, which go to make up the affirmative claim of defendant and upon which the opening was conceded to him, are sufficiently stated, the direction of a verdict in favor of plaintiff on defendant’s opening is error which calls for a reversal.
    This is an appeal from a judgment entered in favor of plaintiff, upon a direction by the trial judge, upon the opening of the defendant’s counsel, to whom was awarded the affirmative on the trial. No witnesses were called or examined.

      Stephen 0. Baldwin, for app’lt; Fustis, Foster <ft Coleman, for resp’t
   Conlan, J.

The allegations in the complaint are sufficient to entitle the plaintiff to recover if the case of the defendant failed for want of proof, and to entitle the defendant to recover, he must prove that he was discharged and released from liability by some act of the plaintiff, or by the deprivation of some right secured to him by the terms of his. lease. If, therefore, the defendant’s allegations were sufficient, if proven, to enable him to recover, then, if his opening embraced the material allegations of his answer, he should not be deprived of a right, which threatens him at the very threshold of his case with a judgment that carries with it a recovery of all the rent reserved under a lease for years without reaping any of the benefits guaranteed to the leasee by a clause in his lease for quiet enjoyment. It appears that the opening of the defendant’s counsel was not at first taken down by the stenographer, and the court said, addressing counsel, “Unless you can agree upon what the opening was, you would have to repeat it,” and to the inquiry of the plaintiff’s counsel as to whether he would agree that the opening is contained in the answer, the defendant’s counsel said, “Certainly I will, I will agree to that right nowand he then repeated his opening, and at the conclusion of the counsel’s remarks the following occurred: Plaintiff’s Attorney :—We renew our motion for judgment on the pleadings, and on the opening of the defendant’s attornejU’ By direction of the court the jury found a verdict for the plaintiff for seven hundred fifty-nine and 55-100 dollars ($759.55). The defendant thereupon moved for a new trial on all the grounds stated in § 999 of the Code, which motion was denied, and the defendant excepted. We do not deem it necessary to repeat the words of the counsel’s opening, but we think the allegations of the answer, which go to make up the affirmative claim of the defendant, and upon which the opening was conceded to him, were sufficiently stated. If, therefore, the answer sufficiently set out and contained the necessary legal averments to entitle the defendant to recover, ■alleged as affirmative matter, then the decision of the court below "was error which calls for a reversal. We have examined the answer with some degree of care, and are of the opinion that the defendant was entitled to prove each and all of the'matters alleged therein, and that it entitled him to go to the jury thereon, and that it would be a denial of justice to hold over him a judgment, that subjected him to damages for which he was in no way responsible and to the enforcement of a clause in a lease to pay rent for premises he could not occupy or use for the purposes of his business, and which were of no use or value to him whatever, without the benefit of the plaintiff’s covenants of quiet enjoyment of all of the demised premises. The fault was not that of the defendant, and he should not be unreasonably dealt with to manifest injury at the hands of a landlord who guarantees so far as a covenant of quiet enjoyment can guarantee the peaceable possession of what is described as the premises in the lease. We think the answer was sufficient and the defendant should have been permitted to prove his defense.

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

Fitzsimons and Newburger, JJ., concur.


author: Fitzsimons, J.

text:
    Alwin Eisert, Resp’t, v. William H. Brandt, App’lt.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Evidence—Conclusions.
    Questions, which call upon the witness to state conclusions or opinions, aye properly excluded.
   Fitzsimons, J.

Every exception taken by defendant is found between folios 71 and 76 of the printed case. We cannot find any merit in them. All the questions objected to .were objectionable because they called upon the witness under examination to state conclusions or opinions and were therefore properly excluded.

The exception found at folio 74 is unavailing to defendant because the contract did not require plaintiff to procure the acceptance of the architect Baxter. He only had the right to supervise the work done by plaintiff.

Judgment must be affirmed with costs.

Newburger and Conlan, JJ., concur.


text:
    William Halliday, Resp’t, v. Harry I. Nichols et al., App’lts.

      (New York City Court, General Term,

      Filed June 20, 1894)
    Conversion—Demand and refusal.
    Where money is deposited with defendant to be delivered to plaintiff on a certain condition, conversion will lie upon a compliance with such condition, after a demand and refusal.

      Baldwin & Boston, for app’lts; William M. Safford, for resp’t.
   Newburger, J.

This is an appeal from a judgment in favor of the plaintiff against the defendant, entered on a verdict of a jury, and also from an order denying a motion for a new trial.

The complaint alleges that the defendants had converted to their own use the sum of §693.50. ' The answer of the defendants denied the deposit of the money with the defendants except with the defendant H. I. Nichols, and further that the deposit consisted of a check of no particular value. The demand and refusal to deliver to plaintiff the money was not denied. The answer further alleges that one O’Connor deposited with the defendant H. I. Nichols a certified check of said O’Connor, and requested and authorized the said H. I Nichols to deliver the same to the plaintiff in case and only upon condition of the consolidation of certain western railroads, and on the further condition that certain bonds were issued by the consolidated companies, and in case of said conditions or either of them failing of fulfillment on or before the 15th day óf July, 1893, then the said check was to be returned to said O’Connor. That the consolidation were not effected on or before the said 15th day of July, 1893, and the said bonds were not issued on or before the said 15th day of July, 1893.

On the trqil, plaintiff offered in evidence certain exhibits in which the defendants acknowledged the receipt of the sum of six hundred and ninety-three and 50-100 dollars ($693.50) to be held by them until the 15th day of July, 1893, and which moneys were paid to plaintiff conditioned upon the consolidation and issue of bonds in accordance with the terms of proxy. The evidence clearly shows that the plaintiff complied with all the conditions so far as he was required to do. It is claimed, however, by defendants that the consolidation and issue of bonds did not take place on or before the 15th day of July, and therefore one of the conditions under which the money was held by defendants was not complied with. The ‘deposition of the general counsel for the railroads offered and read in evidence shows that the consolidated roads by the proper meeting of its stockholders on the 13th day of July, authorized the consolidation of the roads and' the issuance of the bonds. The evidence clearly shows that the defendants received the moneys, and that the plaintiff was entitled to receive the same. A careful examination of the case fails to disclose any errors on the trial that would warrant us in disturbing the judgment.

Judgment affirmed, with costs.

Fitzsimons and Coman, JJ., concur.


author: Nbwburger, J.

text:
    Charles H. Hawes, App’lt, v. Mary A. O. Foote, Resp’t.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Bill of particulars—When not compelled.
    Where the facts are peculiarly within the knowledge of the defendant, the plaintiff will not be required to furnish a bill of particulars.

      Alexander Melhado, for app’lt; William Blakie, for resj/ti
   Nbwburger, J.

This action is brought to recover under an alleged special agreement whereby defendant was to pay plaintiff ten per cent, of the amount of ail moneys received by her under certain life insurance policies issued in her favor. No answer has as yet been interposed. Air order was entered herein requiring plaintiff to furnish the defendant with a bill of particulars of the services rendered by the plaintiff, and from such order this appeal has been taken. This action is on a contract to recover ten per cent., and not on a quantum meruit. The defendant ought to know whether she made a contract to pay the plaintiff ten per cent, on all moneys collected by her on insurance, and how much she collected on such policies. The facts are peculiarly within the knowledge of the defendant, and plaintiff ought not to be required to furnish a bill of particulars.

The order appealed from must be reversed, with costs.

Conlan, J., concurs.


author: Fitzsimohs, J.

text:
    Lewis M. Hornthal et al., Resp’ts, v. Jacob Finelite et al., App’lts.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    JUDGMENT—OPENING DEFAULT.
    An order, opening a default upon terms, will be sustained on appeal, unless the court acted unfairly, or arbitrarily or otherwise improperly exercised or abused its discretion.
   Fitzsimohs, J.

This is an appeal from an order opening defendants' default and failure to appear and answer upon the ground that the terms imposed by said order work a hardship upon him. The order required him to give an undertaking to secure any judgment that might be obtained herein.” This order must be sustained unless it appears that the special term justice acted unfairly, arbitrarily, or otherwise improperly exercised or abused the discretion he had a right to exercise. We have carefully examined the appeal record and find that after the defendant made the note upon which this action is based he transferred his property to his wife and other members of his family, evidently for the purpose of preventing his future judgment creditors from levying upon the same, besides he swore that he -was not served with the summons and complaint herein, when no doubt he was served, besides his proposed defense (insanity at the time he signed' the note in suit) is rather, in our judgment, of doubtful merit; under these circumstances the special term justice was not only right in making the order in question, but it was his duty to do so; in fact, he should have denied defendant’s application to defend this action, and if such an order had been made we should have sustained it.

Order appealed from is affirmed, with costs.

Nbwburger and Oonlan, JJ., concur.


text:
    Samuel Kreiser, Resp’t, v. Cyrus Scofield et al., App’lts.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Execution—Body—Liability.
    All persons, having anything to do with a void body execution, are in law wrongdoers and jointly and severally liable for any damage done the injured person.
   Fitzsimons, J.

The order of the supreme court dated May 12, 1891, declared the body execution issued against plaintiff to be void and unlawful. Every person having anything to do with such a process is in law a wrongdoer and liable for any damage done the injured person. There is testimony in the case showing that the defendant McCrea was one of the persons connected with the issuance of said execution ; therefore, he and all others having anything to do with the issuance of said execution were jointly and severally liable to plaintiff for any damage done him. The testimony also establishes that the defendant Scofield had to do with the issuance of said execution; thus his liability is also established. The judgment must be affirmed with costs. Newburger, J., concurs.


author: Newburger, J. Fitzsimons, J.(dissenting)

text:
    Simon Lanzer, App’lt, v. Israel Unterberg, Resp’t.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    1. License—Plumber.
    A plumber doing business in the city of New York, in order to recover for services rendered, must register his name with the board of health of the city of New York.
    2. Same—Burden.
    He must show, in such action, that he has complied with the law.
   Newburger, J.

This action is brought for work, labor and services rendered by the plaintiff to defendant as a plumber. On the trial after the plaintiff had rested, the defendant moved to dismiss the complaint, 011 the ground that the plaintiff had no cause of action in so far that a plumber in order to transact business is required to be licensed, which motion was granted. This appeal is from the judgment entered upon such dismissal.

Chapter 450 of the Laws of 1881, provides that every master journeyman plumber in the cities of New York or Brooklyn should register his name with the health departments of said cities, and after the first day of March 1882, it shall not be lawful for any person to carry on the trade of plumbing in said cities unless his name be so registered ; § 536 of chapter 12 of the consolidation act passed 1882, reenacts the Laws of 1881. Chapter 602 of the Laws of 1892, provides that any person desiring or intending to conduct the trade, business or calling of a plumber in any city of this state shall submit to an examination as to his qualifications and experience, and § 6 of the same reenacts the Laws of 1881 and 1882 as to the registry by such plumber with the board of health. The claim therefore by the appellant that the amendment passed in 1893, extending the time to register until September, 1893, can be of no avail to him, as the Law of 1892, which was thus amended in 1893, merely extended the laws applicable to the cities of New York and Brooklyn to other portions of this state. At the time of the making of the contract which the plaintiff seeks to enforce, he had failed to register his name with the board of health of the city of New York. It was the duty of the plaintiff to have produced on the trial of this action evidence of his having complied with the law. Ferdon v. Cunningham, 20 How. Pr. 154 ; Bloom v. Saberski, 59 St. Rep. 277; 28 N. Y. Supp. 731. There is no evidence in this case that he either obtained a certificate or registered as required bylaw. The judgment appealed from must therefore be affirmed with costs. Conlan, J., concurs. Fitzsimons, J., dissents.

Fitzsimons, J.(dissenting)

I cannot agree with the foregoing opinion. The objection that plaintiff was not a licensed plumber should have been taken by demurrer or answer. A failure to do so is a waiver of such objection, Amer. Type F. Co. v. Connor, 56 St. Rep. 398 ; 26 N. Y. Supp. 743; besides, the act requiring master plumbers to be licensed prescribes the penalty and punishment; the failure to procure such a license is simply a misdemeanor. It does not follow that he cannot in a civil action recover the value of services rendered or materials furnished in the business as plumber. Judgment should be reversed and a new trial ordered with costs to appellant to abide event.


text:
    Josephine Mahon, App’lt, v. Patrick Burns, Resp’t.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Negligence—Contractor.
    The owner is not liable for the negligence of the contractor or his mem in tiling the hallway of a tenement house.
   Fitzsimons, J.

The defendant, the owner of a tenement house contracted with one Nuse to tile the ground floor of his said house. While the work was being done the plaintiff was injured by striking her leg against a beam which was used in connection with other planking to protect the newly laid tile. She brings the action for the injuries sustained by her. The trial justice dismissed her complaint. The tiling of the hallway by defendant was a lawful transaction ; he had the right to give the work to another as contractor, and was not liable for the negligence of the contractor or his agents. The plaintiff had knowledge of the fact that a contractor and not defendant was actually doing the work in question. (Folio 48 of the case.) Her cause of action is against the contractor and not the defendant. The complaint was, therefore, properly dismissed. See Maltbe v. Bolting, 6 Misc. Rep. 339; 56 St. Rep. 243. Judgment is affirmed with costs.

Conlan, J., concurs.


text:
    Isidore Mehrbach, Resp’t, v. Frank H. Partridge, App’lt.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    1. Jurisdiction—Summons—Service.
    A summons, issued by the city court, can be served only in the city of New York.
    3. Same—Waiver.
    A defect, by reason of a service outside of the city, is not waived by the defendant’s appearance before the referee in supplementary proceedings.

      George W. Galinger, for app’lt; Myer J. Stein, for resp’t.
   Newburger, J.

This is an appeal from an order denying a motion made by defendant to set aside a judgment entered herein and the order for the examination of defendant in proceedings supplementary to execution. It is claimed by defendant, and conceded by counsel for the respondent on the argument, that the service of the summons was made on the defendant in the county of Westchester. It is well settled that a summons issued by this court can only be served in the city of New York, and therefore the service on the defendant was a nullity, and this court had no jurisdiction. It is claimed, however, by the respondent that the defendant waived the defect in the service by his appearance before the referee in the supplementary proceedings. Irregularities in the service of a summons can only be waived prior to the entry of a judgment, either by appearance in person or by attorney, or by the service of an answer or demurrer. This court has held that even the obtaining of an extension of time to answer is not a sufficient appearance on the part of defendant to operate as a waiver of the irregularities in the service of the summons and to confer .jurisdiction. Bell v. Good, 46 St. Rep. 572. It is conceded that the defendant did not appear either in person or'by attorney prior to the entry of the judgment, and no act of his subsequent to the entry of the judgment could confer jurisdiction on this court. The order appealed from must, therefore, be reversed and the motion to vacate judgment and order in supplementary proceedings granted, with costs of this appeal.

Conlan, J. concurs.


text:
    Samuel F. Myers et al., Resp’ts, v. Johanna Kastan, App’lt

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Bills and notes—Bona ride holder.
    A holder of a note for value, who obtained title from a subsequent indorser, without notice and before maturity, may recover against a prior indorser, who indorsed it without consideration.
    ■ Appeal from judgment entered upon a verdict by direction of the court and from an order denying a new trial.

      Nichols & Bacon,, for app’lt; Einstein & Townsend, for resp’ts.
   Conlan, J.

The defendant is sued, as indorser of two promissory notes made by one Adolph Hess, payable to his own order, and indorsed by himself, the defendant, and others, delivered to the plaintiffs before maturity. The notes are each dated January 4th, 1894, the first being for $143.92, payable one month after date, at the Ninth National Bank, New York city; the other for a like amount, due two months after date and payable at the same bank. The complaint is in the usual form, and alleges the making and delivery and indorsement of the notes for value before maturity, presentation, non-payment, protest and notice, and that the plaintiffs are the lawful owners, and the amount due thereon with interest and protest fees. The defendant seeks to avoid liability by an allegation that the notes were given without consideration and indorsed by her without consideration, and before delivery, and before the legal inception thereof. The cause was tried before a jury and a verdict directed for the plaintiff at the close of all the evidence. The plaintiffs’ evidence is that the notes in question came to them in the ordinary business way for value without notice of their origin. An intermediate indorser and holder for value, Ludwig Hess, negotiated the notes to the plaintiffs, and at the time they bore the indorsements of, first, the defendant; second, the Manhattan Watch and Jewelry Company; and third, the negotiator, Ludwig Hess. The delivery of the notes to the plaintiff by Ludwig Hess so indorsed, carried with it a guaranty of their genuineness, their validity, legal title, and payment on presentation and demand at maturity. The defendant was a second indorser, her name appearing in that capacity on the back of the notes at the time of their transfer to the plaintiffs, and the plaintiffs obtained title from a subsequent indorser without notice and before maturity, and on this evidence the plaintiffs were entitled to recover. If there is anything in the answer or defense of the defendant upon which the recovery in her favor could be predicated, there is no proof that the plaintiffs were in any way advised of the same. The allegations in the complaint are sufficiently broad to entitle the plaintiff to recover, if the proof adduced sustains them. The notes upon their face state that they are made for value, and they are alleged to have been made and delivered, and indorsed by the defendant before maturity and for value, and the complaint is free from demurrer. We have already seem that the evidence warrants the verdict, and the direction of the court was not error.

The judgment should be affirmed with costs.

Fitzsimons and Newburger, JJ., concur.


text:
    William R. Roome et al., App’lts, v. Frederick C. Jennings et al., Resp’ts.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Fbaud—Damage.
    The mere suppression of the truth upon a purchase of goods does not create a cause of action, unless injury ensue therefrom.
   Fitzsimons, J.

Conceding that the defendants concealed the fact that they were the purchasers of the teas in question, that mere suppression of the trutli does not give the plaintiffs a cause of action unless they were injured thereby. The testimony even of the plaintiffs show that they suffered no damage, because on the 16th or 17th of February when defendants declared that they were the purchasers, they also declared that they would pay the contract price for said teas upon their delivery to them. But plaintiffs refused to deliver and elected to terminate the contract, and if they suffered damage, they so suffer because of their own act, and therefore cannot complain or claim against defendants any damage. For the reason assigned by the trial justice and the foregoing, the complaint was rightfully dismissed.

Judgment is affirmed with costs.

Conlan, J., concurs; ISTewburger, J., concurs in result.


text:
    Grace Sherwood, Resp’t, v. William H. Crane, App’lt.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—Yebdict.
    A verdict is conclusive upon a question of fact, properly submitted, where there is ample evidence to sustain it.
   Fitzsimons, J.

Was plaintiff’s engagement for the run of the play only or was it for the season, which plaintiff says that defendants representatives stated to her to be for the term from January 30th to the following June 1st. That is a question of fact and was properly submitted by the trial justice to the jury. Their finding in plaintiff’s favor upon that question is conclusive and has ample evidence to sustain it. Finding no error we affirm the judgment with costs.

Newburger, J., concurs.


author: ISTewburger, J.

text:
    The White Rock Lime & Cement Company, Resp’t, v. Robert Dick, App’lt.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Tkial—Conflicting evidence.
    The trial justice, in case of a conflict of evidence, should submit the question of fact to the jury.

      Charles A. Flammer, for app’lt; Kurzman & Frankenheimer, for resp’t.
   ISTewburger, J.

This action is brought to recover for goods sold and delivered. The answer is a general denial. It appears that the defendant, a builder, erected eight buildings on the south side of Ninetieth street between Ninth and Tenth avenues in this city. Plaintiff claims that the goods sold and delivered were used in the plastering work of the said building. Defendant concedes that the goods were used on the buildings, but claims that the credit was given to one Burke with whom the defendant had a contract to do the plastering. There was a conflict between plaintiff’s and defendant’s witnesses and therefore it was the duty of the trial justice to submit the question to the jury. That the judge’s charge was a proper and fair one is apparent, as the appellant has failed to print the same or call our attention to any exception thereto. The case fails to disclose any errors on the trial. The judgment must therefore be affirmed with costs.

Fitzsimons, P. J., and Conlan, J., concur.


author: Fitzsimons, P. J.

text:
    John H. Wiegman et al., App’lts, v. Ichitaro Morimura et al., Resp’ts.

      (New Fork City Court, General Term,

      Filed June 20, 1894.)

    Trial—Dismissal of complaint.
    In an action for damages caused by a levy by a constable, the complaint is properly dismissed in the absence of proof that the levy was instigated or suggested by the defendants or any person acting for them.
   Fitzsimons, P. J.

The trial justice was right in dismissing the complaint. There is no evidence showing that the defendants in any way were responsible for the acts of the constable. It does not appear that the levy made by him was instigated or suggested by the defendants, or any other person acting for them, besides it does not appear that tht plaintiffs were copartners, a necessary thing to be shown in this case, because of the allegation m the complaint that plaintiffs are copartners, and its denial by the defendants’ answer. For these and the other reasons which induced the trial justice to dismiss the complaint, the judgment must be affirmed, with costs.

Conlan, J., concurs.


text:
    Samuel B. Balcom, Resp’t, v. The Manhattan Athletic Club et al., App’lts.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—Dismissal of complaint.
    Where the defendant feels himself aggrieved at the close of the testimony, by the refusal of the court to dismiss the complaint on his motion, he has the right to go to the jury upon the defenses set up in his answer.
    Appeal from a judgment entered upon a verdict directed by the court. Exceptions to be heard in the first instance by the general term.

      Samuel R. Taylor, for app’lts; Abraham Levy, for resp’t.
   Conlan, J.

This is an action to recover upon a promissory nóte made by the defendant corporation to pay to the order of the plaintiff eight hundred and eighty-nine and 95-100 dollars ($889.95) four months after date, October 6, 1892, and indorsed by the defendants. The defendant, Storm, alone answers, and alleges that the note was made and delivered for the purpose of procuring for the maker thereof a credit with the plaintiff to the amount of the face of the note. In his second defense he says that: “ He indorsed the note in suit solely upon the condition that it should be given and received in full satisfaction of an amount of indebtedness not exceeding the face of said note, which had been theretofore incurred by the maker of said note to plaintiff for goods sold and delivered to the maker of said note prior to the making and delivery; ” and then, at folio 21, he alleges that the maker delivered the note for the purpose of procuring a further credit with the plaintiff, who accepted the same, and extended further credit to the amount of the face of the note, or nearly that sum, to the maker, and that this use of the note was such a diversion and discharged the defendant Storm from liability thereon. Upon the trial it appeared that the defendant corporation, subsequent to the making of the note, became indebted to the plaintiff in the sum of one thousand and eighty-three 06-100 dollars ($1,083.06) and that suit was brought thereon, and the claim thereafter paid in full. This evidence was given on the cross-examination of the plaintiff in answer to 9, question put to him by the counsel for the defendant, and upon his re-direct he says: “That suit did not represent any portion of the merchandise for which the note was given,” but that “it represents goods sold from the first of October, 1892, to the tenth of December, 1892,” while the note in suit was “ for goods sold for the months of August and September, 1892, amounting to eight hundred and eighty-nine 95-100 dollars ($889.95), the amount of the promissory note.” Folio 53. It is to be borne in mind that the note was dated October 6th, 1892, when the indebtedness for eight hundred and eighty-nine and 95-100 ($889.95) dollars already existed and remained unpaid, and that afterwards the new credit was obtained and permitted to accumulate until it reached the sum of one thousand and eighty-three 06-100 ($1,083.06) dollars and in no way corresponded with the amount of the former indebtedness ; and that the one thousand eighty three and 06-100 ($1,083.06) dollars was paid after suit was brought.. The conclusion, therefore, is irresistible, that the note was given and applied to extinguish the former debt for that amount, and had no relation to the subsequent credit of one thousand eighty-three and 06-100 dollars ($1,083.06), and which was paid after suit was brought. If the defendant felt himself aggrieved at the close of the testimony by the refusal of the court to dismiss the complaint on his motion, he had the right to go to the jury on the defenses set up in his answer, but the question put to him by the trial judge, at folio 56, “ Have you any evidence to offer ? ” the answer was as follows: “ Under the evidence, as the case stands, I will not offer any evidence.”. We think the defendant should have submitted any evidence he might have had to the jury, and failing to do so, the direction of the court for a verdict in the plaintiff’s favor, was, we think, proper, and we are not inclined to disturb it. The exceptions taken by the defendant must be overruled, the motion for a new trial denied, and judgment ordered for the plaintiff on the verdict directed by the court, with, costs.

ISTewbürg-er, J., concurs.


text:
    Charles E. Bidwell et al., App’lts, v. Daniel E. Shaw et al., Resp’ts.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Bill oí particulars—When proper remedy.
    Where the plaintiff desires to be more specifically advised as to the nature of defendant’s claim, his remedy is a motion for a hill of particulars and not a demurrer.
    Appeal from two orders overruling demurrers and from an interlocutory judgment entered thereon.

      Norwood & Filly, for app’lts ; Francis A. Wilson, for resp’ts.
   Conlan, J.

This is an appeal from an interlocutory judgment entered upon an order overruling two demurrers to counterclaims set up in the answer herein. The complaint alleges a contract in writing between plaintiffs and defendants to the effect that defendants were to receive at a fixed price a certain quantity of gambiers to be shipped, at Singapore during the months of April. May, June, July and August, 1893, per sailing vessel-to the port of New York, “no arrival, no sale.” The complaint further alleges the arrival of the gambiers as provided for in the contract; the refusal- of the defendants to receive or accept the same after notice and tender by the plaintiffs, and demand judgment for damages, sustained in labor, insurance, brokerage, storage, interest, etc., growing out of said refusal to perform on the part of the defendants. The answer of the defendants admit the contract and the arrival of the gambiers, and alleges a willingness on their part to perform the contract according to its terms; further answering, and by way of counterclaim, they allege a refusal on the part of the plaintiffs to perform their part of the contract, by a delivery or an offer to deliver the merchandise contracted for, and claim damages generally therefor. Plaintiffs demur to said counterclaim on the grounds that they do not state sufficient facts to constitute a cause of action. In this we think the plaintiffs are in error. The breach of the contract by the plaintiffs as established is sufficient in itself to entitle the defendants to damages, but the nature, character, or measure of damages to which the defendants may be entitled is for the court and jury at trial term. If the plaintiffs desire to be more specifically advised as to the nature of defendants’ claim for damages they may move for a bill of the particular items composing such claim but their remedy is not by demurrer. The order of June 11th overruling the demurrers, and the interlocutory judgment thereon, should be affirmed, with costs. <

Newburger, J., concurs.