text:
    Sophie Robinson, Resp’t, v. George H. Cornish, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Appeal—Common pleas—Depositions.
    Orders made by the city court of New York in reference to the examination of parties and witnesses before trial are not reviewable in the court of common pleas. Such orders are discretionary.
    Motion to dismiss appeal.

      Fromme Brothers, for app’lt; James A. Thompson, for resp’t.
   Allen, J.

Motion to dismiss an appeal from an order of the general term of the city court, affirming an order of the special term of that court denying a motion to vacate an order for the examination of a witness about to depart from the state.

The order appealed from is not reviewable by this court. Orders made pursuant to the Code of Civil Procedure, §§ 870-873, in reference to the examination of parties and witnesses before trial, are discretionary orders. Jenkins v. Putnam, 106 N. Y., 272; 8 N. Y. State Rep., 710. This court holds the same position with respect to the city court that the court of appeals holds with respect to the supreme court and the superior city courts. McEteere v. Little, 8 Daly, 167; Walsh v. Shulz, 6 Civ. Pro., 126. The case of Lawrence v. Farley, 73 N. Y., 187, and many subsequent cases, have conclusively established that the court of appeals will not review the discretion of a court of original jurisdiction. In Jenkins v. Putnam, 106 N. Y, 276; 8 N. Y. State Rep., 710, where the appeal was from an order vacating an order for the examination of the plaintiff as a witness before trial, the learned court said: “It was one of those matters of practice and procedure which should always be left to the discretion of a court of original jurisdiction, and its decision should not be reviewed here unless it appears from its order that the decision was placed upon some ground of law not involving discretion.” Following the course taken by the court of appeals, it has been invariably held by this court that it will not review discretionary orders of the city court. Walsh v. Shulz, supra. It does not appear in the case before us that the decision of the city court was placed upon any ground of law not involving discretion, and the appeal must, therefore, be dismissed, with costs.

Bischoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Edward P. Yale et al., Resp’ts, v. Henry C. Dart et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Trim—Motion for direction of verdict does not prejudice right TO GO TO THE JURY.
    A motion for the direction of. a verdict is not an absolute and irrevocable renunciation of the right to submit the case to the jury; but after a denial of such motion a party may still go .to the jury on the controverted questions of fact.
    3. Same.
    A motion made by plaintiff for the direction of a verdict was denied, but subsequently on a similar motion made by defendant the court directed a verdict for plaintiff, stating that as both counsel had moved for a direction, they thereby admitted that there was no question of fact in the case, and the matter was submitted to the court as a question of law. Prior to the conclusion of such direction defendant’s counsel endeavored to withdraw his motion and asked leave to go to the jury, which was refused. Held, error.
    * Appeal from judgment of the city court of New York, entered on a verdict directed by the court.
    Action by payees against acceptors of a bill of exchange. Defense: That the acceptance was. for the accommodation of the payees; or else for the accommodation of one C. A. Smith, to whom it was given for a special purpose, and by whom it was diverted and fraudulently negotiated to plaintiffs, who are not holders for value, and who, besides, on the maturity of the bill, and in payment of it, received from said Smith the acceptance of the Monlo Milling Company.

      Howard Y. Stülman, for app’lts; T. Henry Dewey, for resp’ts.
   Pryor, J.

Independently of the allegations of error affecting the merits of the action, we are of opinion that the record discloses an error of the court in the conduct of trial which necessarily involves a reversal of the judgment

On conclusion of evidence,

“ Plaintiffs’ counsel: I ask your honor to direct a verdict for the plaintiffs upon the testimony.
“ Motion denied. Plaintiffs except.
“ Plaintiffs’ counsel thereupon addressed the jury, summing up on behalf of the plaintiffs.
“ Defendants’ counsel: I ask your honor to direct.a verdict for the defendants, on the ground that the testimony is undisputed, that the plaintiffs paid no value for this draft, and that the draft was without consideration.
“ The Court: Then I will direct a verdict in favor of the plaintiffs. (To the jury.) Gentlemen: The counsel on either side request that I shall direct a verdict. They thereby admit that there is no question of fact in the case.
“ Defendants’ counsel (interrupting): Then I withdraw my motion, and ask to go to the jury upon the questions of fact in the case.
“ The Court: I cannot permit the motion to be withdrawn. As I have said, gentlemen, the counsel thereby admit that there is no question of fact in the case, and the matter is submitted to the court as a question of law. The amount of the draft is $230; interest, $21.39, and $1.29 protest fees, amounting in all to the sum of $252.68, for which I direct you to render a verdict in favor of the plaintiffs.
“Verdict accordingly.
“ Defendants’ counsel excepted to the direction.
“ Defendants’ counsel moved for a new trial on the minutes, which motion was denied, and defendants’ counsel excepted.”

By the denial of plaintiffs’ motion for the direction of a verdict in their favor, the court unequivocally signified that either a verdict would be directed for the defendants, or else the case be submitted to the jury. Confiding in this assurance, counsel for defendants moved for a direction in their favor, but the court denied the motion. Thereupon the counsel, seeking to avail himself of the other alternative, asked to go to the jury; but the court refused the request, and directed a verdict for plaintiffs.

The denial of plaintiffs’ motion for a direction in their behalf was a decision by the court that plaintiffs were not entitled to such direction. The denial of defendants’ motion for a direction was a decision by the court that they were not entitled to such direction. The necessary effect of the denial of both motions was a declaration by the court that the case exhibited a question of fact for solution by the jury. Lake Superior Co. v. Drexel, 90 N. Y., 87, 92; Vietor v. Bauer, 11 N. Y. Supp., 100; 32 N. Y. State Rep., 198. Defendants’ request to go to the jury was refused for the reason that by the motion for a direction they had conclusively conceded that there was no question for the jury. In other words, defendants’ motion for a direction was denied because the facts were in controversy; and their request to go the jury was denied because their -motion for a direction showed that there were no facts in controversy. And by this argument in a vicious circle defendants were deprived of their constitutional right of trial by jury.

But a motion for the direction of a verdict is not an absolute and irrevocable renunciation of the right to submit the case to the jury. The rule is, that by such motion a party estops himself from contending on appeal that there were questions of fact for the jury, unless he requests to go to the jury after denial of the motion. Dillon v. Cockcroft, 90 N. Y., 649; Ormes v. Dauchy, 82 id., 443; Koehler v. Adler, 78 id., 287.

It is a question whether, when a party omits to move for a direction in his favor, he may insist on appeal that the verdict was without evidence or against the weight of evidence. Sickels v. Gillies, 45 How., 94, 96; Caspar v. O'Brien, 15 Abb., R. S., 402, 403; Rowe v. Stevens, 53 N. Y., 621; Barrett v. R. R. Co., 45 id., 628, 632. But if a party may not move for a nonsuit or direction except under the penalty of precluding himself from the right of submission to the jury, he is subjected to a dilemma upon one or the other horn of which he is inevitably impaled. This, however, is not the law. By all the authorities, -after denial of his motion for a nonsuit or direction, a party may still go to the jury upon the controverted questions of fact.

But, it is objected that defendants did not sufficiently specify the facts upon which they desired the decision of the jury. Counsel had asked the court to direct a verdict for the defendants “ on the ground that the testimony is undisputed that the plaintiffs paid no value for the draft, and that the draft was without consideration.” By denying this request the court virtually ruled that these facts were not undisputed; for, otherwise, the court must have non-suited the plaintiffs. Then counsel asked to go to the jury “uponthe questions of fact in the case.” What facts? Manifestly the facts which he bad assumed to be uncontroverted, but which the court had ruled to be in controversy. These were the facts, and the only facts, in the mind either of the court or counsel. Mo other questions of fact had been suggested by either; and, indeed no other questions of fact, necessary to the decision of the case, are apparent upon the evidence. Plainly, then, the questions of fact which counsel desired to submit to the jury were, whether the bill was accommodation paper, and whether plaintiffs had paid value for it. Of this there could be neither doubt nor mistake, and so the question of fact sought to be submitted to the jury was sufficiently indicated by the motion.

Again, it is urged that no exception was taken to the denial of the request to go to the jury. But the direction of a verdict was a denial of defendants’ request to go to the jury; and the exception was “to the direction,” merely; not to the direction of a verdict for plaintiffs. In terms the court never refused the request to go to the jury, but in response to that request simply directed a verdict for plaintiffs. Since plaintiffs seek to stand upon the extreme technicality of the law, a failure on their part to observe that same technicality suffices for their overthrow. •

Furthermore, the refusal of the court to suffer defendants to withdraw their motion for the direction of a verdict, was error. As already shown, the motion for a direction was essential to the preservation of all the defendants’ rights. In response to this motion, the court assumed that counsel had thereby admitted, absolutely and definitively, that there was no question of fact in the case, and so that defendants had irrevocably authorized the court to dispose of the case without the intervention of the jury ; an unwarrantable assumption. Instantly upon this intimation by the court, defendants’ counsel said, “ Then I withdraw my motion and ask to go to the jury ; ” to which the court replied, “ I cannot permit the motion to be withdrawn.” Why not? Mothing had intervened to create an estoppel against the motion ; the rights of neither party had been affected by the motion. The court had not yet directed the jury; the remark “I will direct a verdict for the plaintiffs,” being addressed, not to the jury, but to the counsel. When defendants perceived that the legal effect of their motion had been misconstrued by the court to their prejudice, they had án incontestable right to rescue themselves from the peril in which the mistake of the court had involved them.

Such was not the measure meted to the plaintiffs. They too asked the direction• of a verdict in their favor; but instead of accepting the request as a submission of the case to the arbitrament of the court alone, the learned trial judge virtually allowed them to withdraw the motion, by suffering them to sum up the case to the jury. May, more, the learned judge himself exercised a power of revocation which he refused to defendants; for, after declining to direct a verdict for plaintiffs, the moment defendants .were beguiled into a similar motion, he recalled his previous ruling, and directed a verdict for plaintiffs.

It is said defendants took no exception to the refusal of leave to withdraw their motion for the" direction of a verdict. But, no exception was necessary. An exception is allowable only “ upon a question of law arising upon the trial of an issue of fact, Code, § 992; and that this provision applies to a trial by a jury is manifest not only from the office of an exception, but from the last sentence of the cited section. Mow, the refusal of leave to withdraw the motion was not a ruling upon a question of law"; but was a mere volition of the judge; and an exception to it could by no possibility have raised a question of law for review. But the exception to the direction of a verdict for plaintiffs necessarily involved an exception to everything implied in this direction ; that is, to the assumption that the case was still with the court for decision; in other words, to the assumption that defendants’ withdrawal of the motion was ineffectual; more specifically still, to the denial of leave to withdraw the motion.

Permission of the court to withdraw the motion for a direction was not necessary to its withdrawal. The court had not yet acted upon the motion ; and whether or not it should he withdrawn was dependent upon the will of defendants alone; and when they declared it withdrawn, it was withdrawn; at all events to the effect of reserving their right to go to the jury. For that purpose the motion is habitually withdrawn after its denial by a request to submit the facts to the jury. Similarly, in this case, if the motion be supposed to stand as far as to retain the denial of it in the record, defendants still had a right to go to the jury; and the denial of that right is fatal error.

The judgment must be reversed, and a new trial had, costs to the appellants to abide the event.

Allen and Bischoff, JJ., concur.


text:
    Elvira Purdy, Resp’t, v. The Manhattan Elevated R. Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Injunction—Substantial injury must be shown.
    In order to give a plaintiff a right to injunctive relief, it is necessary to establish a substantial injury, and not merely a technical wrong calling for nominal damages, and this whether the injury be single or continuous, and W’hether it be the subject of only one or of successive actions.
    2. Same—Multiplicity op actions.
    To authorize an injunction on the ground of preventing multiplicity of suits, the fact must be alleged and proved that a number of suits are pending or expected.

      3. Railroads—Elevated—Evidence of benefit.
    In an action to restrain the operation of an elevated railroad, it is error to exclude evidence of benefit to the property from the presence of the railroad, as such evidence may show that there was no substantial injury, and so tend to defeat plaintiff’s right to injunctive relief.
    Appeal from judgment. Action for an injunction restraining the maintenance and operation of defendants’ railway in- the street fronting plaintiff’s premises, and for the recovery of past damages.

      Brainard Tolies, for app’lts; Adams & Smith, for resp’t.
   Pryor, J.

The action is for injunctive relief; and the fundamental question on the trial was, 'Was the plaintiff entitled that relief ?

A clear conception of the principles upon which the action proceeds is indispensable to. the right determination of this appeal.'

The injury of which the plaintiff complains, and which constitutes her cause of action, is the taking her property without just compensation. Story v. El. R. R. Co., 90 N. Y., 122; Lahr v. El. R. R. Co., 104 id., 268; 4 N. Y. State Rep., 340.

The property of which she has been wrongfully deprived is her easements in the highway. But, except as appurtenant to her premises, and as affecting the use and enjoyment of them, those easements are of no value which the law recognizes, and the loss of which it will compensate. It results, therefore, that the depreciation of the premises to which the taken easements are appurtenant marks and measures plaintiff’s damage from the deprivation of the easements. An equally inevitable corollary is, that if by the taking of the easements no damage be done to .plaintiff’s premises, then she has suffered only a technical wrong and is entitled to only a nominal compensation. But, in determining whether plaintiff’s premises have been injured, and to what extent injured, by the loss of the easements, the benefits, if any, accruing to her premises from the taking of the easements by the railroad must be considered and allowed in the ascertainment and estimate of her damages. Hence, necessarily, if upon a balance of detriment and advantage there be a preponderance of benefit to the premises, with the effect of enhancing their value, then plaintiff has sustained no loss, and the wrong done her is merely nominal.

By the unanimous decision of the court of appeals, the above principles are propounded for our guidance in the determination of this appeal, Newman v. El. R. R. Co., 118 N. Y., 618; 30 N. Y. State Rep., 36; and we have recognized and submitted to their authority in Gray v. El. R. R. Co., 35 N. Y. State Rep., 32; and Welsh v. El. R. R. Co., Id., 35, decided at our January general term. If, however, we were at liberty to canvass the validity of the court of appeals decision, we should not hesitate to concur in it: for the proposition that an act, though wrongful, which has indefinitely enhanced the value of one’s property, still entitles him to substantial compensation for injury to that property, is not only a contradiction in terms, but impugns the fundamental principles of retributive justice. Except when vindictive damages .may be awarded, and this is not a case where they are allowable, Powers v. El. R. R. Co., 120 N. Y., 178; 30 N. Y. State Rep., 584, “in all cases of civil injury, the object is to give compensation to the party injured for the actual loss sustained." 1 Sedgw. on Dam., 34. “In civil actions the law awards to the party injured a just indemnity for the wrong done him, and no more." Rapallo, J., in Baker v. Drake, 53 N. Y., 216, 220.

“ The allowance of anything more than an adequate pecuniary indemnity for a wrong suffered is a great departure from the principle upon which damages in civil actions are awarded.” Davis, J., in Milwaukee R. Co. v. Arms, 1 Otto, 489.

Eecurring to the question in controversy, we affirm the proposi4ion that, in order to give plaintiff a right to injunctive relief, it was incumbent upon her to establish against defendant a substantial injury, and not merely a technical wrong, entitling her only to ■nominal damages, and this whether the injury be single or continuous, and whether it be the subject of only one or of successive actions.

Even at law, the principle that “ for every wrong there is a remedy ” is hot of universal prevalence, but is qualified by those •other maxims, De minimis non curat lex and Injuria sine damno, Eroom’s Max., 142; Sedgw. on Damages, 40, where it is said, “the infringement of a legal right, when unattended by any positive injury, furnishes no ground for other than nominal relief. Substantial loss to the party plaintiff must have ensued to entitle him -to substantial relief.” In a much more emphatic sense is it true that before equity will exert its exceptional power of injunction, it must be invited thereto by an exigent occasion of serious injury. “Equity wields the powerful process of injunction to prevent irreparable injury, and is somewhat choice of the weapon.” Finch, J., in MacLaury v. Hart, 121 N. Y., 636, 643; 31 N. Y. State Rep., 939. In a case analagous to the present, one of the most learned jurists who have adorned the bench of the state, said: “If the use of the railroad in the streets of the city becomes a nuis.ance, or the aggression proves to be permanent and without an adequate remedy at law, then the court will be competent to administer its equitable relief by injunction. But a strong case must be presented, and the impending danger must be imminent and impressive, to justify the issuing of an injunction.” Jones, P. J., in Drake v. R. R. Co., 7 Barb., 508. “ The process of injunction should Be applied with the utmost caution. The interference rests upon ■the principle of a clear and certain right, and an injurious interruption of that right.” 10 Am. & Eng. Ency. of Law, 780. Extremely pertinent to the present case is the ruling of Chancellor 'Kent in Jerome v. Ross, 7 Johns. Ch. 315, where he said, “A man may have on his land a large mound of useless stone or sand which he may not deem worth the expense of enclosing; and yet it would be a trespass for any person to remove any portion of the stone or sand without his consent; and he would be entitled to his action, •even though the damages were nominal. But would it be proper for this court to assume cognizance of such a trespass, and lay the/ interdict of an injunction upon it? I think not.” And in T. & B. R. R. Co., v. H. T. & W. R. R. Co., 86 N. Y., 107, 123, 126, the court of appeals, quoting Chancellor Kent as above, say: “ The same answer should be made in this case. For any present practical use, the slip of land protected by the injunction has been regarded as of no more value than the supposed mound of sand. The court will not interfere to restrain a mere trespass, when the injury is not irreparable and destructive of the plaintiff’s estate.” While an injunction may issue to restrain trespasses, there must-be something particular in the case, to bring the injury under the head of quieting possession, or to make out a case of irreparable mischief, or the value of the inheritance must be put in jeopardy. Livingston v. Livingston, 6 Johns. Ch., 497; Akrill v. Selden, 1 Barb., 31" .

" To justify an injunction, it must be shown that injury material and actual is the necessary or probable result.” Morgan v. The City of Binghamton, 102 N. Y., 500; 2 N. Y. State Rep., 449. “ Equity will not interfere by injunction where the injury is not irreparable and destructive of the plaintiff’s estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law.” Cockey v. Carroll, 4 Md. Ch., 344; Frink v. Stewart, 94 N. C., 484; Hart v. Marshall, 4 Minn., 294; Jerome v. Ross, 7 Johns. Ch., 315; Cox v. Douglass, 20 W. Va., 175. Equity will not enjoin a trifling trespass or nuisance. Att'y-Gen. v. Gee, L. R., 10 Eq., 136; Att’y-Gen. v. Nichol, 16 Vesey, Jr., 342; Campbell v. Seaman, 63 N. Y., 568, 584, 586. “A mere fanciful diminution of the value of property by a nuisance, without irreparable mischief, will not furnish any ground for equitable relief.” Snell’s Prin. of Eq., 562 (Eng. ed.) “ The injury must be actual, substantia], not technical or inconsequential.” Sargent v. George, 56 Vt., 627. To the same effect are the text writers: Story’s Eq. Jur., §§ 925, 929, 930; Willard, 381; 3 Pomeroy’s Eq. Jur., 1338,1347, where it is said : “In the kind of torts for which the legal remedy is generally inadequate, so that an injunction is a proper remedy, the title of the injured party must be clear, the injury real, and not merely temporary or transient.”

To the argument that here a ground for injunctive relief is found in the fact that such relief is necessary to prevent a multiplicity of suits, we answer: First, that such ground of jurisdiction is neither alleged in the complaint nor found by the court. “ There is no allegation showing multiplicity of suits pending or expected; and while there is a finding by the court that a remedy can only be partially obtained by a great multiplicity of actions at law, there is no evidence that any such action has been tried or even brought. This the general rule requires, and we find nothing in the case to make it an exception.” Danforth, J., in T. & B. R. R. Co. v. H. T. & W. R. R. Co., 86 N. Y., 107, 128. Secondly, that the prevention, of a multiplicity of suits is not of itself an independent ground of equity jurisdiction ; but there must be, besides, an actionable injury entitling to substantial relief. 1 Pom. Eq. Jur., § 250, and authorities supra. But, if such trespass separately be of no real injury, even an infinite repetition of the trespass must be equally harmless.

Proof of substantial injury then being indispensable to support the action, it follows that, if illegal evidence bearing essentially on the fact were admitted, or legal evidence bearing essentially on the fact excluded, such admission or exclusion is error requiring a reversal of the judgment.

In disproof of the injury alleged by plaintiff, defendant offered evidence of benefits to the property from the presence of the railroad; but the court rejected the offer and excluded the evidence. Thus, to a witness who had occupied one of the houses in question, defendant propounded these inquiries, and upon the competency of the proposed evidence the court made these rulings:

Q. Did the Elevated Railway interfere with your business while you were there? Counsel for plaintiff objected to the question as immaterial. The court sustained the objection, and counsel for defendants duly excepted. Q. Was or was not the presence of the station of the Elevated Railway and the stairs a benefit to your business while you were there ? Counsel for the plaintiff objected to the question as irrelevant. The court sustained the objection, and counsel for defendants duly excepted.” That the offered evidence was relevant and material, is no longer an open question, at least in this court. Newman v. El. R. R. Co., 118 N. Y., 618; 30 N. Y. State Rep., 36; Gray v. El. R. R. Co., and Welsh v. El. R. R. Co., supra. Evidence of the effect of the railroad upon business in the street was competent upon the question of injury to plaintiff’s property. Drucker v. El. R. R. Co., 106 N. Y., 157; 8 N. Y. State Rep., 599; Doyle v. El. R. R. Co., 29 id., 139. The evidence being competent, its exclusion can be sustained On no other ground than that upon which it was specifically opposed. Tooley v. Bacon, 70 N. Y., 34, 37; Marston v. Gould, 69 id., 220, 221; Lefever v. Lefever, 30 id., 27, 40; Height v. People, 50 id., 392; Vietor v. Bauer, 11 N. Y. State Rep., 531. By the ruling the court decided that evidence of benefits to the property was inadmissible ; and counsel was under no obligation, indeed was not at liberty, to persist in plying the court with offers of evidence already declared to be incompetent. His duty was to submit to the decision of the court, and to regulate the future conduct of his -case in conformity with the law as propounded by the court.

We cannot presume, therefore, that, if privileged to introduce proof of benefits, counsel would have been unable to produce such evidence; but the inference is rather that he had such evidence at command. Eeither can we assume that such evidence, if allowed, would not have been ample to overcome plaintiff’s proof of injury, and to establish that, instead of being depreciated, the property was, in fact, enhanced in value by the presence of the railroad; and so, that plaintiff has sustained no injury entitling her to injunctive relief. The evidence in the case of injury to plaintiff is by no means of that clear and conclusive character which precludes the probability of contrary evidence sufficient to nullify its effect

Again, defendants, seeking to avail themselves of any benefit to-the property from the presence of their railroad, requested the court to make the following conclusion of law; “ Eighth. In estimating the damages, if any herein, the benefits resulting to said premises and peculiar thereto, from the maintenance and operation of said railway, should be set off against the inconvenience-thereto resulting from the said maintenance and operation; ” but the court declined to so rule, and defendants excepted. That the request embodies a correct proposition of law, and that the law as stated should have guided the court in the determination of the case, is expressly adjudicated in Newman v. El. B. B. Co., supra. It máy not be answered that the request was for the enunciation of an abstract principle of no relevancy to the facts of the case; for the appeal book discloses abundant evidence, in the-mere relation of the railroad structure to the premises, in the-facilities of access to the premises which it affords, in the condition of the premises and the character of the business conducted on them, to justify an inference of great benefit to the premises from the proximity of the railroad and its station.

It results, therefore, that the excluded evidence affected not-merely the amount which defendants were allowed, as a favor, to pay in avoidance of the injunction, but went to the foundation, of the action, in tending to defeat plaintiff’s right to injunctiverelief.

The case is not distinguishable from Gray v. El. R. R. Co.,, and Welsh v. El. R. R. Co., supra; and, for the error discussed, without considering others presented by appellants, the judgment, must be reversed.

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

Allen and Bischoff, JJ., concur.


text:
    Gilbert R. Hawes, Resp’t, v. The Gas Consumers’ Benefit Company of the United States, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

      . Judgment—Recovery in action upon, is limited to the rights previously ADJUDICATED.
    Plaintiff’s assignor recovered judgment in an action against defendants and others, by which it was adjudged that he recover certain shares of defendants’ capital stock, or their value, from the other defendants, and that this defendant be enjoined and restrained from disposing of or transferring such stock on its books. Defendant made default, but prior to the-judgment had transferred the stock. Held, that plaintiff, by the assignment of the judgment, acquired no greater rights than his assignor had;, that as such judgment authorized no reeovery/of the stock, or its value, of this defendant, no such recovery could be had in an action founded solely upon such judgment.
    Appeal from a judgment in equity on the decision of the court, without a jury. Action to recover twenty-five shares of stock in defendant corporation, or, instead, the value of that stock. Plaintiff sues as assignee of a judgment obtained by Eugene S.- Kass against William B. Hollister, Alletta D. Macmurdo and this defendant. In the action wherein the judgment sued on was recovered, William B. Hollister, Alletta D. Macmurdo and this defendant were parties defendant, but this defendant neither appeared nor interposed an answer or demurrer; and judgment went against this defendant by default. By that judgment it was adjudged and decreed that the plaintiff therein recover of William B. Hollister and Alletta D. Macmurdo twenty-five shares of this defendant’s capital stock, or, instead, the value of that stock; and that this defendant be enjoined and restrained from disposing of said stock, or transferring it on the books of the company.

      H. Aplington. for app’lt; Gilbert B. Hawes, for resp’t.
   Pryor, J.

It is clear beyond controversy that the judgment appealed from cannot be sustained. No cause of action against the defendant is exhibited by the complaint or apparent upon the evidence.

Respondent sues as assignee of a judgment, and upon the title of the plaintiff in that judgment; and by the transfer of the judgment respondent acquired no other or greater right than was vested in his assignor. This is elementary law. But respondent’s assignor, suing upon his judgment, could not have recovered the stock, or its value, of this defendant; for the obvious and all sufficient reason, that his judgment gave him no right to recover the stock or its value of this defendant. The judgment here sued, upon awarded respondent’s assignor the stock or its value as against Hollister and Macmurdo, but not as against this defendant; and the only relief allowed against this defendant was an injunction against the transfer of the stock. Hpon that judgment no execution for the stock or its value could have issued against this defendant ; and the only possible remedy upon the judgment against this defendant was process of contempt for violation of the injunction. But even that redress was not available against this defendant; for no interim injunction issued, and it is a conceded fact in the case that this defendant transferred the stock prior to the judgment of injunction.

Had the complaint herein alleged an assignment to respondent of some right to the stock independently of the judgment, a different case would have been presented; but, since the only foundation of this action is the judgment, and since that judgment authorizes no recovery of the stock or its value of this defendant, it follows that the present judgment is untenable.

As the appeal may be disposed of upon a point not suggested by counsel, it is not necessary to consider their elaborate arguments on the merits of the case ; but, with the hope, probably a vain hope, of arresting an expensive litigation, we proceed to demonstrate that, in no event and by no form of action, is it possible for plaintiff to recover the stock or its value of this defendant.

William B. Hollister retained plaintiff and one Marston, as his attorneys, to prosecute a suit against one Jackson, for the recovery of 100 shares of defendant’s capital stock, plaintiff to receive in compensation of his services twenty-five tier cent of the amount of the recovery. The action resulted, in favor of Hollister, and he recovered 100 shares of defendant’s stock. The stock was issued in a single certificate to Marston as attorney. Thereafter Marston assigned and delivered the certificate to Hollister, plaintiff in the judgment, who surrendered the certificate to the defendant corporation, and demanded and received in return four several certificates in the name of Alletta D. Macmurdo, one for thirty shares, • one for twenty shares, and two for twenty-five shares each. Neither of these twenty-five share certificates (Nos. 178 and 179), purported to be the property of Hawes, the plaintiff; nor was either of them ever in his possession. At this stage of the transaction Hawes assigned to Kass his “ claim ” to one of the twenty-five share certificates, but which one was not specified; and, thereupon, after demand, Kass sued defendant to recover a, not the, twenty-five share certificate. Pending this action, but before judgment, Macmurdo, the then holder of the certificates, for value received and by formal assignment, sold and delivered these certificates to one Swift, with an irrevocable power of attorney “ to make the necessary transfer on the books of the company; ’’ and, thereupon, pending the action but before, judgment, Swift surrendered the certificates to the company, and the company issued and delivered to Swift other certificates in lieu of those surrendered. At the time of this surrender of the old, and the issue of new certificates to Swift, the company had notice that Hawes or his assignee Kass made claim to some twenty-five shares of the stock recovered by Hollister. The certificates on their face declared that they were “transferable only on the books of the company oh surrender of the certificates.” The foregoing are the essential facts of the case upon the determination of the present appeal.

The action, be it remembered, is not between Hawes and Swift, to ascertain the validity of their competing claims to the stock; but is between Hawes and defendant corporation, to determine whether defendant is liable as for a wrongful transfer of the stock to Swift.

Hawes never had title, legal or equitable, to any specific stock or certificate. His claim was only that, of the 100 shares recovered by Hollister and then held by Macmurdo by certificates in her name, some twenty-five shares were due to him for his services to Hollister in his action against Jackson. But, meanwhile, the stock originally taken in the name of Marston as attorney 'had been assigned to Hollister; and defendant company, upon the surrender of the stock by Hollister, had issued new certificates to Macmurdo. Two of these new certificates, each for twenty-five .shares, were duly assigned to Swift for value received, and this pending the action by plaintiff’s assignor to recover twenty-five shares of stock from Hollister, Macmurdo and this defendant.

In the action by Kass, plaintiff’s assignor, against this defendant with others, the claim was for the identical stock here in controversy ; there Kass sued upon this plaintiff’s title to the same stock; and the judgment denied a recovery of the stock or its value from this defendant. Plaintiff here sues only as assignee of that judgment; and, so suing, he subjects himself to the full operation and effect of that judgment; namely, to the estoppel of that judgment upon his assignor against again litigating the right to recover the stock or its value from defendant. Bush v. Knox, 2 Hun, 576, 578; 1 Greenl. on Ev., § 536; Adams v. Barnes, 17 Mass., 365; Scott v. Stebbins, 91 N. Y., 605, 615; 7 Robinson’s Practice, 131, 134.

Supposing, however, there be no estoppel upon plaintiff, and still he is confronted by an insuperable bar to the recovery of the stock or its value, as against this defendant.

Disclaiming for a stock certificate the characteristic property of negotiable paper, namely, the power of the holder to transfer a better title than he himself possesses, another principle,' peculiar to stock certificates, here operates for the protection of the defendant company.

It is not pretended that when defendant issued the certificates to Macmurdo it had any notice of plaintiff’s claim, or of any infirmity in Hollister’s or Macmurdo’s title to the stock. When, therefore, Swift presented himself with the certificates, duly assigned for value, and with authority to transfer them on the books of the company, it was the legal obligation of defendant to accept the surrender of the certificates, and to issue new certificates to Swift Holbrook v. New Jersey Zinc Co., 57 N. Y., 616; Bank v. Lanier, 11 Wall., U. S., 369; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y., 79; Bridgeport Bank v. N. Y. & N. H. R. R. Co., 30 Conn., 270; Crocker v. Old Colony R. R. Co., 137 Mass., 417; Weyh v. Boylan, 85 N. Y., 395, 399. And, since defendant’s obligation to issue the certificates to Swift, imposed by the recital in Macmurdo’s certificates, was incurred by no fault of its own and without any imputation of notice of plaintiff’s rights, it results, necessarily, that no legal liability can be fastened upon defendant for the discharge of that obligation.

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

Allen and Bischoff, JJ., concur.


author: Per Curiam.

text:
    John Mulford, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Railroad—Elevated—Damages—Leased property.
    In an action against an elevated railroad it is not error to allow damages for injury to rental value accruing after plaintiff had leased the property.
    Appeal from a judgment in favor of plaintiff against defendants, rendered upon report of referees, to whom the issues in the action were referred by consent.

      Edward B. Thomas, for app’lts; Frederick S. Wait, for resp’t.
   Per Curiam.

The suit was brought to recover damages for injury to rental value of premises in West Fifty-third street, in the city of New York, for the six years preceding the action. During a part of the period for which damages were allowed by the referees the premises were occupied by a tenant under a lease from plaintiff. The counsel for the appellants claimed the referees had erred in assessing damages in favor of the plaintiff for injuries accruing after he had leased the property. This point was raised by a proper exception to the findings of the referees, and was the only one argued before us by the appellants.

We find upon examination that the point in question has been passed upon by the general term of this court adversely to the appellants. Werfelman v. Manhattan R. R. Co., 32 N. Y. State Rep., 682; Johnston v. Same, id., 685.

In the case first above mentioned, it is said: “ It was not an error to "allow a recovery for loss of rental value during the term of the unexpired lease of the premises when the plaintiffs purchased; these leases had, been made after the building of the road, and presumably the rent stipulated for it was lower than it would have been if the road had not been there.”

In disposing of this case we are controlled by this decision.

The judgment should be affirmed, with costs.

Allen, Bischoff and Pryor, JJ., concur.


text:
    Howard A. Sperry, Pl’ff, v. Theodore Hellman et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Appeal—W aiveb.
    The general term of the city court of New York reversed a "udgment in favor of plaintiff, and granted a new trial, unless he stipulated to reduce, in which case the judgment should be affirmed, without costs. Plaintiff so stipulated, the judgment was reduced and affirmed, and both parties appeal. Held, that plaintiff, by giving the stipulation and entering judgment for the reduced amount, waived the right of appeal to this court.
    Appeal from a judgment of the city court.
    On the trial of the action plaintiff recovered a judgment in the sum of $353.07 damages and $123.80 costs. From this judgment the defendants appealed to the general term of the city court, which court decided that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless within ten days the plaintiff should stipulate to reduce his recovery to $246.31, with costs, in which case the judgment so modified should be affirmed, without costs. In accordance with this decision the respondents so stipulated, and the judgment of the trial court was reduced to the sum of $246.31 damages, with costs, and as so reduced affirmed, without costs of appeal. The defendants then appealed to this court, and the plaintiff also ■appealed.

      Henry Cooper, for pl’ff; Eugene Seligman, for def’ts.
   Per Curiam.

The plaintiff’s appeal should be dismissed. By giving the stipulation and entering the judgment for the amount to which it was reduced by the general term, he waived the right of appeal to this court. A party cannot avail himself of such parts of a judgment as are favorable to him, and appeal from those parts which are not. Grunberg v. Blumenlahl, 66 How., 62; Alexander v. Alexander, 104 N. Y., 643; 5 N. Y. State Rep., 499; Harris v. Taylor, 20 N. Y. Weekly Dig., 379; Canary v. Knowles, 41 Hun, 542; 5 N. Y. State Rep., 13.

Defendants’ right of appeal to the general term of this court from the judgment entered, so far as it affirms, as reduced, the former judgment, is beyond question.

The plaintiff’s appeal is dismissed, with costs, and we direct that the defendants’ appeal be argued at the general term of this court to be held in March next.

Allen, Bischoff and Pryor, JJ., concur.


author: Learned, P. J.

text:
    Charles A. Smith, App’lt, v. John Botens et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    False imprisonment—Intimidation op oppicer.
    In an action for false imprisonment the justification was that plaintiff had committed a crime in the presence of the defendant J. B., a constable, for which he arrested plaintiff without a warrant. It appeared that J. B. had replevin papers to seize a certain book in plaintiff's possession and before he met plaintiff he had been at his father’s house and had told plaintiff’s mother that he would have to fetch plaintiff dead or alive. Upon meeting plaintiff J. B. served the replevin papers, some talk was had about the book and plaintiff said to J. B., “you had better look out how you go sneaking around my father’s house, you may get your head busted.” This remark, construed by defendant to constitute a crime within Penal Code, § 127 (intimidating a public officer with intent to induce him to omit an act), was the justification for the arrest. Held, without deciding how far executive officers and private persons may go in arresting without a warrant for statutory misdemeanors, that the crime of intimidating an officer involves the question of intent and that that question should have been submitted to the jury.
    Motion for new trial upon exceptions ordered heard at general term in the first instance after dismissal of complaint

      T. F. Bush, for app’lt; J. F. Anderson, for resp’ts.
   Learned, P. J.

This is a motion for a new trial on exceptions ordered to be heard in the first instance at the general term after a trial at circuit, at which the court dismissed the complaint with costs and refused to permit the plaintiff to go to the jury. It does not appear by the case or by the order that the order was made on the application of either party, as prescribed by § 1000 Code Civ. Pro.

The action was to recover damages for false imprisonment; not, as stated in defendant’s points, for malicious prosecution. The false imprisonment alleged consisted in arresting the plaintiff and taking him before a justice of the peace, by whom he was held to bail.

The alleged justification is that the plaintiff committed a crime in the presence of John Botens, one of the defendants, a constable, and that he arrested the plaintiff therefor and required the other defendant, his brother, Frederick Botens, to assist him in so doing.

A justice of the peace on an affidavit made by one Gilbert had endorsed a requisition in replevin requiring the constable to replevy a certain book containing the accounts of the commissioner of highways, which was in the possession of the present plaintiff. These replevin papers were in the hands of John Botens. It maybe noticed, in passing, that there existed bad feeling between Frederick Botens and the plaintiff, who. had succeeded him as commissioner of highways. This book contained Frederick Botens’ account; and in that account Frederick Botens was credited with twenty-five dollars paid by him to the plaintiff, when in fact the payment was only twenty-five cents. And the plaintiff had called Frederick Botens’ attention to this matter; and his doing this had led to the replevin proceedings to take the book from his possession.

John Botens with these replevin papers went to the house of plaintiff’s father where plaintiff lived, and there saw plaintiff’s mother. He endeavored to get the book, but she did not know where it was said and he could not have it. He told her he would have to fetch the plaintiff dead or alive. This he stated there in the presence of others.

On that day the plaintiff met the defendants coming back from his father’s house. Plaintiff turned his horse and went back to Weaver’s hotel. When he arrived the defendants were there. The plaintiff said to John Botens, if he had a warrant to serve he could serve it. Botens handed him a paper which he asked Botens to read. They went into the bar-room. Botens read the paper and plaintiff took it. Beecher, who was with plaintiff, looked at it and said: “ John, this is no warrant. How did you expect to arrest him with that; take him dead or alive.” John said: “I never said so.” Plaintiff said: “ You are a liar. I can prove it to you by a half a dozen witnesses that you said so this morning that you would take me dead or alive.” Plaintiff further said: “You better look out how you go sneaking around my father’s house, you may get your damned head busted.”

The defendant, John, then laid his hand on plaintiff and arrested him, saying plaintiff was his prisoner. Plaintiff said he had done nothing to be arrested for. John Botens then called on Frederick Botens to assist and they seized plaintiff. Plaintiff resisted at first, but finally gave up resistance. The defendants took him to the justice, compelling him to go.

The plaintiff says that he had heard that John Botens was at his father’s house, but had not been told that his errand there was to get the book. When Botens read the replevin papers to plaintiff, plaintiff said: “ I suppose now you will try to get the book.” The defendants urge that by § 177, Code Grim. Pro., a peace officer may without warrant arrest for a crime committed in his presence. And, further, that by § 127 of the Penal Code, it is a misdemeanor to address a threat to a public officer, with intent to induce him contrary to his duty to omit any act. And that plaintiff did address such threat to John Botens, with such intent.

There may be some doubt whether § 127 is intended to apply to executive officers. But we need not decide that, for § 46 of the Penal Code mentions executive officers expressly, and is in substance like § 127.

The plaintiff, on the other hand, cites § 183 of the Code of Criminal Procedure, which authorizes a private person to arrest for a crime committed or attempted in his presence, thus making no distinction between officers and private citizens in this respect And he urges that, if the defendants’ construction is correct, then any private citizen may arrest for any of the numerous statutory misdemeanors committed in his presence. As illustration of the evils of such a construction, he cites the following and other sections of the Penal Code, viz.: §§ 116, 117, 145, 146, 148, 157.

There is much force in the position taken by the plaintiff’s counsel. But we do not think it necessary to decide at this time how this very liberal authority given to private persons and to officers to arrest without warrant is' to be applied to the numerous cases of statutory misdemeanors.

We need only examine the present case. The court, in order to nonsuit the plaintiff, must have held as matter of law that plaintiff committed a crime in John Botens’ presence. We think that was a question for the jury. The crime of intimidating an officer, either under § 127 or under § 46 of the Penal Code, involves the question of intent. The word intent ” is used in § 127, and is clearly implied in § 46.

Now the words used by plaintiff to John Botens may have been words of caution or they may have been mere angry words used with no intent whatever. We have already seen the hard feeling which existed, and there is evidence that the plaintiff had heard of the alleged threats that he was to be taken, dead or alive. Under those circumstances we think that the court could not rightfully decide that the plaintiff had committed a crime in the presence of Botens. Indeed, where a certain intent is essential to constitute the crime, it may be doubted whether any outward acts will be an unquestionable justification for making the arrest, under §§ 177 and 183 of the Code- of Criminal Procedure should it be shown that no such intent existed.

In Burns v. Erben, 40 N. Y., 463, the difference is pointed out between an action for false imprisonment and one for malicious prosecution. It is shown that in the former action, if a felony has been actually committed, a private person is justified in making an arrest, if he has reasonable cause. That a consta-' ble is justified, though no felony has been committed, if he has reasonable ground to suspect the commission, and acts in good faith. To the same effect in Hawley v. Butler, 54 Barb., 490. We do not see that these decisions apply here. The defense set up in the answer is not that John Botens had reasonable ground to suspect the commission of a felony, or to suspect the commission of any crime. The defense is the actual commission of a crime. People ex rel. Kingsley v. Pratt, 22 Hun, 300; Stage Horse cases, 15 Abb., N. S., 51, at p. 72. It will be seen by reference to § 177 of the Code of Criminal Procedure, that the subject of reasonable cause is mentioned only in the third subdivision, which is the case when a felony has been in fact committed. This seems to' limit that subject to the cases under that third subdivision.

Verdict set aside, motion for new trial granted, costs to abide event.

Lahdoh and Mayham, JJ., concur.


author: Mayham, J.

text:
    In the Matter of the Will of Robert Stewart, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    1. Will—Probate.
    Where upon proof of a will the proponent called only one of the subscribing witnesses, both being present in the court room, and rested, and subsequently the other subscribing witness was called by the contestant, and sufficient proof of the statutory requirements was made by these witnesses and others, Held, that § 2618, Code Civ. Pro., had been complied with.
    2. Same—Testamentary capacity.
    The fact that an aged person is forgetful does not per se establish want of testamentary capacity, so long as the testator is not so far bereft of reason as not to have a just appreciation of the nature of the business and the natural objects of his bounty.
    Appeal from the decree of the surrogate of Sullivan county, refusing to admit to probate an instrument in writing purporting to be the last will and testament of Robert Stewart, late of Sullivan county, deceased.
    The will was presented to the surrogate for probate upon the petition of the executrix and sole legatee named therein, who was the widow of the testator.
    Elizabeth Thomson, one of the subscribing witnesses to the will, and the only child of the testator and petitioner, filed objections to the probate, alleging as follows :

      First. The said Robert Stewart was at the time of the execution of said instrument not of sound mind and memory, but was mentally incapable of making and executing a last will and testament.

      Second. The said Robert Stewart, at the time of executing said instrument, was under restraint and undue influence, and the execution of the same was procured by fraud and duress to the prejudice of said Elizabeth Thomson.
    The case was heard before the special surrogate of Sullivan county.
    The case discloses that the testator was at the time of making the will about eighty years of age, and that he and his wife, an old lady, had left their farm, and were living in the house of their son in-law Andrew Thomson, husband of the contestant Elizabeth.
    The will was drawn by the surrogate of Sullivan county at the solicitation of the testator, and to whom he gave directions as to the manner in which he desired his property to be disposed.
    The testimony of the draftsman of the will upon that subject is as follows:
    “ I said to Mr. Stewart: How do you want to leave your property? And he said he wanted to protect the old woman; I then said, do you want to give it to her absolutely.”
    And he replied: “ Give it all to her.” After the will was drawn, it was read to him in the presence of his wife, Mrs. Thomson, the contestant, and her family, and testator said : “ It is all right.” And it was there executed by the testator, and witnessed by Mrs. Thomson and her daughter at the request of the testator, although that request was made at the suggestion of the draftsman of the will.
    There was evidence offered by the contestant tending to show that the testator’s memory was in some degree impaired, but in most of the instances enumerated by the witnesses he was capable of recalling past events, when his attention was directed specially to them.
    The proponent, in presenting his evidence in the first instance, failed to call and examine Mrs. Thonrson, one of the subscribing witnesses, who appeared as the contestant, but before the case was finally submitted to the surrogate, she was called in her own behalf as a witness, and then swore that she was present at the time testator signed the will, and that she signed it at the same time as a witness.
    The execution was also duly proved by the other attesting witness, and the draftsman, and another daughter of contestant also swore to the testator’s signing the will in the presence of the witnesses and to their subscribing it as witnesses, at his request.

      Peter M Palen {Arthur G. Butts, of counsel), for app’lt; Thorn-ion G. Niven, for resp’t.
   Mayham, J.

The learned surrogate refused to admit the will to probate, on the ground:

First. That there was no sufficient legal proof given of the due execution and validity of said instrument as the last will and testament of said Robert Stewart.

“And further by reason of the mental incompetencv of the said Robert Stewart, that said instrument is utterly null and void, and invalid, as and for the last will and testament of the said Robert Stewart, deceased.”

We cannot agree with the learned surrogate upon either of these propositions.

No question seems to be raised that the formal statutory requisites to the valid execution of this will were not complied with, substantially as required by statute, and indeed none could be.

It was subscribed by the testator at the end thereof, and was at the request of the testator attested by two subscribing witnesses, in his presence and in the presence of each other.

But it is insisted by the learned counsel for the contestant that as the proponent rested her case without calling both of the subscribing witnesses, she violated, or failed to comply with the provisions of the statute, which requires that at least two of the subscribing witnesses, if they are attainable, shall be examined in order to the admission of a will to probate.

The language of the statute relied upon which is now enacted in the Code of Civil Procedure, is as follows:

“ Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state and competent, and able to testify.” Code of Civil Procedure, § 2618.

Under this provision of statute, it is quite manifest that, if Mrs. Thomson, who was within the state and competent to testify, had not been called, the prohibition of the statute might have been effectual.

But we are not called upon to determine that question here. Before .the case was closed she was called and examined, and hence the requirement of the statute in that respect was complied with, and while by her testimony she attacks the testamentary capacity of the testator, she substantially concurs with the other witnesses in proving the due execution of the will.

There is nothing in the statute making it obligatory on the proponent to call both of the subscribing witnesses provided they are produced and examined in the case.

“ Both of the witnesses must be examined, but the will may be established, even in direct opposition to the testimony of both of them.” Trustees of Auburn Sem. v. Calhoun, 25 N. Y., 425; Will of Cottrell, 95 id., 329.

But it is insisted that the testator at the time of the execution of this will was not possessed of testamentary capacity, and for that reason the probate of the will was properly refused.

One of the attesting witnesses, who is the daughter of the contestant, testifies that: “His mind and memory was all right." She had known him all her life, noticed that his memory was failing, but his mind was sound, and her narration of facts and circumstances seemed to support her conclusion on that subject.

The other subscribing witness, although the contestant, does not disclose by her testimony that the testator was impaired in his judgment, or intellect, except as evidenced by failing memory.

The testimony of William L. Thornton, who drew the will, when taken as a whole shows that the testator had a clear appreciation of the business he was transacting.

That he well understood whom he desired to make the beneficiary in his will, and why he desired to do so. He said : “ He wanted to protect the old woman.”

The other witness present at the time of the execution of the will was Lizzie I. Thomson, another daughter of contestant, who swears that: “ I think grandfather’s mind was all right at the time; have never noticed anything out of the way ; have known grandfather ever since I can remember.” She adds that his memory .was failing.

All of the witnesses called by the contestant speak of his failing memory, but none of them disclose a state of facts showing that the testator’s mind or memory was so far enfeebled as that he was unable to comprehend the condition of his property, or to understand who were the proper objects of his bounty.

When speaking upon the subject of making his will he insisted upon Judge Thornton drawing it, and when some one else was suggested he said: “ Ho, no, I know Judge Thornton better, he is the one I want.” When the will was read over to him, he said, “ It is all right it; is just as I want it.”

It is quite manifest in this case that the testator possessed sufficient strength of mind and memory to make a valid testamentary disposition of his property.

He had sufficient active memory to realize that he had a wife with whom he had lived for about fifty years whom he ■ought to protect.

He was capable of appreciating the importance of the act in which he was about to engage, and to make his own selection of .a draftsman.

He could, without prompting as to the person, state to whom he desired to give his property. In short, he fulfilled all the re•quiremgnts prescribed by the court of appeals in that leading and well considered case of Delafield v. Parish, 25 N. Y., 9, where the court says:

“He must have sufficient active memory to collect in his mind, without prompting, the particulars, or elements of that business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them.”

The fact that an aged person is forgetful does not per se establish want of testamentary capacity, so long as the testator is not so far bereft of reason as not to have a just appreciation of the nature of the business, and the natural objects of his bounty.

Here the emotions manifested by the testator showed that he regarded this as one of the most important acts of his life.

On the whole case on the proof as it stands we think the decree of the surrogate refusing to admit this will to probate should not be sustained. Decree reversed.

Order for trial at court on issues.

Issues and order to be settled by Mayham, J.

Learned, P. J., and Landon, J., concur.


text:
    Elizabeth Langlois, App’lt, v. Frederick F. Hayward, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    New trial.
    The granting of a new trial upon the minutes rests in the sound discretion of the trial judge, and where plaintiff's case was supported only hy her own evidence and was opposed hy that of the defendant and of two disinterested witnesses and the judge granted a new trial, the general term will not interfere.
    Appeal from an order setting aside the verdict of the jury, and ■granting a new trial, upon a motion made by the defendant at the circuit upon the minutes of the court.
    This action was for an assault and battery, on the trial of which the jury rendered a verdict for the plaintiff for $35.00.
    The only evidence in support of the verdict bearing upon the question of the assault was the testimony of the plaintiff.
    She is positively contradicted by the defendant, and his testimony is in part contradicted by two witnesses, who were present .at the time of the alleged assault and battery.

      Shedden & Booth {J. F. Shedden, of counsel), for app’lt; Riley & Donway {T. F. Conway, of counsel), for resp’t.
   Mayham, J.

The granting of a new trial upon the court rests in the sound discretion of the trial judge, and his determination should not be interfered with on appeal unless it is apparent that that discretion was abused or improperly exercised. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628.

We do not think that there was an abuse of that discretion in this case. The verdict rested solely upon the testimony of the plaintiff, wholly uncorroborated as to the assault.

It is true that the doctor called by her as a witness, says that the discoloration upon her arm might have been produced by the violent grasp of the hand, but he also says that it might have been produced in some other way, so that his evidence scarcely amounts to a corroboration of the plaintiff’s upon that subject.

The verdict being founed upon the uncorroborated testimony of the plaintiff, the court might set aside and order a new trial, although her testimony when taken by itself might be sufficient if contradicted to prove her case. Meddaugh v. Bigelow, 67 Barb., 106. And this is especially true when the motion is made before, and granted by the judge before' whom the action was tried, who had the opportunity of observing the demeanor of the witnesses, and judging of the amount of credence to which they were entitled.

In Meddaugh v. Bigelow, supra, the court says: “ The judge who tried the cause and heard the witnesses testify was better qualified to determine whether the jury was misled than any other tribunal, and as he exercised discretion * * * this court should not interfere.”

It is true that the verdict of a jury upon a disputed question of fact should not be set aside when the evidence clearly supports the verdict, although from the evidence the court might have reached a different conclusion from that • found by the jury. Beckwith v. N. Y. C. R. R. Co., 64 Barb., 299.

But when the verdict is so decidedly against the weight of evidence that it is clear that the verdict is the result of sympathy, passion or prejudice, the verdict will be set aside for that reason; and when the Verdict is supported only by the testimony of an interested party, who is contradicted by the advérse party and two disinterested witnesses, upon the material facts in dispute, and the trial judge, upon that proof, in the exercise of the discretion vested in him, sets aside the verdict as against the weight of evidence, in such a case we think this court on appeal ought not to reverse the order.

The order is affirmed, with costs.

Learned, P. J., and Landon, J., concur.


text:
    Matthew Marshall, Resp’t, v. Daniel H. Link, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    1. Supplementary proceedings—Second obdeb.
    The principle that a second order of examination in supplementary proceedings shall not be granted unless good reason therefor he shown is not jurisdictional and the matter rests in discretion.

      2. Same.
    Upon application to vacate a second ordet it is therefore proper for plaintiff to show, if he can, more strongly than upon the exparte application, that the proceeding is not taken to harass the defendant, hut to reach subsequently acquired property.
    Appeal from an order refusing to set aside an order for a second examination of defendant in supplementary proceedings.

      Cady & Hoysradt, for app’lt; F. F. McCormick (L. Boyce Til-den, of counsel), for resp’t.
   Learned, P. J.

The principle that a second order for examination in proceedings supplementary shall not be granted unless good reason therefor be shown is not jurisdictional It is only to prevent the unreasonable harassing of a defendant.

Therefore on the motion to set aside the second order in this case it was not improper for the plaintiff to show more strongly than had appeared on the exparte application that the proceeding was not taken to harass the defendant, but with good reason, and to reach property which had come to the defendant since the prior examination.

The jurisdictional facts in these applications under § 2486 are the recovery of the judgment and the issue and return of the execution.

On the hearing of the motion to vacate the second order for examination the learned judge could decide whether the application for that order had been made in good faith or with evil intent; and he could grant or refuse the motion as he thought best.

We see no ground to interfere with his discretion. The first order and examination discovered a sum of $241.95 payable to defendant, but which the court decided could not he reached by those proceedings. The sum was in the hands of the county treasurer. Afterwards it was paid to defendant. And this second order was obtained, as it se'ems, in order to reach that money which had thus come into {he actual possession and ownership of the defendant. We think the order was properly granted and that the refusal to vacate it was right.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.


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    Lee Chamberlin, Resp’t, v. Charles McCarthy, Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    1. Mechanic’s lien—Injunction.
    B. & P. leased buildings of M., then owner, and put in them boilers, etc., purchased of plaintiff. The latter filed a mechanic’s lien against the interest of B. & P. The lease and premises were abandoned by B. & P. In an action to foreclose the lien plaintiff obtained an injunction forbidding M., pending the action, to use the boilers which remained on the premises. Held, that the injunction could not be sustained.
    2. Same.
    Under the statute the lien is only upon the person’s interest in the land. If the boilers were removable by the tenant they were no part of the land; if they were part of the land the landlord had a right to re-enter and plaintiff could not abridge the owner’s use of his own land.
    Appeal from injunction order granted in this action.
    Action to foreclose a mechanic’s lien.
    On the 20th day of March, 1889, the plaintiff, Lee Chamberlin, filed in the Eensselaer county clerk's office a notice of mechanic’s, lien on premises owned by the defendant, Charles McCarthy, located on Grand street in the city of Troy, N. Y., wherein he claimed a lien for alleged work, labor and services done and .performed and materials furnished by him in the alteration and repair of the house or houses erected upon said premises. Said work, labor and services were done and performed, and said materials were furnished at the request of William B. Brind and- H. S. Pashkian, lessees of said premises and tenants of the said defendant, Charles McCarthy. Said mechanic’s lien was for $577.37, and purports to be against the interest of the said tenants, William B. Brind and H. S. Pashkian, in said premises.
    Before the commencement of this action the lessees abandoned and surrendered the premises, and the owner let the same to other •parties.
    The injunction order in question restrains the defendant McCarthy and his tenants from using the materials put upon the premises, and attached to the freehold by plaintiff, until the fur"ther order of the court.

      Thomas S. Fagan, for app’lt; Rufus M. Townsend, for resp’t.
   Learned, P. J.

We think this injunction should not stand. McCarthy owned the land, and leased it to Brind & Pashkian." They purchased of plaintiff certain boilers and steam fittings, and the like, and had them put in the buildings. For these purchases they owe. The plaintiff filed a mechanic’s lien against the interest of Brind & Pashkian in the premises, and he now brings this action to foreclose.

It appears that Brind & Pashkian abandoned and surrendered their lease; and McCarthy, as owner, took possession, and that his present tenants are using the boiler and fittings and the like. The plaintiff fears that these things will be injured by such use, and, therefore, obtained an injunction forbidding McCarthy to use them until the decision of the action.

The effect of the filing the notice of lien, assuming it to be valid, is to create a lien on the interest which Brind & Pashkian had in the premises.

Whether this boiler and these fittings became a part of the property of the owner, or whether they were such fixtures that Brind and Pashkian could remove them at the end of their term, we need not decide. We may assume that if the plaintiff had, by contract with McCarthy, put in these fixtures he would have had a lien on McCarthy’s interest. But a reference to chap. 342, Laws of 1885, § 1, will show that the lien is only on the interest in the land of the person for whom the work is done, either directly or through a contractor. The language is: “ Whether owner in fee, or of a less estate, or whether a lessee for a term of years, etc.”

How, while it may be that after the filing of the notice of the lien the lessee could not convey the lease-hold estate free from the lien, yet it is by no means clear that the landlord could not reenter for non-payment of rent.

However this may be, there is no propriety in preventing the owner of the fee from using the property which has thus been attached to his land. ■ If the tenants had lawfully removed these fixtures, then they would not have been affected by the notice of lien, because that is a lien on the interest in land. And if these fixtures are rightfully removable, then they are not part of the land.

On the other hand, if these became a part of the land (as plaintiff seems to claim under Ward v. Kilpatrick, 85 N. Y., 413), then McCarthy as the landlord is rightfully in possession and cannot properly be prevented from using his property. The plaintiff had no lien except on the lease-hold interest of Brind and. PashMan. Whether that has ceased or not is not shown. At any rate the mechanic’s lien cannot operate to increase the rights which the lessee had against the lessor.

The injunction order is reversed, with ten dollars costs and printing disbursements, and motion for injunction denied, with ten dollars costs.

Landon and Mayham, JJ., concur.


author: Merwin, J.

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    The Skenandoa Cotton Co., Resp’t, v. Mary E. Lefferts, Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Evidence —Assignment op goods absolute in form may be shown to HAVE BEEN GIVEN AS COLLATERAL SECURITY.
    Defendant’s firm being indebted to the plaintiff, gave to its superintend-dent a check for part of the debt, and an assignment absolute in form of the firm’s interest in certain goods in the hands of commission merchants for sale and in the amount due from such commission merchants for goods sold, and took a receipt in full from him. In an action to recover an alleged balance of such debt, Held, that evidence was admissible to show that the money was not paid as stated in the receipt and that the assignment was only collateral security and not received in discharge of the debt.
    Appeal from a judgment entered in Oneida county June 22, 1889, upon the report of a referee, in favor of plaintiff,' for $2,576.18 damages, besides costs. '
    Action for balance of account for yam. and merchandise sold and delivered by plaintiff to defendant prior to July 31, 1884. The answer alleged that on the 31st July, 1884, the claim of the plaintiff was fully paid and satisfied.'

      Doyle & Fitts, for app’lt; W. & N. F. Kernan, for resp’h
   Merwin, J.

The plaintiff was engaged ih the manufacture of yarn at were engaged at Cohoes in the manufacture of 'knitted underwear, and prior to July 30, 1884, they had purchased of plaintiff a large quantity of yarn. It was conceded at the trial that on the 30th July, 1884, there was a balance due from defendants to plaintiff of $4,384.66. Knower, Haines & Cooley were commission merchants in ¡New York city and the parties to whom the goods of the defendants were consigned and who handled and sold them, and they then ,had on hand a large quantity of defendants’ goods on consignment for sale. On the 31st July, 1884, the defendants and the superintendent of the plaintiff met at the office of Knower, Haines & Cooley, and the defendants executed and delivered to plaintiff’s superintendent a check of $1,200 and an instrument of which the following is a copy:

“¡New York, July SI, 1884.
“ For and in consideration of the sum of three thousand one hundred and eighty-four dollars and sixty six cents, to us in hand paid, and the receipt of which is hereby acknowledged, we do assign, transfer and sell to the Skenandoa Cotton Company, of Utica, ¡N. Y., all our right, title and interest to and in the goods now held by Knower, Haines & Cooley, belonging to us, and also all our right, title and interest in and to the amount due us on goods sold by Knower, Haines & Cooley for our account since July 1, 1884.
“Thompson & ¡Lefferts.”

Knower, Haines & Cooley indicated in writing their acceptance of the terms of this agreement, and plaintiff’s superintendent executed and delivered to defendants a receipt, of which the following is a copy:

“¡New York, July 31, 1884.
“$4,384.66.
“ Eeceived from Thompson & Lefferts, four thousand three hundred eighty-four and 66-100 dollars, in full account to date.
' “I. E. Scott,
“ Superintendent Skenandoa Cotton Company.”

The referee permitted the plaintiff, over defendants, objection and exception, to give evidence of prior negotiations and of what was said at the time of the execution of the above instruments, with a view of showing that the assignment executed by defendants was only as collateral security to the debt, and that nothing was then in fact paid on the debt, the $1,200 check being paid the next day. The defendants gave evidence to the contrary. It appeared, among other things, that after the execution of the assignment and receipt, and on the same day, the defendants gave to plaintiff 'an order for $500 upon another commission house, payable from gains on sales of defendants’ goods by that house.

The referee finds that the assignment was executed in pursuance of an agreement between plaintiff and defendants that the ■defendants would pay on plaintiff’s account $1,200 in cash and make the assignment as collateral security for the payment of the remainder; that the receipt was given upon the execution of the .assignment and check and for no other consideration, the-check being paid the next day ; that there was no agreement between the parties that the cash so agreed to be paid and property so transferred should be paid and transferred in full payment of the debt, and that the receipt was not intended by any of the parties to evidence the payment of the debt in full; that the $500 order was given as further collateral security. It further appears that plaintiff has received the entire avails of the property so transferred and applied it on its debt, and the recovery was for the balance.

The finding of the referee that the assignment was intended as collateral security only, and that there was no agreement to receive the cash and assignment in full payment, is fully warranted by the evidence. The appellant, however, claims that it was not competent to show by parol evidence that the assignment was in fact a mortgage or security only. Whether this position is correct is the question upon this appeal.

There is no doubt about the general rule that a conveyance, though absolute upon its face, may be shown to have been given as security'merely. Coe v. Cassidy, 72 N. Y., 137; Barry v. Coville, 53 Hun, 621; 25 N. Y. State Rep., 658. The true consideration may be shown notwithstanding the recitals, McCrea v. Purmort, 16 Wend., 460; Adams v. Hull, 2 Den., 310; 2 Wharton on Evidence, § 1042, and cases cited. A receipt, though in full, may be explained or contradicted. Foster v. Newbrough, 58 N. Y., 481; White v. Parker, 8 Barb., 69; 2 Whart. Ev., § 1064.

But the defendant claims that the assignment, the acceptance by Knower & Go. and the receipt should be considered together as one transaction, and import an agreement by the plaintiff to accept the transfer in full of the balance of the debt. The only obligation on Knower & Co. was to account to plaintiff for whatever they had or might receive of or from defendants’ property in their hands. The amount was indefinite. The only agreement by plaintiff to receive this in full payment was in the expression, in full, in the receipt. In Tobey v. Barber, 5 Johns., 68, the plaintiff had given a receipt for $163 in full for two quarters rent. In order to avoid the effect of this, it was held proper to prove by parol that the amount was in part for a note of a third party which had not been paid, it being'said that the taking of a note, either of the debtor or of a third person, for a pre-existing debt is no payment unless it be expressly agreed to take it as payment and to run the risk of its being paid and that the inference from the form of the receipt is not enough to establish such positive agreement. This case is approved in Buswell v. Poineer, 37 N. Y., 314. In Smith v. Holland, 61 N. Y., 635, it was held that where in a promissory note is embodied also a receipt, the receipt is open to explanation the same as if it were in a separate instrument. So that in this case, whether the receipt is to be considered by itself or in connection with the other papers, it is open to explanation and there is no basis for saying that in the papers themselves there was a conclusive agreement to receive the assignment in full of the claim. If not, then the agreement in fact as to the assignment may be shown'by parol.

The appellant seems to rely considerably on the cases of Marsh v. McNair, 99 N. Y, 174, and Thomas v. Scutt, 52 Hun, 343; 23 N. Y. State Rep., 432. In the Marsh case, there was an assignment absolute on its face, made by J. R. Marsh, C. H. Marsh, and Mary Marsh to C. W. Gibson, of all their interest in an insurance policy and in the assignment there was the statement that it was “in consideration of crediting C. H. Marsh at the Exchange Bank of Lima §353.72, paying mortgage (on property formerly deeded by J. R Marsh, in Avon, to C. W. Gibson) given by William E. Russell to C. H. Marsh, $110.46, and indorsing $35.82 upon a. note made by C. H. Marsh, June 8, 1871, for $300.” The plaintiff, Mary Marsh, claimed that the assignment was in fact given simply as collateral security for an indebtedness of $500. It-was held that the rule that a conveyance of real or personal property, absolute on its face, may be shown by parol to have been, intended as a security only, did not apply, as the instrument was not an assignment, simply, but a contract containing mutual agreements and so within the rule prohibiting parol evidence to explain, vary or modify it. In the Thomas case, the plaintiffs had given the defendant a chattel mortgage on a quantity of lumber and afterward they gave to defendant a bill of sale of a certain raft, stating in the bill that the lumber of the raft was covered by the mortgage and giving the different kinds of lumber and the amount and price of each kind and the aggregate sum, and then stating “the same to apply on the amount due on said chattel mortgage and if any mistake in amount of lumber, same to be corrected.” The defendant took possession. It was held not to be competent for the defendant to show by parol that the bill of sale was simply for security, following the McNair case. These cases do not sustain the appellant’s position. We have here only an ordinary receipt for money and an ordinary assignment or transfer of property. .Withinwell settled rules, their object and design may be' shown by parol. Juilliard v. Chaffee, 92 N. Y., 535. The doctrine of explaining receipts' applies rather than the doctrine forbidding the varying of a written contract by parol.

In Cassidy v. Jenkins, 16 Wk. Dig., 560, affirmed 101 N. Y.,. 653, the defendant gave plaintiff a receipt as follows: “Received from A. S. Cassidy twenty-five hundred dollars in full for purchase of one quarter interest in Edward Moreland’s patent water meter,, the right to which quarter is to be conveyed to A. S. Cassidy immediately.” It is held to be competent for plaintiff to show that, the writing was security only for a loan.

W e are of the opinion that the plaintiff had a right to show that the money was not paid as stated in the receipt and that the assignment was only collateral security and not received in discharge of the debt.

The appellant further suggests that under the pleadings the plaintiff had no right to show that' the assignment was for security. This ground was not taken at the trial and it is not necessary to consider it here.

It follows, that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, R J., and Martin, J., concur.


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    Martin Fahy, Resp’t, v. The Rome, Watertown & Ogdensburg R. R. Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Master and Servant—Railroad—Defective brakes.
    Plaintiff was a tirakeman in the employ of defendant, and was injured by being thrown from the car by the giving way of a defective brake. It appeared that the brake staff was connected with the chain by a bolt that passed through it; that upon this occasion the brake gave way by reason of this bolt pulling out; that there was no nut on the bolt, which was an old rusty one, with no thread on it; that the end had been partially riveted, but not sufficiently to hold it. It also appeared that the brake had not been used on that trip prior to the accident; that the car was delivered to defendant by another road the previous day, and an inspection made. Held, that the evidence was sufficient to warrant the jury in finding that the bolt was in the same condition as when the car stated; that it was not properly inspected and if it had been the absence of the nut and improper riveting would have been discovered, and that the questions of negligence were properly left to the jury.

      (Bailey v. B., W. & O. B. B. Co., 49 Hun, 877; 19 N. Y. State Rep., 656, distinguished.)
    Appeal from a judgment entered in Jefferson county on the '27th March, 1890, upon a verdict in favor of the plaintiff for $2,500 at the Jefferson circuit March, 1890, and from an order denying a motion on the minutes for a new trial.
    Action for negligence. The plaintiff alleges in his complaint that on the 20th August he was in the employ of the defendant as a bralceman and that, while engaged in attempting to set a brake upon a freight car in one of defendant’s trains near DeKalb station in the county of St. Lawrence, he was thrown from the car and injured by reason of a defective brake.

      Edmund B. Wynn, for app’lt; Henry Purcell, for resp’t.
   Merwin, J.

The freight train upon which plaintiff was injured left Norwood on the morning of August 20, 1889. The plaintiff was the rear bralceman. The train proceeded southerly, stopping at Potsdam about ten minutes, then at Canton about forty-five minutes, and as it approached DeKalb and blew for that station the plaintiff set the caboose brake and then climbed up on top of a box car next the caboose, and while he was in the act of setting the brake on that car, the brake gave way and he was thrown upon the track and injured. The brake staff was connected with the chain by a bolt that passed through the staff, and upon this occasion the brake gave way by reason of this bolt pulling out, thus disconnecting the staff and the chain. The testimony of the plaintiff and of a fellow bralceman, who examined the brake shortly after the accident, tended to show that there was no nut upon the holt; that the bolt was an old rusty one; that there was no thread on it or that it was rusty where the threads were; that the end of the bolt was battered or partially riveted with a view apparently of keeping it in its place in that way, but that it was not sufficiently riveted to hold it. There was also evidence tending to show that this brake had not been used after the car left Norwood up to the time of the accident. The car belonged to the Michigan Central & Canada Southern line and was delivered to the defendant about 4 P. M. of the 19th August. It was shown on the part of defendant that it was inspected upon the same afternoon by an inspector of the defendant, but the sufficiency of his inspection was. upon his evidence a question of fact.

It is claimed by the counsel of defendant that this case is quite analogous to the case of Bailey v. Rome, W. & O. R. R., 49 Hun, 377; 19 N. Y. State Rep., 656, decided in this department, where it was held that the evidence was insufficient to sustain the finding of negligence against the defendant. In that case the plaintiff was a brakeman on a train of defendant made up of box and flat freight cars and was injured by the giving way of the- brake on one of the flat cars while he was attempting to set it at DeKalb Junction. After the injury, it was found that the pin in the bottom of the brake rod by which the rod was held in its place was gone. “ There was no evidence which tended to show when it was broken, removed or lost, nor that the defendant or any of its employes knew of its absence before the accident; neither did the plaintiff give any evidence tending to show any omission on the part of the defendant to properly inspect the car in. question. The only theory upon which the plaintiff claimed to recover was that having proved that after the accident the pin was out of the rod, the jury had the right to infer from that fact alone that the pin was out when the train left Norwood, which was some thirty or forty miles distant, and then npon the inference thus drawn to base the further inference that the car was not properly inspected before it left that station, and upon this second inference to find that the defendant was negligent.” It was said that the proof was at least equally consistent with the theory that the pin came out when the accident occurred or after the train left Norwood, as with the theory that it was out when it left Norwood. The pin in the brake rod, as described in the evidence in that case, was a key, a split ring, which after it was passed through the rod was bent around into a ring and lapped by like the weld in apiece of iron.

In the present case there was a different appliance. A bolt passed through the staff and it should, according to the evidence, have been fixed in its place either by a nut or by a proper riveting. There was evidence from which the jury might find that the bolt at the time of the accident was in the same condition it. was when the car left Norwood; that there then was no nut on the bolt or any suitable riveting; that it was not then properly inspected and if it had been the absence of the nut and the improper riveting would have been discovered. The duty of proper inspection there at Norwood was upon the defendant, and if in that regard the defendant was negligent and the plaintiff’s injury followed as the natural and proximate result there would be a basis for liability. We are of the opinion that the Bailey case was essentially different from the present and that the question of the negligence of the defendant was in this case properly left to the jury.

We are also of the opinion that the question of contributory negligence as well as that of the validity of the plaintiff’s release were properly left to the jury.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    Mary English, Resp’t, v. William Major, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Malicious prosecution—Evidence.
    Defendant caused the arrest of plaintiff on a charge of placing poison on the ground adjacent to the boundary line between their lands, with intent to poison defendant’s chickens. Plaintiff was acquitted In an action for malicious prosecution, defendant testified that on returning home he found his wife crying, and that' he employed one M. to investigate the matter of the death of the chickens; that M. informed him that he found meal along plaintiff’s fence and that he had a conversation with plaintiff. He was not allowed to testify as to the conversation with his wife nor as to what M. stated to him was the conversation which he had with plaintiff. Held, error; that as such communications were made prior to the commencement of the proceedings complained of, they were admissible on the question of good faith on the part of defendant in taking such proceedings.
    Appeal from a judgment entered in Onondaga county June 2, 1890, upon a verdict in favor of the plaintiff for sixty-five dollars, at the Onondaga circuit, May, 1890, and from an order denying a motion on the minutes for a new trial.
    Action for malicious prosecution. On the 26th day of July, 1889, upon the complaint of the defendant, charging the plaintiff with the offense of poisoning animals, the plaintiff was arrested, taken before a magistrate and, on the 3rd September, 1889, was tried and acquitted. Thereupon this action was commenced.

      George Barrow, for app'lt; II. B. & G. W. Driscoll, for resp’t.
   Merwin, J.

Upon the trial of this case the plaintiff gave evidence showing in effect that she was innocent of the charge made against her by the defendant. She then rested and defendant made a motion for a nonsuit, which was denied and exception taken. The plaintiff had not shown a want of probable cause and had not made a case for recovery. Thaule v. Krekeler, 81 N. Y., 433. The defendant, however, instead of relying on his exception, proceeded with evidence upon his part and thereafter the plaintiff gave further evidence. So that at the close of the evidence a case was probably presented for the action of the jury within the rule laid down in Heyne v. Blair, 62 N. Y., 19. The case was, however, a close one, and in that view some rulings upon evidence, about which the defendant complains, are to be more closely considered.

The plaintiff and defendant occupied adjoining village lots. The defendant kept chickens, and upon the evening of July 24, 1889, quite a number of them were found dead along the line between the parties. The charge against plaintiff was that she had thrown poison upon the ground adjacent to the line with the intent to poison the chickens, and which they had in fact eaten. The defendant was called as a witness on his own behalf, and testified that he returned home that evening about six o'clock and found his wife crying. He was then asked to state what occurred that evening in reference to conversation with his wife and in reference to chickens. The conversation was objected to by the plaintiff as hearsay and incompetent and inadmissible, and was excluded and exception taken. The defendant further testified that the next morning he employed one McLoughlin to investigate the matter; that the latter did so and informed defendant that he found meal or something of that kind along plaintiff’s fence, and also told defendant that he had a conversation with the plaintiff. The defendant was then asked the question: What did he state was the conversation which he had had with Mrs. English ? This was objected to as hearsay and excluded and exception taken.

In Miller v. Milligan, 48 Barb., 30, 47, it is said that the real question is whether the defendant had reasonable ground to believe that the plaintiff was guilty of the charge, and this belief may be founded upon facts within the knowledge of the party or upon information derived from other persons. In 2 Addison on Torts (Dudley & Baylies’ ed.), 766, it is said that in order to show good faith on the part of the defendant, it is competent to him to prove any communication that may have been made to him prior to the commission of the grievance, to show the impression made on his mind and the materials he had before him in forming an opinion. A like view was taken in Bacon v. Towne, 4 Cushing, 217, 240, and in Lamb v. Galland, 44 Cal., 609.

Both of the communications excluded very evidently related to the matter in controversy, and were made to the defendant before he commenced any proceedings against the plaintiff. The record shows that McLoughlin was afterward called as a witness by the defendant, and testified generally that he stated to defendant the conversation he had with the plaintiff. This did not cure the error, if it was one, in not permitting the defendant to state it, especially as the credibility of McLoughlin was attacked. The defendant had a right to give his own testimony on the subject.

We think the rulings above referred to were not correct, and that as the case stands they are of sufficient importance to call for a new trial.

Judgment and order reversed on the exceptions and new trial ordered, costs to abide the event.

Hardin, P. J., and Martin, J., concur.