author: James, J.:

text:
    EDWARD D. CLAYES, Appellant, v. HENRY HOOKER and ALFRED BAKEN, Respondents.

      Umry—governed by lex loci contractus—how pleaded—varriamce.

    A promissory note, made, dated and payable in this State, is, so far as the question of usury is concerned, a New York contract, and its validity is to be determined by the laws of this State, although negotiated in a foreign country, at a rate lawful there but usurious here.
    In pleading usury, the transaction should be correctly set out in substance; but where on the trial the evidence tends to prove a usurious agreement, differing from the one alleged in the answer in several particulars, but not in its entire scope and meaning, and the plaintiff is not misled thereby, the variance will be deemed immaterial.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

      Vary & Stone, for the appellant.
    The legality of the transaction should be tested by the laws of the place where the contract was made. (Bowen v. Bradley, 9 Abb. [N. S.], 395; Cope v. Wheeler, 41 N. Y., 303; Story on Conflict of Laws, §§ 364, 367, 372, 424, 427; Hosford v. Nichols, 1 Paige, 220; Abul v. Douglas, 4 Denio, 305 ; Young v. Brush, 28 N. Y., 674; Nichols v. Levett, 4 Sandf., 253, 276; Balme v. Wombough, 38 Barb., 352; Backman v. Jenks, 55 id., 468, opinion by Bockes.) The answer must set out the usury correctly. (Manning v. Tyler, 21 N. Y., 567; Cutler v. Wright, 22 id., 472.) The case of Jewell v. Wright (30 N. Y., 259), only decides that, when the rate of interest is illegal both at the place of discount and the place of payment, on an attempt to enforce payment in this .State, the laws of New York applicable to forfeiture for usury will control. Beyond this it has not been followed. (First National Bank, N. Y. v. Morris, 8 Sup. Ct. [1 Hun], 680; City Savings Bank v. Bidwell, 29 Barb., 325; Bowen v. Bradley, 9 Abb. [N. S.], 395; Bank Georgia v. Lewin, 45 Barb., 340.) In the administration of the bankrupt act, notes made and signed in Philadelphia, but delivered and discounted in New York, are governed, as to the question whether they are void for usury, by the laws of New York. The place where a note is first negotiated is the place of the contract. 1871, Matter of Conrad (8 Phila. [Pa.], 147.) “ Phila. [Pa.],” means Federal and State Courts Decisions, published in the Legal Intelligencer during 1870 and 1871, by Henry E. Wallace; Vol. 8.

      Myers & Morris, for the respondents.
    The note being made and also indorsed in this State, and payable in this State, the laws of this State are to govern, so far as the defense of usury is concerned. (Cutler v. Wright, 22 N. Y., 472; Jewell v. Wright, 30 id., 259; Hacketstown v. Rea, 6 Lans., 455; Williams v. Fitzhugh, 37 N. Y., 451, 452; Cope v. Wheeler, 41 id., 303, 309.) The note having been discounted before inception, at a greater rate than seven per cent per annum, is usurious and void. (Catlin v. Gunter, 11 N. Y., 368; Newell v. Doty, 33 id., 83.) The rules provided by the Code in relation to a variance between the pleading and the proof, apply as well to the defense of usury as to other defenses; and the strict rule which formerly prevailed as to this defense, has been changed by the Code. (Catlin v. Gunter, 11 N. Y., 373, 374, 375; Dagal v. Simmons, 23 id., 491-493; Griggs v. Howe, 3 Keyes, 169.) A statement of the usurious agreement, in substance, is all that is required. (23 N. Y., 493 ; 11 id., 375, 376.) Where the transaction is alleged to be that of the principal, and it turns out on the trial to be that of the agent (which is this case), the variance is not fatal, but is the subject of an amendment, and may be disregarded on appeal. (Bennet v. Judson, 21 N. Y., 238.) The case, as printed, does not show the answer to have been amended; but that cannot be taken advantage of on appeal so long as the amendment was allowed. The court has the right to allow an amendment even on appeal. (Bate v. Graham, 11 N. Y., 237; Foote v. Roberts, 7 Rob., 17; Bowdoin v. Coleman, 3 Abb., 431; Harrower v. Heath, 19 Barb., 331, 338; Cady v. Allen, 22 id., 338.)
   James, J.:

This case comes here by appeal upon a case and exceptions. The facts found by the referee are not excepted to; the only exceptions noted are to the conclusions of law found by the referee. The action was to recover on a promissory note of $1,000, made and dated at Morristown, Yew York, October 11,1872, and payable at the First Yational Bank of Syracuse, Yew York. The makers of the note were the firm of Burrows, Bro. & Co.; it was indorsed by Ford, one of said firm, and by the defendants as accommodation indorsers. All the parties but Ford were at the time residents of Morristown, aforesaid. The defense was usury. It appeared that after the note was made and indorsed, Burrows, one of the firm of makers, took this note and other notes to Brockville, Canada, and applied to one Harding to raise money; asked Harding to discount said notes. Harding said he was short, but would buy the notes if he could raise the money. Burrows inquired if he could not raise the money from the banks or from Clayes (who is the plaintiff), or from other persons; Harding said he would see. Harding did apply to plaintiff to buy said notes, and plaintiff thought he would. Afterward, Burrows sold to Harding the note in suit; another note made and indorsed by the same parties for $500, at four months; five business notes, amounting to $791.97 (amounting in all to $2,291.97), and delivered as security for the business notes, another note, dated October 11, 1872, at four months, made by Burrows, Bro. & Co., and indorsed by Ford. That said notes were sold by Burrows to Harding, at a discount of over twelve per cent per annum for the time they had to run before maturity. After this agreement between Burrows and Harding, and the delivery of the notes, Harding sold the note in suit of $1,000, the other $1,000 note delivered as security for the business notes, and the $500 note (they all then having less than four months to run), to the plaintiff for $2,405, a discount of over ten per cent; and after such sale to plaintiff, Harding paid to Burrows the purchase-price of said notes. Such sale or sales were lawful in Canada. The note in suit was, at maturity, duly presented and protested. The referee held that the validity of said note must be determined by the laws of this State; that by such laws the sale to Harding was usurious; that never having had a valid inception before its transfer to the plaintiff, it was in his hands usurious and void;'and that defendants were entitled to have their answer amended so as to conform to the facts proved.

As a general rule, the law of the place where contracts, purely personal, are made, must govern as to their construction and validity. In this case, the note was made and dated in the State of Hew York, and payable in this State, and therefore, by the laws of this State, so far as the question of usury is concerned, it is to be treated as a Hew York contract, and its validity construed by the laws of- this State, although negotiated in a foreign country, at a rate lawful there but usurious here.

Hnder the laws of this State, the negotiation of the note in suit was usurious and void. I am aware that these cases in the Court of Appeals have been reviewed by the Superior Court of Buffalo, in Bowen v. Bradley, and pronounced unsound. Still I feel bound to follow the appellate court. The rate deducted from these notes at the time of sale, is stated in the finding at twelve and a half per cent per annum, and I think that finding was warranted by the evidence.

In pleading usury, the transaction should be correctly set out in substance. I think the answer does substantially state the transaction as proved and as found by the referee. It is claimed that the answer sets up usury in the purchase by the plaintiff, and that there was no usury in such purchase. That, however, depends upon Harding’s true position in the transaction. Was he, in reality, the purchaser from, or the agent of Burrows ? If Harding was a purchaser, the transaction with him was usurious; if an agent, the transaction with plaintiff was usurious. As it affected the defendants, the transaction was usurious whichever way is the truth. And it is even now quite difficult to determine Harding’s position. He made the contract of purchase, but did not pay therefor until after the sale to plaintiff. But as this was only a question of pleading, the usury being established, it was proper to allow the answer to be (onformed to the facts proved. It is one of the cases contemplated by section 113 of the Code. While the Code has not relaxed the rule requiring facts to be stated in a pleading essential to make out usury, as to variances, its provisions are as applicable to usury as to other cases.

It was held in Catlin v. Gunter, that when, on the trial, the evidence tended to prove an usurious agreement, differing from the one alleged in the answer in several particulars, but not in its entire scope and meaning, the plaintiff giving no proof that he was misled thereby, to his prejudice, the variance should be deemed immaterial.

The case was properly disposed of, and the judgment should be affirmed.

Present — Learned, P. J., Boardman and James, JJ.

Judgment affirmed.

       Curtis v. Leavitt, 15 N. Y., 9, 227; Jewell v. Wright, 30 id., 259; Cope v. Wheeler, 41 id., 303.

         9 Abb. (N. S.), 395.

       25 N. Y., 49, 143.

       11 N. Y., 368


source: Caselaw Access Project

author: James J.:

license: Public Domain

text:
    JOHN M. PECK, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Railroad Co. — when liable for acts of its agents—act within scope of employment — Mccessme damages—verdict of jury—when set aside for.

    Where a brakeman who had been directed to notify passengers attempting to enter a certain car that it was reserved for ladies, and to show them to some other car, removed from said car a person who had entered it, after being forbidden to do so, and in so doing used unnecessary violence: held,, that, even if the brakeman exceeded his orders in ejecting the plaintiff, yet, as between the latter and the company, it was enough that the act was done in the prosecution of the company’s business, and that it was liable therefor.
    In actions other than those on contracts, sounding in damages, it is strictly within the province of the jury to estimate the loss suffered, and courts will not interfere unless there is manifest abuse, or the sum is so large as to show that the jury were affected by passion, prejudice or some undue influence
    Appeal from an order denying a motion for a new trial, made on the minutes of the justice before whom the case was tried.
    This action was brought to recover damages alleged to have been sustained by being forcibly removed from one of defendant’s cars, by an employe of the company. The jury found a verdict in favor of the plaintiff for $5,000.
    A motion was made on the minutes for a new trial, and denied, with leave to make a case and exceptions to be heard at the General Term, in the first instance.

      Frank Loomis, for the appellant.

      A. J. Parker, Jr., for the respondent.
   James J.:

On the 10th of January, 1871, the plaintiff, having purchased a ticket for defendant’s road, sought to enter a car and was notified by an employe of the company that the car he was about to enter had been set apart for ladies, and gentlemen accompanying ladies, and directed him to a forward car. This employe had been stationed at the train by a person in charge there, directed to prevent gentlemen, unaccompanied by ladies, from entering said car. On receiving the notice and direction, plaintiff got upon the platform of a car next in rear of the ladies’ car, looked in a moment, then turned and entered said ladies’ car; the employe arrested his progress, and removed him from the car by force.

When the plaintiff rested his case, a motion was made for a non-suit, on the ground that the brakeman was not acting within the scope of his employment in removing plaintiff, and therefore defendant was not liable for his act. This motion was denied, and defendant excepted.

That a master is not liable for the wrongful acts of his servant, unless done in his service, and within the scope of his employment, will not be disputed. If the employe who removed the plaintiff is to be regarded as a brakeman, unauthorized to perform any duties other than such as pertained to that office, and volunteered the act in question without other authority or direction, then the defendant was not liable in this case. But, as brakeman, he was an employe of the company, subject to its authority and the direction of its officers, and, as such employe, he was directed by the person in charge to see that gentlemen, without ladies, did not enter that car, and it was‘in the performance of that service he did the act complained of. It is true he was not ordered to remove persons from the car; his orders were to notify gentlemen not in charge of ladies that such car was reserved, and direct them to cars forward; so that, in removing plaintiff, he clearly exceeded the orders given him. But this fact the plaintiff could not know. As between him and the company, it was enough that the act was done in the prosecution of his,' the master’s, business, and if the servant deviated from, or exceeded his instructions, that fact did not excuse the master from responsibility. The order to the brakeman, and his performance of it, warrant the conclusion, even as a matter of law, that he was acting within the scope of the employment he ■ was there set to perform, if persons disregarded his directions and persisted in entering the car.

The defendant had the right to set apart a car for lady passengers, and exclude other persons from it; if other persons, after notice, persisted in entering it, the defendant had the right to enforce their removal, using no more force than necessary for that purpose. The brakeman did no more than the master had the right to do, under the circumstances, and the presumption is, that in doing it he was acting within the scope of his then employment. Therefore the motion for a nonsuit was properly denied.

There are several other exceptions in the case, but none which I deem it necessary to discuss; none well taken.

The more important question presented by the case arises on the motion for a new trial, on the ground of excessive damages. It is certain there was no malice in this case, either on the part of the defendant or the servant who did the act complained of; it was simply the exercise of more force than necessary in the accomplishment of a legal act. It was not a case, therefore, calling for punir tive damages, but simply one for compensation for the pain, suffering and loss of time occasioned by the act. Upon this question no evidence was given by the plaintiff other than his own; no medical attendant, to show his condition, was called, nor any medical expert to establish that the sickness, pains and sufferings stated by himself, were the result natural or probable of the force used; while a medical expert was called on the part of the defense, who testified that the sickness and pains described by plaintiff, were not the natural or probable result or effect of the force used upon him, and attributed the sickness and pains to causes pertaining to the plaintiff. The plaintiff’s statements of his injuries, in their nature and duration, are inconsistent with his condition and acts after the occurrence. His whole statementx as to the nature, degree and extent of his injuries, is improbable, from the force used, and the manner of its use upon him, and leaves the impression that his relation of it is highly colored.

In actions other than those on contracts, sounding in damages, it is strictly within the province of the jury to estimate the loss suffered, and courts are reluctant to interfere, and will not interfere, unless there is manifest abuse, or the sum is so large as to evidence that the jury were affected by passion, prejudice or some undue influence. In this action the sum is so large as to demonstrate such to be the case. Five thousand dollars is a sum entirely beyond what was justified by the facts. It would seem as if intended as a punishment of the defendant; an amount that would not have been given against a natural person, and it satisfies the mind that the jury were unduly influenced by some extrinsic and unknown cause, or by passion or prejudice against the defendant. In either case the verdict should not be allowed to stand.

For these reasons the verdict should be set aside, and a new trial granted.

Present—Boardman and James, JJ.

Judgment reversed, and new trial ordered on payment by defendant of costs of Circuit.

       See Higgins v. The Watervliet Co., 46 N. Y., 23; Jackson v. Seventh Av. Co., 47 id., 274 ; Cosgrove v. Ogden, 49 id., 255.


author: James, J.: Boardman, J.

text:
    ELIZABETH LUDLOW, Respondent, v. THE HUDSON RIVER RAILROAD COMPANY, Appellant.

      Lateral support—when owner of adjoining lamds estopped from asserting right to — Effect of deed with habendum “ to the uses and purposes ” of a raib'dad.

    The plaintiff conveyed certain land to the defendant, “ for materials,” “ to have and to hold * * * to the uses and purposes of said railroad, and for no other or different purpose.” It was understood hy the parties that a part of the land was taken as a source from which to obtain material for other portions of the railroad. By reason of the excavation made for that purpose on such part, the other land of plaintiff was deprived of its lateral support, and slid into the excavation. Reid, in an action brought to recover damages sustained by plaintiff by reason of such slide, that she was estopped from claiming the right to the lateral support by her deed, which contemplated the use made of the land by the defendant.
    This is an appeal from a judgment for plaintiff, entered on the verdict of a jury at the Columbia Circuit, and from an order denying a motion for a new trial.
    The action was brought to recover for damages to land of the plaintiff, by the same sliding down and caving in by reason of excavations and removing of earth by the defendant, at the time of the construction of its road.

      F. Loomis, for the appellant.

      J. C. Newkirk, for the respondent.
   James, J.:

This action was brought to recover for damages sustained by the plaintiff by the sliding down of her land into an excavation made by the defendant adjoining thereto in obtaining materials for the construction of its road-bed. The excavation was made in 1851, 1852, and 1853, and the sliding down was in 1864. The plaintiff had a verdict and judgment.

The principal and the important question presented by this case, is as to the plaintiff’s right to the lateral support of the land excavated and removed, under the facts of this case.

Previous to February, 1851, the plaintiff owned all the land in question. In that month of that year, she, for a valuable consideration, sold and conveyed to the defendant a strip of land across her farm, 100 feet wide, for a roadway for defendant’s railroad, and also another piece of land east of the east line of said roadway, “for material,” to have and to hold said parcels of land to said defendant as a corporation, “ its successors and assjgns, to the uses and purposes of said railroad, and for no other or different purpose.” In 1851, the defendant entered upon said parcels of land and began the construction of its road-bed, and continued until finished, and, at the same time, to obtain materials wherewith to construct said road-bed, the defendant excavated and removed the soil from said last named piece, until the excavation reached the depth of thirty feet, thus weakening the lateral support to adjoining lands of plaintiff, to such a degree that the soil slid down into said excavation as alleged in the complaint.

The question of negligence does not arise on this appeal, because the court instructed the jury, “ if they found the sliding down of plaintiff’s land was occasioned by excavation on, and the removal of the earth from, the parcel sold 'for materials, the defendant was liable under the law; ” and the same in substance was repeated and assented to by the court, in answer to repeated requests to charge by the counsel for plaintiff.

. The purposes for which defendant desired the land were well known to the plaintiff at the time of executing her deed, and were quite clearly expressed therein; and the presumption is that a price therefor was asked and given commensurate with its value and the consequences likely to follow from its excavation and use for the purposes contemplated.

It is clearly apparent that these parcels of land were "of no particular value to the defendant, except for railroad purposes, and the one parcel was only desired for the material which might he obtained from it for the purposes of constructing its railroad; and if taken and used for that purpose, it could not longer furnish lateral support to adjoining lands. As the plaintiff owned the entire territory, the part excavated as well as the part which slid down, and saw fit to sell a portion thereof for removal, with the right to excavate and remove, it amounted to a legal consent that the lateral support furnished by such piece of land. to her other land adjoining, might be withdrawn, and thereby released the grantee and his assigns from any damages which might arise to such adjoining soil by any excavation or removal of soil therefrom. The plaintiff is therefore estopped by her deed from claiming damages.

An estoppel arises where one has done some act, or executed and delivered some deed, which precludes him from averring the contrary. Here the defendant did an act authorized by the deed — an act contemplated and expressly authorized by the deed; and hence the plaintiff cannot complain of, or recover for, damages naturally resulting from a proper exercise of the rights authorized. This parcel of land in the hands of the defendant, was not subservient to the obligation of lateral support to adjoining land owned by the plaintiff. The defendant has not a fee-simple, but only a qualified fee; the mere right to excavate and remove earth therefrom for material for its road-bed, terminating with the use, and then reverting to the plaintiff; in substance and legal effect, a license to excavate and remove. In principle, this ease is like that of Ryckman v. Gillis, recently decided in the Commission of Appeals. In that case the defendant sold a-parcel of land, reserving the right to take clay and sand from a portion of it for making brick. Excavations were made, clay and sand removed,,, and a slide into the excavation resulted, as in this case. The court held - that the doctrine of lateral support, incident to and affecting adjoining lands owned by different proprietors, did not apply to such case.” I repeat, in principle the cases are exactly alike, and both should be decided the same way.

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

Boardman, J.

(dissenting):

When this action was in this court on appeal from a judgment dismissing the complaint, a new trial was granted, and it was held and decided that the action was not barred by the statute of limitations ; that the doctrine of lateral support incident to adjoining lands was applicable, and that the defendant was liable in damages to the plaintiff for the consequences of the excavation made by defendant upon its own lands; and that even if defendant was not absolutely liable for such damages, it would be, if negligently and unskillfully done; and that such negligence and want of skill should have been submitted to the jury, to be passed upon by it as a question of fact. Such decision covers all the propositions relied upon by the appellant upon his appeal except one. Upon the former trial,- the defendant rested entirely upon the production of plaintiff’s deed of the premises (whereon the excavation was made) “ for materials ” for the uses and purposes of said railroad, and for no other or different purposes.” Now, the defendant has introduced, in addition, certain proceedings whereby it obtained title to said premises by the right of eminent domain, under the statutes for taking lands for railroad purposes. By such proceedings it appears that this piece of land outside the line of the road, was' needed for material for the construction of said road and the maintenance thereof,” and was appraised and condemned to the use of said railroad. This court has lately held that a railroad company cannot acquire title to real estate without the owner’s consent, simply for the purpose of removing materials therefrom for the construction of the road. If that decision be sound, the defendant acquired no title to the lands outside of the roadw;ay by such proceedings. But in any event the title so acquired did not essentially change the relations of the parties, or diminish defendant’s duties and obligations.

These considerations would lead to the affirmance of the judgment without further remark, were we not referred to a manuscript opinion of Lott, Ch. C., in the case of Ryckman v. Oillis, lately delivered in the Commission of Appeals. The opinion of the learned judge raises grave doubts of the correctness of this court’s decision upon the former appeal. There is, however, this marked distinction between the two cases: In Ryckman v. Gillis, by the deed, the land was conveyed, and the right reserved to the grantor to enter upon a certain part of the land granted, and to dig and take therefrom the clay and sand that may be found thereon fit for brick-making.” In the case at bar, the plaintiff conveys to defendant, its successors and assigns, the right of way for track, describing it, and adds, “ together with a piece for materials,” describing the land on which this excavation was made; after which follows the usual clause, with all and singular, etc., and adds, “ to have and to hold the same with the appurtenances unto the said party of the second part,' its successors and assigns, for the uses and purposes of said railroad, and for no other or different purpose.” In the former case the grantor retained no title to the land. If the reservation did not amount to a severance of the clay and sand, so as to constitute it personal property, as in the case of growing trees, it was yet only an irrevocable license to enter, dig and carry away. The grantee alone held the title. Hence the grantor and' grantee were not adjoining owners. But in the present case, the defendant has title in the land conveyed to it by plaintiff. While that title remains the plaintiff has no right of entry thereon. Any interference by her with defendant’s possession, would be a tort, for which trespass would lie.

Concede that defendant’s right of use is limited, and not absolute, it is a title to land which the law tolerates, and the defendant is the possessor of such title and lands.

The doctrine of lateral support can only apply to adjoining owners of land. If such adjoining ownership does not exist, the doctrine cannot be applied. It did not exist in Ryckman v. Gillis, but it does here. The use of the land is restricted to railroad purposes. But does that give to defendant any greater rights of use of the soil for railroad purposes, than it would possess if no restriction were contained in the deed ? If it does, then a restriction inserted' in a deed to limit the use, will operate as a grant of a right which a full covenant deed would not give.

The precise question having been decided in this court, it should be held res adjudicaba, and it should he left to a higher court to correct our error, if it be an error.

. For these reasons, I think the judgment and order should be affirmed.

Present—Learned, P. J., Boardman and James, JJ.

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

      16 Lans., 128.

      Matter of N. Y. and C. R. R. v. Gunnison, 1 Hun, 496.


author: Learned, P. J.: James, J.

text:
    CLINTON TAPLIN, Appellant, v. ABRAHAM WILSON, Respondent.

      Compromise—ignorance of law — when parly not excused by — Settlement of controversy.

    The defendant gave to his daughter, the wife of the plaintiff, certain articles of household furniture, which were brought by her to the plaintiff’s house, she agreeing with the defendant, without the knowledge of the plaintiff, that in case she died without children, the property should be returned to him. Upon her death defendant demanded the property, and the plaintiff, after consulting a lawyer, delivered the same to him. Subsequently this action was brought by the plaintiff to recover the said property. Held, that the action could not be maintained. (James, J., dissenting.)

      Westerlo v. De Witt (36 N. Y., 340), Pitcher v. Plank-road Company (10 Barb., 436) distinguished.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.
    The plaintiff married Mary Ann, a daughter of the defendant. She died childless, October, 1870. After her marriage the defend ant furnished her certain articles of bedding, and gave her money to buy furniture. She bought furniture with this money, and the furniture and bedding were taken to the plaintiff’s house. They were used there in his family till her death. When the money and bedding were delivered to her, it was agreed that she should have the property during her lifetime, with the right to use it up. If she died without children, it was to come back. The plaintiff had no knowledge of this agreement. After Mary Ann’s death the property remained in the plaintiff’s possession, and was used by him as his own. In January, 1872, the defendant claimed the property from the plaintiff. The plaintiff replied" that he would let him know in a fortnight what he would do. The plaintiff then took legal advice. What that advice was does not appear; but, after-taking such advice, the plaintiff told the defendant that he wanted to give up the property, and that the defendant might take it. In a day or two the defendant sent to the plaintiff’s house and took it. The plaintiff was present when some was taken, and aided in preparing some articles for removal. It was voluntarily delivered by the plaintiff to the defendant on this claim of ownership. About a year afterward the plaintiff demanded the property, and then brought this action.

      L. M. & L. K. Soper, for the appellant.
    Where there is a mutual mistake, and the parties can be restored to their original situation, substantially, a court of equity will relieve. (Crosier v. Acer, 7 Paige, 137; 1 Story Eq., § 123; Champlin v. Laytin, 6 Paige, 189; S. C., 18 Wend., 407; Quick v. Stuyvesant, 2 Paige, 84; Levy v. Joyce, 1 Bosw., 622; Westerloe v. Dewitt, 36 N. Y., 340; Lamott’s Heirs v. Bowley’s Heirs, 6 Har. & Johns., 500.) Ignorance in point of fact, on the part of plaintiff, of any title in him, was not a mistake of law. (1 Story Eq., § 120; Ramdsen v Hylton, 2 Ves., 304; Cann v. Cann, 1 Peere Williams, 727; Pitcher v. Plank Road Company, 10 Barb., 436, 439; McCarthy v. Decaiz, 2 Russell & Mylne, 614; Corking v. Pratt, 1 Vesey, 400; 2 Powell on Contracts, 196; 1 Story Eq. [10th edition], § 130; Turner v. Turner, 2 Reports in Chancery, 81,154; see, also, comments on this case, 1 Story Eq., § 123; Cooper v. Phibbs, 15 Weekly Reporter, 1053; L. R. [2 H. L. Cas.], 149.) The case does not fall under the rule applicable to compromise of doubtful claims. (Morey v. Town of Newfane, 8 Barb., 645, 654; Sherman v. Barnard, 19 id., 291, 302; Farmers' Bank v. Blair, 44 id., 641, 652; Russell v. Cook, 3 Hill, 504, 506; Lansdowne v. Lansdowne, 2 Mosely, 364.) The maxim ignorancia juris non excusat, has no application, except to cases where there is a wrong done or a right withheld. (23 Am. J., 146, 166, 371, 412; 2 Alb. L. J., 405 et seg.; 3 id., 448 etseg.; 4 id., 7 et seq.; 6 id., 103 et seq.)

      J. MacNaughton, for the respondent.

      Ignorantia legis neminem excusat. (Bell v. Lumley, 1 East, 38; Brisbane v. Dacres, 5 Taunt., 144; East India Company v. Tritton, 3 B. & Cr., 280; Skying v. Greenwood, 4 id., 128; Branston v. Robbins, 4 Bing., 11; Shotwell v. Murray, 1 Johns. Ch., 512-516; Lyon v. Richmond, 2 id., 51; reversed on another point in Court of Errors, see 47 N. Y., 60; Storrs v. Booker, 6 Johns. Ch., 681; 1 Pet., 15; Bank of U. S. v. David, 12 id., 32, 55, 56; Clark v. Dutcher, 9 Cow., 166; Story’s Eq., § 138, and note; Champlin v. Laytin, 18 Wend., 497; 4 Den., 309; N. Y. & H. R. R. v. Marsh, 12 N. Y., 308; Jacobs v. Morange, 47 id., 58; Pitcher v. Hennessey, 48 id., 416-424; Orchard v. Bininger, 51 id., 652-654; Marble v. Whitney, 28 id., 308.) The surrender of the property by the plaintiff was the settlement and compromise of a claim made upon him by the defendant, and this alone is a sufficient consideration to support the defendant’s title to the property. (Palmer v. North, 35 Barb., 282, opinion by Bocees, J., citing 3 Hill, 404; 4 Den., 189; Morey v. The Town of Newfane, id., 309; Russell v. Cook, 3 Hill, 504; Pickering v. Lane, 2 Beavan, 31, 56.)
   Learned, P. J.:

Whether there were one or two" feather beds, was a question of fact. The schedule of articles demanded, mentions one. And it was that schedule which, it was admitted by the defendant, contained a list of the property taken. There was some evidence conflicting, but the finding of the referee should govern. It is not necessary to examine as to the mirror and three quilts. The plaintiff himself helped to do up the mirror when it was taken.

In the view I take of this case, it is unnecessary to decide whether, in the light of the decision in Barnes v. Underwood the plaintiff could maintain this action, without taking out letters of administration on his wife’s estate.

I pass to another point. And here it is important to notice that neither party stood in any confidential relation to the other. The two met on equal footing, each knowing all the facts, except that the plaintiff did not know of the ante-nuptial agreement. If he had known this, he would have had knowledge of a fact tending to strengthen the defendant’s rights, and to weaken his own. Nor was there any fraud or concealment, or want of due deliberation. The defendant claimed that he owned certain property in the plaintiff’s possession. He stated this claim to the plaintiff. The plaintiff " deliberated, took advice, and then, with a full knowledge of all the facts on which his own rights (whatever he had) rested, told the defendant to send for the property, and himself personally assisted in preparing for its removal. Can he now recover it, on the ground that he might then have successfully refused to surrender ?

There is a sound rule that it is for the good of the State that there should be an end of litigation. And one application of that rule is, that when there is a disputed question between two persons, and they settle it voluntarily, without fraud, and with knowledge of the facts, the settlement should stand, although the courts would have settled it in a different way.

The plaintiff in this case knew that the property had come to his deceased wife from her father; he knew that she had had no children, and that he had married again. He might have felt that there was a natural propriety, under such circumstances, in returning the property to the father, from whom it came, and with whom he had no longer any connection. At any rate, whether he was influenced by this motive, or by some other, the delivery was in the fullest sense voluntary, intended to be a surrender of the property to one who claimed to be the owner.

But it is urged by the appellant that the plaintiff, at that time, thought that legally the father was entitled to the daughter’s estate. Perhaps the plaintiff may have been so advised, under Barnes v. Underwood.

' In passing, we must notice that, if he had been guided by that case, he must have seen that the father could take only through distribution by the husband, as administrator; and that he, as husband, had the right of administration, and of possession as administrator, until he had fully administered. Following that decision, the plaintiff would have understood that it would only be when he, as administrator of his deceased wife, had settled the estate, that the defendant could claim, and then as distributee.

Assuming, however, that the plaintiff, on the facts, thought the defendant legally entitled, we are then brought to the rule, that ignorance of the law excuses no one. This is a correct and settled principle. “ The rule that every man who has a full knowledge of the facts is presumed to understand his legal rights, is as much respected in courts of equity, as it is in law.” It cannot be necessary to go over the many cases" which establish this rule. It is enough to refer to Jacobs v. Morange, which involved a point similar to that in this case — that is, a reversal by the. Court of Appeals of a decision of the inferior court, upon which the parties had acted. The court sustained the same doctrine, laid down by Chancellor Kent, in Lyon v. Richmond. “A subsequent decision of a higher court, in a different case, giving a different exposition of a point of law from the one declared and known when a settlement between parties takes place, cannot have a retrospective effect, • and overturn such settlement.”

This is not properly a question of estoppel. It is rather the same doctrine by which a party who has. voluntarily settled with another a disputed claim, shall not be allowed to open that settlement, on the ground that he might have done better for himself. Compromises are to be encouraged, because they promote peace, and when there is no fraud, and the parties meet on equal terms, and adjust their differences, the court will not overlook the compromise.” Some cases cited by the appellant, are thought to be in conflict with these principles. In Sanford v. Sanford, the husband had lent money and taken a note to the order of himself and wife jointly. It was held that this was a gift to the wife, if it remained unpaid in the hands of the husband at his death, .and she survived. When a committee of the husband’s estate was appointed, she handed the note to the committee. That, of course, did not preclude her from claiming it after his death, for in his lifetime it was rightfully in his possession. Again, after his death she handed it to the appraisers of his estate, as a part thereof, and it was so inventoried. But the appraisers were not parties making a claim to the ownership of the note. She adjusted no controversy with them, and could have adjusted none. Neither of these transactions partake in the least of a claim to ownership, inconsistent with her title, and of a surrender in voluntary compliance with such claim.

Westerlo v. De Witt, was a case where the plaintiff, a lady, having in her possession a piece of property which had belonged to the testatrix, consulted the defendant, who was the executor and also a lawyer; was advised by him that the property belonged to the estate, and therefore gave it up. The parties were not on an equal footing. The plaintiff did not act on her own opinion, or on that of independent counsel. She accepted the advice of the opposing claimant. By giving advice, he stood in a confidential relation to her. No such settlement of a dispute could stand if questioned.

The case of Pitcher v. Plank-road Company, was where an infant made a compromise of a penalty to which it was claimed he was liable. An infant could not (except by consent of the court) legally compromise or settle a claim. Therefore that case is not in point.

There is not, so far as I see, any proof in the present case that there was a mistake of law or of fact. And certainly, if the plaintiff knew all of the facts, and understood their legal effect, he ought not to recover back property which he voluntarily gave up.

The judgment appealed from should be affirmed.

James, J.

(dissenting):

As I understand the rule of the common law, marriage was an absolute gift to the husband of the goods, chattels and personal property, of which the wife was actually possessed at the time of the marriage, and of such as should come to her during coverture; the title vesting in him by marriage, he might use and dispose of the same as his individual property, and at his death it would go to his representatives, and not to his wife, if she survived.

The acts of 1848 and 1849 did not change the rule of the common law further than to suspend its operation during the life of the wife, allowing her to use or dispose of her property. They did not prevent the estate from vesting, or the husband’s right to possession, subject to such suspension, so that at the wife’s death so much as remained undisposed of was the husband’s without any action on his part. In this case, and as to this property, the plaintiff, on the death of his wife, took absolutely as owner, under and by virtue of his marriage; and he was not required to perfect his title, possession or right to possession, by administration.

I do not think this view is affected by the case of Barnes v. Underwood, as this question was not in that case ; the husband there having taken out letters, the contest was as to who was'entitled to the estate. But if administration were necessary, it goes simply to the plaintiff’s capacity to sue, and should have been taken advantage of by answer. The counsel in no manner alluded to this question in their argument; the point was not insisted on, nor even mentioned in the respondent’s brief; it does not go to the merits, and should therefore be deemed waived. But no matter what we think of this question, a new trial should be granted (unless we hold the voluntary delivery estops plaintiff), and he be allowed to recover for that portion of the property taken, which belonged to him and never to the wife. This property was not claimed, but was delivered with the other property.

I am not prepared to say that plaintiff should be barred by reason of this delivery, even conceding it a question of law. The delivery by plaintiff was in ignorance of his rights as to the property the -wife received from her father. The referee finds that “the said property was delivered by the plaintiff and received Try the defendant as his property, under the claim of title made thereto by the defendant, and und-er no other consideration whatever; and in his subsequent report he finds that “ immediately before the delivery the plaintiff was i/n possession, was the owner, and held the legal title thereto.” It appears, then, that plaintiff was the then owner, and surrendered the possession to the defendant, believing the defendcmt to be the owner, and in ignorance of any title in himself.

In the recent case of Sanford v. Sanford, in the Court of Appeals, not yet reported, where a note had been delivered to the administrators as part of the assets, which legally belonged to plaintiff, the court said: “ But it' was proved on the last trial that these acts of plaintiff were done in ignorance of her rights to the note * * * hence, there is no foundation for an estoppel; ” and she was permitted to recover. To hold this plaintiff estopped, for the reason stated, would be unjust. The defendant has got property to which he is not entitled, and the plaintiff has lost property to which he is clearly entitled. The cases cited under plaintiff’s twelfth point, demonstrate quite satisfactorily that, in a case like this, this court, as a court of equity, has the power and ought to grant a new trial. In my judgment, the true rule in such cases is that laid down by Lord Mansfield, in Bize v. Dickason, that is, if a man has actually paid what the law would not have compelled him to pay, but what in equity and good conscience he ought, he cannot recover it back; but where money is paid under a mistake which there was no ground to claim in conscience, the party may recover it back.” In this case, the mistake was mutual. The defendant, when he claimed the property, believed he was the owner. This view is the most favorable to him, for if, when he claimed and demanded the property, he knew it was plaintiff’s, he would be guilty of a fraud, in claiming and demanding it as his. The property then is plaintiff’s, and the possession was surrendered to defendant through mutual mistake. The defendant conceded on the trial that he “ still retam,s ” the property, and the parties may therefore be restored to their original positions.

Where rights have been impaired through mutual mistake of the parties, and those rights can be restored without injury to either, and the rights of third parties do not intervene, a refusal to grant relief could rest on no sound principle. The doctrine of estoppel or mistake of law has no application.

I think the judgment should be reversed and a new trial granted, costs to abide the event.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed.

      47 N. Y., 351.

      3 Lans., 526.

      Champlin v. Laytin, 18 Wend., 407, per Bronson, J., at 413, where maybe found a review of the cases.

       47 N. Y., 57.

       3 Johns. Ch., 51, 60.

       Farmers’ Bank v. Blair, 44 Barb., 641.

       Court of Appeals, MS. (3d. time).

      36 N. Y., 340.

       10 Barb., 436.

       See Vallance v. Bausch, 17 How. Pr., 343; Ryder v. Hulse, 24 N. Y., 372; Ransom v. Nichols, 22 id., 110.

       47 N. Y., 351.

       Code, § 148.

       3 Wait’s Pr., 224, 225, and cases there cited.

       1 T. R., 285.

       Westerlo v. De Witt, 36 N. Y., 340 ; Sanford v. Sanford, before cited; see, also, 2 Alb. Law J., 405 et seq.; 3 id., 448 et seq.; 4 id., 7 et seq.; 6 id., 103 et seq.; 23 Am. Jur., 146,166, 371-412, where the cases are all reviewed.


author: James, J.: Boardman, J.: Learned, P. J.

text:
    AARON D. FENTON, Plaintiff, v. CHRISTOPHER S. ROBINSON, Defendant.

      Action on promissory note —fraud on maker — when constitutes a defense — Negligence.

    This action was brought by a bona fide purchaser of a promissory note, which the maker claimed to have signed under the belief that it was a contract to act as agent for a patent cultivator. Upon the trial, evidence was given tending to prove that the note was signed by the defendant at his own house; that he and two of his sons, who were present, could read; that defendant attempted to read the paper, but did not understand it well, and that it was then read over by the person presenting the paper, who was an entire stranger to the defendant and his family, and signed by the defendant. Held, that it was proper to submit the question of defendant’s negligence to the jury, and that a motion to direct a verdict in favor of the plaintiff was properly denied. (Learned, P. J„ dissenting.)
    This action was tried before the court and jury; the jury found á verdict for defendant. Upon plaintiff’s motion, the court ordered as follows: “ Exceptions having been taken to the verdict of the jury in this cause, on motion it is ordered that the plaintiff have sixty days to make a case and exceptions, to be heard in the first instance at the General Term,” etc.
    The action was brought to recover the amount of a promissory note, alleged to have been executed and delivered by the defendant to one Ingalls, dated July 3, 1872, for $200, payable on or before the 1st day of June, 1873. Upon the trial, evidence was given tending to show that on the 3d of July. 1872, Ingalls, the payee of the note, drove up to defendant’s house and wished to stay all night. That during the evening he exhibited to defendant a model of a cultivator and drill and seeder, and desired defendant to take an agency for the sale of the same in Hector township; and that the next morning the defendant' was induced to sign a contract accepting the agency, and also an order for a machine; on the back of the order was a certificate of.the amount of property owned by him. Duplicates, or purported duplicates, of these papers were made, so that the defendant was required to sign his name six times to papers then prepared by Ingalls. The defendant, quite an old man, is a farmer, not much accustomed to business outside of the routine of his farm duties. He started to read the papers, but could not understand them. Ingalls read them all over to him, and then he signed them, believing that they were all right, creating no obligation whatever for the payment of money, except in the contingency in the contract provided. He was assured by Ingalls that the other three papers were exact copies or duplicates, and upon such assurance he signed them. If the defendant ever signed the note in question, he must have done so while signing the supposed duplicates. Not a word had been said about giving a note, or the payment of money. The defendant never signed any note to his knowledge, and never agreed so to do, and never intended to give any note, and if it is his signature to the note, it was procured without his knowledge. The defendant and two of his sons, who were present at the time of the signing the papers, could read.
    The machines mentioned in the contract were never delivered, and it was conceded that the whole tiling was a fraud, perpetrated by Ingalls upon the defendant; but it is claimed by the plaintiff, that as he is a holder of the note for value — a bona fide holder — he is entitled to recover, notwithstanding the facts testified to by the defendant.

      T. D. Robinson, for the plaintiff.

      W. H. Austin, for the defendant.
   James, J.:

In this case no judgment was pronounced on the verdict, none entered, and no appeal taken. The case comes here solely upon the order of the judge at the Circuit, upon a motion for a new trial, on a case and exceptions, under authority of section 265 of the Code; and if a new trial, is denied, judgment on the verdict may be given in this court. The plaintiff is, therefore, confined to the exceptions taken at the trial.

This action was upon a promissory note for $200, payable to Ingalls or bearer, and had come to the plaintiff as a bona fide purchaser for value before maturity.

The defense was, that defendant never made or delivered the note; that the signature thereto, if made by the defendant, was obtained by fraud, and without defendant’s knowledge that he was signing such a paper.

At the close of the trial, the plaintiff requested the court to direct a verdict in his favor for the amount of the note ; the request was refused.

The case was then submitted to the jury, the court charging, “if defendant executed this note understanding that he was executing a promissory note — understanding that he was tb execute a note to this agent in this business transaction — although he was induced to execute by fraud on the part of this agent, it would be no defense to this suit; but if defendant supposed, and believed, and understood at the time, that he was only signing a duplicate of an order for the delivery of machines, or a duplicate of a contract creating an agency for the sale of machines in the town of Hector, and did not understand, or suppose, or intend to sign any promissory note at all, and was guilty of no neglect on his part in this transaction, in signing the papers— or, in signing papers, he did not understand the real purport of them—then these facts, if found from the evidence in this case, are a legal defense to this noteso that the distinct question of fact was put to the jury, whether, if defendant did not intend to sign a note, or understand he was signing a note, and his signature was obtained by deception and without his knowledge, he was guilty of any negligence in signing under the circumstances as shown by the evidence.” No objection was taken by the plaintiff to this charge, except to that portion wherein the court charged the jury, “ that if defendant signed the note, not knowing it was a note, he was not liable.” As no such charge appears in the case, nor anything like it, unless accompanied by qualifying or explanatory words, the exception is too indefinite and of no effect. The jury found for the defendant. Therefore, the only exception left in the case, is the exception to the refusal of the court to direct a verdict for the plaintiff at' the close of the trial.

This case, in its facts, is very similar to that of Chapman v. Rose, except that in this case, the question of negligence was submitted to the jury, and in that, its admission was refused. In Chapman v. Rose, the charge was, “that if the jury concluded, when Rose signed the orders, he did not intend to execute a note, as the transaction never called for one, it was not a note, and was never, at any time, valid in the hands of any partyand the defendant had a verdict. The General Term sustained this ruling. In reversing it the Court of Appeals said: “It turns out that defendant signed a promissory note, and that it is now in the hands of a holder in good faith, for value. The question which arises on the branch of the charge now under consideration, is, whether it is enough, as against a bona fide holder, to show that defendant did not know or suppose he was signing a note, unless it also appears that he was guilty of no laches or negligence in signing the instrument. To that inquiry the attention of the judge at the trial was distinctly called, and the instruction which he gave, and which was excepted to, did not submit, but excluded the consideration of it from the jury,” The case of Foster v. Mackinnon, cited in support of the ruling, was an action upon an indorsement of a bill of exchange, and the court charged the jury, “ that if the defendant signed it, not knowing it to be a bill, and believing it to be a guarantee, in consequence of a fraudulent representation as to its character, and if he was not guilty of any negligence or laches in signing it, he was not bound.” The jury found for the defendant. Upon a review, and upon a full and able discussion, the court held the direction to be right.

Therefore, in this class of cases, I understand the rule to be, that when a negotiable promissory note is procured by fraud, deceit or mistake, the maker not having intended making a note, and it gets into the hands of a bona fide holder for value before maturity, showing such facts constitutes no defense, unless defendant can go further, and show and establish that, in putting his signature to the note, he was not guilty of any negligence or laches j if a party can establish all these facts, he cannot be charged with such an instrument any more than he can be with a note to which his name has been forged. In this case there was evidence upon the question of negligence : the defendant’s age; his being unaccustomed to business outside his farm; his efforts to read the papers; inability to understand them; his having them read over to him, observing they were all right as read, and contained no agreement to pay money except as provided in the contract. This evidence, even though weak, was proper for the jury; it would have been error not to have submitted it, and therefore the court was right" in its ■refusal to direct a verdict as requested.

Upon the motion before us we have no right to review the verdict ; no right to examine the evidence further than necessary to determine whether the court was right in refusing to direct a verdict for the plaintiff.

Motion for a new trial denied, and judgment ordered for defendant on the verdict.

Boardman, J.:

Concurring in brother Learned’s views of the law, I still think the question of defendant’s negligence was fairly submitted to the jury, and the judgment should be ordered for the defendant on the verdict, unless there is conclusive evidence of negligence on defendant’s part. I think there was evidence tending to show that the defendant exercised care and prudence in ascertaining the contents of the paper signed by him. He endeavored to find out what he was signing, and supposed he had. It is true the evidence is not very strong or satisfactoiy, but it is evidence upon the subject, and it can rarely be a matter of law to determine the dividing line between necessary care on the one hand, and negligence on the ■other. • Believing that there is some evidence to sustain the verdict of the jury, I am disposed to concur in the opinion of brother James.

Learned, P. J.

(dissenting):

I think that the court should have directed a verdict for the plaintiff. It was admitted that the plaintiff was a bona fide holder for value.

The syllabus of Chapman v. Rose, is, that “ where one having the opportunity and the power to ascertain with certainty the exact obligation he is assuming, yet chooses to rely on the statements of the person with whom he is dealing, and executes a negotiable instru.ment without reading or examination ; as against a bona fide holder for value, he is bound by his act. To avoid liability he must show that he was guilty of no laches or negligence in signing.” In that case the court say that meaning to make an obligation in writing, and which was put in writing that it might of itself import the fact and the form and the measure of the obligation, he trusted to another to fix that form and measure, without exercising that supervision which was in his power, and by which perfect protection was possible. In such case the rule is that he is bound by the act of him who has been trusted, in favor of a holder in good faith.”

That case is almost identical with the present. Ingalls, a stranger, came to the defendant’s house and made some bargain with him about a cultivator patent right. The defendant had a wife and five children in his family. He could read and two of his sons, could read. He did read one of the papers; that which was delivered to him. Ingalls said the other was just like it, and the defendant signed it without reading, and without having his family read it. Thus the defendant had the opportunity and power to ascertain with certainty the exact obligation he was signing. He could have read it, or he could have had his sons read it. Instead of doing this he trusted to the statements not of an indifferent person but of the person with whom he was dealing; and that person was an utter stranger. Can it be said that he was guilty of no negligence ?

It is not a question of degree of negligence; it is a question whether there was any negligence. If there was, the defendant cannot shield himself from liability on his note. By signing the note he enabled Ingalls, or some one else, to obtain the money of the plaintiff, an innocent person. To escape from liability on the note, he must show that he was guilty of no negligence or laches.

We must remember that negligence is not the ground of action. Want of negligence is the alleged ground of defense.

Now the defendant did not read the paper which he signed and gave to Ingalls; he had the power to read it, and the opportunity; he could have caused it to be read to him by those on whom he might reasonably rely; he did not do this; he trusted a man whose interests were adverse to his own, and no reason is shown why he should have thus trusted. The facts were undisputed. 1 think they did not warrant the submission to the jury of the question whether the defendant was free from laches or negligence.

Motion for new trial denied.

       Siegel v. Schantz, 3 N. Y. S. C., 353.

      44 How. Pr., 364; 9 Alb. Law Jour., 39.

      L. R. (4 C. P.), 704.

      56 N.Y., 137.


author: Learned, P. J., and James, J. James, J.,

text:
    HENRY C. KING and another, Appellants, v. MICHAEL GALVIN, Respondent.

      Estoppel—election of remedies—when parriy bound by.

    This action was brought to recover the value of certain property belonging to the ' plaintiff, taken by the defendant, a judgment creditor of one Phillips, ón an execution issued against him, as being his property. After the commencement of this action Phillips was declared a bankrupt, and his assignee sued the plaintiffs for property of Phillips fraudulently purchased of him by them, and recovered judgment against them therefor. In this proceeding- plaintiffs claimed and were allowed to deduct from such claim against them, whatever the sheriff, by virtue of the execution against Phillips, had taken from them, such deduction including the property sought to be recovered in this action. Held, that the plaintiffs, having been allowed the value of the property taken by the defendant in the suit brought by the assignee of Phillips, could not now deny that such property belonged to him; and that this action could not be maintained.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court, and from an order denying a motion for a new trial, made upon the judge’s minutes.

      J. M. Carroll, for the appellants.

      J. E. Dewey, for the respondent.
   Opinions by

Learned, P. J., and James, J.

Present — Learned, P. J., Boardman and James, JJ.

James, J.,

dissented.

Judgment and order affirmed.


author: James, J.

text:
    DAVID A. BANKER, Appellant, v. ELLEN M. BANKER, Respondent.

      New trial in equity cause — when not granted.

    Although courts of equity may and will, in proper cases, grant a new trial in a suit in which the judgment binds the plaintiff as to his inheritance, in analogy to the statutory right of a defeated party in an action of ejectment, yet such rule does not apply to an action brought by an heir at. law against the widow of his deceased father to have the marriage declared void on account of the lunacy of the father at the time of the marriage, as a judgment therein sustaining the marriage does not defeat the plaintiff’s right as heir, but at most merely suspends his possession of a portion of the estate for the life of the defendant.
    . Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court at Special Term.

      James Lansing, for the appellant.

      R. A. Parmenter, for the respondent.
   Opinion by

James, J.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed.


author: Boardman, J.

text:
    PATRICK QUINN, Plaintiff, v. WALTER CARR and others, Defendants.

      Contracts of agent—when principal not hound by.

    The defendants, who were - commission: merchants in the city of New York, employed one Carr as their agent at .Norwich, New York, to solicit, obtain, and ship to them produce tó be sold on commission. The plaintiff delivered to Carr a quantity of butter to be shipped to defendants and sold on commission, upon the guarantee of'said Carr that it would bring thirty to thirty-three cents per pound, less commission. The defendant had. no knowledge of the guarantee, and had never given Carr any specific authority to bind them by such a guarantee. No evidence was given of any similar act of Carr. The butter having been sold for less than the price guaranteed, this action was brought to .-recover the.-differenee. 5¿Zd,-.-that Carr had no authority, either real or apparent, to make the contract, and that defendants were not. liable thereon.

      Motion for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict for the plaintiff at the Circuit.

      E. H. Prindle, for the plaintiff.

      E. B. Thomas, for the defendants.
   Opinion by

Boardman, J.

Present — ■ Learned, P. J., Boardman and James, JJ.

Motion for new trial granted, costs to abide the event.


text:
    FRANKLIN E. CLEMONS, Respondent, v. WASHINGTON DAVIS, Appellant.

      False impiisanment—Special damages—when must he alleged—Amendments — when allowed.

    This action was brought to recover damages for the false imprisonment of the plaintiff by the defendant. Upon the trial, the plaintiff was allowed to prove the effect of his arrest upon his business, although no special damages were alleged in the complaint. Held, that the judgment would not be reversed for this error; that as special damages do not constitute a distinct cause of action, but only tend to increase the recovery, that the complaint could be amended at the trial by adding the necessary allegations, and that the General Term would, in furtherance of justice, consider it so amended.

    Appeal from a judgment in favor of the plaintiff, entered, upon, the verdict of a jury.

      J. L. Baker, for the appellant.

      King & Montgomery, for the respondent.

       Van Ness v. Bush, 14 Abb., 33 ; Bowdoin v. Colman, 6 Duer, 183; Bate v. Graham, 11 N. Y., 237.

   Opinions by

Learned, P. J., and James, J.

Present—.Learned, P. J., Boardman and James, JJ.

James, J.,

dissented.

Judgment affirmed.


text:
    RENSSELAER R. MOORE, Respondent, v. JOHN McCARTHY, Appellant.

      Lease—extension of— surrender.

    This action was brought to recover rent, alleged to be due upon a sealed lease, ' whereby the defendant leased of the plaintiff certain premises for the term of three years from January 1,1869, with the privilege of three years more, after the termination of the first term. The defendant entered and occupied the premises for fifteen months; he then, having paid the rent to that date, left the premises, one Kinny being in possession with plaintiff’s knowledge. Kinny continued to occupy, paying rent to the plaintiff, till May 8,1872, when he left, delivering the key to the plaintiff, who accepted it and subsequently rented a portion of the premises. Held (1), that the holding over of Kinny did not constitute an election on the part of the defendant to extend the term; (2), that accepting the key and re-renting the premises was a surrender and termination of the lease, at least from the time of the re-renting, if not from the time of accepting the key.
    Appeal from a judgment in favor of the plaintiff, entered upon" the report of a referee.

      Churchill & Nutting, for the appellant.

      Waters & Sands, for the respondent.
   Opinion by

James, J.

Present — Learned, P. J., Boardman and James, JJ.

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


author: Learned, P. J.

text:
    EDMUND KELLY, Respondent, v. THE FALL BROOK COAL COMPANY, Appellant.

      Principal — when bound, by contracts of agent.

    An agent who is accustomed to make contracts for his principal, with the principal’s knowledge, may bind the principal by his contracts, although the instructions of the agent are not to contract without his'principal’s knowledge.

      Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought to recover damages for an alleged breach of a contract, claimed by the plaintiff to have been made between him and the defendant about June 7, 1873. The plaintiff alleges an agreement by defendant “ to load his vessel and furnish a cargo from the office Of defendant, at Watkins, in the county of Schuyler, to some point east, in turn with the defendant’s boats, and in that way give full cargoes and employment for the plaintiff’s boat and its master and crew during the said season,” and alleges, as a breach, that his boat was not loaded in turn, but was kept idle, and claims damages for such breach.

      Hurd & Fletcher, for the appellant.

      William Lounsbery, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment affirmed.


author: Learned, P. J. James, J.,

text:
    MARTIN COLE, Respondent, v. MATTHEW VAN KEUREN, Appellant.
    1 B. S., 501, § 1, sub. 3 — order of commissioners as to a public highway—effect of.

    When the commissioners of highways of a town meet, and, it appearing to them that a certain road has been used as a highway for more than twenty years; order it to be ascertained and recorded, such order is not conclusive upon a person claiming that the said highway is a private road, and, that he is the owner of the soil thereof. The statute (1 R. S., 501, § 1, sub. 3), does not authorize the commissioners to create or enlarge, but only to perpetuate,", the evidence of a public right; the fact of dedication depends on the user.

    Appeal from a judgment in favor of .the plaintiff, entered upon the verdict of a jury.

      S. L. Stebbins, for the appellant.

      William Lounsbery, for the respondent.

       People v. Judges of Cortland Co., 24 Wend., 491; Talmage v. Hunting, 39 Barb., 654; affirmed 29 N. Y., 447.

   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

James, J.,

dissented.

Judgment affirmed.


text:
    CAROLINE E. PATRICK and another, Committee, etc., Respondents, v. THE EXCELSIOR LIFE INSURANCE COMPANY, Appellant.

      Policy of insurance—when not invalidated try suicide of insured.

    In an action upon a policy of insurance taken out upon the life of a husband for the benefit of his wife, the suicide of the insured is not a defense where there is no stipulation to that effect in the policy.

      Fitch v. American Popular Life Ins. Co. (11 Alb. Law Jour., 91) followed.
    The expression, in a policy of life insurance, “ in the known violation of the law of any State,” cannot be construed to include suicide.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the judge’s minutes.

      Elliott F. Shepard, for the appellant.

      Henry Smith and John R. Putnam, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment and order affirmed.


text:
    EDWARD K. TOWNSEND, Appellant, v. DAVID M. BRUNDAGE, Respondent.

      Trespass — property damaged try—how vakie of determined.

    Upon the trial of an action brought by the plaintiff to recover the damages occasioned by cattle of -the defendant entering on his land, and destroying his grass and apples, a witness was asked: “To the best of your knowledge, were there 100 bushels of apples there?” Held, that the question was proper, and that it was not objectionable as calling for the opinion of the witness. Morehouse v. Matthews (2 N. Y., 515), Armstrong v. Smith (44 Barb., 120) distinguished.
    Appeal from a judgment of the County Court of Sullivan county, reversing a judgment in favor of the plaintiff, recovered in a Justice’s Court.

      Groo & Wiggins, for the appellant.

      R. J. Jelliff, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment of the County Court reversed, and that of the justice affirmed, with costs.


text:
    ANTHONY H. BLAIDSELL, Appellant, v. DANIEL WHITEFORD, Respondent. THE SAME v. FLETCHER B. STORY, Respondent. THE SAME v. JOHN G. WILLIAMSON, Respondent. THE SAME v. HANNAH EDGET, Respondent.

      Summons—form of notice— Oode, % 129, sub. 2.
    An action to recover rent upon a lease by the terms of which the rent is to be paid in wheat, is not an action arising on contract for the recovery of money only, and the summons should contain the notice required by subdivision 2 oí section 129 of the Code.

      Appeals from orders made in the above entitled actions, striking out the complaint in each, unless the plaintiff should amend the summons so that the notice should be under the first instead of under the second subdivision of section 129 of the Code.

      Matthew Hale, for the appellant.

      J. A. Griswold, for the respondents.
   Opinion by

Boardman, J.

Order reversed with ten dollars costs in first case, and with expenses of printing in all, and motion denied with ten dollars costs . in each case.


text:
    JOHN McDONNELL and another, Respondents, v. WALTER BAUENDAHL and others, Appellants.

      Assignment by bankrupt—effect of.

    One Lee, after he had been declared a bankrupt, assigned to the plaintiffs the claim against the defendants upon which this action was brought; no assignee in bankruptcy was ever appointed, and the proceedings were subsequently discontinued. Held, that the assignment was valid.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      I. S. & C. H. Smith, for the appellants.

      F. Fish, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment affirmed.


text:
    CORRAN P. STANTON, Respondent, v. ALBERT N. PRITCHARD, Appellant.

      Cutting timber — measure of damages.

    In an action for cutting and removing standing timber, the measure of damages is the value of the timber at the place where it stood when the trespass was committed, unless the action is brought and a recovery had under the statute (2 R. S., 388, § 1), when the damages may be trebled.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Isaac S. Newton, for the appellant.

      E. H. Prindle, for the respondent.

       Whitbeck v. N. Y. C. R. R. Co., 36 Barb., 644.

   Opinion by

James, J.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed.


text:
    ELIJAH BEATTY, Respondent, v. AUGUSTUS MYERS, Appellant.

      County Court—appeal from.

    Where an action is commenced in a County Court, an appeal may be taken from a judgment entered therein, upon a case and exceptions, without first moving in such court for a new trial.
    Appeal from a judgment of the County Court of Ulster county, in favor of the plaintiff, entered upon the verdict of a jury.

      Charles A. Fowler, for the appellant.

      A. S. Schoonmaker, for the respondent.
   Opinion by

James, J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment affirmed.


text:
    ALFRED SWART, Respondent, v. ROBERT S. LIVINGSTON, Appellant.

      Agency—statement of alleged agent to tim'd person—effect of its admission in evidence.

    Appeal from a judgment of the County Court of Columbia county in favor of the plaintiff for $186.18 damages and costs, and from an order denying a motion for a new trial.
    The only point raised in this case was on the objection to a question put to one Crawford, whether he told the plaintiff, when he • hired him, that he hired him for the defendant. The court held, that the admissibility of that evidence depended on Crawford’s authority from the defendant; that is, it depended on his agency. If Crawford was defendant’s agent to hire the plaintiff, then what he said in hiring was admissible as part of the res gestee; otherwise not. That Crawford’s agency was a question of fact on which the evidence was conflicting. The defendant might have asked the court to instruct the jury, that if Crawford was not otherwise shown to • be the defendant’s agent to do this hiring, then the statement made by him at the time would have no weight; but no such request was made. The court held, that it could not say as matter of law that Crawford was not the defendant’s agent, for the jury must have found that he was; and, therefore, it could not say that there was error.
    The judgment and order were affirmed.

      J. B. Longley, for the appellant.

      R. E. Andrews, for the respondent.
   Opinion by the court.

Present—Learned, P. J., Boardman and James, JJ

Judgment and order affirmed.


text:
    THE OGDENSBURGH AND LAKE CHAMPLAIN RAILROAD COMPANY, Appellant, v. VERMONT AND CANADA RAILROAD COMPANY and others, Respondents.
    Motion to dismiss an appeal from a judgment, entered on a demurrer to the plaintiff’s complaint.
    This action was brought to obtain a decision from the court, whether a certain lease executed by the plaintiff to the Vermont and Canada Railroad Company was or was not void. The plaintiff did not affirmatively allege that the lease was void, but it asked for a decision on this point and a judgment that, if void, it be annulled and they restored to their rights as before the lease was executed. The defendant, the Vermont and Canada Railroad Company, demurred. The demurrer was sustained.
    The Vermont and Canada Railroad Company moved to dismiss this appeal, on the ground that before and since the judgment on the demurrer, the plaintiff accepted rent on the lease, and thus ratified it.
    The ground on which it is claimed that the lease is void, is, that it was one which the company had no power to make — ultra vvres. The General Term was of opinion that if the Ogdensburgh and Lake Champlain Railroad Company had no power to make such a lease as the one in question, they had no power to ratify it by accepting rent.

      L. Hasbrouck, Jr., and Wm. M. Evarts, for the appellant.

      Edward C. James, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

James, J.,

dissented.

The motion to dismiss the appeal denied, with ten dollars costs.


text:
    GEORGE P. KIRK, Respondent, v. H. WILSON BLASHFIELD, Appellant.

      Judgment in Justices Oourt dismissing action on the ground of a, want of jurisdiction— Bes adjudicata—costs in such case on recovery of less than fifty dollars in action in Supreme Oourt.

    Appeal from a judgment in the Supreme Court, entered in favor of the plaintiff.
    The plaintiff commenced an action in a Justice’s Court. The defendant objected to the jurisdiction, on the ground that the accounts between the parties exceeded $400. The justice, after first overruling the objection, finally dismissed the' action upon that same ground. The plaintiff then sued in this court and recovered $38.50. On a motion at Special Term he was allowed costs.
    It was admitted that the justice was in error in his decision, but no appeal was taken from it. The General Term held, that if an appeal had been taken, and thereupon the same decision had been made in this court, that the matter would have been res adjudicata ; and that as the plaintiff rested satisfied with the decision which was made by the justice, and as that was made on the defendant’s objection, it must be taken as the settled rule of this present case.
    The court also examined the question raised as to this order, and held, that as a matter of practice the defendant should have appealed from the order of the Special Term granting the- plaintiff costs, and not from the judgment; and that this case should not be considered a precedent as to the manner of reviewing such orders.

      A. J. Parker and O. Porter, for the appellant.

      B. A. Benedict, for the respondent.
   Opinion by

Learned, P. J.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed.


text:
    CALVIN L. HATHAWAY, Appellant, v. EDWIN W. HOWELL, Respondent.

      Execution—issued before entry of judgment.

    Appeal from a judgment in favor of defendant, entered on the report of a referee.
    This was an action to recover the possession of certain hotel furniture, of the value of $10,000.
    The case was once before tried, and the defendant had judgment', which was affirmed at the General Term, but reversed by the Commission of Appeals.

    The defendant, as sheriff of Chemung county, justified taking and holding the property under and by virtue of an execution against one Slater, dated May 26,1866, reciting a judgment of that date as the basis for its issue. It was shown that papers were prepared for obtaining a judgment, by confession, on Saturday evening, May twenty-sixth, and left in the clerk’s office to be entered up after hours, but was not and could not be perfected until eight o’clock, Monday the twenty-eighth. This execution was issued and delivered to the sheriff on May twenty-sixth, with directions to levy, and a levy was made on that day. On the former appeal, the Commission held  that an execution did not vest any right or title to the execution debtor’s property in the sheriff until actual levy made; and that a levy must be made during the life of the execution ; that the execution was void; and that no title was acquired by the sheriff by his levy on the twenty-sixth. That the judgment against Slater did not become perfected until eight a. m., on the twenty-eighth, arid no levy was shown to have been made after that date within the life of the execution.
    On the second trial, the défendant undertook to show that a new levy was made with this execution after eight o’clock on Monday, the twenty-eighth.
    The question passed, on by the General Term was the sufficiency of the evitieñóe on' the sécond trial "to ‘establish a levy on May twenty-eighth. The court was of opinion that that fact was not shown by the evidence, and reversed the judgment, granting a new trial, costs to abide the event. ,

      Milo Goodrich, for the appellant.

      S. B. Tomlinson, for the respondent.

      54 N. Y. 97.

       54 N. Y., 102.

   Opinion by

James, J.

Present—Learned, P. J., Boardman and James, JJ.

Judgment reversed, and new trial granted, costs to abide event.


text:
    ELAM LOOMIS, Respondent, v. LeROY MOWRY and others, Appellants.

      Search for written instrument— necessa/ry to enable party to give parol pn'oof of its contents — cross-examination of witness.

    This action was brought to recover damages for the alleged conversion of a note. The complaint charged that in September, 1870, the plaintiff made a note for $534, payable to one Sanborn, who is alleged to have indorsed it. It is then alleged that the note was received by the defendants upon the agreement that it should be returned to the plaintiff before maturity; that it matured December - 4, -1870; that the defendants did not return it, but before maturity sold and converted it.
    The question on this appeal is raised by exceptions taken to refusals of the court below to allow a cross-examination of a witness upon the question whether he had made proper search for a written instrument, as to the contents of which parol evidence was given on the trial. The court at General Term held, that such refusal was error, and reversed the judgment and granted a new trial, costs to abide the event.

      U. G. Paris, for the appellants.

      Hughes & Northrup, for the respondent.
   Opinion by

James, J.

Present—Learned, P. J., Boardman and J ames, JJ.

Judgment reversed, and new trial .granted, costs to abide event.


text:
    WILLIAM P. BAKEN, Survivor, etc., Appellant, v. EUNICE C. HARDER, Respondent.

      Married woman—charging separate estate.

    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    Upon a former appeal in this action from a judgment in favor of the plaintiff, the judgment was reversed, upon the ground that the plaintiff’s claim was for the benefit and advantage of defendant’s husband, and in no respect for the benefit of her separate estate, and that she had not charged her separate estate with the payment of the debt. Upon this appeal the General Term were of the opinion that the cases of Maxon v. Scott

       and Kelty v. Long,
       were not in conflict with the'former decision of the court in this case, and, as the facts upon which it was presented were substantially the same, affirmed the judgment.

      D. Magone, Jr., for the appellant.

      Vary & Stone, for the respondent.

       55 N. Y., 247.

       8 S. C. (1 Hun), 714; S. C., 4 N. Y. S. C., 163.

   Opinion by

Boardman, J.

Present — Learned, P. J., Boardman and James, JJ.

James, J., dissented.

Judgment affirmed, with costs.


author: James J.

text:
    SARAH M. COOK, Respondent, v. THE UNITED STATES EXPRESS COMPANY, Appellant.
    Appeal from a judgment of the County Court of Tompkins county, in favor of the plaintiff, entered on the verdict of a jury, and from an order of this court, denying a new trial, upon a motion certified into this court.
    This action was brought to recover the value of certain articles claimed to have been taken from a trunk of the plaintiff while in the possession of the defendant. The judgment was reversed on the ground that the plaintiff, was allowed to testify to statements made to her by a man at a depot, to the effect that he was an agent of the company, which in fact he was not, and also on the ground that the verdict was against the weight of evidence.

      Marcus Lyon, for the appellant.

      John A. Williams, for the respondent.
   Opinion by

James J.

Present — Learned, P. J., Boardman and James, JJ.

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


text:
    HORACE KELLOGG and another, Respondents, v. GEORGE WITHERHEAD, Appellant.

      Statute of frauds.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover the price of a quantity of hams alleged to have been sold to the defendant by the plaintiffs. The General Term held (following Bates v. Coster, 8 S. C. [1 Hun), 400), that the agreement between the parties constituted a contract for the sale of the hams, and not one for work and labor to be performed upon them; and that, as the requirement of the statute of frauds had not been complied with, the contract was void, and could not be enforced.

      Magone & Holbrook, for the appellant.

      L. M. & L. K. Soper, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., and Boardman, J.

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


text:
    ABRAHAM HOFFMAN and another, Respondents, v. THE UNION FERRY COMPANY OF BROOKLYN, Appellant.
    Appeal from a judgment entered on a verdict at the Montgomery-Circuit, and from an order denying a motion for a new trial.
    The action was brought to recover damages sustained by the plaintiff’s canal boat, Milton Hoag, in a collision with the defendant’s steam ferry boat, Baltic. On a former trial the complaint was dismissed, and, on appeal to the Court of Appeals, the judgment at the Circuit was reversed, and a new trial was ordered. On this appeal from the judgment entered on the new trial, the General Term was of opinion that the judge at the Circuit had followed the ruling of the Court of Appeals, and affirmed the judgment and order appealed from.

      Charles Mason, for the appellant.

      Henry Smith, for the respondents.

       47 N. Y., 176.

   Opinions by

Learned, P. J., and James, J.

James, J.,

dissented on the ground that the verdict was against the weight of evidence, and that the court erred in its charge.

Present — Learned, P. J., Boardman and James, JJ.

Judgment and order affirmed.


text:
    ROBERT F. SILLIMAN and others, Respondents, v. BENAJAH TYRRELL, sued with others, Appellant.
    Appeal from a judgment for plaintiffs, entered on a verdict directed by the court.
    This action was brought upon a promissory note, and the defense set up was, that a new note had been given in payment and satisfaction of the one sued upon.

      The court below directed a verdict for the plaintiff, and this court, on a review of the facts in the case, affirmed the judgment entered on such verdict.

      Francis A. Smith, for the appellant.

      U. G. Paris, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., and Boardman, J.

Judgment affirmed.


author: Potter, J.

text:
    JOHN W. BURR, Respondent, v. AGRICULTURAL INSURANCE COMPANY, Appellant.

      Principal and agent.

    Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the Tompkins county Circuit. The action was brought to recover loss sustained by plaintiff, and covered by a parol contract of insurance, alleged to have been made with plaintiff by defendant’s agent. The court, after a review of the case, concluded that the jury must have inferred from the instructions in the charge of the court, that a principal must be held to have conferred and to be bound by whatever power an agent may assume to have or to exercise, and that, though there may be cases when such instructions would be proper, this was not such a case.

      Starbuck & Sawyer, for the appellant.

      M. Goodrich, for the respondent.
   Opinion by

Potter, J.

Present — Learned, P. J., Boardman and Potter, JJ.

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


text:
    CHARLES WENTZLER, Respondent, v. SOLOMON ALDRICH, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The General Term was of the opinion that the evidence in this case was sufficient to sustain the findings of the referee, and affirmed the judgment.

      Edward K. Clark, for the appellant.

      R. H. Root, for the respondent.
   Opinion by

Boardman, J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment affirmed.


text:
    LUCIUS E. GREEN and another, Plaintiffs, v. PERRY N. ELDRED, Defendant.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed for the plaintiff. The only question presented upon this appeal was as to the proper construction to be given to a deed under which the plaintiff claimed. The General Term was of the opinion that the deed was properly construed by the judge at the Circuit, and ordered judgment for the plaintiff.

      Martin I. Townsend, for the defendant.

      Esek Cowen, for the plaintiffs.
   Opinion by

Boardman, J.

Present—Boardman and James, JJ.

New trial denied, and judgment ordered for the plaintiff, with costs.


author: Boardman J.

text:
    JOHN S. SLINGERLAND, Respondent, v. ERASMUS BENNETT, Appellant.
    Appeal from a judgment in favor of the plaintiff!, entered upon the verdict of a jury.
    The General Term held that the evidence in the case was sufficient to sustain the verdict of the jury, and affirmed the judgment.

      J. H. Clute, for the appellant.

      A. J. Parker, for the respondent.
   Opinion by

Boardman J.

Present—Boardman and James, JJ.

Judgment affirmed, with costs


text:
    LEAH J. INGERSOLL, Administratrix, etc., Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.
    Appeal from an order of the Special' Term, granting a new trial after verdict for the plaintiff. The action was to recover damages caused by the defendant’s running over and killing plaintiff’s intestate. The answer set up a special denial' and contributory negligence on the part of the intestate.
    The General Term was of opinion that the evidence in the case made it proper to submit the cause to the jury and that its decision thereon was conclusive.

      W. L. Van Denbergh, for the appellant.

      S. S. Jackson, for the respondent.
   Opinion by

Boardman, J.

Present—Learned, P. J., and Boardman, J.

Order reversed, with costs.