text:
    THE PHŒNIX WAREHOUSING COMPANY, Respondent, v. DANIEL D. BADGER, Appellant.

      Corporation — existence of — by whom, cannot be denied — subscription to stock of.

    This action was prosecuted by aud on behalf of the receiver of an insolvent corporation, to recover the unpaid balance of the subscription to the capital stock thereof, made by the defendant, who had been one of the originators of the enterprise, and, as a trustee of the corporation, had taken an active part in the organization' and management of the company. Reid, that he was estopped from donying the legal existence and validity of the corporation.
    The only subscription made by the defendant, was to the certificate of incorporation, by placing opposite to his signature the number of shares taken by him.

      Reid, that this was sufficient as a subscription.
    Defendant offered to show, that it was agreed between himself and the other projectors of the enterprise, that he was, in fact, to take only a portion of the shares subscribed for by him. Reid, that the evidence was properly excluded as incompetent, and in contradiction of his subscription.
    Subsequently an arrangement was made, with the approval of the company, by which the defendant agreed to transfer to one E. certain of his shares, upon the delivery to the company of E.’s notes, indorsed by the defendant, for unpaid subscription thereon. In accordance therewith, defendant delivered to the company ten of E.’s notes, indorsed by himself, with directions to transfer the stock to E. upon their payment. These notes were renewed several times by new ones, also indorsed by the defendant. Afterwards, the company, without the defendant’s knowledge or consent, accepted a new note from E., indorsed by a third person. Held, that defendant was a surety for E., and that the company, by taking a new note, and extending the time of payment, without his consent, assumed such note; and that defendant was entitled to be credited with the amount thereof in a statement of his account with the company.
    The appointment of a receiver after the commencement of a suit, does not cause the suit to abate, but it may be continued by the receiver in the name of the original plaintiff.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

      John Winslow, for tbe appellant.

      F. E. Dcma, for tbe respondent.
   Talcott, J.:

This action, is brought to recover of the defendant the unpaid balance of his subscription to the capital stock of the company. The corporation was attempted to be created under the general law of 1848, authorizing the formation of corporations for manufacturing, mining, mechanical and chemical purposes. The certificate, under and by virtue of which, the defendant and others undertook to create the corporation, was filed in September, 1863. The purposes specified in the certificate were stated as follows: £tFor the purpose of building tanks of iron or other material, and storing and keeping for hire, oil of various kinds, and for doing all such other business as may be pertinent to or connected with the storage of oil, petroleum, or other articles, for compensation.” The defendant, by way of defense, insists that the act of 1848 did not authorize the creation of a corporation for the purposes expressed in the certificate, and that, therefore, his subscription was void. But it appears that the defendant was not only one of the originators of the enterprise, but one of the trustees, and took an active part in the oi'ganization and management of the company, aiding in holding it out to the public as a lawfully organized corporation; that the company is insolvent, and that this suit, though commenced by the corporation, is in fact prosecuted by and in behalf of a receiver, and for the benefit of creditors. Under such circumstances the defendant is estopped from denying the legal existence and validity of the corporation, and the defacto existence of the corporation is sufficient. (Buffalo and Alleghany Valley R. R. Co. v. Cary, 26 N. Y., 75; Dorris v. French, 11 S. C. N. Y. [4 Hun], 292; 29 Barb., 305; 41 id., 151; 11 N. Y., 103; 57 id., 331.)

The only subscription made by the defendant, was to the certificate whereby the corporation was created, by placing opposite to his signature the number (250) of shares taken by him, and the defendant now claims that the execution of the certificate by him was not sufficient as a subscription, and did not bind him to take the stock thus subscribed for. We consider the law to be otherwise, and that the subscription in question was binding on the defendant and enured to the benefit of the corporation. (Buff. and N. Y. City R. R. Co. v. Dudley, 14 N. Y., 336; Lake Ontario, etc., R. R. Co. v. Mason, 16 id., 451; and note Dayton v. Borst, 31 id., 435.) Fifty shares of the 250 subscribed for by the defendant were paid for by him, and by his direction transferred to an iron manufacturing company, of which he was the president, and he insists that at the time of the subscription it was agreed between himself and the other projectors of the enterprise, that he was in fact only to take fifty shares of the stock. If this was so, being inconsistent with, and in contradiction of, his subscription he could not be .permitted to set it up. (Conn., etc., R. R. Co. v. Bailey, 24 Vt., 465 ; Piscataqua Ferry Co. v. Jones, 39 N. H., 491.) The evidence tends to show that the defendant was encouraged to believe, that some of the other parties would take the excess over fifty shares off the hands of the defendant, immediately on the organization of the company, and that he subscribed for the 250 shares, relying upon such representations. If any of the other parties made any binding engagements with the defendant to purchase of him the excess over fifty shares, his remedy is against the individual party or parties who made such agreement. The corporation was not at the time in existence, and as against its creditors, at all events, he cannot be permitted to contradict the tenor and legal effect of his contract. After the organization of the company, the defendant made an arrangement with Mr. John Edgerton, with the consent of the company, whereby Edgerton agreed to take off the hands of the defendant the 200 shares, by giving his notes to be indorsed by the defendant, for the amounts of the calls upon the stock as they should respectively be made. And the defendant claims, that there was an agreement on the part of the company, to substitute the liability of Edgerton for that of the defendant, so far as the 200 shares were concerned. The referee has found that this agreement is not proved, and, upon an examination of the evidence, it does not appear, that the company ever agreed to release the liability of the defendant, but, on the contrary, that after the arrangement with Edgerton, the defendant assumed to control the stock. Edgerton gave three notes in July, 1864, indorsed by the defendant, for $2,500 each, and the defendant thereupon gave an order to the company, that on the payment of those notes an equal amount of stock should be transferred to Edgerton. The three notes were paid and $1,500 of the stock was transferred to Edger-ton, in pursuance of the order of the defendant. In October, 1864, Edgerton gave three other notes indorsed by the defendant, one for about $1,500, which was given for the interest which had accrued on the unpaid subscription of the defendant, 'and two others, due in January and February, applicable to the purchase of the stock, and to meet the amount of calls which would be due at the maturity of the notes. With these last notes the defendant gave an order on the company, that on the payment of the three notes, fifty more shares of the stock should be transferred to Edgerton, and also an order on the company to pay Edgerton the dividend on the whole 200 shares. The $1,500 note, given for the interest, was paid, but the larger notes were renewed several times with the indorsement of the defendant, until finally one of the notes, so renewed, was given up to Edgerton, and a new note, for an extended time, and not indorsed by the defendant, but by another party, was received by the company as a substitute for the note so surrendered to Edgerton. The case does not show that this surrender of the note and the substitution of a new note -for an extended time, and with another indorser, was with the knowledge or consent of the defendant. As to the renewals indorsed by the defendant himself, his consent to the extension, is presumed from the indorsement by him of the renewal note, but no such presumption can be indulged with regard to the substitution of the note not indorsed by the defendant and not brought to his knowledge. The relation of the defendant to the transaction was as surety for Edgerton on the note, and when the company surrendered it, and took another note extending the time of payment and with a different surety, it assumed the note so far as the defendant was concerned. .We think the defendant has a right to treat that note as paid as between himself and the company, and the company cannot charge it to him, as it has attempted to do, in its account with the defendant concerning the stock subscription. In the absence of any further explanation, therefore, it would seem that the defendant is entitled to a further credit upon his stock subscription, beyond what he has been allowed by the referee, and upon this ground a new trial ought to be ordered, as there is a difficulty in adjusting the account on the case before us. And it is possible that the new note with Barstow’s indorsement, was received with the knowledge and consent of the defendant, and under such circumstances, that, in consequence of its non-payment, the defendant is not entitled to a credit of the amount. The appointment of a receiver since the commencement of the suit, does not operate to abate the suit, but it may be continued in the name of the original plaintiff. (Code, § 121; Albany, etc., Ins. Co. v. Van Vranken, 42 How. Pr., 281; Tracy v. First Nat. Bk. of Selma, 37 N. Y., 523.)

New trial is ordered, costs to abide the event.

Present — Barnard, P. J., Tappen and Taloott, JJ.

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


source: Caselaw Access Project

author: Barnard, J.

license: Public Domain

text:
    DORA PEEL, Respondent, v. JOHN KERN, Appellant.

      Witness —irrelevant questions for the purpose of discrediting — discretiona/ry.
    Inquiries on irrelevant topics to discredit a witness, and tlie extent to which a course of irrelevant inquiry may be pursued, are matters submitted to the sound discretion of the trial court. The exercise of that discretion is not the subject of legal review, except in cases of plain abuse and injustice. (La Beau v. The People, 34 IT. Y., 233; Gft. Western Turnpike Oo. v. Loomis, 32 id., 127; QretonY. Smith, 33 id, 245.)
    This action was tor an assault and battery. Tbe defendant was sworn on the trial and denied committing the same.
    The conflict between the plaintiff and her witnesses, and the defendant and his witnesses was entirely irreconcilable.
    The court, on this state of facts, permitted, for the purpose of affecting the credibility of the witness, questions to be put to him, as to his having beaten two other persons, and having had difflcnlty with a third. Affirmative answers were given, accompanied by statements which tended to justify the assault, if they did not wholly justify the same.
    • John Fleming, for appellant. Theodore J. Oogswell, for respondent. ■
   Opinioii by

Barnard, J.

Present — Barnard, P. J., Tappbn and Taloott, JJ.

Judgment affirmed, with costs.


text:
    JOHN MULQUEEN, Appellant, v. JOHN F. DUFFY and JOSEPH H. BARTLETT, Administrators, etc., Respondents.

      General otgeetiow — when sufficient— Code, § 399.
    When the evidence is legally improper, and the obj ection to it could not be removed, if the attention of the party offering it were called to the particular objection, then a general objection is sufficient, to justify a ruling rejecting it.
    Under section 399 of the Code, a party to an action cannot testify against the representatives of a deceased person (parties to the action), that he did not see, or did not have a personal transaction with such deceased person.
    Appeal from a judgment entered on the report of a referee, appointed under the provisions of the Revised Statutes, to determine the validity of a disputed claim against the estate of Margaret Duffy.

      3. O. M. Ingraham,, for appellant. N. 3. Clement, for respondents.
    Present — Barnard, P. J., Tappen and Talcott, JJ.
   .Judgment affirmed, with costs.


author: Talcott, J.

text:
    THE PEOPLE ex rel. JOHN H. ATKINSON and others, Respondents, v. GILBERT TOMPKINS, Jr., Supervisor, Appellant.

      Ghap. 855 of 1869 — ordinance, of supervisors affecting one town only — assent of supmism' of town.

    The provisions contained in section 2 of chapter 855 of the Laws of 1869, extending the powers of boards of supervisors, that “ no special ordinance, relating to any one town or ward only, shall be operative, unless it receives the affirmative vote of the supervisor of such town,” applies to the matters specified in the first section of the act, as well as to those mentioned in the second section.
    Accordingly held, that an ordinance of tlie board of supervisors of Orange county, ordering the supervisor of the town of Cornwall to borrow $3,500 on the credit of that town, to build and repair roads therein, was invalid, for the reason that it had not received the affirmative vote of the supervisor of that town.
    Appeal from an order made at the Special Term, awarding a writ of peremptory mandamus, directed to Gilbert Tompkins, Jr., commanding him forthwith to borrow, for and on the credit of the town of Cornwall, the sum of $3,500, to build and repair the roads mentioned and described in a certain certificate, as authorized and directed by a resolution of the board of supervisors of Orange county.

      D. F. (& H. Gedney, for appellant. Eugene A. Brewster and John II. Bergen, for respondent.
   Opinion by

Talcott, J.

Present — Barnard, P. J., Tappen and Talcott, JJV

Order granting mandamus reversed, with costs.


author: Barnard, P. J.

text:
    HIRAM V. BAYLIS, Appellant, v. HENRY G. SCUDDER and others, Respondents.

      Injunction — damages on bond gimen on obtaining.

    Tiie plaintiff brought this action against the defendants, individually, to restrain them from laying out a highway in the town of Huntington, as coinmissioners appointed under chapter 344 of 1870, and procured a temporary injunction therein, which was subsequently dissolved. The defendant claimed, as damages sustained by reason of the injunction, the amount paid to the counsel appearing for them, on the motion to dissolve the injunction. The plaintiff claimed that they were sued, as individuals, and that as such they had sustained no damages, the counsel fees being paid from the proceeds of bonds sold by them as commissioners. Held, that as the defendants had no authority to apply the proceeds of the bonds to the payment of counsel fees, such payment must be considered as a private one, and that they were entitled to recover therefor.
    Appeal from an order confirming the report of a referee, appointed to compute the amount of damages sustained by the defendants, upon a temporary injunction, granted in this, action.

      J. Lamrenee Smith, for appellant. Henry G. Platt, for respondents.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order affirmed, with costs and disbursements.


text:
    WILLIAM G. ACKERMAN v. CHARLES E. GORTON.

      Will — nested remainder — lien of judgment on — pow&r of sale.

    A testator by his will devised his real estate to his wife, to be used and enjoyed by her during the term of her natural life, “ and from and immediately after her decease ” he devised the same to his children, naming them. By a codicil he authorized his wife to sell and dispose of the real estate, upon the condition that the sale should be subject to the approval of each and every of the heirs of his estate, surviving at the time of such sale. Subsequently, and after the recovery of a judgment against one of the children, the widow, with the consent and approval of all the heirs, sold the property. Held, that the children took vested estates in remainder in the real estate, immediately upon the decease of the testator; that the judgment subsequently recovered, became a lien upon the share of the judgment debtor, and that the same could not be cut off by the sale under the power.

      Livingston v. Greene (52 N. Y., 118) followed.
    Controversy submitted without action, under section 372 of the Code.

      Ralph E. Prime, for plaintiff. Matt. TI. Ellis, for defendant.
   Opinion by

Barnard, P. J.

Present— Barnard, P. J., Tappen and Talcott, JJ.

Judgment for defendant, upon submitted case, with costs.


text:
    JOHN D. STARK, Appellant, v. ELIAS HEMSTEAD, Respondent.
    ■ Smeties— discharge of— 2 S. 8., 380.
    Where an application is made by sureties to an undertaking upon arrest, after suit brought against them, to exonerate themselves from liability, the surrender must be made under the Bevised Statutes. (2 B. S., 380; Code, § 409; dozen v. Walters, 55 N. Y., 304.)
    Appeal from an order made at the Special Term, exonerating the sureties upon an undertaking given upon the arrest of the defendant,

      John D. Pray, for appellant. Jackson do Burr, for respondent.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., Tappen and Taloott, JJ.

Order reversed, with costs and disbursements.


author: Taloott, J.

text:
    JACOB B. MURRAY, Respondent, v. JOHN A. VANDERVEER, Appellant.

      Oounty Court — eaxeptions tajeen on trial — appeal from judgment.

    Exceptions taken to the rulings of tlie court, upon the trial of a case in the County Court, will not be passed upon by the General Term until the bill of exceptions has been before the Oounty Court.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action in the County Court, the action having originated in a Justice’s Court.'

      II. O. Place, for appellant. Jamies Troy, for respondent.
   Opinion by

Taloott, J.

Present — Barnard, P. J., Tappen and Taloott, JJ.

Judgment affirmed.


author: Tappen, J.

text:
    JOHN BELL, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Chap. 395 of 1871 —failwre of Jmsband to support wife.

    Where a person is brought before a police justice, under chapter 395 of 1871, charged with an abandonment of, and a failure to support his wife, the fact that his wife had formerly abandoned him, and that she was a dangerous woman, who had formerly offered him violence, does not relieve him from the duty of supporting his family, where there is an offer to live with him and a demand for support.
    ■ Certiorari to review the conviction of the plaintiff in error, of abandoning his wife and leaving her without adequate means of support.

      Thomas Bracken, for plaintiff in error. Wm. Sullivan, foi defendant in error.
   Opinion by

Tappen, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Proceedings affirmed.


text:
    WILLIAM BUNN, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

      Negligence — duty of person crossing raibroad track —contributory negligence.

    This action was brought to recover damages, for injuries sustained by the plaintiff, in consequence of a collision with atrain on defendant’s road. Upon the trial, the defendant’s counsel requested the court to charge, “ that aperson who attempts to cross a railroad track, is required to make a vigilant use of his eyes and ears in looking and listening to ascertain whether a train is approaching, and if he does not do so, he is guilty of negligence.” The court declined so to charge, and charged instead, “that the omission to use eyes and ears is negligence.” Eeld, that it was error to refuse to charge as requested (Weber v. N. T. G. and E. B. B. Go., 58 N. Y., 451); that the refusal to charge, that the plaintiff was bound to make a “ vigilant” use of his senses, to ascertain if there were any signs of the approaching train, was calculated to mislead the jury into the belief that no especial vigilance was required.
    The defendant’s counsel also requested the court to charge, that if the plaintiff was guilty of any fault or negligence whatever, which, in any manner, contributed to his injury, he could not recover. The court refused so to charge, but charged that if the plaintiff was guilty of negligence he could not recover. Eeld, that the refusal to charge as requested was .error; that the refusal might induce the jury to believe, that although the plaintiff had been guilty of a “fault” which immediately conduced to the injury, yet, if the fault did not consist of mere negligence, then the plaintiff would be entitled to recover.
    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 at the Special Term.

      Hamilton Odell, for appellant. H. H. Olement, for respondent.
   Opinion by

Talcott, J.

Present — Barnard, P. J., and Talcott, J.; Tappen, J., not sitting.

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


text:
    THE PEOPLE, Etc., ex rel. JOHN W. GILLIES, Appellant, v. A. EDWARD SUFFERN, County Judge of Rockland County, Respondent.

      Village — bonding for raib'oad — assessment roll.

    A village assessment roll, until tlie assessors or a majority of them shall have taken the oath prescribed by section 8, chapter 176 of 1851, is void, and is not a proper or sufficient basis for proceedings had under chapter 925 of 1871, for the bonding of said village. {Bradley v. Ward, 58 N. V, 401; Van Rensselaer v. Wifbeck, 7 id., 517 ; Westfall v. Preston, 49 id., 349.)
    Certiorari to review a judgment of tbe county judge of Rock-land county, appointing commissioners to bond tlie village of Haverstraw, in aid of the Jersey City and Albanj” Railroad Company, and the proceedings had before said judge, which resulted in said judgment, pursuant to chapter 907 of the Laws of 1869.

      E. A. Brewster and George W. Weiant, for relator. W. A. Beach, for respondent.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Proceedings reversed, with costs.


text:
    THE PEOPLE ex rel. ARTHUR RUSSELL, Appellant, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Respondents.

      Newtown week— Chap. 540 of 1868 —power of board of supervisors undw.

    Under the provisions of chapter 540 of 1868, authorizing the supervisors of New-town and the Seventeenth ward of the city of Brooklyn to take charge of the bridge over Newtown creek, keep the same in repair, “ and appoint a proper person to attend and manage the draw in the bridge,” the power of the supervisors is exhausted by the appointment of a person to attend and manage the draw, and they have no authority to appoint an assistant keeper; and a person employed as an assistant, is a mere employe of the keeper and may he discharged by him.

      Appeal from an order, denying an application for a mandamus to compel tlie defendant to audit and allow the claim of the relator, for eight months’ wages, as assistant in attending the draw in the bridge over Newtown creek.

      ¡S..P. Noble, for relator. And. J. Provost, for respondent.
   Opinion by

Talcott, J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order affirmed, with costs and disbursements.


author: Tappen, J. ■

text:
    SOLOMON SIMSON, as Executor, Respondent, v. LUCINA C. SATTERLEE and others, Appellants.

      Mortgage — assignment of, as collateral security- — right of mortgagee to foreclose.

    Plaintiff brought this action to foreclose a mortgage given to him, and which he had assigned to the defendant M. as collateral security for a debt which was unpaid at the time of the commencement of this action. The mortgagor demurred on the grounds, that plaintiff could not maintain the action as he had assigned his mortgage, and that M. should be made a plaintiff, and not a defendant. Meld (1), that plaintiff could 'maintain the action, notwithstanding the assignment (Norton v. Warner, 8 Edw. Ch., 106); (2), that, in any event, so long as the assignee was a party and did not object, the mortgagor could not raise the question.
    Appeal from a judgment in favor of the plaintiff, entered upon an order overruling a demurrer, and from an order denying a motion for leave to answer.

      A. PrenUoe, for appellant. N. F. Pawson, for respondent.
   Opinion by

Tappen, J. ■

Present' — Talcott and Tappen, JJ.

Judgment and order affirmed, witb costs.


text:
    NATHANIEL HYATT, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY and CHARLES HOPPER, Appellants.

      Verdict — whw'e inconsistent findings w'e made on the same evidence.

    Appeal by defendant, The New York Central and Hudson River Railroad Company, from an order denying a motion of said defendant, made on tbe judge’s minutes, to set aside the verdict of the jury, as to said defendant, and for a new trial, and by defendant Charles Hopper, from an order granting a motion made by the plaintiff, on the judge’s minutes, to set aside the verdict as to the said defendant, Charles Hopper.
    The action was brought for damages for an assault and battery, on the plaintiff, committed by the defendant Hopper, as the agent or conductor of the defendant, the railroad company, on one of the defendant’s freight trains. The plaintiff, on being requested to get off, refused to do so while the train -was in motion. He said he would if the train were stopped. Upon plaintiff refusing to get off, the defendant Hopper, the conductor of the freight train, kicked plaintiff, and he fell from the train, and was injured. The jury were permitted by the judge, in his charge, to give punitive damages, if they thought it a fitting case, but were not instructed what facts must be established, before any punitive damages could be given.
    The jury found a verdict for $300 against the defendant, The New York Central and Hudson River Railroad Company, and found no verdict against the defendant Hopper. Plaintiff’s counsel moved for a new trial on the minutes, so far as the defendant Hopper was concerned.
    Counsel for the defendant, the railroad company, moved to set aside the verdict against the railroad company, and also moved for a new trial as to it, for exceptions taken, and on the ground of excessive damages, and that the verdict was against the weight of, and was unsupported by the evidence.
    The court granted the motion of the plaintiff for a new trial, as to the defendant Hopper, and denied the motion for a new trial as to the railroad company; and both defendants took an appeal. The court held, that if the act of Hopper was unjustified, he was guilty of an assault and battery. If it was justifiable, then the other defendant was not guilty of any act which would sustain a verdict against it. The jury having found Hopper not guilty, and having found a verdict against the other defendant for Hopper’s act, two conflicting results were found on precisely the same evidence.
    On the question of punitive damages, and the right to maintain this action, the court cited Olughan v. N. Y. O. and H. R. R. R. Go. (56 N. Y., 44), but did not pass upon the questions further, than that it was erroneous to leave the question of punitive damages to the jury, to give or withhold as they saw fit.

      Frcmlc Loomis, for appellants. John " Gibney, for respondent.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., and Talcott, J.

Judgment and order denying new trial as to defendant, The New York Central and Hudson River Railroad Company reversed and new trial granted, costs to abide event, and order granting new trial, as to defendant Hopper affirmed, costs to abide event.


author: Barnard, P, J.

text:
    PETER NICHOLS, Respondent, v. PETER VOORHIES and others, Appellants.

      Court of equity — Assessment — when set aside "by.

    Appeal from an order overruling a demurrer to the complaint.
    This action was brought to remove a cloud upon the plaintiff’s title, and to perpetually restrain the collection of an assessment made under the sanction of the legislature, by some of the defendants, commissioners appointed by legislative authority (chap. 670, Laws of 1871), and to restrain the defendant Smith, as collector, from collecting such assessment. It was alleged that the defendants, the commissioners, claimed the assessment was a lien, but the plaintiff clenied this in his complaint, and averred that it was wholly void.
    It was further alleged, that an order was made by the County Court appointing commissioners of awards. That these commissioners reported their proceedings to the commissioners appointed by the act in question; and that they suppressed it, and surreptitiously obtained from the same County Court, an order appointing a new set of commissioners of awards, who made a report upon which the defendants, commissioners, did act. That an appeal was taken, by certain persons interested, from the doings of the commissioners, defendants, under the report .of the second set of commissioners of awards, and judgment entered thereon reversing the second order, and the award made upon the report of the commissioners appointed thereunder, in so far as it related to the appellants.
    The General Term held, that as it must be assumed that all these orders were on record, there being no averment that any officer had neglected his duty in this respect, and that as such orders, and the appeal from the second award, formed a part of the record of the laying of the assessment, it appeared from .the record itself, conceding the truth of the allegations contained in the complaint, that the assessment was void in toto; and that the interposition of a court of equity was, therefore, unnecessary.

      8. J. Groóles, for appellant. G. P. Hoffman, for respondent.
   Opinion by

Barnard, P, J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order overruling demurrer reversed, and judgment given for defendant on the demurrer, with leave to plaintiff to answer in twenty days, on payment of costs of appeal and of demurrer.


text:
    EMERICK CRAWFORD, Respondent, v. WALTER R. JONES, Appellant.

      Admission of receipt of money by agent — estoppel.
    Appeal from a judgment of the County Court of Westchester county, affirming a judgment in favor of the plaintiff recovered in a Justice’s Court.
    The plaintiff, in 1869, assigned to defendant, for collection, a small claim of about nineteen dollars, which he, the plaintiff, had against the estate of Joseph Ingersoll. In March, 1873, the plaintiff claims to have had an interview with defendant, in which the defendant stated to him that he had collected or “ had allowed to him ” fourteen dollars on the assigned claim, which he promised to pay plaintiff early in April, 1873.
    The plaintiff sued to recover this claim, before a justice, and recovered. On appeal to the County Court, it was tried by a jury and a verdict was rendered for the plaintiff, for fourteen dollars.
    The defendant denied the interview with plaintiff, wherein he admitted recovering fourteen dollars, and promised to pay it to plaintiff, and he also gave evidence tending to show, that he had not received any money either of the Ingersoll estate, or of the surviving partner of J. Ingersoll & Son.
    The judge charged the jury that if the defendant admitted the receipt of fourteen dollars and promised to pay it, the plaintiff was entitled to judgment for it, whether he, defendant, had received the money or not.
    The General Term held, that the charge was correct, and affirmed the judgment.

      Eugene B. Trmis, for appellant. Travis (& Lent, for respondent.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., Tappen and Taloott, JJ.

Judgment of County Court affirmed, with costs.


author: Bockes, J.:

text:
    JOSEPH GROSSMAN, Appellant, v. WILLIAM G. FARGO, President of the Merchants’ Union Express Company, Respondent.

      Qom/mon ca/rrier — when liable only as warehouseman — negligence.

    Goods were delivered July thirteenth, by the plaintiff to the defendant, a common earner, to be transported to Pioneer, Penn., and there delivered to the consignee, upon his paying the amount due therefor. The consignee was notified of their arrival, and, although then unable to pay what was due, promised several times to do so in a few days. On the sixth of August, defendant’s office was broken into, and the goods stolen. Held (1), that the liability of the defendant, after the notification of the consignee, was that of a warehouseman only; and (2), that, under the circumstances, it was not guilty of negligence in not notifying the plaintiff of the consignee’s inability to pay for and take the goods.

      Weed v. Barney (45 N. Y., 344) followed.
    The defendant’s office at Pioneer, a town of about 800 inhabitants, was a small wooden building, inclosed with inch boards, but not plastered nor ceiled within; the door was locked, and the windows nailed down. The entrance to the office was effected by prying up one of the windows. Held, that there was no negligence on the part of the defendant, in storing its goods in such a building.
    Appeal from a judgment in favor of the defendant, as president of the Merchants’ Union Express Company, directed by Mr. Justice Morgan, before whom the case was tried without a jury.

      The action was brought, to recover the value of a package oí goods, delivered by the plaintiff to the company, on the 13t,h July, 1869, at Syracuse, New York, to be conveyed to Pioneer, Pennsylvania, consigned to Isaac Levi. The package reached its destination safely, and in due time. The consignee was notified of its arrival, and called on sevei-al occasions at the office of the company, but did not receive the property, because of his inability to pay the charges, ($61.33), required to be paid on its delivery. He promised to make payment, from time to time, between the sixteenth of July, when the package was received at Pioneer, and the sixth of August, the last time having been a few days prior to the last mentioned day. On the night of the sixth of August the office of the company was burglariously entered, and the property was stolen. No notice of the omission of the consignee to pay the charges, and take the goods, was given the consignor until subsequent to the loss of the package. Pioneer was a small town of from 600 to 800 inhabitants. The office of the company, where undelivered packages were kept, was a small building, near the railroad depot, inclosed with inch boards, but not plastered or ceiled within. It had one double outside door, with lock, and the windows were fastened with nails. The entry was made through a window, which was forced by being pried up. The judge who tried the cause, held that the company was not liable, and dismissed the complaint.

      William G. Huger, for the appellant.

      George N. Kennedy, for the respondent.
   Bockes, J.:

The liability of the company for the goods in this case was, undoubtedly, that of a warehouseman. (Weed v. Barney, 45 N. Y., 344; Burnell v. The N. Y. Central R. R. Co., id., 184.) The first case above cited, was much the same as the one at bar. Peck-ham, J., in delivering the opinion of the court, says: “After the defendants had tendered the package to the consignees and demanded the money, and after the consignees had had a reasonable time to call for and receive it, I think the defendants held the package as warehousemen, and not as common carriers.” Let this be admitted, as it doubtless must be, and the company was bound only to ordinary care and diligence in the preservation and protection of the property; such care and diligence, as prudent men exercise in respect to their own. The liability of the company is to be determined by an application of this rule.

On the part of the plaintiff, it is insisted, that the company was negligent, and therefore liable, by reason of the omission to give him notice of the consignee’s neglect to take the goods, after being informed of their arrival, and for storing the package in an unsafe place.

The point that the omission to notify the consignor of the consignee’s neglect to take the property, constituted negligence on the part of the company, seems answered by the reasoning of the court in Weed v. Barney (supra). The property in the case cited was conveyed to its destination, and remained undelivered to the consignees, under circumstances very similar to those in the case at bar. In that case, the property was held by the company in its warehouse at the place of destination, after due notice to the consignees of its arrival, from March seventeenth to April sixteenth, when it was accidentally destroyed.

During this time the consignees had, on several occasions, promised to make payment of the charges and take the property. It was urged in that case, as it is here, that the company should have given notice to the consignor when the consignees did not receive or pay for the package. True, stress was laid on the fact that the defendants, in omitting to give notice, “were acting as others usually did at that place;” but, independent of that fact, the remarks of the learned judge apply and are cogent here. . He first makes the significant inquiry, whether there was any contract requiring such notice, and finds none. He further makes inquiry bearing on the question of prudent and diligent action on the part of the defendants ; whether, if notice had been given of all the facts, showing that the charges, although not paid, were promised by the consignees, and probably would soon be paid, the consignor with such information, “ would have given any directions at war with the course pursued by the defendants; ” and he well answers that “ in all probability he would not; ” and he suggests also that the delay, in any view, was not the proximate cause of the loss. The authorities cited in support of this suggestion (Morrison v. Davis, 20 Penn., 171; Denny v. N. Y. Cent. R. R. Co., 13 Gray, 481), were quite satisfactory and conclusive.

It might, perhaps, be added, that the same duty devolves upon the consignor, when the property is consigned C. O. D., to make inquiry after unusual delay, without return, as would rest upon the carrier or warehouseman, to give notice back to the consignor of the consignee’s default, I am entirely satisfied, that the omission to give the notice to the consignor here urged, created no liability against the defendant.

Nor was the defendant liable on the ground, that there was in this case, an omission of ordinary care and prudence in protecting the property. It was deposited in the office of the company, where such property, while awaiting delivery, was usually placed and kept. The building was such, as is ordinarily used for deposit by express companies, at small towns like Pioneer. It was made ordinarily secure by door locks and window fastenings. That it was not plastered or ceiled within, and only inclosed with inch boards, made no difference in this case, for the entry was not through the wall of the building. The case must be considered with reference to the particular cause of loss. Here negligence is predicated on the circumstance of robbery. The felony was effected by an entry through a window. It matters not whether the building was ordinarily safe against fire, for it was not burned. If the building had been burned, and the property had been consumed in the conflagration, the question would have been as to its safety against fire, and as to the circumstances attending the origin of the fire. If the entry had been effected by undermining the building, or by breaking through the walls, the question would have involved the condition of its foundation in the one case, and the firmness and strength of the walls in the other. The entry having been made through a window, the case must be considered with reference to that fact. "What was the condition of this window, how constructed, how fastened? Was it such, in all respects, as answered the requirements of ordinary prudence, the test being, that degree of care and attention which men of ordinary prudence, exercise in the protection of their own property? Scarcely any building is, at this day, entirely safe against the mechanical appliances and skill employed by burglars to effect an entrance. Absolute safety is more than ordinary care and diligence requires. The entry of this building was by force. It seems to have been as difficult as in the ordinary case of small storehouses throughout the country. It was through a window not left open or unfastened and inviting entrance, but fastened quite as effectually as windows usually are, with a view to ordinary protection. It was opened by violence — pried open. It required a very considerable degree of force to open it. The witness says: “ I could see where they put something under the window-sill and pried up; there was a dent in the window-sill two inches wide; dent in the bottom of the window-sash, dent two inches wide; pine split off the sash.” This shows the window very effectually fastened. As above suggested, it is next to impossible to render any structure, or its fastenings, entirely secure against burglarious entry. It is too much, to hold this necessary, to answer the require ments of ordinary care and prudence in the protection of property.

I am of the opinion that the dismissal of the complaint was right, and that the judgment should be affirmed.

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

Judgment affirmed, with costs.


author: Bookes, J.:

text:
    JULIA ANN MASSOTH, Administratrix, etc., Respondent, v. THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.

      Contributory negligence — duty of one crossing 1/rachto looh both ways — Presumption —Expression of opinion by the court — city ordinance.

    This action was brought to recover the damages sustained by the plaintiff, in consequence of the death of her intestate, occasioned by a collision with one of defendant’s trains. The deceased was riding upon a load of hay, near to and on a line diagonal with the railroad track, upon a down grade. The team, which was driven by another person, became frightened by a train coming from behind, and, at the foot of the grade, whether from fright or from being urged was doubtful, sprang across the track; the wagon was struck by the train and the plaintiff’s intestate killed. Held, that the question of his contributory negligence was properly left to the jury, and that a verdict in favor of the plaintiff would not be set aside.

      The question of ordinary care, should be left to the jury where inferences are to be drawn from the proofs, which are not certain and incontrovertible, or if it is necessary to determine, what a man of ordinary care and prudence would be likely to do under the circumstances.
    The defendant’s counsel requested the court to charge, that in the absence of evidence as to whether or not the deceased looked out for the train when approaching the crossing, it was to be presumed that he did not look. Held, that the request was properly denied, ás it could not, under the circumstances of this case, be presumed, as a matter of law, that he did not make proper observations.

      Reynolds v. N. Y. C. and H. R. R. R. Co. (58 N. Y., 348) distinguished; Weber v. N. Y. C. and H. R. R. R. Co. (id., 451) followed.
    The expression of an opinion by the court in its charge to the jury, should be advisory merely and not put in the form of a direction as a matter of law, and must be accompanied by explicit instructions, that it is their duty to consider the evidence and decide as they think the truth requires.
    The fact that the train, at the time of the accident, was running through a city at a rate greater than that prescribed by its ordinance, is properly submitted to the jury as bearing upon the question of negligence.

      Quaere, whether the running at a greater rate than that prescribed by the ordinance is negligence pm' se.

    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice holding the Circuit, and a motion for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term.

      Henry Smith, for the appellant.

      Amasa J. Parker, for the respondent.
   Bookes, J.:

This case comes before the court, on an appeal from an order denying a motion for a new trial on the judge’s minutes, and on a case and exceptions directed to be heard in the first instance at General Term.

The plaintiff’s intestate was riding on a load of hay, drawn by a pair of horses driven by his employer in the 'city of Cohoes, and when crossing the railroad track, the vehicle was struck by the engine of a passing train, and he was killed.

Evidence was given, tending to show negligence on the part of the defendant; as was also evidence, tending to show the plaintiff’s intestate guilty of contributory negligence, and on the whole proof the jury found a verdict for the plaintiff. It is sufficient here to say, that it is quite manifest on reading the evidence, that a case was made for the jury. That there was proof tending to show negligence on the part of those running the train, cannot well be disputed. Certainly on this branch of the case, it was one for the jury. So, too, there was evidence submitted,'tending to show contributory negligence on the part of the deceased, or negligence for which he should be held responsible. It is insisted that this branch of the case is clearly and incontrovertibly with the defendant, and this is the principal point urged upon our consideration. We are of the opinion, however, that negligence on the part of the deceased is not rendered so entirely clear and conclusive on the proof, that there remained no question of fact for the jury. The deceased was riding on a load of hay in near proximity to the railroad track, and on a line diagonal therewith. Another person was driving the team. The train came partly from behind ; the houses became somewhat frightened, perhaps to a considerable degree unmanageable ; they were on a down grade, and when near the crossing, sprang ahead and proceeded with great rapidity, whether from fright or from being urged, was not rendered entirely clear by the proof. They ran across the track, but before the vehicle had passed entirely over, it was struck by the engine, broken in pieces, and the deceased was killed. Precisely what was omitted, that could have been done by the deceased or by the driver to avoid the collision, or precisely what was done by them, which should have been omitted after danger was reasonably to be apprehended or became imminent, is not so entirely certain as to relieve the case from fair discussion on the facts proved. The question of contributory negligence involved the consideration of numerous facts and circumstances and inferences therefrom. In this view of the case it is brought within the rule laid down in Weber v. N. Y. C. and H. R. R. R. Co. (58 N. Y., 451). It is there held, that a case is made for the jury on the question of ordinary care, if there be inferences to be drawn from the proof which are not certain and incontrovertible, or if it is necessary to determine what a man of ordinary care and prudence would be likely to do under the circumstances. This rule very clearly has application to the case in hand, and controls it on the question of contributory negligence. It is manifest, we think-, that the case became one of fact for the jury, on the proof submitted.

This conclusion, in effect, disposes of all the exceptions taken to the charge, and to the refusals of the learned judge to charge as requested. A few observations in regard to some of those exceptions may not, however, be out of place.

There was no direct evidence showing that the deceased either looked or did not look out for the train when approaching the crossing; and the defendant’s counsel requested the court to charge the jury that, in the absence of evidence, it was to be presumed that he did not look. The court declined so to charge, and an exception was entered. There was no error in such refusal. It could not be presumed in this case, as matter of law, that he did not make proper observation. It did not necessarily follow that, because he was on the track and was killed, that he did not make observations as to the approaching train. He was not entire master of the situation. His position was different from a foot passenger. He was, perhaps, carried irresistibly into danger. The circumstances attending the occurrence were before the jury. His opportunity for observation was shown them, as also the peculiarity of his situation; and with no positive information on the subject, and no means of certainty in that regard, the fact, one way or the other, resting in inference, the question, with all others bearing on his negligence or want of due care and prudence, was for the jury. The case differs from Reynolds, Administrator, v. N. Y. C. and H. R. R. R. Co. (58 N. Y., 248), in the particulars above suggested, and falls within the rule laid down in Weber v. N. Y. C. and H. R. R. R. Co. (supra), that, if there are inferences to be drawn from the proof, which are not certain and incontrovertible, they are for the jury. As to all the other requests, the learned judge charged substantially as requested ; and, as to the exceptions to various portions of the charge, it seems that the remarks excepted to were allowable commentaries on the evidence. It is not perceived that any erroneous proposition of law was laid down to the jury, nor were they improperly directed in their consideration of the facts, although there is one subject of exception not entirely free from criticism. A city ordinance was put in evidence, prohibiting the running of trains within the corporate limits, at a greater rate of speed than eight miles per hour; attaching a penalty for its violation. It is insisted that the judge charged the jury, in effect, that a violation of that ordinance by the defendant was negligence per se. The learned judge did assume that it was proved that the train was running at a greater rate of speed than was fixed by the ordinance ; but I do not understand him to say expressly, that the defendant was therefore guilty of negligence as matter of law. There are some pretty strong expressions in the charge on this subject, which might well have been omitted. But can it be justly said that they are open to the imputation of manifest error ? The tenor of those observations was, that a violation of the ordinance, as to the rate of speed at which the train was running, was evidence for the consideration of the jury on the question of negligence. He said: “ While if this train was running over eight miles an hour, it was running at a greater rate of speed than it was authorized to run through the city, therefore it is evidence to be submitted to you that this company was negligent.” And again : “ As I understand the evidence on the part of the defense, it confesses or admits, that the rate of speed was greater than that, which the ordinance of the city of Cohoes permitted ; submitting to you then, as a question of fact to be found by you, I submit to you that it seems fair to say that the company has been guilty of negligence.” And again : “ There are a number of witnesses who have testified that the bell was rung and the whistle sounded; but this question is of less importance in this case, inasmuch as it is enough to find the company guilty of negligence, if running at a greater rate of speed than eight miles an hour.” But he closes thus: “So upon the question of the company’s negligence I think you will have no difficulty, though it is left as a question of fact for you.” I think the case verges nearly upon the very sound rule laid down in Allis v. Leonard (58 N. Y., 288), and pn first reading I thought it within the rule there declared. It was there held, that an expression of opinion by a court in its charge to a jury, calculated to influence their decision in a matter within their cognizance, will be critically scrutinized; that to be free from legal objection it must be advisory merely, and not put in the form of a direction as matter of law, and must be accompanied by explicit instructions, that it is the duty of tbe jury, to consider the evidence and decide as they think the truth requires. It cannot be justly said, I think, that this case falls within the condemnation of this decision. The injury complained of, having occurred within the city limits, the ordinance limiting the rate of speed within them was competent evidence bearing on the question of-negligence to be submitted to the jury. The contrary was held in Brown v. The Buffalo and State Line R. R. Co. (22 N. Y., 191). The evidence was admissible on the question of contributory negligence. (Jetter v. N. Y. and H. R. R. Co., 2 Keyes, 154; Williams v. O'Keefe, 9 Bosw., 536 ; S. C., 24 How., 16.) The decision in Brown v. The Buffalo and State Line R. R. Co. was criticised in Jetter's Case (supra), and was, in fact, held in Beisegel v. N. Y. C. R. R. Co. (14 Abb. [N. S.], 29), to be overruled. (2 Abb. N. Y. Ct. of Apps. Dec., 458.) It is insisted, on the part of the plaintiff’s counsel, that the court might have charged that the running of the train'at a rate exceeding that fixed by the ordinance was negligence per se. An intimation to that effect, is given by Judge Denio in Wilds v. The H. R. R. R. Co. (29 N. Y., on page 326). See, also, the remarks of Allen, J., in Gorton v. The Erie Railway Co. (45 N. Y., on page 662), where he speaks of obligations imposed by law upon railroad companies; also Jetter's Case and Beisegel's Case (supra). But it is sufficient here, that the court held, a violation of the ordinance, evidence bearing on the question of negligence, and submitted the question to the jury as one of fact.

In this view there was no error in the charge, nor was there any erroneous rulings on questions of evidence.

The order appealed from must be affirmed, and the plaintiff is entitled to judgment on the verdict, with costs.

Present — Bookes and Boardman, JJ.; Learned, P. J., not acting.

Ordered accordingly.


author: Bocees, J.:

text:
    JOHN HAYS’ ADMINISTRATOR and another, Respondents, v. CALVIN MILLER, Appellant.

      Setting a fire upon land — negligence in — one in possession of land uncles' contirract— sight of, to recover damages.

    The burning of a fallow and of superincumbent combustible matter on the surface is a lawful act, unless the fire be set at an improper time, or be carelessly managed.
    One in possession of land under a contract of sale, is deemed the equitable owner thereof, and may maintain an action to recover damages for an injury occasioned by setting fire to the woods and fences.

      Rood v. N. Y. and E. R. R. Co. (18 Barb., 80) followed.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.
    This action was brought by Patrick Hays, to recover damages sustained from the negligence of the defendant, in setting a fire upon his lands and allowing it to escape upon the lands of the said Hays. After the commencement of the action Hays died, and the action was subsequently, in pursuance of an order to that effect, continued by the present plaintiffs. The referee found, among other facts, that on the 13th day of August, 1870, Patrick Hays, deceased, owned certain lands situate in the town of Stockholm, St. Lawrence county, New York, and the defendant possessed and occupied a certain lot of land lying adjoining said Hays’ land and westerly thereof. That the defendant’s land was burned over about the year 1863, leaving some logs and “ chunks ” of logs on the ground, which had been piled up in heaps previously to the time of setting the fire complained of; some old chunk heaps were within a few rods of said Hays’ land, and the ground was partially covered with dry grass and grass stubble. Old chunks and logs, and stumps, and brush (partly scattered and some picked up), extended, with intervening spots of grass and willow bushes, nearly to said Hays’ line. There was a scattering growth of green willow bushes, extending along the line, and some ten or twelve rods into Miller’s side of it; the chunk heaps were mostly west of the willows; the grass had been mowed, up to within some five or six rods of the line, and from the stubble of the mowed grass to the • line, were some scattering old logs, stumps and chunks, with unmown grass among the willows. On Hays’ side of the line the land was mostly timbered, being a thick growth of cedar, tamarack, pine, ash and other trees; portions of an old log fence remained upon the line, and some tree tops from trees cut on Hays’ land, were near the line on Hays’ side of it. Five log or chunk piles were on Miller’s land, from twenty-two to twenty-five rods from the line; the land where those heaps were, and for a considerable distance on both sides of the line, and the timbered land, was low, swampy land, having a muck surface from one Inch to two and a half feet in depth. That on the 13th day of August, 1870, at or about nine o’clock a. m., said Calvin Miller, defendant, set fire to the five heaps above specified for the purpose of burning them and clearing his land.
    The season had been excessively dry, and the muck and other combustible material had become, and up to the day previous to the setting of the fire had been extremely dry. On the 12th day of August rain fell during the forenoon quite hard, from one hour and a half to two hours, so much so, that in the neighborhood water stood in gutters and ditches and in puddles in the road; the rain did not continue in the afternoon of the twelfth, but during the morning of the. thirteenth, it threatened more rain and was misty and sprinkled, and there was then no wind of any consequence; the rain was, however, insufficient to prevent fire from burning in the ground, or, after a short period of drying, to prevent it running upon its surface. On the fourteenth the weather became hot and dry, and the fire burned in the muck and other combustibles, the wind rising toward evening. On the fifteenth the wind increased and blew very hard and carried the fire, set as aforesaid, across the intervening land, from point to point, and on to said Hays’ said land, where the injury complained of ensued. On the thirteenth the defendant worked at the fire, putting up the heaps and clearing his land, and after the wind began to blow and the fire commenced to run, did all in his power to prevent the fire from getting on to Hays’ land. The referee found that the defendant in setting the fire complained of, and in continuing the same, and in suffering the same to burn and spread at the time and place, and under the circumstances, and as set forth, was guilty of and was chargeable with negligence, and was liable to pay tbe plaintiff tbe damages sustained as stated, on account of tbe said fire and tbe burning complained of.

      Tapp an db Erwin, for tbe appellant.

      Magone c& Holbrooh, for the respondent.
   Bocees, J.:

This is an appeal from a judgment in favor of tbe plaintiff’s intestate, directed by a referee.

Tbe action was brought against the defendant, for negligence in setting fire to his fallow adjoining the lands of the plaintiff’s intestate, and carelessly permitting it to spread thereto to its great injury.

No question is raised by the appellant’s counsel on the appeal, in ’ regard to the admission or rejection of evidence. But it is insisted that tbe facts proved failed to establish negligence against the defendant.

I am under the impression, that the evidence from which negligence was deduced by the learned referee, is undisputed and without conflict. The facts and circumstances attending the setting of the fire, and those attending its spread upon the adjoining lands, where the injury complained of occurred, are given in substance alike by all the witnesses who spoke to them. They are as follows: Prior to August twelfth the season had been unusually dry, and all combustible matter on the surface of the ground was dry. The land for a considerable distance on both sides of the line between the parties was low and swampy, having a muck surface from one inch to two and one-half feet in depth. On Friday, the twelfth of August, it rained in the'forenoon, so that water stood in gutters and ditches and in puddles in the road, and on the morning of Saturday, the thirteenth, it was misty, sprinkled, there was no 'wind, and it seemed likely again to rain, and the defendant had a right to believe, and did believe, that it would rain. On this day, August thirteenth, in the forenoon, the defendant set fire to some log and chunk heaps, located about twenty rods from the line. Before setting the fire, he made examination and found the muck saturated with water, to an extent that he could press water therefrom, and be experienced some difficulty in kindling the fire. It did not rain on Saturday as had been anticipated, but nothing occurred on that day indicating danger. On Sunday, the fourteenth, the weather became hot and dry, and the fire burned in the muck and other combustibles, the wind rising toward evening. On Monday, the fifteenth, the wind increased and blew hard, and carried the fire along from point to point, and on this day the defendant, with three others in his employ, endeavored to prevent its spread, trenched around it and put sand on it. On Tuesday, the wind rose before noon, blowing a gale, and the defendant, with his help, endeavoring to keep it in, but it would blow over them and catch in despite their efforts, and soon got on to the adjoining land, causing the damage complained of. The defendant set the fire in good faith for the purpose of clearing his land, and as the referee finds “ after the wind began to blow and the fire commenced to run did all in his power to prevent it from getting on to Hays’ land.”

On these facts can negligence on the part of the defendant be predicated? Did he act with due prudence in setting the fire under the circumstances of the case; and was he thereafter watchful and diligent in his efforts, to prevent its spread when danger became imminent ? Or, to put the question in a different form, was the fire set at a time and under circumstances indicating danger therefrom; and did the defendant do all that he was bound or required to do, after the fire was set, to keep it under control ? After the wind rose it is found that he did all in his power to prevent it from spreading.

The burning of a fallow and of superincumbent combustible matter on the surface, is of frequent necessity in husbandry, and is a lawful act, unless the fire -be set at an improper time or be carelessly managed. Then, was it kindled at an improper time, and was it watched and attended to with due care and diligence ? In the case of Stuart v. Hawley (22 Barb., 619), the fire was set at a dry time, on the seventeenth of July; from the seventeenth to the twentieth, it continued very hot and dry, but it rained a very little on the morning of the seventeenth. On the twentieth, the wind commenced blowing violently; the fire spread, and on the twenty-sixth it was blown on to plaintiff’s premises, where the injury occurred. The court held that the only evidence of carelessness, was the fact, that the fire was set in a dry time m July. This , was held not to be a careless or negligent act. The court say, that the evidence of want of attention on the part of the defendant, if it be conceded that he did nothing to prevent the fire from spreading, does not help the case, and cites, in support of this remark, Clark v. Foot (8 Johns., 421). The case of Calkens v. Barger (44 Barb., 424), was decided principally on the strength of the decision in Stuart v. Hawley. Here, too, the fire was set at a dry time, and the party left it unattended. The court held, that the plaintiff was properly nonsuited. In Webb v. R., W. and O. R. R. Co. (49 N. Y., 420), the principal question considered was, whether the damages were not so remote that the action would not lie; but the question here under examination, as to what facts may be deemed evidence of negligence, was also somewhat examined, and the court lay down the rule, that on this question the dryness of the atmosphere and earth, the strength and direction of the wind, the permitted accumulation of weeds, grass and rubbish, were all constituents of the act, and bore on the inquiry as to negligence. As I understand this ruling, it amounts to this, that on proof of some or all these facts, or of other facts similar in character, the case becomes one of fact, to be determined on a fair consideration of the proof, by the jury or referee to whose judgment it is submitted. It is for the jury or referee to make the proper deduction or inferences from the facts proved. This seems sound in principle, and accords with the general current of authority relating to the subject of negligence. So it was held in Weber v. N. Y. C. and H. R. R. R. Co. (58 N. Y., 451), that a case is made for the jury on the question of ordinary care, if there be inferences to be drawn from the proof, which are not certain, and incontrovertible; or if it is necessary to determine, what a man of ordinary care and prudence would be likely to do under the circumstances. I am not aware that Stuart v. Hawley and Calkins v. Barger have ever received the direct sanction of the Court of Appeals. They were cited by Judge Eabl in Losee v. Buchanan (51 N. Y., 476, on page 487), but merely as authority, that negligence in setting a fire, gave a cause of action when damage ensued. The learned judge gave no approval of the decisions in those cases, on the question as to what constituted negligence in the setting or controlling of fires. They a,re, very manifestly, not in harmony with the ruling in Webb v. R. W. and O. R. R. Co., and in Weber v. N. Y. C. and H. R. R. R. Co. (supra). Now, accepting Stuart v. Hawley and Calkins v. Barger as well decided, it is difficult to see how the judgment in the case at bar can be upheld. According to Stuart v. Hawley, the setting of the fire in a dry time was no evidence of negligence; nor, was the party bound to take into consideration the fact, that the wind might rise and carry it beyond his control. And in Calkins v. Barger it was held, in effect, that the party owed his neighbor no duty to give the fire attention after it was set. I must confess I prefer the rule laid down in Webb v. R. W. and O. R. R. Co., which would, as I think, make the question one of fact on the proof submitted; and this, too, well accords with the decision in the case of Weber v. N. Y. C. and H. R. R. R. Co. It is true the evidence here submitted does not make out a clear and undoubted case of negligence against the defendant. But a case is made for inferences and deductions in that regard. As was said in one of the cases cited, the facts here proved, to wit, the dryness of the atmosphere, and of the earth; and of the accumulations on the surface; the strength and direction of the wind; the situation and condition of the surrounding materials, and their combustible character, were all constituents of the act, and bore on the inquiry as to negligence; and thus arose a question of ordinary care, to be determined from inferences and deductions from the proof. In this view of the case at bar, it became one of fact for the referee, on consideration of all the circumstances attending the setting and management of the fire. It was for him to determine, whether the defendant exercised a proper degree of prudence, in setting the fire, considering all the surroundings; and whether he also observed a proper degree of vigilance and diligence, in his efforts to prevent its spreading after danger was imminent. In a case like this, where inferences may be drawn from a variety of facts, not absolutely conclusive in themselves, the finding of the referee must be accepted as final, the same as would be the verdict of a jury on a conflict of evidence. The referee has found against the defendant on these questions, and it is not for the appellate court to gainsay his conclusions, under the circumstances of this case.

A point is made that damages were erroneously allowed, for injury to land held by the plaintiff’s intestate under his contract to purchase. This point is decided adversely to the defendant in Rood v. New York and Erie R. R. Co. (18 Barb., 80). It is there held, that a person in possession of land under a contract to purchase the same, is deemed the equitable owner of the premises, and may maintain an action to recover damages, for an injury occasioned by • setting fire to the woods and fences. (See cases cited on page 83.) The right of action in such case, is well supported, on the ground that the vendor must pay the purchase-money, although the estate itself be destroyed.

The judgment must be affirmed.

Present — Learned, P. J., Bocees and Boardjian, JJ.

Judgment affirmed, with costs.


author: BooKes, J.:

text:
    JACOB VROOMAN, Appellant, v. ALBERT JACKSON, Respondent.

      Party wall —projection of, or cornice — ejectment — amendment of complaint.

    Where the owner of one of two adjacent houses, separated by a party wall, places upon the top thereof a cornice which'projects over the lot of the adjoining owner, an action of ejectment cannot he maintained against him by such owner, on account of such unlawful interference with his rights.
    Where in such a case from the allegations contained in the complaint, the court decides the action to be one of ejectment, the plaintiff cannot be allowed to amend his complaint upon the trial, and proceed as though the action were brought to restrain an unlawful interference with his rights as owner of the adjacent lot.
    What allegation in the complaint will render the action one of ejectment considered.
    Appeal from an order made by the justice before whom the action was tried, upon a motion made upon his minutes, setting aside the verdict and granting a new trial.
    The action was brought .to procure the removal of a structure, erected by the defendant, extending over plaintiff’s premises. The complaint, after setting forth the plaintiff’s title to the lot, proceeded:

      “ And the plaintiff further shows that being so possessed, and afterward and on the 16th day of June, 1874, the defendant unlawfully entered into and upon said premises and the buildings thereon situate, without leave of the plaintiff or any right or title thereto, and took possession of a portion thereof and built and erected and extended his building in, over and upon the said premises of the plaintiff, resting the same upon the walls and foundation upon the north-westerly side of the plaintiff’s house erected thereon. That said defendant then wrongfully took possession and still continues to occupy, with his said building, a space of from two and five-eighths of an inch in width to three and three-quarter inches in width of the building of the plaintiff, beginning on the eaves on the front or street side of the plaintiff’s dwelling-house aforesaid, and extending from the street to the rear of his said house about twenty feet; that the defendant withholds from the plaintiff the possession thereof to his damage in the sum of fifty dollars.
    “"Wherefore, the plaintiff demands the judgment of this court, that the said defendant forthwith remove from the said premises, and deliver up the possession of the same to the plaintiff, and that the defendant pay to the plaintiff, the sum of fifty dollars, for his damages for the detention thereof by the defendant, besides the costs of this action.”
    It appeared upon the trial, that the plaintiff and defendant owned adjoining houses, each two stories high, and having a common partition between them framed into both. They derived title by separate conveyances from a common grantor. The defendant proceeded to construct a third story to his house, and in so doing elevated the easterly wall of his third story, i. e., the wall toward plaintiff’s house, and along the top of the side of his third story, constructed a molding which projected from the side one and one-half inches easterly, i. e., toward plaintiff’s house. Evidence was given by the plaintiff, tending to show that the defendant’s third story, projected easterly beyond the line of the partition wall, below and beyond the dividing line of the premises. Evidence was given by the defendant tending to show that it did not.

      E. W. Paige and Aléx. J. Thomson, for the appellant.

      8. W. Jackson, for the respondent.
   BooKes, J.:

This is an appeal from an order, granting a new trial on the minutes of the judge.

The motion was made and granted, on exceptions and for the insufficiency of the evidence to support the verdict.

The first question presented on the appeal arises on the exceptions. The plaintiff’s counsel, in opening the case, stated that the parties owned adjoining houses, each two stories high, and that the defendant, in constructing a third story to his house, projected and extended it from two to five inches over the house of plaintiff which (projection and extension) constituted the cause of action. The defendant’s counsel thereupon moved on the opening for a nonsuit, on the ground that ejectment would not lie for the cause stated, and insisted that the complaint was for the recovery of the possession of real property. The motion was denied, and the defendant’s counsel excepted.

The motion was renewed, substantially on the same ground, when the plaintiff rested his case on the proof, and again at the close of the trial. The court held and decided that the action 'was not ejectment, and denied the motion, to which ruling and decision the defendant’s counsel excepted. It may be here stated that no right of action in ejectment was established by the proof. The contrary, I think, cannot be maintained. I am of the opinion that the cause of action stated in the complaint is ejectment, hence that the ruling of the learned judge at the trial was erroneous.

Stripped of verbiage, in no way material to any cause of action, mere redundancy, the complaint is ejectment, pure and simple. It avers seizure and-‘right of possession in the plaintiff of certain premises, giving particularity of description ; a wrongful entry thereupon by the defendant, and their wrongful possession and detention by him; with damages by reason thereof ; and judgment for the possession with damages is demanded. There is no suggestion in the complaint that the action is for any cause., other than for a direct intrusion upon the freehold, by an unlawful entry upon and wrongful possession and detention thereof, no intimation that the ground of complaint is, because of the construction and maintenance by the defendant of a projection, from his wall or building, over the plaintiff’s premises, high in air. The complaint simply charges an ouster and tortious possession and detention by defendant, with resulting damages — simply a cause of action in ejectment — -and the learned judge was in error in holding to the contrary, and permitting a recovery for a cause of action, other than that stated in the complaint. Considered on the evidence, the case is not one of mere variance between the pleading and the proofs, to be helped out by amendment.

The cause of action counted on, and the one sought to be proved, differ in their entire scope. The one is to recover the possession of real property wrongfully withheld, the othe'r to prevent or restrain an alleged unlawful interference with a right incident to property in possession. For this latter cause of action, ejectment will not lie. This was held in Aiken v. Benedict (39 Barb., 400), overruling Sherry v. Frecking (4 Duer, 456). The cause of action sought to be proved, and certified by the jury, is technical in the extreme. The defendant may, therefore, insist upon a careful, critical, even technical reading and construction of the complaint.

If the above conclusion as to the nature of the action stated in the pleading be sound, the judge was in error in holding that it was not ejectment; and he very properly granted the motion for a new trial for that reason.

But let it be admitted that the projecting “ molding along the top of the side ” of the defendant’s third-story wall constitutes the gravamen of action charged in the complaint, and I am of the opinion that the verdict was properly set aside for insufficiency of evidence to uphold it.'

The partition wall between the houses of the parties was a party wall. The premises of each party were chai'ged with the servitude, of having such wall stand and serve as an exterior wall for the house of the other ; and this easement includes the right to increase the height of the wall, provided such increase could be made without detriment to the strength of the wall, or to the property of the adjoining owner. (Rogers v. Sinsheimer, 50 N. Y., 646 ; Brooks v. Curtis, id., 639 ; Nash v. Kemp, 49 How. Prac. Hep., 522.) There is no question but that this party wall, truly designated the locality of the true line between the premises owned by the respective parties; therefore, the measurements from Jay street are of little, if any, importance. According to the deeds under which the parties took title, and to their occupation thereunder, this wall was the separating line between them, and it was & party wall.

This wall was four inches — perhaps a trifle more — in width at the top of the defendant’s second story; and the defendant had the right, according to the decision in Brooks v. Curtis (supra), to carry it up its entire width in the construction of his third story. Instead of carrying it up flush with its east side, as he might lawfully have done, he set back the studding of his third story, and finished upon that, leaving at least one inch and three-fourths of an inch on the east which he might have occupied with the wall. At the top and along the face of his erection, on the east, was placed a light molding, two and five-eighths inches in thickness. Thus, according to what I regard as a very favorable view of the evidence for the plaintiff, the projection of the molding, east from a line vertical with the east face of the party wall, would be but seven-eighths of an inch. But the evidence will bear a construction, which would reduce the projection, to a quarter of an inch or less, if not, indeed, show that there was no projection whatever, east of a line vertical with the east line of the party wall. In my judgment, the evidence is insufficient to support the verdict.

It is not deemed necessary to consider the question whether, inasmuch as the defendant had the right to raise the party wall, he might not also protect it by a projecting cap, if so constructed and situated in regard to the plaintiff’s property that it did not, and could not, by any possibility, do him any injury. This point need nót be here discussed.

The order appealed from should be affirmed with costs.

Present — Leaened, P. J., Booees and Boaedman, JJ.

Ordered accordingly.


text:
    SARAH C. TURNER, Respondent, v. JAMES BROWN, Appellant.

      Personal property — title to — possession of, by husband and wife — .delvoery — trespass — conversion.

    Where personal property, consisting of articles of furniture, is in the possession of a husband and wife, being used in rooms occupied by them, the possession is, presumptively, that of the husband. This presumption may, however, be rebutted by proof of conversations between them, in which the husband admitted that the property belonged to his wife, and that he stood silently by when she asserted title thereto.
    Amanda T. was the owner of certain articles of furniture, situated in two rooms occupied by herself and her husband. While lying in bed, and when in exit'emis, she called the plaintiff, and, after giving directions as to the disposition of certain articles, said: “All the rest of my things I give to you. * * * I want you to take all the things and use them,” and made other declarations to the same effect. The declarations were made in the morning, and the donor died in the afternoon. All the articles remained in use in the rooms; as before the declaration, until several months after the death of the donor. Held, .that there was no valid gift, as there was no sufficient delivery of the property.
    Delivery must be made according to the nature of the subject of the gift, and not according to the capability of the donor.
    Property may be well delivered, when in a house or room, or in a desk or trunk, by the delivery of the key, with intent to surrender its possession and control; or by any act amounting to a surrender to another of its dominion and custody.
    Where a husband, having a watch in his custody and possession, hands the same to a third person to be delivered to the wife of the giver, such third person is not liable to the true owner of the watch, in an action, de bonis asportaiis, for delivering the same to the wife.

      Semble, that such delivery of the watch, made in pursuance of the trust committed to him, will not constitute a conversion thereof.
    MotioN for a new trial, on exceptions, ordered to be heard in the first instance at the General Term.
    The action was commenced to recover the value of a watch, and certain items of furniture alleged to have been converted by the defendant. The plaintiff claimed title to the watch, ^.a gift from one Holland Turner, who she permitted, after the gift, to carry the watch. He died October 25th, 1869. She claimed title to the balance of the property, as a gift by Amanda Turner, made on her death-bed, March 4th, 1868.
    Holland Turner, and Amanda, his wife, long lived together, and boarded with the plaintiff’s husband, having the exclusive use of the rooms they occupied. The furniture in these rooms belonged either to Holland Turner or to his wife, evidence being given, on the part of the plaintiff, to show that it belonged to the wife, while the defendant claimed that it belonged to the husband.
    The plaintiff testified, that early in the morning of March fourth, Mrs. Amanda Turner called her to her bed-side, and there anticipating death, gave directions disposing of her clothing, etc.; that she was directed to bring, and brought two articles from a closet to her bed, and that the rest all remained as before; that after directing special gifts, she told the plaintiff that all the rest was hers; that she carried away the two articles before Amanda died, and put them up stairs, and took the bed, on which the old lady died, and a few of the articles up stairs, the morning after the death, and left the rest for Holland’s use. She died at three p. m., the day of the alleged gift.
    Some months after her death the furniture was removed by Holland Turner, with the assistance of the defendant, to other rooms then occupied by him. Holland married again, and while sick, handed the watch to the defendant, and asked him to deliver it to his wife, which defendant accordingly did. The defendant is the executor of Holland Turner.

      Isaac 8. Newton, for the appellant.

      H. G. Miner, for the respondent.
   Bookes, J.:

This case comes before the court oh a motion for a new trial, on a case and exceptions, ordered to be heard in the first instance at General Term.

The jury rendered a verdict, at the Circuit, against the defendant for $159.94, for unlawfully taking and carrying away a gold watch and other personal property, charged to have been the property of the plaintiff, and converting the same to his own use.

The plaintiff claimed title to the property under alleged gifts — the watch as a gift- from one Holland Turner; and the other property, consisting of household furniture, beds, bedding, etc., as a gift from his wife. The case, as regards the latter property, differs from that relating to the watch in nearly all its material features. The plaintiff’s right to recover for the property, other than the watch, will be first considered.

This property was claimed to have belonged originally to Mrs. Turner, the wife of Holland Turner; and the plaintiff based her title thereto on an alleged gift from Mrs. Turner. The sufficiency of the proof to show a right of recovery is challenged on every point. The original ownership by Mrs. Turner is questioned ; and the alleged gift by her to the plaintiff is denied; as is, also, the unlawful taking and conversion by the defendant. These objections to the right of recovery are all well presented in the case, and the various exceptions taken during the trial.

First, then, I am of the opinion, that the ownership of this property, originally, by Mrs. Turner, the alleged donee, is well established by the proof. It was principally in use in rooms occupied by her husband and herself, Possession was prima faoie evidence of title. The actual possession of it was either in her husband or herself, presumptively in the husband, inasmuch as they lived together as husband and wife. But evidence was given of conversations between them, in which the husband admitted that the property belonged to the wife. He also stood silently by when she asserted her title and ownership; and he was present and gave sanction to her declarations, relied on as expressions of the gift to the plaintiff, by suggestions in regard to her actions and purposes. Thus there was, doubtless, sufficient evidence of the original ownership of the property by Mrs. Turner,

Then, was there a valid gift of the property by Mrs. Turner to the plaintiff? On this point there are a variety of facts and circumstances to be considered. To constitute a valid gift of property, there must be a clearly expressed intention by the donor, to part with the title to the donee, accompanied by an actual delivery of the subject of the gift.

It might, perhaps, be urged, and not without some ground of plausibility, too, that Mrs. Turner did not intend the gift to become consummate, until the decease of her husband. But, admitting that the language employed by her, clearly indicated an existing purpose, then, to pass her title to the property to the plaintiff, was there such an immediate, actual possession given by the former, and assumed by the latter, as was necessary to a perfect and valid gift ? Blackstone says: “A true and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately.” (2 Bl. Com., 441.) So Kent says: “ Delivery is essential, both in law and equity, to the validity of a parol gift of a chattel, or chose in action, and it is the same whether it be a gift inter vwos or causa mortis. Without actual delivery the title does not pass.” (2 Kent Com., 438.) But, as was said in Gray v. Barton (55 N. Y., 68), per Grover, J., to constitute a gift, a manual delivery of the thing given is not in all cases necessary; and he adopts the language of Chancellor Kent, that delivery may be according to the nature of the thing, but must be an actual delivery so far as the subject is capable of delivery. “ It must be secundum sujectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject” (p. 73). The cases wherein this subject has been considered are very numerous, and their citation is here useless,' as they all recognize the law applicable to gifts, as above stated. The difficulty has generally been, as to the purport of the language employed by the donor, or as to the facts relied on, to show delivery in the particular case.

Now, let us examine the case in hand, holding in mind the law applicable to delivery in cases of gifts. Mrs. Turner, the donor, lived with her husband, both quite advanced in years. They, together, had rooms, as boarders, in the house occupied by the plaintiff and her husband, in whose family they ■ boarded. Mr. Turner contracted for the rooms and board; the rooms, which opened the one into the other, were furnished with the property constituting the subject of the alleged gift; and such property, at the time, was in use in the rooms, except a very few articles in a clothes press and in a trunk, the latter in the second story. Mrs. Turner, the donor, was in exto'emis, on a bed in one of the rooms, when she sent for the plaintiff; and after giving directions as to the disposition of some articles as keepsakes to friends, said to the plaintiff, who was sitting on the side of the bed: “ All the rest of my things I give to you. * * * I want you to take the things and use them; but those things that the elder (her husband) needs in these rooms I would like to have you keep just as I have kept them, while he lives. * * * My beds and bedding, and all the rest of my things, my beds and bedding and all, every thing, I give to you.” According to another witness, she said : The things in these rooms hei’e, the household things, my wearing apparel and beds and bedding, I give to you; take them and use them, and take care of them as I have.” Another witness spoke to the circumstances attending the gift, much to the same effect, but with less precision. Some evidence was given, tending to show a manual delivery at the time, of a few articles of small value or importance, but the evidence was not clear or distinct as to such handling or manual delivery, save as to two articles, a bed-quilt and blanket. The remainder of the property, comprising the carpets, the furniture in the rooms, the beds (one of which having been set up temporarily, the donor then occupied), was in use in the rooms, except some linen and bedding, perhaps, in the closet, and a very few articles in a trunk up stairs. The declaration of gift was made in the early morning, and the donor died about half-past three p. m., of the same day. The principal part of the property, remained in the rooms and in use, as before the alleged gift, until after the decease of the donor, and indeed until many months thereafter; the donor’s husband continuing to occupy the rooms, furniture, and one of the beds, and still boarding in the family. The bed on which the donor died, and its bedding, were removed immediately after her death, and the quilt and blanket were taken into possession at the time of the conversation in the morning, All the property, with the exception of this one bed and bedding and the quilt and blanket, and possibly a very few articles (none however that any witness distinctly identified), remained as before the gift, in Mr. Turner’s rooms, in his use as it had been before used by himself and wife; and this bed and its bedding remained actually occupied by the donor until her decease. No actual delivery or change in its possession was attempted at the time. Judge G-rovek says • in the case cited, that if the thing given be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. It is plain from the evidence, that the dominion of the property was not then surrendered to the plaintiff; entirely certain that she did not assume its possession or control. She then took no dominion over it. It may be said, that to have done so then, under the circumstances, would have been unseemly, and as to the bed on which the dying woman lay, impossible. Yet to uphold the gift, either as one inter vivos or causa mortis, delivery was absolutely essential. Such is the requirement of the law. Without it, a declaration of gift is of no effect. Cumbersome property will be well delivered when in a house or room, by the delivery of the key with intent to surrender its possession and control; so of property in a desk or trunk, so too by any act amounting to a surrender to another of its dominion and custody! In this case it- is evident, that the declaration of gift, as regards the property, other than the watch, quilt and blanket, was not accompanied with delivery, hence the title did not pass.

The evidence in this case would probably uphold the alleged gift as regards the quilt and blanket; but as to the other property (the watch excepted) it rested in mere words, simply in expressions of intention or purpose, unaccompanied by delivery, the necessary concomitant of a valid gift. The recovery was principally, if not wholly, for such other property. This conclusion renders a new trial necessary without any examination of other questions in the case.

As above suggested, the right of recovery for the watch, rests on a state of facts, entirely different from those relating to the other property. It may not, however, be out of place here to remark that, admitting that there was a consummated valid gift of the watch, by Holland Turner to the plaintiff, a serious question would still remain on the further and other proof necessary to make out the alleged cause of action therefor. If the action be held to be simply trespass de bonis asportatis, no right of recovery therefor was proved against the defendant; for the evidence stands uncontradicted, that all the possession he ever had of the watch was lawful. It was handed tq him by one having its custody and possession, to be taken and delivered to another ; those parties being husband and wife; that is, it was handed to him by the husband, to be delivered to the wife. Thus there was no unlawful taking proved. He came to the possession by delivery, without any unlawful act on his part. (3 Hill, 348; 8 Barb., 333; see, also, many cases in Wait’s Table of Cases, under Barrett v. Warren.) And if it be claimed that the action may be maintained in trover (see complaint), it then becomes an important question here, whether a conversion was established against the defendant. True, there was a demand of him for the watch, but this was after he had executed the trust committed to him; when, of course, it was not in his power to comply with the demand. (6 Barb., 436 ; 1 Robt., 204, 209; 1 N. Y., 522; 30 Barb., 226; 32 id., 396; 57 N. Y., 33.) He in no way appropriated the watch to his own use ; nor did he act with a view to divest any one of title, or to pass title to another. In this respect the case differs from Spraights v. Hawley (39 N. Y., 441). But the determination- of this question is unnecessary here, as there must be a new trial for the reason above stated. Perhaps on the retrial a different case may be made as regards the watch on the facts. So, too, we deem it unnecessary, now to consider, the exceptions taken to the admission of evidence, and also to portions of the judge’s charge. It seems, however, quite plain that much of the evidence given by the witness Thomas B. White, objected to by the defendant, was incompetent, not to speak of other evidence admitted against objection. And that part of the charge where the learned judge in effect stated that the delivery was sufficient, if the donor made all the delivery she was capable of making, is of questionable propriety under the circumstances of this case. Delivery must be made according to the nature of the subject of the gift, not according to the capability of the donor, who might be incapable of making such delivery as the law requires to constitute a valid gift.

The motion for a new trial must be granted, with costs to abide the event.

Present — LeabNEd, P. J., Bocees and Boabdmant, JJ.

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