author: Boardman, J.

text:
    Matter of the Application of the New York, Lackawanna and Western R. R. Company, to Acquire a Crossing of the New York, Lake Erie and Western R. R. Company over their Railroad in the town of Chemung.

      (Supreme Court. General Term., Fourth Department,

      Filed April, 1887.)

    Practice—Appeal from part of an order.
    The report of certain railroad commissioners, and the order founded thereon prescribing the terms and conditions of the crossing in question, gave benefits to the Lackawanna R. R. Company and provided adequate and necessary protection for the Erie R. R. Company. Held, it could not be appealed fioin in fragments, so that if the appeal were successful the benefits might be retained and the protection be withdrawn.

      J. McGuire, for pl’ff; D. C. Robinson, for def’t.
   Boardman, J.

In 1881, the Lackawanna Company instituted 'proceedings to acquire a crossing over the Erie Railroad at Chemung. Commissioners were duly appointed, a great mass of testimony was taken and a report made, fixing and determining the mode and place of such crossing. As a part of the terms and conditions of granting such crossing the Lackawanna Company were required to construct certain bridging on its route to the west of Chemung river at a considerable distance from the place of said crossing and from the Erie Railroad. Such provisions were made for the purpose of providing sufficient water ways for the Chemung river, so as to avoid injury or destruction to the embankments, tracks and road bed of the Erie Railroad. Such report was filed on the 31st day of October, 1881, and on the 9th day of November, 1881, on motion of the Lackawanna Railroad Company, the report and decision of the commissioners was duly in all things confirmed and the order entered. The Erie Company appealed from said order of confirmation to the general term of the supreme court, the appeal was brought to a hearing and in May, 1882, the report and order of confirmation was affirmed and the order duly entered and notice of such entry given by the Lackawanna Company to the Erie Company, the former company soon after paying to the latter the compensation directed to be paid by the report and order. On a further appeal to the court of appeals by the Erie Company, the report and order were affirmed or the appeal dismissed.

Meanwhile the Lackawanna built its road across the Chemung river and over the Erie Railroad, and was running its road but neglected to do the bridging required by said report and order. Thereupon the Erie Railroad Company in September, 1884, commenced an action in equity in the supreme court, which is now pending, against the Lackawanna Company, to compel it to perform the terms and conditions of said report and order relating to bridging and water ways for the protection of the Erie Company’s roadway.

In October thereafter the Lackawanna Company took this appeal from those portions of said report and order so made and confirmed at its instance and on its motion and so sought to be enforced by the Erie Company as aforesaid.

A motion is now made by the Erie Company to dismiss said appeal on several grounds, which will be discussed so far as may be necessary in deciding this motion.

We are not disposed to pass upon the right of the Lackawanna Company to appeal from the report and order more than twenty days after the order of confirmation was made, and as seems to be required by section 18, chap. 140, Laws of 1850, but we very much doubt whether an appeal will lie from an order entered upon the party’s own motion and for its own benefit. Especially does that seem unreasonable, when the appellant avails itself of such order and has built its road and is running its trains by its authority.

We are inclined to think such an appeal will not and ought not to lie.

But there is a stronger reason why this appeal should not stand. The report and order prescribing the terms and conditions of the crossing constitute a complete disposition of the whole controversy, giving benefits to the Lackawanna, which they are enjoying, and providing adequate and necessary protection for the Erie. It ought not to be possible that such a report can be appealed from in fragments, so that the benefits may be retained and the protection be withdrawn. Each part of the report is dependent upon the other parts, and the report of the commissioners would be very different if a part only is allowed to stand. As well take away the keystone of an arch, when the whole structure must fall. Nor is it possible that justice would permit the reversal of the parts of the order appealed from, leaving the others to stand.

Again, the order as a whole is res adjudícala in this court. The same questions have been argued and decided. In hostility to the Erie and at the solicitation of the Lackawanna, we have held the report and order to be just and proper. It is true the power of the commissioners to make certain conditions was not directly passed upon, but we have no doubt of its existence. Matter of Lockport and Buffalo R. R. Co., 19 Hun, 38. Such power seems to be a necessary incident to the duty of providing for a crossing. However, if the question is not res adjudícala in this court, and if the commissioners had no power or authority to make the requirements inserted in their report and confirmed by the order, the Lackawanna Company can make such objection by answer and upon trial in the action for a specific performance.

We think the appeal should be dismissed, with costs.

Hardin, J.. concurs; Follett, J., not acting.


source: Caselaw Access Project

license: Public Domain

text:
    People ex rel., N. S. Lee v. Benjamin Doolittle, etc., Police Commissioners.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    Police commissioners—Power to dismiss officers—Trial—Laws 1870, chap. 255.
    The relator, who was a policeman, was tried for the use of vile language and neglect of duty. The resolution discharging him was “ for incompetency, inefficiency and using language unbecoming an officer, on April 12, 1886 (the day of the trial before the police commissioners), in presence of and within the hearing of this board, while in session.” Of this last charge no proof or recital appeared in the return, or elsewhere in the papers, except the resolution. Held., that the relator was convicted of charges, not in writing, on which he was not tried, and on which he did not have an opportunity to be heard, within the Laws 1870, chapter 255, section 10, and the proceedings should be reversed.

      D. P. Lester, for pl’ff; W. J. Boggs, for deft’s.
   Boardman, J.

The hearing is had upon a return of defendants to a writ of certiorari issued upon affidavits and after notice to defendants.

The affidavit of Glynn charges the relator with using obscene, abusive, etc., language of and concerning Glynn. But it does not show that such language was used by Lee while in the discharge of his duty as captain of night police. The affidavit of Matson charges Lee with being asleep while on duty about April 1, 1886, between twelve and one o’clock at night. Upon a trial evidence was given tending to prove that Lee was asleep on the night in question, and a greater amount of evidence that he was not then asleep. Evidence was also given against the objections; of Lee tending to prove that he had been asleep on duty at other times not specified in the charge. After the trial the defendants, by a majority vote, resolved to discharge Lee from the force “for incompetency, inefficiency and using language unbecoming an officer on April 12, 1886 (the day of the trial), in presence of and within the hearing of this board while in session.” Of this last charge no proof or recital appears in the return, or elsewhere, in the papers except the resolution.

By the charges made the defendants had jurisdiction of the subject matter and, in a proper case, the power to try upon charges and dismiss the relator from the police force. The difficulty is that the defendants did not keep within their jurisdiction. The relator was tried for the use of vile language and neglect of duty. Those were the only charges made against him. He was convicted of incompe tency, of which there is no evidence; of inefficiency, of which there is no satisfactory evidence; and of using language unbecoming an officer during the trial, of which there is no evidence. It is not stated even what such language was, nor the circumstances under which it was used. What is still more serious, he was convicted of offenses of which he had not been accused and for which he had not been tried. This, in our judgment, does not answer the requirements of the law. Section 10 of chapter 255 of Laws of 1870, provides that any officer “may be removed by the board on proof of charges, preferred before them in writing, of illegal, corrupt ór otherwise improper conduct, on which he has had an opportunity to be heard in his defense.” Plainly no such charges were made or tried as he was convicted of, nor did he nave an opportunity to be heard in his defense as to them so far as the return shows. While a technical and critical proceeding in such cases was not contemplated by the legislature, it was the intention that a summary trial be had upon what might be deemed an informal accusation, when the accused should know of what he was accused and have a fair opportunity to meet the charges. Such proceedings should not be required to be conducted with the same precision and accuracy as the trial of an action at law, but tne substance should be fairly preserved and enforced. People ex rel. Flanigan v. Board of Police, 93 N. Y., 97. The questions to be determined on a review are stated in section 2140 of the Code. Under the fifth clause this court has power to reverse the proceedings where they are clearly against the weight of evidence. 93 N. Y., 97, ante; People ex rel. Fitzsimmons v. James Jurdan, Police Commissioner, 13 Week. Dig., 207; People ex rel. Drevet v. Board of Fire Commissioners, 30 Hun, 376; affirmed, 96 N. Y., 666. In the case under consideration there is an entire absence of evidence, which could justify the resolution passed by the defendants and the consequent dismissal of the relator. The trial, as we have seen, is an investigation upon written charges upon notice to the accused It is authorized that the discipline, efficiency and purity of the police force may be maintained and that those unfit for such stations may be removed. The law should, therefore, be construed liberally with a view to accomplish the purpose intended But we think no indulgence could sustain the present proceedings and decision of the defendants without opening the door to all kinds of corrupt and vicious misconduct on the part of commissioners whenever they chose to indulge in them.

The proceedings and decision of the defendants as commissioners are wholly reversed and annulled. The relator is given thirty dollars costs and his disbursements against the defendants under section 2143 of Code of Civil Procedure.

Hardin and Follett, JJ., concur.


author: Bo aroman, J.

text:
    Schuyler Peck, App’lt, v. Elizabeth Peck, Resp’t.

      (Supreme Court, General Term. Fourth Department,

      Filed April, 1887 )
    1. Divorce—When not granted—Code Civ Pro § 1758, shbd 4
    Where both husband and wife have been guilty o£ adultery, neither can have a judgment of divorce against the other
    2. Same—Amendments.
    It Is not the policy of the 'aw to allow judgments of divorce io be taken where a valid defense exists, and courts on their own motion interiere to prevent suen a result, where the facts are brought to their knowledge
    3. Same—Evidence— Recriminatino charges.
    Recriminating charges may be sustained on evidence not as strong as might be necessary to sustain a suit for adultery
    Appeal from a judgment entered upon the report of a referee in the county of Onondaga.

      Costello & lele, for app’lt; Hopkins & Bondy, for resp’t.
   Bo aroman, J.

This action is brought to obtain a divorce on the ground of defendant’s adultery. The defendant denies the adultery, and by way of recrimination alleges the commission of adultery by the plaintiff, and demands affirmative relief. A reply is a general denial of such charges.

The referee finds as facts: (1), That the defendant has committed adultery, (2), That such adultery was committed through the connivance and procurement of plaintiff; (3), That plaintiff has committed the adultery charged; and, as a conclusion of law, that neither party is entitled to a judgment of divorce against the other, and the complaint was thereupon dismissed, with costs.

The referee’s report was confirmed and judgment ordered accordingly, after a denial of a motion to set aside the report and for a new trial.

The plaintiff seeks to reverse the judgment upon the merits, and alleges that the finding of adultery on his part is not sustained by the evidence, and that the finding of his connivance and procurement of the defendant’s adul tery is without evidence to sustain it. The plaintiff must succeed on both of these allegations, or the judgment must be sustained as to the merits. If both parties have been guilty of adultery, as is found, neither is entitled to judgment of divorce. Code, § 1758, subd. 4; 2 Gr. Ev., § 52; 2 Bishop Mar. and Div., §§ 76, 86; Wood v. Wood, 2 Paige, 108. Where, at page 111, the chancellor says: “If both parties are guilty, neither has any claim to relief; and they are in that case suitable and proper companions for each other.”

Has the plaintiff’s adultery been established by sufficient evidence ? In answering this question we must not forget, in the language of Greenleaf, in the section cited, that the recriminating charge “maybe sustained on evidence, not as strong as might be necessary to sustain a suit for adultery.” To the same effect 2 Bishop M. and D., § 89.

We have examined the evidence touching the charge of adultery against the plaintiff. We think it strongly tends to establish the fact. It is not positive and incontrovertible, but the circumstances proved justify the inference drawn from them by the referee. There is evidence attacking the character of one of the defendant’s witnesses and sustaining the character of Mrs. Harvey and the Cork Block. Upon such conflicting evidence the conclusion of the referee ought to be final. The plaintiff gave no direct evidence, although it _ was in his power to repel the inference that might justly be drawn from his conduct as shown. The evidence tends to show, and we think it does show, that the plaintiff was repeatedly in the rooms of Mrs. Harvey, going there at eight or nine o’clock at night, and staying to a late hour; that Mrs. Harvey’s reputation was attacked: that the character of the inmates of the Cork Block, were attacked. While the attacks upon Mrs. Harvey and the Cork Block were controverted, the presence of the plaintiff in her rooms at unseasonable hours was not controverted or explained. The plaintiff’s home was in Syracuse and Mrs. Harvey’s home in Rochester. There is, therefore, no room for such innocent presumptions as would be proper, in case such circumstances had occurred among neighbors and family friends. We think the fact of plaintiff’s adultery is sustained by a sufficiency of evidence, and the decision of the referee in that respect should be sustained.

Does the evidence show connivance at and procurement of the defendant’s adultery by the plaintiff ? We think it does not. There is abundance to excite suspicion. But it does not reach the height of evidence. The presence of Evans and Wright at Lilly’s Grove at the precise time and place to see this act of adultery committed, the immediate procurement and service by one of them of a summons upon defendant, the earnest advice given by him to her not to defend, the part taken by Mrs. Sarah Peck in a similar way are very suggestive of plans and contrivances to secure evidence of defendant’s guilt. But the plaintiff is not connected therewith in any way. There is no evidence that the plans were his, or that he knew of or consented to them. If he suspected his wife’s fidelity he might lawfully watch her. He might hire others to watch her in order to obtain proof of her guilt. The latter was doubtless done in the present case. But there is no evidence that the plaintiff employed Barnes to accomplish the act, or with Barnes created the opportunity. So far as appears, plaintiff had no knowledge or participation in Barnes’ purposes, acts or plans. The same is equally true in regard to Mrs. Sarah Peck. While the plaintiff might permit, he could not invite the adultery of his wife. 2 Bish. on M. & D. S., 9; Robbins v. Robbins, 5 N. E. Rep., 837 (Mass.). But it does not appear that he either permitted or invited the act of his wife. Hence we"conclude that the sixth finding of fact in the referee’s report is unsupported by evidence.

This leaves the parties in pari delicto. Both appear in court with unclean hands. Neither party can complain of an injury of which the other is equally guilty. Both have been guilty of adultery and hence neither can have judgment of divorce against the other. Smith v. Smith, 4 Paige, 432; Code, § 1758, subd. 4 and authorities cited, supra. The judgment is right then upon the merits and must be affirmed unless fatal errors occur in the rulings on admission of testimony or upon the trial or in refusal to find on request.

The amendment of the answer upon the trial was within the discretion of the court and was proper. Smith v. Smith, 4 Paige, 432. It is not the policy of the law to allow judgments of divorce to be taken where a valid defense exists, and courts on their own motion interfere to prevent such result, where the facts are brought to their knowledge.

The exceptions to rulings on admissions of evidence are mostly to such testimony as tended to establish plaintiff’s connivance with his wife’s adultery. Since we now hold and decide that such connivance was not established the erroneous rulings if any could not and do not haim the plaintiff.

The defendant’s evidence as to the character of Mrs. Harvey and the Cork block was competent. 2 Greenf. Evi., § 44

The referee refused to make various findings in respect to plaintiff’s connivance with defendant’s adultery. If such refusals were erroneous they have been corrected by our disregard of the finding that plaintiff was guilty of such connivance. The plaintiff has not been injured either by such refusals to find or by the findings in fact made.

The other exceptions to the refusals to find as requested relate to plaintiff’s adultery and have been already disposed of in the earlier part of this opinion.

After a careful examination of this case we think the complaint was properly dismissed

The judgment is affirmed, with costs.

Hardin, P. J.—I concur for the reasons given m the opinion as well as those stated in Holcomb v. Holcomb (3 N. Y. State Rep, 762), lately decided in the third department, opinion by Learned, P. J.

Follett, J., concurs._


author: Hardin, P. J.

text:
    The People, Resp’ts, v. Daniel S. Richards, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April 11, 1887.)

    1. Criminal laws—Vault in cemetery is within provisions of Penal Code, §§ 498, 504.
    By Penal Code, § 498, it is declared that a person who, with intent to commit a crime therein, breaks and enters a building or a room, or any part of a building, is guilty of burglary in the third degree. By section 504 it is declared that the term “ building,” as used in the chapter in which both sections are contained, includes a railway car. vessel, booth, tent, shop, or other erection or enclosure Ueld, that a vault in a cemetery was a building, erection or enclosure within the meaning of the Penal Code, § 498.
    3. Same—Burglary in third degree—Penal Code, §§ 498, 499, 504.

      Held, that if the entry into the building, erection or other enclosure was with intent to commit a crime therein, the Penal Code was violated. Penal Code, §§ 498, 499, 504.
    3. Same—What is breaking within meaning of Penal Code, § 499.
    Held, that the breaking of a bronze gate to the vault was a breaking within the meaning of the statute. Penal Code, § 499.
    4. Same—Intent of entry is question for jury.
    The defendant having been convicted of burglary in the third degree-Held, that the question as to the intent of his entry was properly submitted to the jury.
    5. Same—When express malice need not be shown.
    When acts are prohibited by statute, and the evidence clearly shows the defendant has done them, it is unnecessary for the jury to find that he was actuated by express malice. It is enough to find that he was intentionally guilty 01 the acts.
    6 Same—Acts prohibited by Penal Code, § 647, Laws 1883, chap. 133.
    It is provided by Penal Code, § 647, that a person who, not being the owner thereof, and without lawful authority, wilfully injures disfigures, removes or destroys a gravestone or monument, etc., whether situated upon private ground or upon a cemetery, etc. is guilty of a misdemeanor. Held, that if the jury found that the defendant btoke in with the intent to remove a gravestone, and that the tablet or stone in frontof thecoftin'was a gravestone or monument, then they found that he broke in with intent to commit an aet prohibited by Laws 1883, chap, 133, § 8, as well as by Penal Code, § 647.
    7. Same—Forms of pleading existing prior to the passage of Code Crim Fro — Abolished by sec 373 of that act.
    The indictment alleged that the vault, building, erection or enclosure broken into in the night time by the defendant was the property of certain persons, naming some and describing others as persons to the grand jury unknown, heirs at law and legatees and devisees ot one deceased, naming him It was conceded that the title to the burial lot was iualiena ble and that the parties named as owners in the indictment were heirs, neither of the persons of whom they were therein named as such, or the person who originally owned it Held, that assuming that the variance between tire allegations of the indictment and the proofs of ownership would have been fatal under the law as it existed prior to the adoption of the Code of Criminal Procedure, all forms of pleading in criminal cases existing prior thereto were abolished, and the rules by which the sufficiency of pleadings was to be determined are prescribed by that Code. See Code Crim. Pro., § 373.
    8. Same—Erroneous allegation when not material—Code Crim. Pro., § 381.
    It is provided by Code Crim. Pro,, § 381, that when an offense involves the commission of, or an attempt to commit a private injury, an erroneous allegation as to the person injured, or iutended to be injured, is not material. Held, that the injury referred to in the indictment being of property belonging to private persons was in some sense an attempt to commit a private injury.
    9. Same—Amendment—Power of—Code Crim. Pro , § 393.
    Power is given to the court by Codé Crim. Pro., g 393, to allow certain amendments to obviate the difficulties presented by a variance between the allegations therein, and the proof, among other amendments, in tire name or description of any place, person or thing. Held, that the erroneous allegation in the indictment referred to the thing or property affected by the crime.
    10. Same—Amendment—Description of thing—Code Crim. Pro., gg 381, 393, 394.

      Held, that an amendment substituting the names of other persons as the heirs of the deceased person named in the indictment was within only one perfecting llie name or description of the thing, and that the court did not exceed its power in making it and disregarding the variance between the original allegations of the indictment and the proof. Code Crim. Pro . gg 381, 393, 394.
    11. Same—Conviction or acquittal—When good defense against subsequent indictment.
    An acquittal or conviction of an indictment in order to be a good defense to a subsequent indictment must be for the same identical offense charged in the second indictment.

      12. Same—Title—Unauthorized acts

      Held, that the lather and administrator of the wife of the person deceased, named in the indictment, had no title to the stone monument, slab or tablet in front of the coffin of the deceased, and that the acts of the defendant in removing the same derived no authority fioni his permission
    13. Same—Immaterial error must be disregarded—Code Crim Pro, , £ 042
    The court is requested by Code Crim Pro., £ 542, to disregard technical ernes or defects or exceptions which do not a fleet the substantial rights of the parties
    Appeal from a judgment entered in Broome county upon a verdict of conviction taken at the oyer and terminer in that county, of burglary m the third degree, committed in October, 1884, by breaking and entering the Phelps vault, in Spring Forest Cemetery, in the city of Binghamton.

      J. McGuire, for app’lt; George B, Curtiss, district attorney, for the people.
   Hardin, P. J.

Section 498 of the Penal Code defines burglary in the thiul degree, and declares “A person who either first, with intent to commit a crime therein, breaks and enters a building or a room, or any part of a building, is guilty of burglary in the third degree. ” The word ‘ ‘ building, ” as used in this section, is defined in section 594 of the Penal Code, and declared to include a “railway car, vessel, booth, tent, shop, or other erection or iuclosure.” The last section is new, and read in connection with 498, gives to the latter section the same significance as though it read building or other erection or inclosure.”

We think no error was committed by the trial judge in holding that the defendant had entered a building, erection or inclosure which was named in section 498, defining burglary.

People v. McClosky (5 Parker, 57), decided under the Revised Statutes, held that a room in the basement of the court house, at Utica, occupied by the gulf brewery, was a building or “ store house,” and that breaking into the room was a violation of the statute against burglary in the third degree. See 2 R. S., 669, § 17

Under the Revised Statutes, the breaking into “a building within the curtilage of a dwelling house, hut not forming a part thereof, or, second, any shop, store, booth, tent, warehouse, or other building in which any goods, merchandise or valuable thing shall be kept for use, sale or deposit, with intent to steal therein, or to commit any felony, was declared burglary in the third degree.”

In the section of the Revised Statutes as to burglary in the first degree (§10, 2 R. S., 669), it was provided that if the breaking was “with intent to commit some crime” the offense was made out. It was not necessary to specify what kind, of a felony was intended in the indictment for burglary in the first degree. Mason v. The People, 26 N. Y., 200.

But the statute language found in the Penal Code as to burglary in the third degree, as a comparison thereof with the Revised Statutes will show, is quite dissimilar

If the entry into a building, “erection or inclosure,” is with intent to commit a crime therein, the Penal Code is violated. It is not needful to a conviction that an intent to steal or an intent to “commit felony’’shall be shown, provided the intent to commit any other crime is averred and established. Penal Code, <;§ 498, 499, 504.

A breaking may be made by opening a door tightly closed, whether locked or latched. Tickner v. The People, 6 Hun, 657, Penal Code, § 501.

The evidence shows the bronze gate was broken by defendant. If the defendant entered the vault, “or erection or enclosure, ” with intent to commit a crime therein, then he violated the statute against burglary in the third degree. Upon the trial the question as to the intent with which he entered was submitted to the jury, and their verdict in effect finds that the intent “was to commit a crime.” We think that question was proper for the jury upon all the evidence before them, and that we should not disturb their verdict upon that question. Sections 3, 4, 5, 6, 647, 675, Code.

The stone in front of the casket was broken, the top of the casket and also the end of it, and the lead covering over the top of the casket was broken. The cement covering the body was broken, and the oakum and gum incasing the body was broken, and the slipper and some of the clothing of the body was displaced and disturbed, and one of the legs was punctured. Defendant testified: “Took a bar to enable him to remove obstructions off the box—the cement and gum-mastic; it was with that intent I took it.”

When acts are prohibited by statute, and the evidence clearly shows the defendant had done them, it is “ wholly unnecessary for the jury to find that the defendant was actuated by express malice.” It is enough to find that he was intentionally guilty of the acts.- The People v. Reed, 47 Barb., 235.

If the jury found that the defendant broke in with intent to remove a “grave stone,” and that the tablet or stone in front of the coffin inscribed with the birth, date of death and name of the deceased was a 1 ‘ grave stone," or " monument, ” then they found that he broke it with intent to commit an act or acts prohibited by section 8 of chapter 133 of the Laws of 1883, as well as by section 647 of the Penal Code.

In the indictment before us allegations were inserted to the effect that the vault or building or erection or enclosure broken Into in the night-time by the defendant was “the property of and owned by William G. Phelps, Francis A. Phelps and .Lizzie S. Phelps and others, to the grand jurors unknown, who are the heirs-at-law of and legatees and devisees under the will of Robert S. Phelps, deceased, and said building, erection and enclosure being a part of the estate left by Robert S. Phelps, deceased, with an “intent maliciously, wilfully, secretly and unlawfully to deface, disfigure, remove and destroy a grave stone, marble tablet and monument, the same being works of art and useful and ornamental improvements in and upon said Phelps’ vault, being the property of, and owned by the aforesaid William G. Phelps, Francis A. Phelps and Lizzie S. Phelps and others, to the said grand jury unknown, who áre the heirs-at-law and legatees and devisees under the will of the said Robert S. Phelps, deceased, and being part of the estate left by said Robert S. Phelps, deceased. By the proofs and concession upon the trial it appeared that the Spring Forest Cemetery was incorporated in 1853, under chapter M3 of the Laws of 1847.

That the association by its deed August 13, 1862, conveyed to Sherman D. Phelps, father of Robert S. Phelps, the cemetery lot whereon the vault was located, “ with the conditions and limitations mentioned in said legislative enactment;” that Sherman D. Phelps did not convey or transfer said burial lot in his life-time; that the cemetery association “had the general management of the cemetery in which the vault was built.;” that Sherman D. Phelps took possession of the lot immediately upon receiving the deed from the cemetery association, and remained m possession until his death, in November, 1873. In 1881, at the request of R. S. Phelps, the vault was constructed at a cost of $5,QUO, and the keys thereof delivered to Robert S, Phelps.

It was conceded that the title to the burial lot acquired by S. D. Phelps was inalienable either by grant or devise.

An interment having been made thereon during the lifetime of S. D. Phelps, upon his death, the title to the lot vested in his heirs at law. It was conceded by the district attorney upon the trial that the “three persons named m the indictment are not heirs at law of Robert 8. Phelps,” and it appeared that they are not heirs at law of Sherman D Phelps. The defendant moved for his discharge upon the ground of variance in the allegations m the ownership of the property, and the proof, and Because it appeared by the proof that the heirs at law of Robert S. Phelps are Harriet Phelps and eleven other persons named.

The motion was denied, and the defendant excepted.

Then the district attorney moved to amend the indictment by “striking out therefrom the names of Francis A. Phelps, William Gr. Phelps and Lizzie S. Phelps, heirs at law and devisees of Robert S. Phelps, and insert in the place thereof the names of Harriet Phelps and eleven others as owners of the property described in the indictment.”

The defendant “ objected to the allowance of such amendment to the indictment as not being within ttie power of the court to allow, and the court has no power to change or alter an indictment in a material matter.” The court overruled the objection and allowed the amendment to be made and the same was made and an order to the effect was granted by the court. To that ruling the defendant excepted. There is no mention made of the order in the notice of appeal from the judgment. It may be assumed that the variance between the allegations-of the indictment and the proof of ownership of the property, of the vault and contents, would have been fatal under the law as it existed prior to the adoption of Code of Criminal Procedure. 2 Bishop on Criminal Procedure, §§ 137 and 138, p. 64; Quinn v. The People, 71 N. Y., 562; Biggs v. The People, 8 Barb., 551.

However, all forms of pleading in criminal cases existing prior to the Criminal Procedure, were abolished and “the rules by which the_ sufficiency of the pleadings is to be determined are prescribed by the Code of Criminal Procedure, section 273.” This brings us to the inquiry as to whether the variance is fatal, and the indictment non- ' amendable under the Code of Criminal Procedure.

In section 281 of the Code of Criminal Procedure it is. declared that “ when an offense involves the commission of, or an attempt to commit a private injury, an erroneous allegation as to the person injured or intended to be injured, is not material.” The injury referred to in the indictment was of property belonging to private- persons, and in some sense the attempt was to commit “a private injury.”

But whether the new provision of law found in section 281 is applicable to and controlling of the question here presented need not be conclusively determined, but effect may be given to the section when read in connection with section 293 relating to amendments, and both sections interpreted together. By the latter section power is given to allow amendments of indictments. We have already held that section to be valid and constitutional. People v. Johnson, 4 N. Y. Crim. Rep., 591.

And our decision was affirmed by the court of appeals in the January term. In that case the amendment changed the name of the female seduced under promise of marriage, and also the name of the town in which the crime was alleged to have been committed. By section 293 power is given to the court to allow certain amendments to obviate the difficulties presented by a “variance between the allegations therein and the proof,” viz.: First, in respect to time; or second, in the name or description of any place, person or thing.” By reference to the indictment it is seen that the allegation therein referred to the “ thing ” or property affected by the crime. In describing it, the pleader averred that it belonged to-“the heirs and legatees” of Robert S. Phelps. By way of further description of it the pleader stated that it was owned by or belonged to the persons named, who were the heirs-at-law of Robert S. Phelps. In respect to the ownership the averment that it belonged to the heirs of Robert S. Phelps was correct and accords with the proof. But the averment that the ownership was in the three persons named was erroneous.

In that respect the descriptive fact of the property or thing, which descriptive averment tended to identify the property or “thing,” was at variance with the proof.

The 1 ‘ thing ” would have been more accurately described and in accordance with the proof of ownership if the averment had been that the ownership of the property or “thing” was in the heirs at law of Robert S. Phelps, who were the twelve names that appear as such and in the amendment allowed. Again, “the persons” whom the amendment undertook to describe “as heirs at law and legatees of,” etc., were described by a further addition of three names, whereas, as it turns out that the attempt to fully describe “the heirs at law of R. S. Phelps” was erroneous, in that the heirs did not bear the three names given, 1 ‘ but the heirs at law ” bore twelve other names.

The description of “the persons ” of the heirs at law was defective, erroneous, and the amendment makes an averment which corrects the description of “the person” or persons of the heirs at law of said Phelps.

In the People v. Johnson (supra), the place named in the indictment was stricken out, and the amendment substituted “ Champion ” for “ Wilna,” and for a change of persons seduced, the name in the indictment of Mary Olyphant was changed by the amendment to Mary Oliverfc. It may be further observed, that in the allegation of ownership of the “thing or property,” coupled with the names of the three persons named, are the words, viz.: “and others to the grand jurors unknown, who are the heirs at law of and legatees and devisees under the will of Robert S.. Phelps, deceased.”

The word “others,” if applied to the persons who by the proofs appear to be the heirs at law of Robert S. Phelps, may be regarded as an indefinite and imperfect description of “the heirs at law of Robert S. Phelps,” and a meagre description of the person or persons, and the amendment served to make definite and perfect the description of the “others,” who were the heirs at law of Phelps. We are constrained to declare the amendment allowed, only perfected “the name or description of the person or thing.”

The court did not exceed its power in allowing the amendment and disregarding the variance between the original allegations of the indictment and the proof. Sections 281, 293, 294, Code of Criminal Procedure; People v. Johnson, supra.

Defendant put in evidence a judgment roll filed upon the decision of a demurrer interposed to an indictment against the defendant, charging him with “the crime of unlawful and willful injury to and destruction of real and personal property committed,” as alleged in the indictment. That in that indictment a demurrer had been interposed and sustained and defendant discharged.

The grounds of the demurrer were, viz.:

First. For joining “ in one count separate and different offenses, that is to say, the charge of a commission of a felony with the charge of the commission of a misdemeanor.” t

That an injury to a tomb, catacomb or vault, or any part of the same, is a misdemeanor, an injury to real and personal property, when the value of the same is twenty-five dollars, and where the punishment is not specifically prescribed by statute, is a felony.”

Second. That the facts stated in the indictment do not •constitute a crime, for willfully injuring and destroying the personal property of another, when the punishment is not specifically prescribed by statute.

Third. “That the personal property does not belong to the heirs at law or devisees of Robert S. Phelps, deceased.” There was not demurrer upon the ground “that the facts stated do not constitute a crime,” which ground might have been taken. Code of Criminal Procedure, § 323.

It is nowhere made to appear by the demurrer, decision or judgment-roll, that the court held that the facts stated in the indictment did not constitute a crime. Besides, the crime alleged is not the crime alleged in the indictment for burglary now before us. The section which declares the effect of a decision upon a demurrer only declares such a decision “ is a bar to other prosecution for the same offense. ” Code of Criminal Procedure, § 321".

The acquittal or conviction of an indictment, in order to be a good defense to a subsequent indictment, must be for the same identical offense charged in the second indictment. 1 Russ on Crime, 836; 4 Blk. Com., 336; opinion of Allen, J., in People v. McClosky, 5 Park. Crim. Rep., 59.

It is now provided by section 506 of the Penal Code, viz.: “A person, who having entered a building under such circumstances as to constitute burglary in any degree, commits a crime therein, is punishable therefor, as well as for burglary, and may be prosecuted for each crime separately, or in the same indictment.”

There is nothing in the judgment record introduced to show that the court held that the defendant had not committed, or intended to commit, a crime within the building entered.

In the grounds of demurrer the defendant asserted that the facts stated, viz.: that an injury to a tomb, catacomb or vault, or any part of the same, is a misdemeanor.

“We are of the opinion that the court did not err in refusing to hold that the judgment is a bar to any proof of the commission of the acts charged in the indictment now upon trial,” or in refusing to strike out “all the testimony which shows the commission of the acts charged.” We are of the opinion that the defendant Richards had no express or implied authority from any person entitled to give the same to break in the vault or commit the acts charged. Taylor, the father and administrator, of Mrs. Phelps, had not title to the vault, or the stone monument, slab or tablet in front of the coffin of Robert S. Phelps, deceased. The acts of the defendant were unauthorized and unlawful. Reg v. Sharpe, 40 Eng. Law and Eq., 581; Snyder v. Snyder, 60 How. Pr. Rep., 370

Several rulings were had and exceptions taken during the trial to which reference in this opinion has not been made, but an examination has not satisfied us that any error was committed which should lead to a reversal, as section 542 of the Code of Criminal Procedure requires the court to disregard “technical errors or defects or exceptions which do not affect the substantial rights of the parties.” Schrumpf v. People, 14 Hun, 10; People v. Gonzalez, 35 N. Y., 49; Stokes v. People, 53 id., 165; Coleman v. People, 58 id., 555; People v. Burns, 33 Hun, 300; Cox v. The People, 80 N. Y., 500.

If the foregoing views are approved the conviction and judgment should be affirmed and the proceedings remitted to the oyer and terminer of Broome county, with directions to enforce the same.

Boardman, J., concurs; Follet, J., not voting.


author: Follett, J.

text:
    Betsey J. Pike, Resp’t, v. Jeremiah Bosworth, App’lt,

      (Supreme Court, General Term,. Fourth Department,

      Filed April, 1887.)

    1. Highway—Carriages meeting on — Most torn to right—I It. S., 695, § 1.
    Persons with carriages meeting on a highway, in the state of New York, must turn their vehicles to the light of the centre of the highway and permit each other to pass without interruption IKS, 695, § 1.
    2. Same—Person disobeying this bule presumptively liable for injuries received
    Presumptively a liability is incurred by a person who refuses to obey this statute, to the injury of auothei who is flee lioin contributory negligence.
    3. Appeal—Questions not presented in lower court cannot be raised on appeal.
    On an appeal from a judgment in an action brought for injuries received because of the violation of this statute of tne defendant Held, that the question whether the negligence of the driver of tne vehicle in which, piaiutil! was riding, was imputable to the plaintiff, could not be raised as it had not been presented in the court below.
    4. Same—General question submitted in lower court cannot be subdivided ON APPEAL.

      Held, that the question of the plaintiff s contributory negligence having been tried and determined as one general question of fact by the acquiescence of the trial court and of the parties, the deieated party could not upon appeal subdivide the general question into severa', special ones and be licai d to argue that one or more of such to which the attention of the trial court had net been called should have been determined in his favor,
    5. Evidence—Opinion incompetent.
    A person in tiie vehicle m which the plaintiff was. was allowed to testify that the driver drove Gainfully Iletd, that this was bat a statement of her opinion, the admission of which would have been a fatal error had the manner of the driving been in issue
    6. Same—Opinion, when competent.

      Held, that it was competent for the plaintiff to prove by a physician that in his opinion, her present ailments were caused by the injuries received.
    Appeal from a judgment of a county court entered on a verdict, and from an order denying a motion for a new trial, made on the minutes.

      D. B. Cushman and Albert F. Gladding, for app’lt; Solomon Bundy, for resp’t.
   Follett, J.

Persons with carriages, meeting on a highway in the state of New York, must turn their carriages to the right of the centre of the highway and permit each other to pass without interruption. 1 R S., 695, § 1. Presumptively, a liability is incurred by a person who refuses to obey this statute to the injury of another who is free from contributory negligence Simmouson v Stellen merf, 1 Edmonds, 194; Whart. Neg., § 820, h; 1 Thomp. Neg., 383.

It is established by the verdict that defendant’s refusal to obey the statute caused plaintiff’s injuries. Was it negligent for defendant to refuse? The presumption is against him, as above stated, and did he overcome the presumption, are the first questions that arise for consideration.

The defendant testified that at the place of collision the road was narrow, too narrow for the teams to pass. On the contrary, his witnesses who speak on the subject, testified, inferentially or directly, that if each had given half of the road, both could have passed in safety.

This issue of fact, as well as every other contested issue of fact, must be regarded as settled against the defendant by the verdict, unless determined against the weight of evidence, and this issue is clearly determined in accordance with the weight of evidence. • There is no evidence that the weight or magnitude of defendant’s load, or that any fact existed rendering it impossible, unreasonable or even inconvenient for him to give one-half of the road.

Under the evidence and verdict, it must be held that defendant did not overcome the presumption that it was negligent for him to refuse to obey the rule of the statute. This negligent act rendered him liable for the result (the plaintiff not contributing), without bringing into the case defendant’s alleged invitation, advice or direction to turn into the ditch at defendant’s left, and at their right. The plaintiff and her sister-in-law testified that defendant did so direct them, which he denied; but this issue is also settled against the defendant by the verdict, and cannot be overthrown by this court as against the weight of evidence, even if this court has the power to consider this question. Reiley v. The D. and H. C Co., 102 N. Y., 383; 2 N. Y. State Rep., 419; Cramer v. Lovejoy, 5 N. Y. State Rep., 190.

Whether defendant was negligent or not wras fairly submitted to the jury as a question of fact, and in accordance with the rules of law.

Under the evidence and verdict, it is settled, so far as this court is concerned, that defendant’s act was negligent and actionable

Whether the plaintiff negligently contributed to her own injury, was suomitted to the jury as a question of fact, and was found against the defendant, who insists, on this appeal, that this question should have been ruled in his favor as a question of law.

The plaintiff had no control over the horse which drew the wagon in which she and her sister in-law were riding. Her sister-in law owned the horse and wagon and drove. The defendant’s counsel has not called the attention of this ■court to any act committed or omitted by the plaintiff which in the least contributed to the injury, but it is urged that this court should hold as a question of law that the driver negligently contributed to plaintiff’s injury, and that her negligence is, under the evidence, imputable to the plaintiff, and, therefore, she should not have recovered. Whether the acts of the driver were imputable to the plaintiff, is not presented on this appeal, because, first, the question was not raised in the court below; second, the case was tried, from the beginning to the end, by the court, and both parties, upon the theory that the acts of the driver were imputable to the plaintiff, and if either or both negligently contributed to the injury a recovery could not be had. Upon this branch of the case the defendant is forced to stand upon the question that the court should have ruled as a question of law that the driver negligently contributed to the plaintiff’s injury.

In support of this proposition it is strenuously urged that the wagon was not overturned until it had safely passed defendant, and that the driver, instead of continuing to drive in the ditch to the foot of the hill, negligently attempted or permitted the horse to attempt to regain the beaten track immediately upon passing the rear of defend ant’s wagon.

It is useless to discuss whether, if the fact was established, it would have been, as a matter of law, contributory negligence; for whether the accident was caused by turning into or out of the ditch, or by driving along with the right wheels in the ditch and the left, wheels on the edge of the road-bed, was a disputed question.

If an issue was made upon this question, it was settled by the verdict in the plaintiff’s favor. If the question was not put in issue in the court below, it cannot be raised here. The court was not requested to charge that if the jury found the injury was caused by the driver’s negligently turning out of the ditch, the plaintiff could not recover; nor does it appear that the attention of the trial court was called to this question. When the question of plaintiff’s contributory negligence has been tried and determined as one general question of fact by the acquiesence of the trial court and the parties, the defeated party cannot on appeal subdivide the general issue into several special sub-issues, and be heard to argue that one or more of such special sub-issues, to which the attention of the trial court was not called, should have been determined in his favor by the trial court.

The defendant asked the court to charge four propositions bearing upon the question of contributory negligence. The first was sufficiently answered; the second was covered by the charge at folios 310 to 312, and the court was not required to repeat the instruction in the language of counsel; the third was covered by the charge at folios 324 to 327; the fourth assumes an important and disputed question of fact, that is, that plaintiff anti her sister ‘ ‘ heedlessly drove into the ditch. Had the request been to charge that if the jury found they needlessly or negligently drove into the ditch, that the plaintiff could not recover, notwithstanding defendant’s negligence, it would have been sound, and required an affirmative anWer, unless the proposition had been covered by the general charge.

There remains to be considered the rulings upon the reception and rejection of evidence. Those at folios 69, 129, 130, 195, 250 a.nd 255 are so obviously correct that they re- • quire no consideration. The question at folio 150 is obscure and evidently was not understood by the witness, judging from the answer, but the answer was not objected to as irresponsive. No ground of objection to the question is stated, and the ruling was not erroneous under the rule applicable to such a general objection.

Laura Pike testified that as they approached defendant he told them It was good turning out, and motioned to his left and to her right, and turned out his horses enough to turn his forward wheels a trifle. She was allowed, over defendant’s objection and exception, to testify that defendant’s conduct induced her to believe that he was about to give half the road. It is apparent, we think, that this answer could not have harmed the defendant.

This witness was allowed to testify that “she drove carefully.” This was but her opinion, and had the issue been upon the manner of her driving, it would have been a fatal error, but the defendant did not testify, or claim that the witness’s management of the horse was careless or unskillful, except as indicated by the remark, “It looked as though they were driving with a loose rein.”

It was competent for the plaintiff to prove by the physician, that, in his opinion, the present ailments of the plaintiff were caused by the injuries This, in effect, was done by the questions and answers at folios 164 and 168.

We think that no errors were committed which contributed to the defeat of the defendant before the jury, and that the judgment and order should be affirmed, with costs.

Hardin, P. J., and Boardman, J., concur


text:
    James Roney, App’lt, v. Bruce S. Aldrich, Resp’t, Impl’d with Cuyler E. Baldwin.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. New trial—Payment of costs usually imposed on party obtaining WHEN GRANTED ON THE GROUND THAT VERDICT IS AGAINST THE WEIGHT OF EVIDENCE.
    Where a new trial is granted for an error of the jury in rendering a verdict contrary to the evidence, the payment of costs is usually imposed upon the party to whom it is granted.
    2. Same—When record does not disclose grounds of order, appellate COURT WILL PRESUME THIS PRACTICE HAS BEEN FOLLOWED.
    Where the record does not show that the motion was granted for errors of the jury an appellate court will presume that this rule of practice has been observed, and that the order was made upon exceptions taken.
    3. Division fence—Obligation to maintain division fence—7 R. S., 831.
    The owner of a farm is, by 1 R. S., 353, § 30, as amended in 1871 and 1872, 1 R. S., 831, required to build and maintain a just and equal proportion of the division fence between his premises and those of an adjoining owner
    4. Same—Owner liable for damages resulting from negligence of AGENT IN CONSTRUCTING.
    Where a division fence was built by one who occupied premises as agent of the owner, and who, in that particular, also acted as such. Held, that the owner was liable for damages arising through negligence in the construction of the fence.
    In 1883 and in 1884, the plaintiff occupied a farm owned by one Kelley, which adjoined on the south a farm owned in 1884 by Aldrich, and occupied in 1884 by Baldwin. By an agreement between the proprietors, the owner of the Kelley farm was bound to build and maintain the part of the division fence west of a certain chestnut post; and the owner of the Aldrich farm was bound to build and maintain the part of the division fence east of said chestnut post. In 1883 the plaintiff, with the approval of Kelley, built a galvanized barbed wire division fence from said chestnut post to the west end of the boundary line; and in June, 1884, a japanned barbed wire (Glidden’s patent) fence was built from said chestnut post to the east end of the boundary line by defendant Baldwin, under circumstances which will be more fully stated hereafter. While the plaintiff’s horses were at pasture they were, during the night of June 19, 1884, badly cut by a wire fence, and this action was brought to recover the damages. A verdict was rendered against both defendants for $133.50 damages. Upon a case containing all of the evidence, Aldrich alone moved for a new trial, which was granted as to him, with costs to abide the event. A judgment has not been entered. The plaintiff appeals from the order granting a new trial.

      Franklin Pierce, for pl’ff-app’lt; T. E. Hancock, for def’t-resp’t.
   Follett, J.

The order not disclosing the grounds upon which it was granted, and no opinion having been written, the grounds of the decision must be searched for on the record. At the close of the evidence, Aldrich alone moved for a nonsuit, because a cause of action had not been proved against him, which was denied, and an exception taken. At the close of the charge he excepted to the direction that a verdict might be rendered against him. We think the new trial was granted on these exceptions, for two reasons : (1) No other exceptions were taken upon the trial, except to unimportant and not debatable rulings upon the reception and rejection of evidence, which rulings were all common to both defendants; (2) The payment of costs by Aldrich was not required, which is the usual condition imposed when a new trial is granted for an error of the jury in rendering a verdict contrary to the-evidence. Bailey v. Park, 5 Hun, 41; Kelly v. Frazier, 27 id., 314; S. C., 2 Civ. Pro. Rep., 322. The record not disclosing that the motion was granted for errors of the jury, this court will presume that the court below followed this rule of practice, and granted the motion upon the exceptions. Henderson v. Henderson, 2 Abb; N. C., 102.

The verdict must be regarded as settling in plaintiff’s favor the three important questions of fact: (1) That defendant’s fence was negligently built; (2) That plaintiff’s horses were injured thereby; (3) That plaintiff did not, by negligent acts, contribute to their injury. This brings us to the question of whether Aldrich is liable for the damages caused to plaintiff by the negligent construction of this fence. Otherwise stated, was the evidence insufficient, as a question of law, to render him liable; or was there sufficient evidence to make the question of liability one of fact for the jury?

Aldrich owned the farm, and as such owner was required by statute to build and maintain a just and equal proportion of the division fence. 1 R. S., 353, § 30, as amended in 1871 and 1872; 1 R. S. (7th ed.), 831. He concedes that the owner of his farm was to build the part of the division fence extending east from the chestnut post (where the jury found the accident occurred), and it is proved that such had been the practice for many years. Ditchett v. S. D. and P. M. R. R. Co. (67 N. Y., 425), does not hold that the occupant, and not the owner, is charged by the above statute with the duty of building and maintaining division fences as between adjoining owners. That case did not arise under this statute, or between adjoining owners, or between the occupants of adjoining properties, but it was an action by the administratrix of a traveler on a public street, who was killed by falling from the street into an excavation which had been, previously guarded by a fence, but then out of repair.'

At common Taw, adjoining owners were not bound, as between each other, to maintain division fences, unless the right to compel their maintenance had been acquired by prescription or by agreement; and the cases which arose before the statute need not be considered.

The cases deciding whether a master is liable for the negligence of his servant, or a landlord for injuries sustained by third persons on leased premises, or whether the owner of land is liable for the negligence of a person who has contracted to do some act thereon, are instructive, but not directly in point; because none of these relations existed between Aldrich and Baldwin. So similar are many of the border duties of special agents and servants that it has been found impossible to draw a liné clearly separating one from the other; and though this is a border case, we are of the opinion that Baldwin must be held to have been the representative and agent of Aldrich in building the fence. Baldwin was not directed to use posts of any particular size, kind or strength; nor how far apart the posts should be set, nor how far apart, nor how high above the ground the wires should be strung, nor how they were to be secured to the posts. In these respects, which together, make up all there was to be done, he might, and did, exercise his own judgment; and in these very respects the fence was negligently constructed. Aldrich is hable for this negligence of his agent. Story’s Agency, § 452, and cases there cited. But if it be held that Baldwin was the servant of Aldrich in building the fence, the rule of respondent superior, under which principals are hable to third persons for the acts of their agents, and masters to third persons (not co-servants), for the acts of their servants, fixes the liability of Aldrich for the negligent construction of the fence. That Baldwin represented Aldrich in the capacity of agent or servant, cannot, we think, be doubted. Aldrich owned the farm; it was his duty to build the fence; he furnished the wire for it, and authorized Baldwin to build it. We have said that the relation of landlord and tenant did not exist; which, we think, cannot be seriously doubted; for it does not appear that Baldwin had the sole right to occupy or control this farm to the exclusion of Aldrich for any period of time; and it affirmatively appears that rent was not paid, or agreed to be paid.

These views lead to a reversal of the order, with costs.

Hardin, P. J., and Boardman, J., concurs.


author: Hardin, P. J. Follett, J.

text:
    Frederick M. Wilson, Resp’t, v. Eli B. Law et al., as Ex’rs of George C. Law, deceased.

      (Supreme Court, General Term. Fourth Department,

      Filed April, 1887.)

    1. Promissory note—Action on—Evidence.
    In an action on a promissory note the principal evidence of the plaintiff was to the effect that it was made by the defendant’s testator, but there was sufficient evidence on which to submit to the jury the question whether it was made by him personally or by a person authorized thereto by him. Held, that evidence that the decedent had said that the note was all right was properly admitted. Follett, J , dissents as to the sufficiency of evidence on which to submit to the jury the question whether decedent authorized the note to be signed by another
    2. Same—Production on trial—Raises presumption of ownership before maturity

      Held, that production of the note upon the trial by the plaintiff gave rise to the presumption that the plaintiff became the owner of it before maturity and entitled him to stand on that presumption until overcome by proof.
    •3. Same—Declarations of prior owner against validity of title are incompetent

      Held, that declarations of the payee of the note made prior to a sale by him were not competent against the title of the buyer of the note or that of his transferee.
    ■4. Same—Who is holder for value

      Held, that a transferee of the note who parted with debts and mortgages held against the payee for the note became a holder for value.
    .5. Same—Evidence—Incompetency of.
    It was shown that the maker and payee of the note had a settlement and then the defendants offered to show the amount past due and an arrangement that was made with the maker to take his note for half. Held, that this evidence was properly excluded, the whole title to the note being in the plaintiff, who was a bona fide holder for value. Follett, J , dissenting, held that evidence of the settlement was competent and that evidence of the state of accounts between the parties to the note shortly before its execution, was competent.
    6. Same—Evidence—Competency of, under Code Civil Pro , § 829.
    The payee of the note pledged it to a person who had assumed an indebtedness of his Held, mat this having been paid the title i everted to the payee, and that the transaction having been completed previous to the trial the pledgee of the note was a competent witness (Code Civil Pro , § 829), the plaintiff not holding under the witness, but through the original title of the payee.
    Appeal by defendants from a judgment in Oneida upon a circuit verdict and from an order on minutes.

      E. L. Stums, for app’lts; Sayles, Jenkins & Devereux, for resp’t.
   Hardin, P. J.

Plaintiff produced and read in evidence upon the trial a promissory note alleged to have been made by defendants’ testator for $1,100, bearing date April 7, 1874, payable to S. 0. Emory or bearer ten years after date, with interest.

Evidence was given tending so prove that deceased made and delivered the note, and also evidence tending to show that he repeatedly in his life time admitted its validity and that it was “all right.” Defendants gave evidence tending to show its invalidity, and that it was not executed by the deceased.

Whether it was made by deceased by writing his own signature, or whether the signature of deceased was placed upon the note by one authorized by him to sign, were made questions of fact for the jury to pass upon, and they were carefully submitted to the jury and found favorable to the plaintiff.

Inasmuch as there was evidence abundantly to sustain the verdict, we must accept it as final upon these questions of fact. It was not error to allow the jury to inquire and find that the signature of the deceased was placed upon the note by one having authority from him so to do.

Though the principal evidence of the plaintiff was to the effect that the signature -was in the hand-writing of the deceased, it was still the right of the plaintiff to have the jury pass upon the question as to whether the deceased had not authorized another to write his name to the note, and evidence tending to show that the deceased said the note was ‘1 allright ” bore upon that question, and the trial judge committed no error when he presented that aspect of the case to the jury.

Production of the note upon .the trial by the plaintiff gave rise to the presumption that the blaintiff became the owner of the note before its maturity, and entitled him to stand upon that presupmtion until it was sufficiently overcome by proof.

Defendant put upon the stand as a witness Mr. Sayles, and he testified that six or eight years before the trial he purchased the note of the payee, who was at that time indebted to him in various sums, and among other items of indebtedness that he had against Emory, the payee of the note, was a real estate mortgage for $2<>0, and he testified that in pursuance of such purchase and as part payment for the note in suit, he executed a satisfaction-piece and discharged said mortgage.

Mr. Sayles testified that he had the absolute title to the note; that he agreed to account for or pay over any surplus that might remain, if a surplus were had over and above his advances to and debts against Emory.

Thereafter Emory pledged or mortgaged that surplus, if any, to H. S. Willson.

After that state of things existed there was an arrangement entered into between the plaintiff and his father, EL S. Willson, and Mr. Sayles that a transfer of their respective interests and ownerships in the proceeds of the note should be and was made to the plaintiff in this action. When plaintiff took the transfer from Mr. Sayles he agreed to pay “whatever there was” due to Sayles if there was a recovery.

Defendant called as a witness John C. Dorn, and called his attention to an interview he had with Emory in the month of November or December, 1874. Before Mr. Sayles •was sworn, and before H. S. Willson was sworn, the court ruled that the declarations of Emory, the payee and prior holder of the note, were not competent, and defendant excepted.

After the testimony of Sayles and H. S. Wilson had been given by defendant, he again, upon recalling Dorn as a witness, sought to show that when Emory held the interview in the fall of 1874, he offered to sell the note for $350. The court held such evidence was not competent, and defendant excepted; and the defendant offered to show that Emory got his mother to secure a debt to Dorn to get the note out Davis’ possession. That was objected to and the court shut out the evidence.

We think the court committed no error. The declarations of Emory, made long prior to the sale of the note to Sayles, were not competent evidence againt Sayles’ title or the title and ownership of his transferee, the plaintiff. Paige v. Cagwin, 7 Hill, 361: 40 N. Y., 226.

Defendant’s answer contains no affirmative defense. The principal issue upon the trial seemed to be as to the validity of the execution of the note. Defendant called to the stand Sayles and H. S. Willson, and gave their evidence in respect to the acquisition of the note from the payee.

That evidence was dealt with by the trial court as true. Defendant gave it and could not dispute the reliability of the witnesses, and the court in effect held that the plaintiff had acquired title to the note before its maturity and stood in the attitude of a bona fide holder.

When Sayles parted with the mortgage and debts he held against Emory for the note, he became a holder before the maturity of the note for value. Phœnix Ins. Co v. Church, 81 N. Y., 218.

In that case plaintiff was not abona fide holder for value, so as to shut out the defense that the note was wrongfully directed by the payee, as plaintiff had surrendered nothing of value in delivery of a dishonored, worthless check.

The case of Huff v. Wagner (63 Barb., 215), is unlike the one now before the court, as in that case there was a defense set up to the effect ‘1 that the note was obtained from the maker ” by means of fraud and false and fraudulent representations. It was held that the extent of value parted with by plaintiff, and the circumstances under which he bought the note, might be shown.

It appeared by the evidence that Emory and the maker of the note had a settlement in the spring of 1874, and then defendants offered to show “ the amount that was past due and the arrangement that was made with Mr. Law to take his note for half.” This was excluded and defendant excepted.

As the case stood at that time the court held that the whole title to the note was in the plaintiff, and that he stood in the position of a bona fide holder before maturity, and that the evidence was inadmissible. We think no error was committed by the ruling made.

It seems by the evidence that Mary Barnes held the note as security for an indebtedness she had assumed of Emory, but that debt and liability had been paid and the note reverted to Emory, he never having parted title to it to Mrs. Barnes. That transaction was long before the transfer to Mr. Sayles. Mrs. Barnes at the time of the trial had no interest in or title to the note. She was, therefore, a competent witness. Section 829. Sayles and the plaintiff held the note through the original title and ownership of Emory. The plaintiff did not hold under any title or interest of Mary Barnes. It was proper to receive her evidence.

The case of Pope v. Allen (90 N. Y., 298,) is quite unlike this one. There the evidence was properly excluded, as the-plaintiff held title to real estate under Pope and Rogers,, and they were dead.

Defendant offered two chattel mortgages made by Emory to deceased, one dated September 18, 1866, and the other dated the 30th of November, 1867, and a receipt dated February 28, 1874, and a note for $221, dated February 24, 1874, given by Emory. They were excluded. They were not connected with the note of April, 1874, in suit, and were therefore immaterial. They had no legitimate bearing upon the issues as to the note in suit, and were therefore properly excluded.

Having found no exception in the course of the trial presenting any prejudicial error, the verdict must be allowed to stand.

Judgment and order affirmed, with costs.

Boardman, J., concurs; Follett, J., writes for reversal.

Follett, J.

(dissenting).—This action is upon a note of which the following is a copy:

“$1,100.
Bartlett, April 7, 1874.
“Ten years from date, for value received, I promise to pay S. C. Emory, or bearer, the sum of eleven hundred dollars, with use.
G. W. LAW.”

When G-. W. Law, the alleged maker, died, does not appear, but it appears that this action was begun against his executors December 13, 1884.

The principal issue tried before the jury was, whether the signature was genuine or forged. Upon this issue it was competent for the defendants to prove, that the maker was not indebted to the payee at the date of the note, and that there were no dealings between the parties out of which the note probably could have arisen.

February 24, 1874 (forty-two days before this peculiar note bears date), Emory gave Law his note for $221, due one year after date, with interest.

August 28, 1878, Law recovered a judgment on this note. The defendants offered this note in evidence, but it was rejected. This was error. It was competent for the defendants to show that forty-two days before the date of the note sued upon, Emory was indebted to Law, and that subsequently a judgment was recovered upon the note. From these facts some pertinent inferences might have been drawn by the jury, bearing upon the probability of the genuineness of the questioned note.

It also appears that thirty-eight days before the date of the note in suit, the parties had a full settlement, which fact it was competent for the defendants to prove, as bearing upon the question as to whether G. W. Law signed the note, and its exclusion was error.

As before stated, the evidence relates almost wholly to the question of the genuineness of the signature to the note, and there is not a suggestion in the case that the testator authorized any person to sign the note for him; there is no evidence that the testator was accustomed, or that he ever deputed another to sign his name, or that he was at any time unable to sign his own name. On the contrary, the evidence is wholly hostile to the idea that the testator authorized another to sign the note for him.

If it was signed by another, why should the signature have been so like the genuine signature of the testator' The direction of the court that the jury might find the note was signed by another person by the authority of the testator, is without the slightest support from the evidence, was misleading and erroneous.

For these errors a new trial should be granted, with costs to abide the event,.


author: Hardest, P. J.

text:
    George Scott, App’lt, v. Frances M. Slingerland, as Exr’x, etc., of Thomas B. Slingerland, deceased, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Evidence—Contents of written instruments.
    On thp trial of an action where the main question was whether a certain contract _ad been entered into. The loss of the written instrument was proved and what purported to be a copy was admitted in evidence and marked as an exhibit. The person who drafted the instrument was requested to read said copy and state all he recollected of the contract he drew. Held, that it was error not to allow the witness to read said copy and afterward his memory having been quickened, to state as requested.
    2. Same—Hearsay—When competent.
    Inasmuch as the defendant was in the attitude of disputing the genuineness of the copy as well as the existence of the original of whiclfftke exhibit was a copy, it was allowable to give the declarations of the deceased (who was one of the parties to the said contract), “as to the contents of the paper.”
    Appeal from a judgment entered upon the report of a referee in Oneida county, dismissing the plaintiff’s complaint, with costs.
    Action by the plaintiff to recover for labor and services alleged to have been performed for defendant’s testator at his request, under an employment and in pursuance of a contract, in the manufacture and sale of a compound known as “The Old Homestead Wild Cherry Bitters,” in a peculiarly shaped bottle, for which the plaintiff held the patent, which bottle was known as a “Cottage Bottle.”
    The referee has found as a fact, viz.: “That there was no contract entered into between George Scott, the plaintiff in this action, and said Thomas B. Slingerland, deceased, as appears in the paper offered and received in evidence, marked exhibit 2, and that the evidence fails to show that any cause of action, stated in the complaint in this action, existed in favor of the said plaintiff as against the said defendant.”
    Exhibit 2, produced by the plaintiff upon the trial, is claimed to be a copy of an original paper theretofore exist-' ing between the plaintiff and the testator, and it was used as secondary evidence and received as such. It bears date April 20, 1865, and purports to have been executed by the parties thereto, and to have been witnessed by J. 8. Armstrong. Plaintiff was unable to produce the original upon the trial, but gave evidence tending to show that it was kept in a safe of the defendant. Notice was given to produce the original contract. Plaintiff produced as a witness Jerome B. Seely, who testified he was acquainted with the handwriting of the parties to the alleged agreement, and that he saw an original paper, of which exhibit 2 is a copy, and that the original was taken from a safe and shown to him in New York, and that he read it, and that “after they stopped manufacturing bitters I had the safe key and I was at the manufactory and in charge of it for some purpose. While I had the safe key I made a copy of this paper at the request of George Scott. I took the paper out of the safe to copy it, and after I copied it I put the original back in the safe and locked up the safe. The safe was removed to T. B. Slingerland’s residence on James street, Rome; I helped to remove it. The papers were taken out immediately before the safe was removed, and this paper was among them. The papers were all put back into the safe, and the safe put into a wagon and removed to Slingerland’s house. After the safe was at Slingerland’s house I did not see this paper. This is the copy of the paper I referred to and made. The paper is all in my handwriting and written by me as a copy of the original. The original of this paper had the signatures of Scott and Slingerland. The original was the same paper I had seen in New York and read. The original had seals opposite the names; I could not tell in whose handwriting the original paper was. It was not the writing of Slingerland or Scott; the original was the same one I had seen in New York and Rome. I did not know Armstrong’s handwriting, but it purported to be witnessed by him, as copy appears.”
    Thereupon the copy was offered and received in evidence and marked exhibit 2.
    Evidence was given tending to show that the original, of which exhibit 2 was a copy, was kept in a safe of the deceased and was last seen in his possession. Notice to pro-1 duce the original paper was given to the defendant. At the close of the plaintiff’s evidence a motion was made to dismiss the complaint, on the ground that “ the alleged agreement on which this action is based has not been proved to have been made, executed and delivered by deceased, T. B. Slingerland.” Motion was reserved. Defendant thereupon gave evidence tending to show that no such original agreement ever existed. Plaintiff gave some replying evidence, but the principal question of fact upon which the referee has turned was whether or no such an original paper was ever in existence.

      C. D. Prescott, for app’lt; E. L. Stevens and William Kernan, for resp’ts.
   Hardest, P. J.

In Nichols v. The Kingdom Iron Ore Company (56 N. Y., 618), it was held that secondary evidence of the contents of a written instrument, when allowed, does not obviate the necessity of proving the genuineness of the instrument, but renders it more imperative. In addition to the testimony of the witness who had made the copy, exhibit 2, and who gave the testimony tending to establish the existence of an original agreement from which the copy was made, the plaintiff offered further testimony to establish the existence of the original agreement. He called John B. Elwood, an attorney, who formerly resided at Rome, and proved by him that he drew an agreement between the plaintiff and the deceased. He testified as follows: “I drew a contract between Scott and Slingerland. The paper I drew was in reference to the manufacture of Wild Cherry Bitters, if I remember rightly. I drew it at the suggestion of both the parties, Scott and Slingerland. I did not keep the paper after I drew it, and I do not know whether or not I drew copies for each of them. I drew, as far as I recollect, only the original, and delivered it to one of the parties to draw a copy for the other; I think the paper was executed in my presence; I am not absolutely certain, but speak from general recollection; since I drew the paper I do not know that I have ever seen it; I cannot state the contents of that paper with any definiteness, I only know to what it referred; I have not read exhibit No. 2 now; all I can state as to the contract 1 drew is that it referred to the manufacture of Wild Cherry Bitters.”

Plaintiff’s counsel requests witness to read exhibit No. 2, and then state all he recollects of the contents of the contract he drew.

Defendant objects to it as incompetent and immaterial. Witness has no right to look at exhibit No. 2 and then give his evidence.

Objection sustained and exception for plaintiff.

“ The paper as drawn was drawn as directed by Scott and Slingerland; I drew the paper myself.”

We are of the opinion that the exception just quoted presents an error. If the witness had been allowed to refer to and read exhibit No. 2, his recollection might have been refreshed, his memory quickened, and he thereupon might have been able to state the contents of the paper which he drafted. It is to be observed that the question as propounded calls for the recollection of the witness of “ the contents of the contract he drew.”

We think it was allowable to put exhibit 2 in the hands •of the witness, and after that it was competent for him to state all he recollects of the contents of the contract he drew.'

The question seems to be decided by Huff v. Bennett (2 Selden, 338). Jewett, J., said in that case, viz.: “ Although the rule is that a witness in general can testify only to such facts as are within his own knowledge and recollection, yet it is well settled that he is permitted to assist his memory by the use of any written instrument, memorandum or entry in a book, and it is not necessary that such writing should have been made by the witness himself, or that it should be an original writing, provided after inspecting it he can speak to the facts from his own recollection.”

Numerous authorities are cited in support of the proposition. We will not attempt to review the authorities, but content ourselves with following the authority from which the quotation has just been made.

We are of the opinion the plaintiff was entitled to the evidence which was excluded.

Second. Plaintiff produced the witness Watson, who had been acquainted with the parties and seen them at the manufactory He testified, viz.: “I have heard a paper read while I was at the manufactory; Scott produced it, and I have seen it and heard it read more than once; I never heard it talked of in the presence of Slingerland, in the factory; I have heard Slingerland speak of it in conversation with my father when I was present; I saw and heard it during the years I was living in Rome; I have had it in my hand and read it; I have seen Slingerland write and know his handwriting; this paper that I saw was signed by both Scott and Slingerland, and there were seals after their names; Mr. Scott showed me the paper; he took it from the safe in the factory and apparently returned it to the safe; he took it to the safe, and after so doing I did not see it in his possession.”

Thereupon the witness was asked the following questions, viz.:

“Q. Was that paper with reference to Old Homestead Wild Cherry Bitters ?

Objected to as incompetent and immaterial; paper the best evidence; not shown, lost or destroyed; objection sustained and exception for plaintiff. „

Q. Did that paper provide for the manufacture of Old Homestead Wild Cherry bitters and syrups, and the terms-with reference to Scott for same ?

Objected to, same as last before; objection sustained and exception for plaintiff.

Q. State the contents of that paper ?

Objected to as before: objection sustained and exception for plaintiff.

I have heard Slingerland speak as to the contents of this-paper.

Q. State what he said in reference to it ?

' Objected to as incompetent and immaterial; contents of paper not proven; not best evidence; paper not lost or destroyed; objection sustained and exception for plaintiff.

I heard Slingerland speak of the terms of employment between him and Scott.

Q. State what Slingerland said in reference thereto?

Objected to as incompetent and immaterial, and the contract claimed by Scott was claimed to be in writing and not best evidence; objection sustained and exception for plaintiff.

I heard Slingerland state the terms of the arrangement-between him and Scott, with reference to the bitter and syrup manufactory.

Q. State what he said in reference thereto?

Objected to as last before; objection sustained and exception for plaintiff.

We are of the opinion that the referee fell into an error in making the rulings, which we have just quoted. Some of the questions called for testimony which would tend to establish the existence of the original paper. Under the circumstances disclosed by the evidence we are of the opinion that the plaintiff was entitled to the evidence which tended to establish the existence of the original paper proposed to be given by the witness under examination. The fact did appear that the original paper was last in the possession of the deceased, and it was incumbent upon the plaintiff to establish: First, the existence of the original paper; and second, he had a right to use the contents thereof to bear upon the question of the existence of the original paper. If the defendant had occupied the attitude of conceding that exhibit 2 was a copy of the original paper, undoubtedly that copy would be the best evidence to be relied upon as the contents of the original paper. However, inasmuch as the defendant was in the attitude of disputing the genuineness of the copy, as well as the principal fact which the plaintiff was seeking to establish, to wit.: The existence of tbe original, of which exhibit No. 2 was a copy, we think it was allowable to give the declarations of the deceased “as to the contents of the paper.” One of the questions which was objected to, called for the declarations of the deceased in respect to the contents of the paper. If the witness had been allowed to give what the deceased, “said in reference to it,” the evidence would have strongly tended to establish the existence of the original paper. We are aware that there were very many strong circumstances and much evidence given by the defendant upon the trial of this issue tending to show that there never existed an original paper of the kind claimed by the plaintiff. On the other hand, the plaintiff had given considerable evidence tending to establish that the original paper, which was last seen in the possession of the deceased was executed by the parties thereto, and that exhibit No. 2 was a copy of the original paper kept in the safe, and that the safe was taken from the factory to the residence of the deceased on James street, in Rome. The witness Seeley testified that he took the paper out of the safe to copy it and that he put the original back in the safe and locked up the safe; that the safe was removed to the residence of the deceased, and that the witness helped remove it; and that the papers were taken out immediately before the safe was removed and the paper was among them, and the papers were all put back in the safe and that the safe was put into a wagon and removed to Slingerland’s house, and then he adds: “This (exhibit No. 2), is the copy of the paper I referred to and made. This paper is all my handwriting and written by me as a copy of the original. The original of this paper had the signatures of Scott and Slingerland. The original was the same paper I had seen in New York, and read; the original had seals opposite the names. I could not tell in whose writing the original paper was; it was not the writing of Slingerland or Scott. The original was the same one I had seen in New York and Rome. I did not know Armstrong’s handwriting, but it purported to be witnessed by him as copy appeal’s.”

The issue in respect to whether the original paper existed executed .between the parties was so important, and the testimony so conflicting in respect thereto, that we are not permitted to say that the exclusion of the testimony to which we have already referred, was not injurious to the plaintiff.

The principal fact has been found againt him, as the referee says in his report, viz.: “There was no contract entered into between George Scott, plaintiff in this action, and said Thomas B. Slingerland, deceased, as appears in the" paper offered and received in evidence, marked exhibit 2, and that the evidence fails to show that any cause of action stated in the complaint in this action, existed in favor of the said plaintiff as against the said defendant.”

We are not authorized to say that such evidence would not have benefited the plaintiff had it been received.

We have looked carefully through thé evidence and found there many facts and circumstances and considerable oral evidence tending tending to support the conclusion reached by the referee; while, on the other hand, from the quotations we have made, as well as from the further evidence found in the appeal book, it is quite apparent that there is great strength in the evidence offered by the plaintiff tending to show the existence of the original contract, and its execution by the parties, and that exhibit 2 was a correct copy thereof. We omit to express any impressions formed upon considering the conflicting evidence, inasmuch as we are of the opinion that the issue of fact should go down to another trial.

By reason of the errors which we have pointed out in the rulings, we are of the opinion that a new trial should be granted.

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

Boardman and Follett, JJ., concur.


text:
    Ludwig Vauth, Resp’t, v. Magdalena Landis, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    Boundaries—When fixed by adverse possession and acquiescence.
    Where there has been a practical location of a line between lots of land. which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations, or the erroneous line has been agreed upon between the parties claiming the land on both sides thereof, or tlie party whose right is to be thus barred has silently looked on and seen the other party doing acts, or subjecting himself to expenses in relation to the land on the opposite side of tlie line, which he would not have done if the line had not been so located, the party in occupation up to the erroneous line may defend an action to recover the land, though the line is shown to have been erroneously located. Following Swettenham v. Leary, 18 Hun 287.
    Action of ejectment for the recovery of a strip of land. The controversy is in respect to the boundary of lots 11 and 12. The strip sought to be recovered is seven and one-half inches in width at one end and two and one-half at the other, and thirty feet deep, and takes the westerly side of defendant’s house, which is on lot 12, and which has been built fourteen years. Verdict was directed for the plaintiff. Exception was taken to the direction, and defendant asked to go to the jury, first, upon the ground of adverse possession, and upon several other grounds. Refusals were made and exceptions taken. Judgment was entered for the plaintiff in accordance with the verdict directed. Appeal by the defendant, the case returning all the material evidence.

      Hunt, Leavemvorth & Everson, for app’lt; Costello, Ide <& Hubbard, for resp’t.
   Hardin, P. J.

In 1856 the defendant purchased the premises occupied by her of one Smith Trowbridge, receiving from him a written contract to sell and convey the premises to her upon payment of the price therein named. :She immediately entered into possession of the premises covered by the contract, and cultivated and fenced the premises, including the disputed piece, claiming that the piece now in dispute was a part of the premises purchased and owned by her. _ August 15, 1865, she received a deed from Smith Trowbridge for the contracted premises. The plaintiff’s premises were acquired through a chain of title, commencing on the 10th of April, 1857, from Smith Trow-bridge. At the time of his conveyance, however, the premises were in the actual possession of the defendant,, and the parcel in question was fenced and cultivated, and since the possession taken by the defendant under her contract she has claimed to hold and own the same. Her husband was a witness upon the trial and testified, viz. : “I planted that strip of land that laid right by the side of the house; I built the fence right away after I got the contract of Trowbridge in 1856; it took me two or three hours; my best recollection is that the fence was taken down about four years ago; I and my wife talked the matter over in the presence of Trowbridge, and Trowbridge says, ‘ That is right.’ He was present when the deed was given. I handed the contract back to Trowbridge after we got the deed. Mr. Trowbridge had been in the West a good many years.”

The defendant also called as a witness Julius L. Woesse, who testified that he knew the west line of Landis’ lot as it is situated, and has known it since 1851. That there was a fence between that lot and the one lying west. He was not able to state definitely how far west it was of the old house before the addition was put on. He says : 11 The old fence stood there during those years, from 1856 to 1885.” Evidence'was also given by Conrad Sipple, Jr., as to the occupation of the defendant and the location of the fence, and also by Conrad Sipple, Sr. The latter witness says: “ I remember the fence standing therebetween the lots in question here twenty-seven years; they planted grapes inside the fence.”

From the evidence which we have quoted it is not very clear when the conversation held by the defendant and her husband with Mr. Trowbridge was had. If it be assumed to have been held at the time of the building of the fence and making the enclosure of the premises in question in 1856, then, upon the assumption made apparently by both parties at the trial, that Smith Trowbridge was then the owner of the property, the conversation would seem to bear upon the question of the practical location and practical establishment of a line and the building of the fence, the occupation in accordance therewith,_ the acquiescence of Trowbridge and any other parties in possession of the premises now claimed by the plaintiff would seem to be established. A practical location of the land may be made out by evidence which shows an original consent, with acts and conduct based thereon, which imply an acquiescence and approbation of a practical location of a boundary line. Under the doctrine laid down in Swettenham v. Leary (18 Hun, 287), we think the question was presented by the evidence for the consideration of the jury as to whether there had been a practical location of the line between the two lots in accordance with the claim of the defendant.

Judge Talcott, speaking for this court in that case, said: “We think also there was sufficient evidence to go to the jury on the question of a practical location of the line between the two lots. Where there has been a practical location of a line which has been acquiesced in for a sufficient length of time to bar a right of entry under the Statute of Limitations, or the erroneous line has been agreed upon between the parties claiming the land on both sides thereof, or the party whose right is to be thus barred has silently looked on and seen the other party doing acts such, for example, as erecting a building, or subjecting himself to expenses in relation to the land on the opposite side of the line, which he would not have done if the line had not been so located, as we understand the authorities, a party in occupation up to the erroneous line may defend an action to recover the land, though the line is shown to have been erroneously located. Rockwell v. Adams, 6 Wend., 467; Corning v. Troy Iron and Nail Factory, 44 N. Y., 577; Jones v. Smith, 64 id., 180; McCormick v. Barnum, 10 Wend., 104; Smith v. McAllister, 14 Barb., 434.

We think, therefore, there was evidence to go to the jury on the question of a practical location of the line between the parties to the suit or their predecessors in the title, and that it was not necessary to prove an actual agreement, but .acquiescence in the location, even if erroneous, for a sufficient length of time to bar an entry, with occupation accordingly, was sufficient.”

Following that case we hold there was a question of fact presented which should have been submitted to the jury.

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

Boardman, J., concurs; Follett,J., concurs in the result.