author: Learned, P. J Landon, J.

text:
    Esther Watson, App’lt, v. The City of Kingston, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    Municipal corporation—Streets—Duty in grading.
    Plaintiff owned a house and lot on Ravine street in the city of Kingston. This street was filled in according to an ordinance of said city, establishing the grade of said street. There was evidence tending to show that after the grading, water had come into plaintiff’s house and injured it, and that this had never happened before the grading. This was claimed to be due to the fact that the filling in was done with loose stone and fragments of rock Held, that the city is not bound to use impervious material for filling in its streets. That the filling in of the street with fragments of stone instead of using clay or some such material, does not give a cause of action to plaintiff (cases cited and distinguished).

      Lawton & Stebbens, for app’lt; John J. Linson, for resp’t.
   Learned, P. J

The complaint avers plaintiff’s ownership of a house and lot of land, describing it, on Ravine street; the grading by the defendant of Ravine street in an illegal manner and without authority of law; the building of a wall and embankment by defendant in front of plaintiff’s house, rendering access difficult; the construction of such wall and embankment negligently so as to cause water to run on the plaintiff’s premises; the gathering by defendant illegally of large quantities of water and causing them to flow down Ravine street, without finding means to carry them off, and thus the pouring the same on plaintiff’s premises.

On the trial the plaintiff was non-suited at the close of the evidence, and she appeals.

She obtained title in 1868, and a house was built soon afterwards on the lot, with a cellar under the sidewalk, as it was then covered by flagstones, and extending some seven feet into Ravine street.

In 1879 an ordinance was passed establishing the grade of Ravine street. It is not claimed that this was not legally passed. In 1883 an ordinance was passed for the grading of Ravine street, according to the grade thus established and requiring the construction of sidewalks. The contract was awarded the same year. The grade was modified the same year, and subsequently, about August, 1883, the work was reported as completed, and an assessment was laid to pay the same.

The plaintiff gave evidence tending to show that since the grading of the street water had come into her house and had injured it, and that this had never happened before the grading. She claimed to show that the fining-in of the street opposite her premises was of loose stone and fragments of rock, and that the water percolated through and thus entered her house.

In Urquhart v. Ogdensburgh (91 N. Y., 67), it is said that the duty resting on a municipal corporation to make improvements, such as streets, sewers, etc., is quasi judicial or discretionary. And that this rule is applicable as well to work done as to a design proposed. The approval of the plan when completed is as much a judicial act as the design of it. The court further said in that case that it must be assumed that such discretion was also exercised in carrying out the plan in laying down the and constructing the new walk; which was a walk made without any authority (so far as appeared) from the city.

Now it appears in the present case that the sewers, the course of the street, the grade, etc., were all parts of the plan adopted by the common council.

This same doctrine has been upheld in cases quite analogous to the present. Watson v. Mayor, etc., 1 Den., 595; Radcliff's Ex'rs v. Mayor, etc., 4 N. Y., 195; Mills v. Brooklyn, 32 id., 489; Lynch v. Mayor, 76 id., 60.

Without going over these cases in detail, we may refer to the last of them, especially as one which sustains the doctrine of the court below in this case.

In Urquhart v. Ogdensburgh (97 N. Y., 238) four judges of the court of appeals criticise the language used in the former opinion, and perhaps lay down a different rule from that asserted when that case was in that court before. But the difference refers to the effect of changes made in the sidewalk by owners, without the express authority of the common council; and therefore leaves the general doctrine undisturbed.

There is a class of cases such as Byrnes v. Cohoes (67 N. Y., 204) and Noonan v. Albany (79 N. Y., 470), in which a city has been held liable for collecting the waters from an area and by means of some conduit or sewer, turning them upon lands of the plaintiff, where they would not have gone by the natural slope of the land. It does not seem to us that the facts in the present case bring it within the very clear and well defined doctrine of those cases.

In Seifert v. Brooklyn (101 N. Y., 136), the court of appeals have somewhat qualified the doctrine that the city is not hable for the exercise of its judicial or discretionary power. They say that where the exercise of such power results in a direct and physical injury to property of an individual, which from its nature is hable to be repeated and continuous, but which is remediable by a change of plan, the corporation is liable for such damages as occur in consequence of the continuance of the original cause, after notice and an omission to adopt measures to remedy the evil. In the present case, however, it does not appear that there was notice to the city, and an omission by the city to adopt measures to remedy the evil.

In the case last cited a sewer had been constructed, within a short time after its construction, actual use demonstrated that it had not sufficient capacity to cony off the accumulations of water and matter turned into it; and the sewage was forced through the man holes and inundated the district where plaintiff resided, injurying his property. Afterwards lateral sewers were constructed emptying into this main sewer, and increasing the water which went into it, thus increasing the defects of the original plan.

It appears in the present case, that the gutter along the street by plaintiff’s house was laid, not by the city, but by plaintiff’s husband, and was laid with cobblestones; and there is some evidence that the cobblestones were not well laid. And plaintiff’s husband at one part of his testimony, after stating that they had cobblestones for gutter stone, adds that is where the whole detriment is.”

The plaintiff urges on the argument, that the roadway was filled with broken stones and fragments of stone, and that it was the percolation of water through these stones and fragments which caused the injury. We cannot think that the filling in the roadway with fragments of stone, instead of using clay or some such material, would give a cause of action to plaintiff. Water will percolate through sand, through gravel and through nearly every kind of filling, unless it be very compact clay. Yet we do not think a city is bound to use impervious material for filling in its streets.

We cannot repeat in any detail all the evidence given in this case, which is quite voluminous. But after examining it in the light of the decisions which we have cited, we are brought to the conclusion that the learned justice was correct in non-suiting the plaintiff. And we think it cannot be of any use to comment at length on the testimony. That plaintiff’s house has been injured, is not seemingly disputed. And it is evident that the situation of the house and of its sidewalk were such that it was not easy to grade the street without some inconvenience to the plaintiff. As the lot was lower than the grade, there would be a tendency for water to soak through the earth, and thus to reach the house. But upon the whole we do not think that the action of the defendant was such as to render it liable in this action.

Judgment affirmed, with costs.

Landon, J.

I concur. I think Radcliff’s Ex’rs v. Mayor (4 N. Y., 195), covers this case. The damages the plaintiff sustained, was because of the difference in grade between the street and her lot, and that difference did not suffice to charge the defendant with negligence because of the use of ordinary material.


source: Caselaw Access Project

author: Bockes, J.

license: Public Domain

text:
    Harriet Van Horn, Adm’x, etc., App’lt, v. The Boston, Hoosac Tunnel and Western Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    1. Master and servant—Negligence—What care must be used by the MASTER IN FURNISHING MACHINERY FOR USE OF EMPLOYEES.
    In an action to recover damages for the death of plaintiff’s intestate alleged to have been caused by defendant’s negligence while plaintiff was employed by it. Held, that the master was not required to furnish to his servants the safest machinery in use, but only such as was reasonably safe.
    2. Same—Servant presumed to have contracted with reference to RISKS OP EMPLOYMENT.
    The dangerous position of the machinery by which the deceased met his death having been shown in order to establish defendant’s negligence. Held, that the deceased must be taken to have contracted with reference to it when he entered defendant’s employ.
    Appeal from an order directing a nonsuit.
    P. C. Ford, for app’lt; T. F. Hamilton, for resp’t.
   Bockes, J.

We are of opinion that the nonsuit in this case was properly directed. It is not made apparent on the proof that the plaintiff’s intestate was himself free from contributory negligence. He was at work in close proximity to a rapidly revolving shaft. Did he in his forgetfulness negligently put himself in contact with the shaft, which may well have been the case, or so nearly in contact with it that the head of the “set screw” caught his clothing? NT) one saw the occurrence. Precisely how or under what action of the intestate—for his own action in whole or in part was the occasion of the injury—the accident happened, was not shown. Some of Ms clothing was wound around the shaft, as the witness states, from the south side of the “set screw,” towards the south of it, and some part on the “set screw.” But did the winding of his clothing commence on the shaft near the “set screw,” and in the winding cover the screw, or did the winding commence with the head of the screw, and because of its projection from the collar in which it was set ? And in either case is it made to appear, even by just inference from the proof, that the intestate was free from negligence in placing himself in near and dangerous proximity to the shaft ? Just how the accident occurred—by what action of the intestate his clothing became entangled—was on the proof matter of conjecture, speculation, guess work. Then on the proof was it made to appear, even by fair intendment, that the intestate did not place himself thoughtlessly and carelessly in dangerous proximity to the revolving shaft ? If he did this, the action cannot be maintained; and is not this conclusion the reasonable one on the proof to the exclusion of any other more reasonable one? The learned judge did not, however, put his ruling on the question as to the intestate’s contributory negligence; but on the ground that there was no sufficient evidence submitted to charge the defendant with negligence in causing the injury; and in this ruling we are of the opinion he was right. The accident did not occur because of an imperfect and unsafe instrument or machine furnished to the intestate by the defendant for his use, the condition and danger of which in its use the intestate was unaware. The shafting was itself sound, and was the same in its construction as it had been for a long time, to the intestate’s knowledge. He must be presumed to have known of its condition, use and mode of construction, for he had equal knowledge, or means of obtaining equal knowledge, with the company in that regard. So he accepted the service in which he was engaged at the time of the accident subject to the risks incident to it. So, too, it is the settled rule of law that the master is not required to furnish to his servants the safest machinery in use, but only such as is reasonably safe. How it is urged that the accident occurred because of the improper manner in which the “set screw” was placed in the collar—that is, with a projecting head; and it is insisted that the shaft should have been located higher, or should have been boxed, or that the “ set screw” should have been of different form and differently set in the collar. But the defendant was not to be held to negligence in omitting these things.

Such is the doctrine of the law, as laid down in Clark v. Barnes (37 Hun, 389), and in Sweeney v. B. and J. E. Co. (101 N. Y., 520). In Clark v. Barnes the plaintiff slipped, fell against the uncovered cogs of a machine, and was thus injured. . It was held that the defendants were not guilty of negligence in allowing the floor to become slippery or in having the cogs uncovered. It was there said in the opinion of the court that there was no omission of proper appliances which were ordinarily used under similar circumstances to prevent danger, and the remark is sustained by the citation of several cases in its support. The same may be said of the case in hand. So in Sweeney v. B. and J. F. Co., it was laid down that the master could not be required to provide for use other than ordinary machinery or with new appliances, or to elect between the expense of doing so • and the imposition of damages resulting to servants from the mere use of an older or different pattern. These decisions have, as we think, direct application in principle to the case under examination. As regards the location of the shaft near the top of the car on which the intestate was engaged, he saw it and knew of its proximity, and the danger of contact with or near approach to it. As to this danger he contracted with reference to it in entering into the service. As to the suggestion that the shaft should have been boxed, that is answered in the decision in Clark v. Barnes. As regards the “ set screw ” and its projecting head, it was not of unusual construction or setting, and was, too, within the observation of the intestate in the exercise by him of reasonable attention.

Several exceptions were taken to rulings on questions of evidence; but in the view we take of the case, those rulings present no ground of error.

A single further observation may not be out of place. It is claimed by the respondent’s counsel that even if negligence be admitted, the negligence was that of fellow servants in placing the car under the shaft at or near the collar in which the screw was set. We deem it unnecessary to examine this subject, resting the decision of the case, as did the trial court, on the point that the proof failed to make a case for the jury on the question of defendant’s negligence.

Judgment and order appealed from affirmed, with costs.

Learned and Landón, JJ., concur.


author: Learned, P. J.

text:
    Mary A. Sharpley, Resp’t, v. Frank Brown et al., App’lts.

      (Supi'eme Court, General Term, Third Department,

      Filed November, 1886.)

    1. Civil Damage act—What may be proved to diminish damages.
    Where a woman sued under the civil damage act for damages for loss of means of support on account of her first husband’s death from intoxication: Held, that the defendants. could put in evidence the fact of the second marriage for the purpose of diminishing the damages.
    2. Same—Mother cannot recover for damage to children.
    The mother in a suit for loss of her means of support, cannot recover for any damages which the children had sustained.

      FArnoreaux & Bake, for resp’t; Boyle & Fitts, for app’lts.
   Learned, P. J.

In Volans v. Owen (74 N. Y., 526), which was an action for injury to “means of support,” the court say that the accustomed means of maintenance must have been cut off or curtailed; and that “diminution of income or loss of property does not constitute an injury to means of support within the fair intendment of the statute, if the plaintiff, notwithstanding, has adequate means of maintenance from accumulated capital or property or his remaining income is sufficient for his support.

This remark shows that actions under the so-called civil damage act are different from those under which a large number are cited by the plaintiff’s counsel, as for instance, Terry v. Jewitt (78 N. Y., 338); Kellogg v. N. Y. Central (79 N. Y., 72), and the like.

In actions for common law injuries to the person the damages would not be diminished by the possession of “accumulated capital or property ” by the injured person. But in this class of actions the court say such possession not merely might diminish the damages, but might altogether defeat the action. Stevens v. Cheney, 36 Hun, 1.

Now the possession of another husband might be as useful to this plaintiff as the possession of “ accumulated capital or property,” so far as the means of support were concerned. It is true that she could not have been in possession of another husband at her first husband’s death. But if shortly after her first husband’s death she had come into the possession of such property as gave her an ample support, it seems to us, under the' decision above cited, that this might have been shown upon the trial. Evidently the possession of such property at the husband’s death may be shown, notwithstanding the possibility that the property might afterwards be lost or become worthless. So, it seems to us, as the court have said, that the primary purpose was the protection of the dependent and helpless, that it is material to show to what extent the plaintiff is dependent and helpless.

This is a cause of action unknown to the common law, and cannot be made analogous to other actions. The plaintiff evidently thought the evidence of the second marriage was proper, because she made no objection to it when given. It was subsequently stricken out by the court, the plaintiff saying that she did not ask to have it stricken out; and an offer of similar evidence was afterward made, and the evidence was excluded.

To illustrate, let us suppose that the husband had not died but had only been disabled from working by his intoxication, and that plaintiff had sued for loss of means of support. Would it not be material on the question of damages to show that she had left her husband and was living with and supported by another man ? So in the present case, she is (but lawfully), living with and entitled to the support of another man, her present husband. Does not this condition affect the extent of injury to means of support which she suffers by the former husband’s death %

Objection is also made as to proof that plaintiff had six children. The court very properly held that the plaintiff could not recover for any damages which the children had sustained. In looking at the testimony objected to we find that it was brought out on cross-examination by plaintiff’s counsel; and that the defendant’s counsel had previously inquired as to the condition of the family of the deceased prior to his death, how they were clothed and fed. Now it might be material and proper as tending to show whether the deceased failed in respect to his duty, for plaintiff to' prove how large the family wTas. And under the circumstances we think there was no error in this respect.

Without examining the other questions which are presented we are of the opinion that the evidence of the marriage of the plaintiff to another husband should not have been stricken out and that defendant wras entitled to have that considered by the jury on the question of damages.

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

Landon, J., concurs._


text:
    Jacob Kreischer, Resp’t, v. Gottlieb Vetter et al.y App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    Referee—Judgment directed by the referee where the question INVOLVED IS ONE OF FACT—WlLL NOT BE DISTURBED ON APPEAL.
    Where an appeal was taken from a judgment directed by a referee:' Held, that the case being purely one of fact, dependent to a considerable extent, if not entirely, on the credibility of witnesses, it could not properly be disturbed on appeal

      Wm. F. Bampe, for app’lt; Geo. H. Stevens, for resp’t.
   Bockes, J.

This is an appeal by defendant Vetter from a judgment directed by a referee in favor of the plaintiff against the defendants as co-partners.

This action was for goods sold and delivered. There was no dispute as to the delivery of the property, or its value at $90.53, nor as to the liability of Hettel, but Vetter, the appellant, defended the action on the ground that he was not liable with Hettel as partner. It appears that the defendants had been, and were, co-partners in business for a, considerable time prior to and until about February 5, 1884, just before which time they dissolved their partnership:: also that while such partners they had dealt with the plaintiff as sucll, and that the goods for which the action was brought were delivered in the same way and on the same direction as goods had been theretofore delivered to them; and further, that notice of the dissolution had been published, or general public notice thereof given. The property was delivered in February and March, 1884, immediately following the dissolution. Vetter’s defense rested on the alleged fact of actual notice to the plaintiff of the dissolution, both written and oral. On the trial proof was given on the part of Vetter tending to establish such defense; and counter-proof was also given by the plaintiff, and on all the evidence submitted the referee found for the latter. The referee found that the plaintiff sold and delivered the property in good faith without notice of the dissolution of the defendants’ partnership, believing the partnership to be yet continuing. The evidence bearing on ,the subject was conflicting. That submitted on the part of the appellant was direct and positive, and if credited was conclusive of the question. On the other hand this evidence was flatly contradicted by the proof submitted on the part of the plaintiff, and his denial of notice testified to by himself and agent was equally direct and positive.

The principal evidence on one side was given by the defendant and his wife; and on the other by the plaintiff and his agent, with some corroboration as to each; and it would seem that there was perjury or strange mistake somewhere. Thus it is seen that the case was one purely of fact, dependent to a considerable extent, if not entirely so, on the credibility of witnesses. This being so, it was peculiarly a case for the referee to determine, and his conclusion cannot be properly disturbed on appeal. The settled ruling in this regard has been declared in numerous cases, both in this court and in the court of appeals, among which reference need be made only to Peacock v. Comstock (17 W. D., 252), and Sherwood v. Hauser (94 N. Y., 626), which are decisions of recent date.

Judgment affirmed, with costs.

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


author: Bockes, J. Landon, J.

text:
    Phœnix Mills, Resp’t, v. James A. Miller, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    1. Chattel mortgage—Discharged by assignment to mortgagor.
    A chattel mortgage was executed by a manufacturing corporation on its machinery, etc., attached to the realty, of which realty said corporation was owner, subject to a mortgage. The realty was sold to a third party on foreclosure of said mortgage, and afterward the chattel mortgage was assigned to the said corporation, who claimed the right to remove said machinery. Held, that the assignment of the mortgage to tlxe. corporation operated simply as a release and discharge of the mortgage lien. That by it the corporation was simply restored to its original rights as respects the title to the property held by it when the mortgage was given.
    2. Same—Mortgage oe real estate—Right of mortgagee to accessions.
    A mortgagee of real property is entitled to liaye his lien respected as to all that was realty when he accepted the security; also as to all accessions to the realty, save when the accession is made under an agreement with a party that its purchase price or expense shall be secured and is secured by a lien thereon. Such lien so agreed upon and perfected would he paramount to that of a prior mortgagee of the freehold. But, in the absence of such security on the accessions, the prior lienor must have the benefit of the accession under his lien.
    3. Same—How may be proved—Town clerk’s certificate only proof of'filing of the paper—Code Civ. Pro., § 934.
    A copy of the chattel mortgage under which the plaintiff made claim to the property, filed in the town clerk’s office, was admitted in evidence against exception, on the certificate of that officer made pursuant to Code Civ. Pro., § 934, without proof of the existence and due execution of the original. Held, error, that the certificate of the town clerk went only to the filing of the paper in his office. '
    4. Fixtures—Tests to be applied in deciding whether fixtures or not.
    The tests to be applied in determining whether machinery is a “fixture” are whether the annexation of the property to the freehold is of a permanent character; another is its adaptability to the use of the freehold, and yet another is the intention of the party at the time of making the annexation—not that each and every one of these tests should he in fact established in order to fix the property as part and parcel of the freehold, but that the case should be examined in view of such tests.
    5. Same—Evidence—Intent must be shown by fact.
    The intent with which machinery was put in as to its being a “fixture” is to be determined from the facts and circumstances surrounding the particular case, and it is not admissible for the person who put said machinery in to testify that it was not his intention in putting certain property into a mill to make it an annexation to the freehold. (Landon, J., dissents.)

      Maxwell Bros., for resp’ts; Stover & Nesbitt, for app’lt.
   Bockes, J.

This is an appeal by the defendant from a judgment against him herein for $2,000 and costs, rendered on the verdict of a jury; also from an order denying a motion to set aside the verdict and for a new trial, made on the judge’s minutes.

The action was trover for the conversion of property contained in or appertaining to three mills theretofore occupied by the plaintiff, consisting of a boiler, engine, water wheels, gearing, shafting, machinery, etc., used in the mills and on the premises in the manufacture of knit goods and shoddy.

It was made to appear that in 1879 Margaret L. Maxwell, the then owner of the premises on which the mill building stood, executed a mortgage thereon to_ Davis W. Sheeler; which mortgage was foreclosed by action in this court; that in June, 1885, the defendant became the purchaser of the premises under the decree of sale in such action, received his deed pursuant thereto and was put in possession thereunder. At the time of the sale and prior thereto the property in controversy was in the mill buildings, where it had been and then was in use by the plaintiff for manufacturing purposes. The defendant claimed that such part of the property, as he refused to surrender, consisted of fixtures belonging to the freehold and became his property under his purchase on the foreclosure sale.

The plaintiff claimed to make title to the property on the following facts: That in February, 1884, it succeeded, through mesne conveyances, to the title of Margaret L. Maxwell in and to the real estate with the driving power and manufacturing apparatus situated thereon and used therewith, began its use in manufacturing knit goods and shoddy in April of that year, continued such use, adding-somewhat to the machinery and apparatus, until December thirtieth of the same year (1884), when it executed to Samuel Blaisdell, Jr., & Co., a chattel mortgage of all the machinery, gearing, shafting, etc., contained in or in anywise connected with the mills, the description of which mortgaged property included that here in controversy. This mortgage was given to secure the payment of four promissory notes, and renewals of them, bearing even date therewith, made by the plaintiff; one for $2,624.31, at one month; one for $2,537.61 at two months; one for $2,814.09 at three months, and the other for $2,989.77 at four months. This mortgage was not foreclosed, nor did Blaisdell & Co. take possession of the mortgaged property under it; but on the 19th of January, 1886, that firm assigned the mortgage to William Warner, who four days thereafter (January 23, 1886), assigned to the plaintiff all his “ right, title and interest in and to all shafting, pulleys, hangers, steam and water pipe and fixtures, and all fixtures or personal property affixed in the mills formerly occupied by said, the Phoenix mills, at Rock City, said title and interest growing out of a certain chattel mortgage made by said Phoenix Mills to S. Blaisdell, Jr. & Co.” Now, on the trial, the plaintiff claimed to mafe title under this mortgage, made by itself, and, as above, assigned to itself. This anomalous position was maintained at the trial, and is now insisted on by the respondent’s counsel on this appeal. He says in his brief: The plaintiff derived title to the personal property in suit, under a chattel mortgage given to S. Blaisdell & Co. by the then owner of the same;” that is, by the plaintiff, the Phoenix Mills. So, also, the case was sent to the jury under instruction by the court to the same effect. But did the plaintiff, the Phoenix Mills, mortgagor, get any title to the property mortgaged by it under an assignment, and transfer to itself by the mortgagees of their own right, title and interest therein, under the mortgages? Clearly not. The assignment to the plaintiff, the mortgagor, by Warner, who held the position of mortgagee, operated simply as a release and discharge of the mortgage lien. This proceeding simply restored the plaintiff to its original rights, as respects the title to the property held by it when the mortgage was given. The position maintained at the trial, and under which the recovery was had—that by the assignment to Warner, and his assignment to the plaintiff, the latter might wield the mortgage to its own advantage in making title to itself—was an erroneous one.

But it may be suggested that admitting this, the defendant was not injured by the error; and for the reason that the property here in dispute, is situated and used in the mills, was not in fact or law fixtures, which would pass by deed of the realty as part of, or belonging to the freehold, and is irrespective of the mortgage as a source of plaintiff’s title. It seems, however, to have been taken as admitted on the trial, that most, if not all of the property here in dispute, was, as situated and used in the mills, part and parcel of the freehold; but that the plaintiff might show as against the defendant, that although fixtures in fact and law, it was by this mortgage severed from the freehold, under the doctrine that the owner of the real estate may make a severance, thereafter to be regarded and deemed as personal property, of that which without the severance would be indisputably part of the freehold. This is admissible as between the parties to the transaction, and such action, would under the decisions, be held operative and binding upon the rights of a subsequent grantee or mortgagee of the freehold; but not so as to the rights of a prior mortgagee of the premises whose lien would be thereby impaired. A mortgagee of real property is entitled to have his lien respected as to all that was realty when he accepted the security; also as to all accession to the realty; save perhaps when the accession is made under an agreement with a party that its purchase price or expense shall be secured and is secured by a hen thereon. Such lien so agreed upon and perfected would, in right and equity, be paramount to that of a prior mortgagee of the freehold, and so the cases hold. But in the absence of such security on the accession, the prior lienor must have the benefit of the accession under his lien. Now how stands this case in this respect. Even if it be proved or admitted that the chattel mortgage given by the plaintiff to S. Blaisdell, Jr., & Co., was to secure payment for an accession to the freehold, then it will be observed that this mortgage lien upon the property has been released and discharged; and this fact leaves the case to stand, between the parties to this action, as if such mortgage had not been given. This being so the rights of the parties herein should be determined as a question between grantor and grantee of real estate, with no embarrassment from a question of alleged severance, as was permitted on the trial. In law the plaintiff here held the position of grantor, and the defendant that of grantee. Now, suppose the plaintiff (the mortgage to S. Blaisdell, Jr., & Co., being out of the way), had on the 31st of December, 1884, or on some subsequent day, while yet owner, deeded the premises to the defendant by metes and bounds, but without any reference, in terms, to the machinery and manufacturing apparatus on it and used with it, would such conveyance have carried with it as part of the freehold, the property here in question? If it would have done so the plaintiff cannot recover, for in that case the property would pass to the defendant under the conveyance to him. Such is the question here, and the only one for trial, and it should be tried under no embarrassment from proof submitted on an improper, misleading issue. The tests to be applied in a case like the present, are well stated in Voorhees v. McGinnis (48 N. Y., 282): one is whether the annexation of the property to the freehold is of a permanent character; another is its adaptability to the use of the freehold; and yet another is the intention of the party at the time of making the annexation; not that each and every of these tests should be in fact established in order to fix the property as part and parcel of the freehold; but that the case should be examined in view of such tests. It is certainly very questionble whether the first two tests are not, each of them, well answered by the proof in the case, and the proof applicable to all of the tests seems intensified somewhat by the fact that Warner under the authority of the mortgagee himself, took away all the property referred to in the mortgage, which he felt disposed to remove, in view of a probable law-suit for taking that which belonged to the freehold.

There was error also in rulings as to the admission of evidence. The president of the plaintiff’s corporation was permitted, against objection and exception, to testify, in effect, that it was not his intention in putting the property in the mills to make it an annexation to the freehold. This was error. Dillon v. Anderson, 43 N. Y., 231, 236. In general, the intent with which an act is done is to be determined by the jury from the facts and circumstances surrounding the particular case; so in such case the witness should not be allowed to testify to his secret, uncommunicated intention. An exception to this rule exists when the legality or illegality of the act is made to depend upon the

specific intent with which it was done—as in the case of conveyances declared by the statute to be void when made with fraudulent intent; so in the case of usury declared illegal by law. But as was said in Bayliss v. Cockcroft (81 N. Y., 371), the admission of this kind of evidence is not to be encouraged; and further, that the case of usury presented the extreme to which the exception should be permitted to extend. The evidence as to intent here objected to was not admissible, and should have been excluded. So also the evidence admitted against objection and exception, to the effect that the property could be removed without injury to the real estate, wTas improperly allowed. It was for the jury to determine this fact on consideration of the case on the proof submitted; and the same may be said as to the evidence admitted against exception, that the plaintiff was the owner of the property at the time it was demanded and its surrender refused. This was just what the jury was empanelled to try and determine from the proof. A copy of the chattel mortgage, under which the plaintiff made claim to the property, filed in the town clerk’s office, was admitted in evidence against exception, on the certificate of that officer, made pursuant to section 934 of the Code of Civil Procedure, without proof of the existence and due execution of the original. This also was error. Sunderlin v. Wyman, 10 Hun, 493; Fellows v. Van Hyring, 23 How., 230; Bissell v. Pearce, N. Y., 252. The certificate of the town clerk went only to the filing of the paper in his office.

There were exceptions entered to other rulings on questions of evidence, which, under our conclusion that there must be a new trial because of the errors above considered, we need not examine.

Judgment and order appealed from reversed; new trial granted; costs to abide the event.

Learned, P. J., concurs.

Landon, J.

I concur in the result and in the opinion, except with reference to the testimony of the president of plaintiff with respect to his intent in adding machinery. The plaintiff acquired title to the mill subject to the mortgage under which defendant subsequently acquired title. Before the defendant acquired title, the plaintiff, a corporation, by its president, added certain machinery to the mill. Whether that machinery thereby became so annexed to the realty as to pass to the defendant under the foreclosure sale was a material question, and- its solution in part depended upon the intent with which the annexation was made. The plaintiff wTas under no obligation to increase the amount of mortgage security, and it may have been its purpose not to increase it. I think it was competent for the president to testify to his intent at the time he made the annexation. Cortland County v. Herkimer County, 44 N. Y., 22; Bayliss v. Cockcroft, 81 id., 371; Thurston v. Cornell, 38 id., 281.


author: Bookes, J. Landón, J. Learned, P. J.

text:
    George Hinkley, Appl’t, v. The Troy and Albia Horse R. R. Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    1. New Trial—Appeal prom justice’s court to county court—Code Civ. Pro., § 3068.
    On the return of a summons in a justice’s court the parties appeared, and plaintiff complained for a wrongful injury to his horse by defendant’s horse, claiming $200. Defendant answered by a general denial. Subsequently plaintiff amended his complaint by some amplification, and claimed forty-nine dollars damages and costs. Defendant interposed an amended answer, admitting its incorporation, denying all other allegations of the amended complaint, and adding a counter-claim for sixty dollars damages, alleging that at the time and place mentioned in the complaint defendant, through plaintiff’s negligence, sustained an injury to that amount, and demanded payment therefor. Upon the trial plaintiff recovered forty-nine dollars and costs. Defendant appealed to the county court, demanding in his notice of appeal a new trial in the appellate court. Plaintiff moved to have the case put upon the law calendar of that court, on the ground that the case was not one entitling defendant to a new trial as demanded, which motion was denied. Held, that the right of an appellant to a new trial in the appellate court on an appeal from a justice’s judgment depended on Code Civ. Pro., § 3068, which provided that where an issue is joined before a justice, and the sum for which judgment is demanded by either party in his pleading exceeds fifty dollars, the appellant may have a new trial in the appellate court by so demanding in his notice of appeal.
    2. Counter-claim—What not admissible as—Code Civ. Pro., §§ 2945, 501, 502.

      Held, that the complaint admitted of no counter-claim, especially not a, counter-claim in tort; certainly not, unless the alleged counter-claim arose out of or was connected with the transaction set forth in the complaint as the foundation of plaintiff’s claim, and that defendant’s counter-claim not being so pleaded, was inadmissible, and could not be made the basis of a new trial in the appellate court. See Code Civ. Pro., §§ 2945, 501, 502.
    3. Pleading — Amended pleading supersedes original — Is contemplated by Code Civ. Pro. § 3068.

      Held, that the amended pleading superseded the original which was no longer to be treated as a pleading in the action, and that the issue of fact referred to in Code Civil Procedure, § 3068, was limited to the issue made before the justice for trial and on which the trial proceeded.

      4. New trial—On appeal prom justice’s court to county court—When NOT ALLOWED.

      Held, that after the amendments were allowed and made, and after the exclusion of defendant’s inadmissible counter-claim, there being no demand by either party for a recovery exceeding fifty dollars, the appellant was not entitled to a new trial in the appellate court.

      B. C. Strait, for app’lt; B. E. De Croot, for resp’t.
   Bookes, J.

This is an appeal from an order of the county court denying a motion made by the plaintiff to have the case, pending in that court on appeal from justice’s court, put on the law calendar for hearing as an appeal on the law.

The plaintiff is fortified in his practice by the decision in Harvey v. Van Dyke (66 How., 396).

The papers before the court on this appeal show the following facts, with some others unimportant-to be noted: That on the return of the summons the parties appeared before the justice, where the plaintiff complained for a wrongful injury to his horse by the defendant’s horse, and demanded judgment for $200. The defendant answered by general denial; thereupon an adjournment was had to a future day. On the adjourned day the plaintiff amended his complaint by some amplification of it, and claimed to recover as damages, forty-nine dollars and costs. The defendant then interposed an amended answer, admitting its incorporation, and, as before, putting in a general denial as to all other matters charged in the complaint, and adding a counter-claim as follows: Defendant further alleges and states for a cause of action, and claim herein that at the time and place mentioned in the complaint herein, defendant, through the carelessness, recklessness and negligence of plaintiff in driving his, a vicious and unruly horse, run into and collided with ahorse belonging to the defendant, and that defendant there by sustained damage in the sum of sixty dollars for which sum it demands judgment. The parties went to trial on their pleadings; and the plaintiff recovered forty-nine dollars, with costs of suit. The defendant appealed to the county court, and in the notice of appeal demanded a new trial in the appellate court. Thereupon the return of the justice having been made, containing the proceedings and evidence before him, the plaintiff made a motion in the county court to have the case put on the law calendar of that court for hearing upon the law, on the ground that the case was not one entitling the defendant to a new trial in the appellate court, as demanded in the notice of appeal, which motion was denied. In this ruling we are of the opinion, the county court was in error. The right of an appellant to a new trial in the appellate court on an appeal from justice’s judgment is made to depend on section 3068 of the Code of Civil Procedure, which provid'es, that where an issue is joined before a justice “and the sum for which judgment is demanded by either party in his pleading exceeds fifty dollars,” the appellant may have a new trial in the appellate court by so demanding in his notice of appeal. Now in this case the plaintiff demanded judgment in and by his complaint on which the trial was had for but forty-nine dollars as damages; and the defendant’s counterclaim on which it demanded judgment in its favor for sixty dollars was inadmissible as a counterclaim in the action. The alleged right of action stated in the plaintiff’s complaint was in tort; as was also the defendant’s alleged counterclaim. The complaint admitted of no counterclaim, especially not a counterclaim in tort; certainly not unless the alleged counterclaim arose out of or was connected with the transaction set forth in the complaint as the foundation of the plaintiff’s claim. Code of Civ. Pro., §§ 2945, 501, 502. But the defendant’s counterclaim was not so pleaded. The fact was not so averred. As stated, non constat but that the alleged counterclaim grew out of another and distinct transaction from that counted on in the complaint. Indeed it is so pleaded, and might be sustained by proof of an entirely different occurrence. To make it admissible in any possible view of the subject as a counterclaim in this action, the fact should have been averred, that it grew out of or was connected with the transaction set forth in the complaint as the foundation of the plaintiff’s claim. The counterclaim then being inadmissible as a pleading in the case, could, not be made the basis of a demand for a new trial in the appellate court. Harvey v. Van Dyke (66 How., 395), and cases there cited.

The point is taken, however, that the plaintiff in and by his original complaint demanded judgment for $200, and that thereby the defendant’s right to demand and have a new trial in the appellate court became fixed and was secured to it, notwithstanding the amendment of the pleading thereafter made. This is put on the ground that the “issue of fact” referred to in section 3068, above cited, means, and is limited to, that made on the original joining of issue before the justice, to the exclusion of what may be stated and demanded in amendments of the pleadings thereafter made. This is manifestly a mistaken view of the subject. The issue joined before the justice there spoken of is the issue made before the justice for trial, and on which the trial proceeds. An amended pleading super-cedes the original—takes its place—is a substitute for the original, which is no longer treated as a pleading in the action. 2 Wait’s Prac., 505, and cases there cited. It would be strange, indeed, if a superseded pleading—a pleading expunged from the record—could be allowed to influence and control a further proceeding in the action. Section 3068 defines and limits the cases in which a new trial may be had in the appellate court, and the limitation is there made to cases where an issue was joined before the justice on pleadings wherein judgment was demanded by either party, exceeding fifty dollars, in contradistinction to cases where no issue had been there joined. Now here, after the amendments were allowed and made, and on excluding the defendant’s inadmissible counterclaim, there was no demand by either party for a recovery exceeding fifty dollars as damages. The appellant was not, therefore, entitled to a new trial in the appellate court. It follows that the plaintiff’s motion to have the case put on the law calendar should have been granted.

The charge of fraud and bad faith made by the parties, each against the other, in framing their respective pleadings, has no significance on the motion. "What was done by them in that respect, they had the legal right to do, and fraud and bad faith cannot be well asserted for doing that which the law permits to be done.

The order appealed from must be reversed, and the motion below granted, with ten dollars costs of appeal and disbursements for printing, but without costs of motion.

Landón, J.

I concur. If by a liberal construction, it could be held that the alleged counter-claim was admissible because stating a cause of action arising- out of the transaction set forth in the complaint, it then should be held to be either sham, because no evidence was offered to support it, or to be an answer upon which the defendant, as appears .from the like reason, voluntarily suffered default, and he should not be accorded a “new” trial upon it, until he had had a trial in the first instance in the'forum appointed for the purpose. But I entirely concur upon the grounds assigned by my Brother Bockes.

Learned, P. J.

(dissenting).—I am still of the opinion, which I expressed in Harvey v. Van Dyke (66 How., 396), that this appeal does not lie. An appeal to this court from an order of the county court can only be taken in a matter affecting a substantial right. The order appealed from denies a motion to transfer the case from the trial calendar to the law calendar. I think the county court has control of its calendars, whether they be called law calendars or trial calendars. When the case shall come on to be heard before the county court, if the court shall hear new evidence and conduct a new trial, when it ought to decide on the justice’s return only, or if it shall refuse to hear new evidence and to have a new trial, and insist on hearing the case on the justice’s return, when it ought to do the contrary, then there will be error, which we can review. But putting a cause on one calendar or another is only an intimation of what the county court thinks the rights of the party will be when the case shall come on to be heard. I think we should not undertake to regulate the calendars of other courts, and indeed, that we have no jurisdiction of such matters.

Therefore, I think the appeal should be dismissed.


author: Bocees, J. Learned, P.J.

text:
    George M. Wiswall, as Adm’r, etc., of Patrick O’Brien, App’lt, v. Edward O’Brien et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    Mortgage—Foreclosure—Want op consideration—Evidence—Finding OP REFEREE WHEN NOT DISTURBED ON APPEAL.
    In an action brought for the foreclosure of a mortgage, the defense to which was want of consideration, after discussing the evidence: Held, that there being a conflict of evidence, the referee was not bound to give entire and absolute verity to the statements of either side, and that having had an opportunity to observe the manner, etc., of the witnesses while testifying, his conclusions will not be disturbed on appeal.
    Appeal from a judgment entered upon the report of a referee in favor of the answering defendant Edward O’Brien.

      Eugene McLean, for app’lt; Smith, Fursman & Oowen, for resp’t.
   Bocees, J.

This is an appeal by the plaintiff from a judgment directed by a referee dismissing the complaint on the merits, with costs.

The action was brought for the foreclosure of a mortgage. The defense was want of consideration. There is no question of law involved in the case. Its rightful decision depends upon the construction and effect to be given the evidence submitted to the referee on the trial.

The plaintiff’s intestate, the mortgagee, and the defendant, the mortgagor, were brothers. In 1873 the latter purchased the mortgaged premises, a vacant lot in the village of West Troy, paying therefor $1,000. Soon thereafter (May 28th) he executed to his brother the mortgage in suit, purporting to secure the payment of $1,000 in five years from date, with interest annually, which principal sum was about the full value of the lot. The mortgage was not executed by his wife; nor was it accompanied by a bond or other personal security; and the words referring to an accompanying bond, as also the words expressing a covenant on the part of the mortgagor to pay the money thereby secured contained in the printed blank used in drawing up the mortgage, were erased therefrom. No payment of principal or interest was ever made or demanded before the mortgagee became insane, probably in or about 1882, some eight years after the execution of the mortgage and several years after the principal became due. These facts and circumstances were supplemented by the evidence given by a witness who testified that he had a conversation with Patrick, the mortgagee, prior to the giving of the mortgage in which he stated “that Edward was wild and he was afraid Edward would lose the lot, he was drinking so';, he said he would try and get Edward to give him a mortgage so as to prevent his squandering it, and prevent others from taking it away from him.” This witness further testified that he afterwards had another conversation with the mortgagee, in which the latter stated that Edward had given him the mortgage; that the object in giving it was “that others could not take it away from him in case he got in debt;” that “there was so much saved anyway;”- that “the object was to save it for Edward’s wife and children, so that he, Edward, could not go away with it.” This witness also testified that Edward “was pretty wild at times;” that after and during years succeeding the purchase of the lot Edward used to drink once in a while; that he got drunk soon after the purchase and went to Ireland, and was gone eight or ten months; that for the last eight or ten years he had been doing pretty well.

To countervail this proof, the plaintiff called as a witness Robert Brogan, who was a clerk in the store of the mortgagee, who testified that while at the store as such clerk he heard a conversation between the mortgagor and mortgagee in reference to the mortgage. The former said to the latter: “I have another mortgage taken on that build-

ing. It would be better for you to take it. Your money would make more interest than it is making in the bank for you.” Patrick replied: “To hell with you and your mortgage; I’ll have no more to do with them. You haven’t paid any interest on the thousand dollar mortgage, and by and by it will get so high you will never be able to pay it until I sell you out.”. The witness further testified that about last Christmas the mortgagor came to his house, and there, in presence of his wife, offered witness $100 if he would help him, said mortgagor, work out of the mortgage.

George Brogan was called as a witness by the plaintiff, and testified that recently the mortgagor, in the presence of Thomas O’Brien, offered to give witness $100 for witness’ interest in the mortgage, which he declined to accept. He further testified that the mortgagor told him he had paid the mortgage.

These witnesses were nephews of the mortgagee and intended to enforce the mortgage. Thus the case stood on the controlling issue before the referee in substance. Giving full credit to the evidence on the part of the defendant, and to all fair inference deducible therefrom, and the conclusion of the referee, to the effect that the mortgage was without consideration, is well sustained. So, too, on taking into consideration the countervailing evidence submitted by the plaintiff, and the fair preponderance of proof, is, as we think, with the defendant. The mortgage shows on its face that its execution was not in accordance with general usage in giving such security for money loaned or for an ordinary indebtedness; also the evidence, without apparent excuse, of any demand of payment of principal or interest for so many years and until the insanity and death of the mortgagee, is not without suggestion favorable to the defense; and this evidence is given directness and force by the distinct admission of the mortgagee that the mortgage was without consideration, and was given with an object which had facts affording it a reasonable probability.

On the other hand, the countervailing proof is not like that of the defendant’s witness—distinct and direct to the point in issue. It rests in inference, with more or less force, to be sure, as it may be held suitable—an inference deducible from the silence and from the statements of the mortgagee, seemingly inconsistent with a claim of want of consideration. A pretense of payment and an offer to the witness of $.100 for aid in getting rid of the mortgage, if satisfactorily proved, should have force as inconsistent with the defense of want of consideration. As to the offer of $100, it is open to the suggestion that the mortgagee may have preferred this outlay rather than incur the risk and expense of a lawsuit. It must, however, be held in mind that the plaintiff’s witnesses who gave evidence touching these points, were interested in the enforcement of the mortgage. The referee was not bound to give their statements entire and absolute verity. He saw them on the witness stand, could observe their manner of testifying, and joining this with their admitted interest in the event of the suit, it rested with him to determine the effect to be given to their statements. Under such circumstances, it is not generally deemed admissible to disturb the conclusion of the referee, on appeal.

On the whole, we are of the opinion that there exists no just ground to gainsay the finding of the referee on the controlling issue in the case; hence that the judgment should be affirmed.

Judgment affirmed, with costs.

Landon, J., concurs.

Learned, P.J.

The question whether the parties were not in pari delictu, and whether relief against their acts should not for that reason be denied, was not raised.

I concur.


author: Bocices, J. Landón, J.

text:
    Annie M. Holcomb, Resp’t, v. Emma D. Campbell, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed, November, 1886.)

    Evidence—When acts and declarations oe assignee and former owner OF A MORTGAGE ARE ADMISSABLE TO PROVE ITS PAYMENT.
    Where in an action brought to have a mortgage declared satisfied by payment of the mortgage debt, the wife of the mortgagor, under objection and exception, testified that prior to the assignment of the mortgage by the mortgagee there were accountings and settlements between the mortgagor and mortgagees; that “there was a general looking over of accounts and bills on several occasions; the first looking over was September 1, 1874; $349.50 was found due my husband to be indorsed on bond and mortgage; second interview was in April, 1875; $300 * * * all due my husband from Aldermans.” Held, that the evidence was properly admitted as a part of the i es gestm to prove its payment.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.

      B. C. Strait and it. E. Andrews, for appl’t; James Lansing, for resp’t.
   Bocices, J.

This is an appeal by the defendant from a judgment against him, directed by a referee, declaring the mortgage in controversy between the parties satisfied and discharged by payment of the mortgage debt.

The sole question litigated before the referee was that of payment. He found in favor of the plaintiff, that the debt secured by the mortgage had been fully paid, and directed that the mortgage be canceled of record. We cannot with propriety, as we think, reverse the judgment on the ground that the finding of fact by the referee is without evidence in its support, or that it is against the weight of evidence. The case rested before him on a sharp conflict of proof. That submitted on the part of the plaintiff went clearly and distinctly to sustain the alleged payment; nor was it from a single witness without corroboration and against a reasonable probability of its truth. On the other hand, the evidence on the part of the defendant tended strongly to a contrary conclusion. N or does the fact that witnesses spoke under a possible bias from interest— both pecuniary and in feeling—change the settled rule applicable to a review of firidings of fact by the court on appeal; on the contrary, such fact makes the propriety of the rule more emphatic. The rule in such case is that the findings of the referee must be accepted as conclusive upon the parties. It was said by this court in Boosa v. Smith (17 Hun, 138), with other pertinent remarks applicable to the subject, to which attention is invited, “we think it very clear that the general term cannot in a doubtful case upon conflicting evidence assume the place of the referee, and determine from the mere reading of the evidence who has told the truth or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise and dangerous in its ordinary use.” There are many other cases to the same effect. See also the recent case of Baird v. Mayor (96 N. Y., 567; on pages 577-8-9). We do not think the judgment should be reversed on the ground that the finding of the referee on the facts is erroneous.

It remains, then, for us to examine the exceptions entered to rulings on questions of evidence.

The mortgage was made by the plaintiff and her husband to Henry and Ephraim Alderman, in April, 1869, and was by them assigned, with a bond executed to accompany it, to the defendant, July 19, 1884. The plaintiff claimed that the mortgage debt had been fully paid to the mortgagees prior to the assignment to the defendant; and as evidence bearing on the subject of such payment, the plaintiff was allowed, against objection and exception, to testify to what were called accountings and settlements between her husband, the mortgagor, and the Aldermans, the mortgagees. She testiiied that she knew of more than one; that she thought there was one in April,. 1874, and several others, either that year or the next year; that Ephraim was the one with whom the business was principally done; she then testified as follows: “ There was a general looking over of accounts and bills on several occasions; the first looking over was September 1, 1874, $349.50 was found due my husband to be indorsed on bond and mortgage; second interview was in April, 1875, $300; third interview, August, 1875, twenty dollars and thirty-five dollars; September, 1876, $130.20, all due my husband from Aldermans. I recollect the transaction of April, 1875 (changed to 1874), the sum then agreed upon was $300.” The principal ground of error as respects the admission of this evidence is that it was but an admission of a former holder of the mortgage, and was inadmissible to affect the rights of the present plaintiff, who thereafter became the assignee for value of the security. It should be observed, however, that the transaction spoken of occurred while the relation of the parties was that of debtor and creditor, and related to matters involving that relation. As a transaction relating to and affecting those matters it was admissible, as would be evidence of a money payment by one to the other, had it been made. The evidence was much more in its significance than a mere admission by a former holder of the security, of an existing fact, unaccompanied by any act or transaction between the parties. It proved, if credited, a .transaction, the looking over of accounts adjusting the items, with an agreement between the parties—or perhaps a prior understanding between them during the running of the account—as to the application of the balances settled upon, or to be settled upon by them; and this, as above suggested, at a time when their relation of debtor and creditor remained unaffected by any assignment of any claim or demand then within the scope of their action. It may be well assumed that as yet, that is, until the parties had ascertained the balance in each instance there had been no application of it, but when found by them it was to go in payment of the mortgage. The transaction would be an accord and satisfaction as to the accounts in each instance of looking over, on an application upon the mortgage of the balance found, as was understood and agreed should be done; and under such circumstances the agreement to make the application would be as effectual by way of payment upon the mortgage as if receipted to that effect or endorsed thereon.

In either case the fact of payment would exist, the difference being only the evidence of the fact. Both parties would be concluded by the transaction—the mortgagor from further claim upon the matters of the account, and the mortgagees from denying the payment upon the mortgage as agreed. Davis v. Spencer 24 N. Y., on page 391. The case is covered by the doctrine laid down in Smith v. Schanck (18 Barb., 344), where it was said, in effect, that any agreement between the creditor and the debtor upon which the latter acted, thereby constituting an agreement, entitling him to claim a deduction from the demand, by way of payment or set off, before transfer of it, might be proved; that an agreement is in act done, and thereby differs from a simple declaration; and is provable in like manner as a payment in money or property would be. And it follows, that what was said by the parties while the settlement was in progress was admissible as part of the res gestee. In the view here taken of the case, the authorities cited by the counsel for the appellant, on this branch of it, have no application. The transactions testified to, if credited, constituted both in equity and law, payments upon the mortgage, and they were open to proof as such, the same as would be a payment in money or in property. So too, payment of a bond may be established by paroi proof. See, also, as bearing on this case Prouty v. Fellows 50 Barb., 344. We think the evidence above considered was properly admitted.

After the witness Enos, had been fully examined and cross-examined, and at a future time, he was again called and sought to be questioned, generally as to matters before testified to by him. The objection was taken that the matter had been fully gone over by the witness on his former examination. The objection was sustained. In this ruling there was no error. It was a ruling within the discretion of the referee. But it does not appear that an exception was taken to the ruling. This point of error is not therefore well taken.-

It is further suggested that the defendant was present at a time when it was determined between the mortgagor and mortgagees that there remained unpaid on the mortgage the sum of $644.59; and that the plaintiff is therefore, estopped from denying such alleged fact. In the first place, the fact whether this sum was agreed upon by the parties as remaining unpaid, was in dispute on all the evidence; and secondly, it does not appear that the defendant took the assignment of the security relying on such stipulated fact; nor does it appear that the referee found or was requested to make a finding one way or the other upon this subject.

We are of the opinion that the judgment should be affirmed with costs.

Landón, J.

I am inclined to think the testimony of Mrs. Holcomb as to the alleged accountings between her husband and Ephraim Alderman admissible. If this testimony is to be regarded as simply the declarations of Aider-man, then it should be excluded under the rule which forbids the declarations of the assignor of a chose in action to be given against his assignee for value. Von Sachs v. Kretz, 72 N. Y., 548. But if the declarations form part of the res gestee of the acts of the mortgagor and mortgagee by which the accounts between them for bark and lumber which the mortgagor had furnished to the mortgagee were settled and adjusted, and the balance found due the mortgagor agreed to be applied upon the mortgage, then the rule of exclusion does not apply. The distinction is plain. The declarations that are excluded are mere ex post facto talk; the declarations that are admissible are the spoken part of transactions wherein the parties are adjusting their liabilities one to the other.

I concur with Brother Bocees.

Learned, P. J., does not vote.


author: Bockes, J. Per Curiam.

text:
    John E. Van Etten, App’lt, v. Jonathan H. Hasbrouck, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

      1. Judgment—When cancelled oe record—Dispute as to payment, how settled.
    Before a judgment of the court, standing of record can he properly adjudged paid and satisfied and its cancellation directed on a special motion there should he clear and satisfactory proof of the fact. When material questions of fact arise in reference to which the evidence is conflicting, a party seeking relief will be left to an action, providing the relief can be obtained in that form.
    3. Practice—Reference to take testimony not a trial.
    Where a reference was made, on a motion to satisfy a judgment of record, to take testimony as to the fact of payment of the judgment and the referee merely returned the testimony so taken to the' court. Meld, that there was no trial before the referee. See opinion on reargument.
    Appeal from an order made on a motion at special term enjoining the plaintiff from enforcing a judgment recovered in this action and directing the clerk to cancel and satisfy of record the said judgment.

      John E. Van Etten, in person, for app’lt; S. JB. Sharpe, for resp’t.
   Bockes, J.

This is an appeal from the order of the special term, declaring a judgment paid and satisfied and a lien thereof extinguished; and that it be cancelled of record, and that the execution issued thereon and all proceedings based on the judgment looking to its enforcement, be vacated and set aside.

The judgment was obtained and docketed*in favor of the plaintiff and against the defendant for $6,040.36, on the ninth day of November, 1867. The plaintiff admits that the judgment has been reduced by payments to $3,058.11, but claims the right to enforce it for this sum, with interest; and he had taken proceedings for that i mpose; v heieupon the motion for its cancellation, here under examination, was made.

The affidavits read on the motion were conflicting, indeed were directly and flatly contradictory, upon the question of the alleged payment; and thereupon the special term directed a reference to a referee to take proof of the matter in controversy, and to report the testimony so taken to the court. The reference having been executed and the testimony returned to the court, and the parties having been heard thereon, the order appealed from, above mentioned, was granted and entered.

We have carefully examined all the proof laid before the special term, as well as that contained in the affidavits, as also that returned by the referee, and the question of payment seems still to remain in doubt and uncertainty—just about as much so as it did on the affidavits when the reference was directed. Certainly the question is not settled absolutely and conclusively, or by a clear and decided preponderance of proof one way or the other on all the testimony submitted. Before a judgment of the court, standing of record, can be properly adjudged paid and satisfied, and its cancellation directed on special motion, there should be clear and satisfactory proof of the fact. In case of a conflict of proof it should be so clearly preponderating as that the fact should no longer require argument and inference from the proof in its support. It should be so clearly preponderating as that on the mere reading of the proof, there should remain no reasonable doubt as to the truth of the case, otherwise the parties—one or the other, as the facts of the case should indicate—should be put to a formal action to determine the matter, where the case could be tried on the pleadings, under the rules of evidence applicable to cases tried before a court and jury. The true rule applicable to the case is declared in Hill v. Hermans (59 N. Y., 396), where it was held that when material questions of fact arise in reference to which the evidence is conflicting, a party seeking relief should be left to an action, providing it can be obtained in that form, rather than to determine the question upon .motion and upon ex parte affidavits. The remarks of the learned judge in that case are, as we think, so pertinent and well adapted to this case that they should be here introduced. He says: “ In view of the disposition which we have concluded to make of this motion, we do not deem it necessary or proper to enter upon a detailed examination of the testimony, or to express an opinion upon the questions of fact involved. We have carefully examined the papers, and are satisfied that they present material questions of fact.” And then follows a declaration of the rule to be applied to cases of this character, above referred to, that “when such questions arise and the evidence is conflicting, the better course is to leave the parties to an action, provided relief can be obtained in that form, rather than to decide the question on a motion and on ex pdrte affidavits. See also Montrait v. Hutchins (49, How., 105, with remarks on page 108); also■ Meyer v. Lent (7 Abb. Pr. Rep., 225), and Williams v. Irving (1 Hun, 720). It is true these cases recognize a mode of determining the disputed question by a reference, which course was here pursued. But the suggestion is answered by the fact that the proof taken on the reference in this case does not at all clearly, distinctly and satisfactorily settle the question. The case still remains about and perhaps quite as-much in doubt on the conflicting proof as it did on the affidavits when the reference was directed; and the sound rule laid down in Hill v. Hermans (supra) remains here applicable, that where the material question of fact rests on conflicting evidence, the party seeking relief should be left to his action, provided it can be obtained in that form. But this is not all to be considered in this case. Very much of the testimony taken before the referee is mere hearsay and would be inadmissible on the trial of an action before a court, and jury. No motion, however, was made to expunge this proof, and, therefore, no distinct point of error is presented because of its retention. But it is not unreasonable to infer that such evidence had some influence with the special term, and as we are now determining a matter on the exercise of a fair discretion we should not overlook this fact.

The plaintiff was resisting the claim made against him, that his judgment had been paid or satisfied and cancelled as to such part as had been paid.. His demand was based ón a judgment of the court, and a large sum was involved. Is it then but just, that before his judgment shall be adjudged paid and satisfied on a conflict of testimony, his case should be considered in a formal action in the usual course of trial, and upon admissible evidence, uninfluenced by improper proof. An affirmative answer seems but reasonable, and accords to, with the doctrine of the law as declared in the cases cited. The defendant had at the time the motion was made at special term, as he still has a perfect remedy by action. He might then have had, as he may yet have, a preliminary injunction against the enforcement of the judgment by the plaintiff, if its enforcement would be unjust and illegal for any cause, on complying with the law and practice as to security. So as we conclude, in view of the conflict of evidence laid before the special term on .the question of payment, the motion should have been denied. The order appealed from must therefore he reversed, and the plaintiff' be restored to his rights as they existed at the time it was granted. But it is not a case, as we think, for an allowance of costs against either party.

Order reversed, and motion denied, but without costs, and without prejudice to the defendant’s right to bring an action for the satisfaction of the judgment, or for such relief as he may be advised.

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

{Opinion on reargument, filed February, 1887.)

Per Curiam.

This is a motion for a reargument of an appeal from an order. The appeal was argued in September, 1886, and decided in November, 1886. It is unfortunate that the learned justice who wrote the opinion is not now present.

The motion was to cause a judgment of plaintiff against defendant to be satisfied, on the ground that it had been paid. Payment was denied. On the hearing of the motion June 12, 1886, an order was made referring it to a referee to take proof of the matters in controversy upon the two motions herein and to report the testimony taken by him to the court on or before the 26th day of June, 1886.” It was also therein ordered that the matter might be brought to a hearing before the referee on two days’ notice, and that the further hearing of the motions be postponed to June 26.

On the 26th of June, the referee reported the testimony taken before him, and thereupon the order was made, on ■hearing of parties, from which an appeal was taken.

On the appeal this court reversed the order and denied the motion to satisfy the judgment without prejudice to the right of the defendant to bring an action for satisfaction of the judgment as was more fully expressed in the opinion then delivered. In brief, this court was of the opinion that the matter in controversy, viz.: The payment and satisfaction of the judgment appeared to be too doubtful to be decided otherwise than by an action.

The defendant now asks for a reargument. And the main ground of his motion is that the reference was practically a trial; that both parties appeared with their witnesses and no objection was calcen to the authority of the court to order a reference nor to the regularity of the practice; that the plaintiff consented to the order of reference and to that disposition of the matter, and was bound by the result and cannot now object.

As to these last grounds we have looked at the case. Motions were made by defendant against plaintiff. He opposed, as he might do. The order of reference does not appear to have been made by his consent, but against his opposition. When it had been made he was necessarily obliged to appear before the referee. To do otherwise would have been to abandon his case. He opposed the granting of the final order. Nothing in any part of these proceedings shows a consent by him to any thing that was done. He was in no way bound by the result, and had a right to appeal from the order and to obtain its reversal if he could.

The other point which is in substance that the plaintiff has had a trial is next to be considered. The answer to this is that there has been no trial in any true sense. The Code, section 1015, authorizes a reference to determine and report upon a question of fact on a motion. No such reference was made. The referee was not "authorized to determine any question. He was merely the scrivener to write down the testimony given by the parties. He made no report on any fact. Whether a reference to take testimony is authorized under the Code we need not say. It is enough that there was not any trial before the referee, as the defendant now claims. And the referee probably considered it to be his duty to take any evidence that the parties offered. Certainly much that was improper was taken.

There was then no trial before the referee. The matter was heard by the special term really upon affidavits. The papers on which he acted were no less affidavits in effect from the fact that they were made before a referee and not before a notary public. A common law trial implies nearly always the production of witnesses before the tribunal which is to decide and the opportunity to object to improper evidence and to review errors of law. On the other hand the summary action of courts upon motion does not require the production of witnesses and the reception of improper evidence is not strictly error.

In the present case there was no trial, but there was the summary action of the court upon motion. It was the opinion of this court that the case was one where the plaintiff should have a trial.

The defendant refers to some cases. Meyer v.Lent, 7 Abb. Pr., 225. But the very words he quotes show the true view. Judge Dekio says: “ The proper order was for a reference to try the question,” etc. Hill v. Hermans (59 N. Y., 376), and Montrait v. Hutchins (49 How. Pr., 105), direct actions. Williams v. Irving (1 Hun, 720), directed a reference to take evidence, thus taking a course similar to that in the present case.

As our order authorizes an action to have the judgment satisfied it does not seem proper to say anything about the merits of the case. But probably none of the counsel would deny that considerable evidence was given which would nob have been relevant or admissible upon a trial of the issue, of the payment or satisfaction of the judgment. Leaving out this objectionable evidence, we thought the defendant had not so established his position that the plaintiff should be deprived of a trial of the issue through the regular forms of law.

Motion for reargument denied.


author: Bockes, J. Learned, P. J.

text:
    American Society for the Prevention of Cruelty to Animals, Resp’t, v. City of Cohoes, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    1. Animals—Cruelty to—Fines imposed belong to American Society por the Prevention" of Cruelty to Animals—Penal Code, § 668— Laws 1884, chap. 440.
    All fines collected. l>y the recorder of the city of Cohoes from persons convicted before him of cruelty to animals, under title 16 of the Penal Code, must be paid on demand to the “American Society for the Prevention of Cruelty to Animals,” under Penal Code, § 668. Laws 1 84, chap. 440, § 32, does not require them to be paid to the chamberlain of said city.
    2. Same—May be recovered from city by action for money had and received.
    Where the money is paid by the recorder of the city of Cohoes to the city chamberlain, the said society can maintain an action against the city of Cohoes for money had and received.
    Appeal from an order and judgment of the Albany county court, affirming a judgment in favor of the plaintiff had in justice’s court.

      P. D. Niver, for appl’t; J. F. Crawford, for resp’t.
   Bockes, J.

Appeal from a judgment of the Albany county court affirming a judgment in favor of the plaintiff rendered by a justice of the peace.

The recorder of the city of Cohoes collected forty-five dollars in fines from persons convicted before him of cruelty to animals under title 16 of the Penal Code, and paid the same over to the defendant under a claim by the latter that such money belonged to the city. The plaintiff also made claim to the money, and after due demand therefor, and a refusal by the defendant to answer such demand, brought this action and recovered judgment for the amount.

The Penal Code, section 668, which supercedes the prior laws touching the question here in dispute, is as follows: “ All fines, penalties or forfeitures imposed or collected for a violation of the provisions of this title, or of any act for the prevention or punishment of cruelty to animals, now in force, or hereafter passed, must be paid on demand to the American Society for the Prevention of Cruelty to Animals.”

This provision of law in terms gives the money collected by the recorder, and here in controversy, to the plaintiff, and is decisive of the question here presented unless there be some other provision annulling its effect. We find none. It is urged that section 32 of chapter 440 of the Laws of 1884, amendatory of the act of incorporation of the city of Cohoes—an act passed prior to the Penal Code— should be construed to cover the case, and give the money in controversy to the city for its use and benefit. Without noting the fact that section 668 of the Penal Code is the latest legislative expression upon the subject, it will be observed that section 32 above referred to does not require payment to be made to the chamberlain of the city for its use and benefit, of moneys not belonging to the city. The moneys thereby required to be so paid over are those belonging to the city. But these moneys did not belong to the city. The law expressly declares that all fines, etc., collected as these were collected “must be paid on demand ” to the plaintiff. Thus such moneys go by law to the plaintiff, and not to the city for its use and benefit, as do moneys collected by the recorder from fines imposed and collected by him belonging to the city. There is nothing decided to the contrary of this in Am. Soc., etc,, v. Doyle (65 How., 459). The county court decided correctly in holding that the moneys here in controversy belonged to the plaintiff.

It is urged that the action for these moneys cannot be maintained against the city as for money had and received. This objection is fully answered by a simple statement of the facts and law applicable to them. The money had been collected by the recorder and it was by law to be paid over on demand to the plaintiff. It was the plaintiff’s money. Instead of holding it and paying it over when demanded, the recorder paid it over to the city chamberlain for the use and benefit of the city and thus it came to the treasury of the city. Thus the city had obtained the plaintiff’s money—not on any contract with another party as in payment of a debt or in any respect in the ordinary course of business, or indeed on any business transaction whatever, but wholly without right. In equity and right the plaintiff was entitled to have it. Now, an action for money had and received lies in favor of one person against another when that other person has received money under such circumstances, that in equity and good conscience he ought not to retain it, and which ex equo et bona belongs to the plaintiff. Section 4, Wait’s Actions and Defenses, 469, and the numerous cases there cited; also Peyser v. Mayor, 70 N. Y., 497; Shultz v. Mayor, 7 Eastern Rep., on page 440. Such is precisely the case in hand. The cases cited by the appellant’s counsel so differ from this on their facts as to make them here inapplicable.

Judgment affirmed with costs.

Learned, P. J.

I have some doubt whether this action will lie against the city under the principle of Hathaway v. Homer, 54 N. Y., 655. But inasmuch as the court in a case similar to the present, American Society, etc., v. Doyle (65 How. 459), decided that an action would not lie against the recorder, I concur.

Landon, J., concurs._


text:
    Charles Horton v. Frank X. Whister.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    Election—Rights op citizens to be present during canvass op votes.
    The inspectors of elections have a right to keep order while the vote is being canvassed; but under pretense of keeping order they have not a right to turn out a peaceable and quiet citizen whose presence does not interfere with the discharge of their duty.
   Learned, P. J.

This is an action to recover damages for an assault and battery. The assault and battery were committed by the defendants putting the plaintiff out of the room where inspectors of election were about to canvass votes. This appears to have been done by the direction of the inspectors.

There were evident irregularities in the canvassing which we need not consider.

The judge, in his charge referred to the law requiring the canvass to be public; and stated also that the inspectors had the right to preserve order; and that, if owing to the crowd, it was impossible to canvass, the inspectors had a right to direct a necessary number to go out of the room.

The only exception to the charge as given is in these words : “I except to so much of the charge of the court as submits to the jury as a proposition that they shall determine whether or not these parties could have remained in there with that board of canvassers without interfering.”

The language of the court to which defendant referred is this: “If you come to the conclusion that the inspectors could have conducted the canvass in a proper, orderly and public manner while the plaintiff remained in that portion of the room, and that he behaved himself with propriety, order and decency, then they had no right to order him out.” |

It seems to us that that language is quite correct. Undoubtedly the inspectors have a right to keep order. But under pretense of keeping order, they have not a right to turn out a peaceful and quiet citizen whose presence does not interfere with the discharge of their duty.

The defendant presented the same point again by requesting a charge that it was not for the jury to determine whether there was sufficient space for outsiders, and that defendant had the right to obey the instructions of the inspectors. This the court properly refused.

There was another exception by defendant to so much of the charge as states that no persons' have a right to be within the raffing except clerks, etc. We find no such charge. If there had been any such, it would seem to have been favorable to defendant.

The defendant asks now for a new trial on account of . certain parts of the charge not excepted to.

That this court may reverse, when a verdict is against the weight of evidence, does not aid the defendant in this position. We find no error of law in those parts of the charge to which the defendant now calls our attention. The defendant says now that they were inaccurate in fact. We have examined the cases cited by defendant on this point, and think that they do not sustain the defendant, in this case, on this point.

It will be seen by the stipulation of the parties that the case before us contains “the material parts of the evidence as agreed upon.” It does not, therefore, purport to contain the whole evidence. The parts of the charge now criticized may have been fuEy justified by evidence not contained in the case, for they touch on the manner in which inspectors should canvass the votes. That was a subject not apparently material to the exceptions taken by the defendant, and the plaintiff might weU have consented to the omission of evidence on this subject.

We see no error in the case.

Judgment and order affirmed, with costs.

Bocees, J., concurs.

Landon, J., dissents.


author: Bocees, J. Landón, J.

text:
    Anna M. Tisdale, Resp’t, v. President, etc., of the Delaware and Hudson Canal Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    1. Evidence in suit fob damages— Opinion as to whether symptoms WERE FEIGNED, INADMISSIBLE.
    In an action brought to recover damages for injuries resulting to plaintiff from the negligence of the defendant company, physicians had testified to the examination of the plaintiff and had given the results of such examination; then Dr. L. was asked, “Did you discover any evidence or indication of feigning, any symptoms or suffering on her (plaintiff’s) part, or had you any reason to suspect any?" and answered, “I did not;” and in answer to defendant’s question, “You mean by that you saw nothing but what you have described here?” and answered, “Yes, sir.” Held., that the testimony was properly admitted.

      2. Verdict—When set aside as excessive.
    In order to set aside a verdict on the ground of excessive damages, the .sum recovered must strike the mind as being extravagant, and under the circumstances of the case outrageous.
    Appeal from a judgment entered upon a verdict in favor of plaintiff and from an order denying a motion to set aside the verdict and for a new trial upon the judges’s minutes.

      Edwin Young, for app’lt; H. D. W. C. Hill, for resp’t.
   Bocees, J.

The action was for damages because of injuries to the plaintiff, occasioned by defendant’s negligence. The injury occurred in consequence of the fall of the canal feeder bridge at Fort Edward, by reason of which the tiain passing over it, and on which the plaintiff was a passenger, was precipitated to the bed of the feeder, a distance of about thirty feet. On the trial, the defendant admitted its liability to the plaintiff, and contested only the extent of the injury to her and the amount to be recovered therefor. The plaintiff had a verdict in her favor for $13,000. The defendant moved on the judge’s minutes to set aside the verdict and for a new trial upon the exceptions taken during the trial, and on the ground that the damages awarded were excessive, and that the verdict was contrary to law and against the evidence, which motion was denied. Judgment having been entered, the defendant appealed therefrom and. from the denial of the motion for a new trial on the judge’s minutes.

During the summing up of the case to the jury by the plain tiff’s counsel, he referred to the defendant’s answer to the complaint, and began the reading of it, or portions of it, to the jury. ' To this the defendant’s counsel objected on the ground that the answer was not in evidence and was inadmissible and immaterial. The objection was overruled, and the counsel thereupon read the answer, or a portion of it, and commented thereon against the defendant’s objectian and exception to the ruling of the court permitting this to be done. The exception is, as we think, unavailing as ground of error, if for no other reason than because it is not made to appear that any harm resulted or could have resulted to the defendant from what was permitted by the court. It is not made to appear how much of the answer, or what part or portion of it, was read to the jury, nor what comments were made upon the part or portion read. For, anything appearing to the contrary, the part read and the comments thereon by counsel were wholly immaterial to the matters_ submitted to the jury, which were the extent of the injury received by the plaintiff and the amount that should be allowed therefor.

So it is not shown that any harm resulted to the defendant from the use made by counsel of the answer, and it is the well settled rule that error will not be presumed, but to be availing to the party urging it, it must be made affirmatively to appear that it was, or may have been, harmful to him. We need not, therefore, examine the question whether the counsel of a party may or may not read his adversary’s pleading, and comment on it, as he may feel disposed to do, on his summing up the case to the jury, when the pleading has not been formally put in evidence. On this subject, however, see Rowe v. Comley (2 N. Y. Civ. Pro. Rep., 424); White v. Smith (46 N. Y., 418); Colter v. Calloway (68 Ind., 219); Monticello v. Grant (104 id., 168); also Koelges v. G. L. Ins. Co. (57 N. Y., 638); Fash v. Third Ave. R. R. Co. (1 Daly, 148), cited by appellant’s counsel. The two latter cases are not, however, directly in point.

It is next urged in the appellant’s brief and points that the court erred in allowing physicians to give their opinion as to whether the plaintiff was feigning suffering, and injury not in fact existing. The physicians had testified as to their examination of the plaintiff, and had given the results of such examination. Then first as to Dr. Lambert; he was asked this question: Did you discover any evidence or indication of feigning any symptoms or suffering on her (plaintiff’s) part, or had you any reason to suspect any? A. I did not; and further, to the defendant’s question: You mean by that you saw nothing but what you have described here? A. Yes, sir. Manifestly in this there was no error. It should be noted, if it be desired to be exact and critical, that the question to Dr. Lambert put by plaintiff’s counsel, with the answer to it, went to a fact, that is to what he saw and discovered; hence, the evidence was unobjectionable in any view of it. So to the questions to Dr. Vandenberg, with the answers to them, were admissible; the one going to the matter of fact, the other as to an opinion by an expert. Nor was there any error in permitting Dr. Vandenburgh to state his opinion as to what would be a fair and reasonable compensation for the board, care and attendance upon the plaintiff, while under his observation, following the injury. His competency to speak upon the subject was well established. It was also competent for Dr. Goldsmith, having made an examination of the plaintiff’s case, to give his opinion as an expert as to probable results to the plaintiff because of the injury. This, and this only, was the subject to which his testimony pointed in so far as it was objected to. A further suggestion is made that the damages awarded are excessive in amount. There can be no question as to the fact that the plaintiff was very seriously injured, and the injury is in all probability permanent. Her suffering has been great, and as is reasonably certain, it will continue during her life. Under such circumstances it is difficult to estimate her damages. Her disability, pain and continued suffering resulting from the injury cannot well be measured and met by a pecuniary compensation. Can it be said then in justice and fairness that the recovery of $13,000 is excessive? In order to set aside the verdict on the ground of excessive damages, this sum must strike the mind as being extravagant, exorbitant, and, under the circumstances of the case, outrageous. Such is not this case, as we think. In conclusion we are of the opinion that the judgment and order appealed from must be affirmed, with costs.

Learned, P. J., concurs.

Landón, J.

Whether the counsel should read from the answer in the course of his final address to the judge, was, I think, a matter within the discretion of the court, a discretion with which we should not interfere unless it appears that thereby the defendant was prejudiced.

I concur.