author: O’Brien, J.

text:
    In the Matter of the Will of Milton Budlong.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Will—Execution—'Undue influence—Evidence.
    Where a will is contested on the ground of undue influence, the testator having ignored a daughter, although he had previously stated that he desired £iis estate to be equally divided among his children, and it is charged that the sons of testator, who procured the execution of the will, combined to influence him against her by letters and statements, if it is shown that the son wrote the letter knowing that the statements were untrue, with the design that it should reach his father and influence him in the disposition of his property, and it did in fact influence him to disinherit the daughter, a case of undue influence and fraud is made out.
    '■&. Same—Burden of proof.
    After stating that, although the will might have been grossly unjust, yet that was of no consequence if it was satisfactory to the party who made it, the court charged that “ if, under all the circumstances of the case, you find that this will was unnatural in its provisions, and inconsistent with the duties and obligations of the testator to the different members of his family, it imposes upon the proponents the duty of giving some reasonable explantion of its unnatural character, or at least of showing that it was not the result of mental defect, obliquity or perversion.” Held, no error.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of contestants after trial at circuit and order denying motion for a new trial

      J. A. Stull, for app’It; E. A. Nash, for resp’t.

       Affirming 36 N. Y. State Rep., 863.

   O’Brien, J.

Milton Budlong died on the 20th day of April, 1880, having made a will on the 4th of January previous, in which he disposed of his real and personal estate, amounting to considerably over $50,000. The validity of this will was the sole question involved in these proceedings. He left a widow, three .sons and three daughters surviving, who were the natural objects of his bounty in the distribution of his estate. The will provided for the comfortable support of the widow, according to her station in life, which support was in lieu of dower and made a charge upon the real estate. To one of the daughters he devised two houses and lots in the village of Fairport to another he gave a money legacy of $5,000. He gave the residue of his real and personal estate to two of the sons, in the proportion of one-third to one and two-thirds to the other, the larger share, however, being chargeable with a legacy of $5,000 to the third son, Levi S. Budlong. To the other daughter, Mrs. Louisa J. Cole, who is the contestant of the will, he gave a legacy of five dollars. The three sons were named as executors, and, having petitioned the surrogate of Monroe county to admit the will to probate, the daughter above named, filed objections that the instrument was not the will of the deceased; that at the time of its execution he was not capable of making a will, and that the proponents, or some of them, procured its execution by means of deceit, fraud and undue influence. Upon a trial, in which a large volume of testimony was taken, the surrogate made a decree adjudging the will' to be valid and admitting it to probate. While the case was pending before the surrogate the contestant died, and her heirs at law were substituted in her place. The general term upon their appeal reversed the judgment and directed a new trial upon two specific issues of fact by a jury. These questions were whether the deceased was of sound mind at the time of executing the instrument, and whether its execution was procured by fraud and undue influence.

The new trial resulted in a verdict of the jury, finding that the deceased was of sound mind when the instrument was executed and capable of making a will, but that its execution was procured by undue influence and fraud. The judgment in- favor of the contestants entered upon this verdict has been affirmed by the general term. The proponents of the will in their notice of appeal to this court from the last decision of the general term seek to review, not only the judgment entered on the verdict and subsequent orders, but also the judgment and order of the general term reversing the decree of the surrogate and granting a new trial; and the papers submitted upon this appeal contain the record of all the proceedings before the surrogate, including his findings, and the opinion and judgment of the general term on appeal therefrom. This court cannot review the judgment of the general term reversing, upon the facts, a decree of the surrogate admitting a will to probate and directing a new trial before a jury of questions of fact Sutton v. Ray, 72 N. Y., 482 ; Burger v. Burger, 111 id., 523 ; 20 N. Y. State Rep., 105. if or does an appeal from the last judgment of the general term bring here for review the first one under §§ 1316,1317 of the Code of Civil Procedure, as it is not within the meaning of these sections either an interlocutory judgment or an intermediate order necessarily affecting the final judgment. The only record that is properly before us is that of the trial at the circuit, and we can review only the judgment entered thereon and subsequent orders and proceedings. The j udgment is based upon a finding by the jury that the instrument purporting to be the -will of the deceased was not his free and voluntary act, but the result of undue influence and threat, by means of which his mind was prejudiced against one of his children by one or more of the others and his natural affection for her perverted. It must be admitted that the jury would have been warranted in taking a contrary view of the facts, but at the same time their finding is not, by any means, so destitute of evidence for its support as to authorize the court to interfere. The deceased was seventy-nine years old when he made the will. His mental and physical powers, which had been remarkably strong and vigorous through life, began to weaken. He was attacked with a severe.illness, from which it was supposed by the family he could not recover, and it was during this illness, and in expectation of death as the result of it, that the will was executed.

The two sons who received the greater part of the estate were with him during his sickness, and one or both of them procured the attorney who drew the instrument. There was some proof of his declarations, made shortly before this illness, that he did not intend to make a will but to die intestate, to the end that all his children should share equally in his estate under the law of the state.

The two sons who were preferred were men of large property in their own right, and up to a time not long before the will was made the acts and declarations of the father tended to show that all his children were equally dear to him. The claim of the contestants was that the sudden change in the father’s affections towards his daughter, which resulted in such an apparently unjust discrimination against her, as appears on the face of the will, was brought about by means of a letter shown and read to him by another daughter, Mrs. Hunt, a short time before the execution of the instrument. This letter was one of the last of a series of events which were pressed upon the jury as proof-that the father’s affections had become alienated from his daughter, the contestant, by misrepresentation, resulting in ignoring her in the final distribution of his property.

It appeared that some nineteen years before the death of the father, Levi S. Budlong, one of the sons, married a domestic in the family. The father felt humiliated 'and grieved in consequence of this alliance, threatened to disinherit his son and refused to be reconciled to him or his wife. After the lapse of some time his attitude towards them softened and he became more friendly, regarding the marriage as an accomplished fact and manifesting a disposition to make the best of it. The marriage, however, between the parties themselves proved to be an unhappy one. There is evidence in the case tending to show that the husband ill-treated the wife and that Mrs. Cole, his sister, was a witness to at least one violent assault upon her, and that she, on that occasion, sharply reproached her brother for such conduct.

During the year previous to the execution of the will, Levi went to the state of Iowa for the purpose of obtaining a divorce from his wife on the ground of cruel and inhuman treatment. In this controversy the old aversion of the father towards the marriage revived, and his feelings were strongly enlisted on the side of his son and in favor of the divorce. But it appears that the wife resisted the proceedings for divorce, consulted counsel in this state, followed the husband to Iowa and materially interfered with his plans, if she did not succeed in entirely defeating them. This was a bitter disappointment to Levi, and he attributed his failure to the instigation, assistance and advice of Mrs. Cole to his wife, or at least pretended that she had joined his wife in opposition to him. On the 2d of October, 1879, Levi addressed a long letter from Iowa to his other sister, Mrs. Hunt, who lived near her father. In this letter he took rather a gloomy view of the result of the divorce suit, which appeared to be pending, described the visit of his wife to the west and its effect upon the suit, and reflected bitterly upon the conduct of Mrs. Cole, in assisting and advising his wife, with the result of bringing much trouble and disappointment upon him. He requested the sister to whom the letter was written to show it to his father, and she complied with the request. Some proof was given of the statements of the father after he had seen the letter, tending to show ill feeling toward Mrs. Cole for joining in the contest against her brother, who was described by the father as his favorite son. Proof was submitted to the jury, consisting mostly of circumstances and facts, tending to show that the reflections upon Mrs. Cole contained in the letter were substantially, if not wholly without foundation in fact, and that the writer intentionally misrepresented her conduct

Some proof was also given of declarations made by Levi, tending to show that he had advised his father to make a will, and that if he left Mrs. Cole anything he would litigate with her as long as he had a dollar to spend in that way. The letter and the other evidence in the case furnished some proof that Levi attempted to, and did, create in the mind of the testator a feeling of prejudice and aversion towards his daughter, with reference to the disposition of his property, which found expression in the will, so far as it relates to her. The court instructed the jury that if Levi wrote the letter, knowing that its statements were untrue, with the design that it • should reach his father and influence him in the disposition of his property, and that it did in fact influence him to disinherit Mrs. Cole, then a case of undue inflence and fraud was made out. • But that if they were not false, and were not designed to, and did not in fact influence the father in the disposition of his property, then the letter was harmless. Sufficient reference has been made to the evidence to show that the main question in the case, and around which the parties contended, was one of fact that must be regarded as having been put at rest by the verdict of the jury. The counsel for the proponents, by exceptions taken to the charge above referred to, and in the argument in this court, contends that the rule stated by the learned trial judge was erroneous. His position is that as the statements in the letter, whether true or false, and with whatever intent written, related solely to the relations and conduct of Mrs. Cole towards her brother, and in no manner to her feelings, conduct or relations towards her father, they coúld have no connection with the will, but related to matters entirely extraneous to it. That at most the statements could not be regarded as anything beyond the complaints of one child against another to the father, without any reference to the disposition of property, and, therefore, could not legally affect any will subsequently made. The undue influence and fraud which the law guards against may be exercised in an almost infinite variety of ways. Prejudice and aversion to a child may be created in the mind of a testator by misrepresentation of the conduct and feelings of this child towards another which, in connection with other facts, such as were shown in this case, may be sufficient to affect the validity of a will in which the child in regard to whom the representations were made is ignored in the distribution of the father’s estate by will, and this is especially true when no other reason is apparent for a grossly unjust and unequal division among children with an apparently equal claim upon the testator’s bounty. Tyler v. Gardiner, 85 Ñ. Y., 559 ; Eed. Am. Gases on Wills, note 522. In the course of a very clear and, on the whole, impartial charge, the learned judge who presided at the trial said to the jury that “if, under all the circumstances of the case, you find that this will was unnatural in its provisions and inconsistent with the duties and obligations of the testator to-the different members of his family, it imposes upon the proponents the duty of giving some reasonable explanation of its unnatural character, or at least of showing that it was not the result of mental defect, obliquity or perversion.”

The counsel for the proponents excepted to this part of the charge. It must be read in connection with what preceded, in which the court said that though the will might have been grossly unjust in its provisions, yet that fact was of no consequence if 'it was satisfactory to the party who made it, as every man had the right to dispose of his property according to his own will. That if it was the testator’s preconceived design and intention, calmly entered into, to disinherit his daughter, Mrs. Cole, he had a perfect right to do so, and none of us have any right to complain of the exercise of that right, provided in doing so he exercised his own will, a-nd was not influenced by the will of another. The fair construction of the portion of the charge excepted to is not that the unequal division of the testator’s property, apparent on the face of the will, raised a presumption of undue influence or fraud which the proponents were called upon to explain ; but if, upon all the proof in the case, the jury should find that the will was in fact contrary to the dictates of natural affection and was, under all the circumstances, unnatural in its dispositions, so far its provisions would be evidence of mental defect, obliquity or perversion of mind which would require explanation. Thus understood and read in connection with the other propositions, that part of the charge which was the subject of this exception was not objectionable. A learned author on wills has stated the principle in the following language, which we think expresses substantially the same idea as that intended to be conveyed by the charge, if it does not go even farther:. “But gross inequality in the dispositions of the instrument, when no reason for it is suggested either in the will, or otherwise, may change the burden and require explanation on the part of those who support the will to induce the belief that it was the free and deliberate act of a rational, self-poised and clearly disposing mind.” 1 Redf. on Wills, 557; Redf, Am. Oases on Wills, 298, note. There are numerous other exceptions to the record, but we think they were correctly disposed of in the court below, 54 Hun, 131; 26 N. Y. State Rep., 863, and do not call for any special notice here.

The judgment should be affirmed, with costs payable out of the estate.

All concur.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Willlam C. Wallace, Resp’t, v. The Vacuum Oil Co., App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    Evidence—Expert testimony—Objections.
    In an action to recover damages for injuries caused by defendant’s negligence, a physician was asked by plaintiff’s counsel: “Assuming the man’s age to be from fifty-eight to sixty years of age, and judging from that and from the whole history of his case and what you have learned of it in all ways, would you say that it is your opinion that the trouble of the heart is likely to improve to any extent in his case or not ?” Defendant’s counsel objected to the question as immaterial and incompetent. Held, that while the question was objectionable as calling for an opinion based upon the witness’ knowledge of the plaintiff’s physical condition and might not be predicated solely upon the facts in evidence, and allowed him to state possible consequences, yet as the objection did not state these grounds and give the examining counsel a chance to change its form, and as the question was not altogether an improper one, the evidence was properly admitted.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered upon a verdict at circuit.

      Marsenus H. Briggs, for app’lt; M. B. Fenner and Geo G. Wollcott, for resp’t.

       Affirming 35 N. Y. State Rep., 697.

   Gray, J.

The appellant relies upon the point that, in the admission of certain evidence the trial court materially erred. The action was brought to recover damages for personal injuries, of a severe and permanent nature, received by plaintiff from an explosion of naptha, which had leaked into the city sewers from a defective pipe belonging to defendant. The physician who attended the plaintiff was examined as a witness, and gave evidence concerning the nature and duration of the injuries. The errors in the rulings, which were insisted upon before us, the counsel finds in the course of the examination of this witness. He was asked:

Q. Assuming the man’s age to be from 58 to 60 years, and judging from that and from the whole history of his case and what you have learned of it in all ways, would you say that it is your opinion that the trouble of the heart is likely to improve to any extent in his case or not ?

Objected to as immaterial and incompetent.

Received. Exception.

A. I think it is not likely to improve.

Q. The same question in regard to his neck and spine and the position of his head, what do you say in regard to that trouble, from your history of the case and your experience with it ?

Objected to, as immaterial and incompetent.

Received. Exceptions

A. The spinal trouble would improve were it not for the fact that he is obliged to carry himself in this condition. That will keep up an irritation of the spine continually, because this stiffening cannot be removed.

It is to be observed that the objection does not specify the grounds for excluding the question, or in what respects the evidence, called for by the question, is improper, and it is in effect general in its nature. As a general objection, it may be conceded that it would suffice if the question was altogether an improper one or the evidence called for, in its nature, quite inadmissible. But we cannot say that The witness was qualified to give his opinion upon the natural and reasonably certain consequences in the future to be expected from the physical injuries and disturbances from which the plaintiff suffered, and such evidence would be properly admitted. He might also have properly given his opinion upon a hypothetical case, presented by a question which resumed the facts disclosed by the evidence. The objectionable feature in the questions, as asked, consisted in the counsel’s calling for an opinion based upon the witness’ knowledge of the plaintiff’s physical condition, which he may have derived from outside sources, and might not be predicated solely upon the facts in evidence; and the question allowed the witness to state possible consequences, and such as were speculative and not reasonably certain. But had the objection to the questions stated these grounds, the examining counsel, if he desired to press the examination in that line, might have recognized its correctness and have changed the form of his question, eliminating the objectionable elements. In the case of Strohm v. R. R. Co., 96 N. Y., 305, as in other cases cited from the reports of this court, the grounds of the objection were specified. That mode of procedure, in confining the examination of a witness within strict, legal limits, is proper and it is the one which we have endeavored to emphasize. Turner v. City of Newburgh, 109 N. Y., 301; 15 N. Y. State Rep., 93.

The judgment and order should be affirmed, with costs to respondent

All concur.


text:
    In the Matter of the Application of Robert Schell.

      (Court of Appeals,

      Filed June 2, 1891.)

    Attorneys—Summary proceedings against discretionary with court.
    It is entirely discretionary with the court as to whether it will exercise its powers to compel an attorney to pay over money received for and belonging to a client by summary proceedings;

      Appeal from judgment of the supreme court, general term, first department, reversing order requiring appellant, an attorney of this court, to pay over certain moneys or be committed for a contempt.

      John Delahunty, for app’lt; Moody B. Smith, for resp’t.

       Affirming 34 N. Y. State Rep., 938.

   O’Brien, J.

The petitioner is the assignee of Robert Schell, who recovered a judgment against The Mayor, etc., of the city of Mew York, on the 25th of July, 1885, for $5,507.16. He states in his petition that the whole amount of this judgment was paid over in the month of August, 1885, by the defendant in the action, to Peter A. Hargous, the attorney for the plaintiff and who prosecuted the claim.

It appears that the attorney was to receive and retain, as compensation for his services in the action, a certain percentage of the recovery. The petitioner admits that this sum was to be twenty-five per cent and the attorney claims that, by the agreement, he was to have more, though no claim beyond twenty-five per cent seems to have been made by him till after these proceedings were instituted.

The court at special term made an order, upon the petitioner’s application, directing the attorney to pay to the petitioner the sum of $3,251.31, that being the amount found due, or in default of such payment within five days that a commitment issue against him. The general term has reversed this order and denied the application and the petitioner appeals to this court from the order of reversal. The usual and ordinary remedy of a party, for the enforcement of a claim against another, is an action in a court of law or equity; but as between attorney and client it has long been settled that a proceeding of this character, to compel the attorney to pay over money received by him, and which belongs to the client, may be entertained and is within the power of the -court.

The principle upon which this exceptional remedy in such cases is based, is the power which the court has over its own officers to prevent them from, or punish them for, committing acts of dishonesty or impropriety calculated to bring contempt upon the administration of justice. In such case the court, in vindication of its own dignity or for the relief of the client when clearly wronged, may entertain summary proceedings by attachment against any of its officers, and may, in its discretion, direct the payment of money or punish them by fine or imprisonment. When an application is made to the court for the exercise of its powers to compel an attorney to pay over money received for, and belonging to, the client, the ground of the jurisdiction is the misconduct of its own officer. It has been said that this power should always be exercised with great prudence and caution, and a sedulous regard for the rights of the client on the one hand and of the attorney on the other. It is not an absolute right that the client has to invoke this severe and summary remedy against the attorney, but one always subject to discretion. It is for the court to say when, and under what circumstances, it will entertain such proceedings against its officers upon the application of the client, and a refusal to proceed in that way is not the denial of any legal right Bowling Green Savings Bank v. Todd, 52 N. Y, 489; In the Matter of Knapp, 85 id., 284; In the Matter of EC., an Attorney, 87 id., 521; In re Paschal, 10 Wall., 483. It does not appear from the order appealed from that the application was refused for want of power to grant it, and we must, therefore, assume that it was denied for the reason that the court, in the exercise of its discretion, did not consider the case one, under all the facts and circumstances, for the exercise of the extraordinary jurisdiction invoked. If we were permitted to look into the opinion of the general term for the ground of reversal and denial of the relief, it would appear that the court was of the opinion that an assignee of the client was not entitled to this remedy. While it would, we think, be difficult to show that the supreme court has not the power to entertain the proceedings, even upon the application of an assignee, it certainly could, in the exercise of its discretion, decline to use it, and that may have been the ground of the decision appealed from. The order of the general term was, therefore, one resting in discretion, and we have no power fa> review it.

The appeal should be dismissed, with costs.

All concur.


author: Per Curiam.

text:
    The People ex rel. John Andrews, Resp’t, v. John C. Maguire, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Taxes—Brooklyn—Notice of sale—Mandamus.
    Relator was the owner of lot 112, block 54, of the Twenty-fifth ward of Brooklyn, upon a portion of which a tax was levied, the other portion being carved out of a different lot and no tax levied on it. The registrar in advertising it for sale described it as “Lot 112, part.” The .registrar was authorized by statute to advertise and sell any parcel of land, stating in the notice that further particulars could be obtained at the office. 3eld, that the notice was a substantial compliance with. the statute and the sale was valid, and the registrar could not be compelled by mandamus to réceive the taxes and make an entry upon the books that the same are paid.
    2. Same.
    If there is any remedy for the relator it must be by an action in equity to be relieved from the sale, or for redemption, to which the purchaser must be made a party.
    Appeal from judgment of the city court of Brooklyn, general term, granting writ of mandamus.

      Wm. T. Gilbert, for app’lt; John Andrews, for resp’t.

       Reversing 29 N. Y. State Rep., 674.

   Per Curiam.

The defendant is the registrar of arrears of the city of Brooklyn. On the 18th of November, 1889, the city court of Brooklyn made an order on the application of the relator, directing that a peremptory mandamus issue to him, commanding that he forthwith receive from the relator the amount of an assessment lien, apportioned and fixed by the board of assessors under chap. 114 of the Laws of 1883, upon a lot known as Wo. 112,. block 54, of the Twenty-fifth ward assessment map of the city of Brooklyn, with interest on the amount of the assessment from the date of filing the certificate, and, upon being so paid, that he make upon the record in his office by some appropriate entry thereon that the assessment lien is paid and cancelled. The general term of that court affirmed the order. Upon the application the following facts appeared: On the 9th of May, 1885, the board of assessors, acting under the above mentioned statute, made a certificate whereby it appeared that they had fixed and determined that the sum of $1,687 should be assessed upon lot 13, block 54, of the 25th ward. Subsequently, and in January, 1886, the assessors on application and acting under the same statute, apportioned lot Wo. 13 into lots 91 and 92. Still later they in like manner apportioned lot 91 into lots 104 and 105. Thereafter and on relator’s application, the board apportioned lot' 105 into lots 112 and 113. At the same time a lot on the same' block known as Wo. 89 was apportioned by adding a part of it, at the request of the relator, to 112, and making the balance lot 114. When lot Wo. 112 was carved out of lot Wo. 105 the sum of $249.75 was apportioned against it as its equitable share of the burden originally imposed upon the original lot 13, but that part of lot 89 which was added to lot 112, as above stated, was free' and clear from all taxes and arrears. Thus it appears that, when' all the apportionments were completed, that part of lot 112 which came from lot 105 was burdened with an assessment of. $249.75,.' while the smaller portion of this lot, that came from Wo. 89, was-clear and not subject to sale. By § 3 of the statute the'registrar is required in case the sum assessed and apportioned' against any parcel of land is not paid, within twelve months after the filing of. the certificate, to “ sell such parcel at public auction to the highest bidder for a sum not less than the amount unpaid and all interest accrued thereon.” He is required to publish an advertisement which shall include a designation of the 'time and place of sale, and of the ward or wards in which the property is advertised, and “that further particulars of the property to be sold may be obtained at the said registrar’s office, and it shall not be necessary in said advertisement to include any further particulars of the property to be sold.” On the 3rd of October, 1888, the defendant sold that portion of lot 112 which was subject to the assessment lien to one'John 0. Byrne for $500, and issued to the purchaser a certificate of the sale which was recorded in the office of the registrar. The only error or irregularity alleged against this sale by the relator is that the .lot was designated in the advertisement as “ lot 112 paid.”

His position is that there was no such lot upon the assessment map of the Twenty-fifth ward, and that the sale is void. There was a lot upon this map, owned by the relator, designated as 112, only part of which was subject to the tax. The registrar was authorized by the statute to advertise and sell any parcel of land, stating in the notice that all further particulars of the property to .be sold might be obtained at the office. So far as appears from the record before us, the notice was a substantial compliance with the statute, and we cannot say that the sale was void. Under these circumstances the registrar cannot be compelled by mandamus to receive the taxes and make an entry upon the books that the same are paid. If there is any remedy for the relator it must he by an action in equity, to be relieved from the sale, or for redemption, in which the purchaser or person holding the certificate is a party. The right acquired by him yat the sale cannot be affected by a proceeding of this character in which he has no opportunity to be heard.

The order of the general and special terms of the city court should be reversed, and the application denied, with costs in all courts.

All concur.


author: Peckham, J.

text:
    John Peter Eisenlord, App’lt, v. David H. Clum et al, Resp’ts.

      (Court of Appeals,

      Filed June 2, 1891.)

    Evidence—Witness—Code Civil. Procedure, § 829.
    Plaintiff, in an action of ejectment, in which lie claimed title as the son and heir of Peter O. Eisenlord, offered to prove the marriage of said Eisenlord with his mother by her as a witness. Held, that she was a competent witness, and was not excluded under Code Civil Procedure, § 829, as being “interested in the event” of the action by reason of her right .to dower if the marriage was established.
    2. Same.
    Defendant was allowed to introduce in evidence a judgment in an action brought by plaintiff’s maternal grandfather against said Peter O. Eisenlord for the alleged seduction of plaintiff’s mother. Held, error, as neither plaintiff nor his mother was a party or privy to that action.
    3. Same—Evidence oe pedigree.
    The court refused to allow plaintiff to prove by one witness that Eisenlord had said to him in 1863 that he was married and had a wife, and named plaintiff’s mother, and by another that he had said, in 1867, he was married and had an heir, a son, the one witness had teased him about, the plaintiff herein. Eisenlord died in 1885. Held, error, as the case is solely one of pedigree, and the evidence must be judged with regard to this fact, and was competent, though liable to grave suspicion.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for defendants.

      A. J. Abbott, for app’lt; George W. Smith, for resp’ts.

       Reversing 32 N. Y. State Rep., 1132.

   Peckham, J.

The plaintiff brings this action of ejectment as the son and sole heir at law of one Peter 0. Eisenlord, who died in Montgomery county on the 30th day of June, 1885, seized in fee simple and possessed of the premises described in the complaint. The defendants, other than Cium, are respectively the brothers, sisters or nieces of the deceased Eisenlord, and claim that they are his sole heirs-at-law, and the defendant Clum is in possession of the premises described in the complaint, and claims under the other defendants as tenant

The plaintiff is the son of one Margaret Lipe, and the question in issue depends upon whether she was married to the deceased Eisenlord prior to this son’s birth. He endeavored to prove an actual marriage between the deceased and his mother prior to his birth, on the 21st of October, 1857, and for that purpose called, among others, his mother, then married to one Austin. The plaintiff offered to prove by her various conversations between the witness and the deceased upon the subject of their getting married, and also offered to prove by her the performance of the marriage ceremony between them by a justice of the peace in Montgomery county, at a time anterior to the plaintiff’s birth.

All the evidence was objected to by defendants’ counsel and was excluded by the court upon the ground that the witness was-interested and came within the provisions of § 829 of the Code, because if she established the fact that she was married to the deceased, she would then be entitled to dower in this real estate.

The witness was not a party to the action and hence could not be excluded as having any interest on that ground. Nor was-she a person from, through or under whom the plaintiff derived any title or interest by assignment or otherwise. His title or interest, if any, came through Eisenlord, and that of course depended upon the question whether the plaintiff was his legitimate son.

The only other ground of exclusion contemplated by the' . statute refers to a person “ interested in the event ” of the action.

Prior to the adoption of the Code the law excluded interested witnesses from testifying. What amounted to such an interest as would exclude a witness was a question which was frequently presented and in every conceivable phase, and the courts had finally settled down to a general rule on the subject, which had long prevailed before the legislature altered it

At common law, as the rule became developed by successive decisions, the interested witness was excluded only when he had what was termed a legal interest in the event of the action. A. direct and certain interest in the event of the cause or an interest in the record for the purpose of evidence, became necessary in order to exclude. Starkie on Ev., m. p. 23, 24 (9th ed.), 1849.

The inclination of the courts was that the fact of interest should go to the credit rather than the competency of the witness, and hence they said that the party alleging incompetency must show it beyond doubt The English legislature interfered with the rule as to the record, and provided that it should not be evidence in another action for or against the witness who testified. 3 and 4 Will. IV"., chap. 42, § 26. Then, under the suggestion of Lord Denman, another act was passed limiting very greatly the cases in which a person should be excluded by reason of interest 6 and 7 Vic., chap. 85.

In this state the question arose at an early date and in one of the pioneer cases, Yan Nuys v. Terhune, 3 John. Gas., 82, the rule as above stated was declared as the law. It was therein explained that a witness was not interested in the event of the cause unless he would gain or lose by the event, and he was not interested by the record unless the verdict could be given in evidence for or against him in some other proceeding. In a note to this case it is stated that the rule was formerly that an interest in the question put to the witness excluded him, but it was admitted that such rule had been explained away and limited, so that the one announced in the case was the true rule. This case was decided in 1802.

In Jackson v. Bard, 4 Johns., 230, it was- held that the widow of one Dickenson, who was the mediate grantor under whom the defendant claimed the land in question, was a competent witness, although it was 'argued she might claim dower in case the deed had not been executed. The supreme court held the decision correct, and said she was not an interested witness because the verdict in the cause could never be given in evidence in an action of dower brought by her.

Then in Jackson, etc., v. Van Dusen, 5 Johns., 144, which was .an action of ejectment, it was distinctly held that the widow of a person deceased was a competent witness in an action brought by the heir to recover the possession of lands claimed under her husband, though she would be entitled to dower in such lands. Van Ness, J., delivered the opinion of the court and said the witness had no other interest in the case than that which grew out of her right of dower in the premises, and as to that the verdict in the cause would be no evidence in a suit to be brought by her for the recovery of her dower.

In Jackson v. Nelson, 6 Cow., 248, it was held that in an action of ejectment against a devisee, a co-devisee and tenant in common with the defendant, not in actual possession, might be' a witness for defendant, because the effect of a recovery by the plaintiff would not be to turn him out of any possession, nor could the verdict be evidence for or against him in any other suit.

Again, in Jackson, etc., v. Brooks, 8 Wend., 426, 431, an action of ejectment, it was held that a tenant by the curtesy was a competent witness for the plaintiff, who was the heir-at-law. The court said the witness could not use the verdict if the plaintiff recovered as evidence in bis favor in any suit he might bring to enforce his title as tenant by the curtesy, and hence he had but an interest in the question and not in the event of the suit. -See, also, Peake on Ev., Norris’ notes, 209, pt. 1, chap. 3, § 3 ; 1 Green! on Ev., § 386, et seq. The interest must be certain, direct; not contingent or remote or a mere possible benefit.

Under the rule of the common law on the subject of interest it is plain that the mother in this case would have been a competent witness. She had no interest in the event of the suit, as that expression had been defined by the courts, and the judgment would not have been any evidence for or against her in any action she might bring. I think the expression, “interest in the event,’’ as used in our statute, was never intended to enlarge the class to be excluded under it beyond what the common law excluded in using the same language.

All legislation on the subject has been in favor of greater-liberality in the rules relating to the competency of witnesses. Upon referring to the cases which have been decided under the section of the Code already referred to, we find that the rule defining what is an interest in the event is laid down in about the same terms as those used by the common law. Hobart v. Hobart, 62 N. Y., 80; Nearpass v. Gilman, 104 id., 506; 5 17. Y. State Rep., 745; Wallace v. Straus, 113 N. Y., 238; 22 N. Y. State Rep., 984; Connellys. O'Connor, 117 N. Y., 91; 26 27. Y. State Rep., 840. But the learned general term upon the appeal in this case has held the exclusion was proper on the ground that the judgment would furnish the witness with important evidence to establish her claim to dower in the premises described in the complaint. The cases I have cited show conclusively that such a judgment would not have been admissible in evidence at common law in any such action, either for or against the witness, and in this respect the Code has not changed the rule.

The case of Miller v. Montgomery, 78 N. Y., 282, is cited to show-that the record would be legal evidence for or against her. A surety upon the bond of a non-resident executor was there held to be interested in the event of the accounting of his principal. This was so held because the surety is bound by the decree of the surrogate made upon a regular accounting, and such decree would be evidence against the surety in a suit upon the bond. Within all rules such a witness is interested and is incompetent to testify to a personal transaction with the deceased.

The general term also thought the judgment would be evidence as a declaration or admission by the plaintiff of the facts, or some of them, which the witness would have to prove in her action against him for dower. Any declaration or admission made by the plaintiff as to any fact material for the witness to prove in her action is undoubtedly admissible as an admission. If found in a pleading, and it be shown that it was placed there with the knowledge and sanction of the plaintiff herein, such pleading would be admissible for the purpose of proving the admission. Cook v. Barr, 44 N. Y., 156. In order, however, to prove such admission it is not necessary or proper to put in evidence the judgment in the action, for it is not the judgment which furnishes the proof, but the admission contained in the pleadings, and the judgment is not in that case the least evidence in favor of the witness in any action she might bring. The admission would exist without the j udgment and regardless of it.

That the witness has an interest in the question is very plain, but I am aware of no principle that would permit the introduction of this judgment as any proof for or against the witness in any other action. I see no foundation for any estoppel as against the plaintiff herein in an action brought by the witness to recover her dower. If, as I say, he has made admissions, they may be proved, but to say that he is estopped in the action for dower from denying any fact upon which the right of the plaintiff in such action depends, because in another action between himself and a third party it was necessary for him to prove the same fact, would be a .great extension of the doctrine of If in the course of such first trial the plaintiff had proved by his own testimony any fact material in the dower áction, it would be an admission which could be taken advantage of by proving that it was made, but if the fact had been proved by some third party, instead of by the plaintiff, it is not in that event an admission or declaration of the-plaintiff therein which renders a judgment in that action proof against him in any future controversy with a third party.

The cases cited from 1 Greenl. on Ev., § 527a, are those where-it was claimed the party had made an admission in a declaration or other pleading, or had suffered default, and it was held such express admission, or such constructive admission by suffering a. default, was competent evidence against him. We do not doubt-the correctness of this rule. It is not the judgment which is to form the evidence. It is the admission contained in the pleading: or by the suffering of the default.

Our conclusion is that the mother of the plaintiff was a competent witness to prove any or all facts of which she was cognizant and which were material, and which were not inadmissible upon some ground other than the alleged interest of the witness-in the event of the; action. Second. Another question arises upon-the reception in evidence, against the objection of the plaintiff, of the judgment in the action of John A. Lipe v. Peter O. Eisenlord It was an action brought by Mr. Lipe (who was the father of Margaret Lipe, the mother of the plaintiff in this action) against the defendant on account of his alleged seduction of the plaintiff’s daughter Margaret, and in which action the plaintiff recovered a verdict, upon which judgment was entered in his favor. I see no-ground on which to permit its introduction in this action. The plaintiff was no party to it, nor was his mother, Mai-garet Lipe. The judgment established no status of the plaintiff’s mother. As. a judgment it simply established the fact which was conclusive on all parties and privies thereto, that in 1856 the defendant had seduced the plaintiff’s daughter, Margaret Lipe. Neither the-plaintiff nor his mother was a party or privy to it. In that class of judgments which touch the subject of marriage or divorce and either establish a-marriage or decree a divorce between the parties, it has been held that under certain circumstances and within proper limitations of jurisdiction such judgments are binding and of universal obligation. It is upon the same principle that the decree of a coiirt in rem is conclusive upon the title to the res adjudicated upon. 1 Greenl. on Ev., §§ 543, 544 and notes.

But this is no such judgment. It adjudges no status and is-conclusive of the facts therein adjudged simply between the parties and privies thereto, and the plaintiff occupies neither position. If the witness had been sworn and had testified to facts upon this trial which it was claimed were inconsistent with what she sxvoreto on the trial of the seduction case, upon her attention being called thereto and a proper foundation laid, such contradictory and inconsistent declarations or evidence, if material, could have been proved with a view to impeach her evidence upon this trial.

We think the judgment spoken of was not admissible in evidence against the plaintiff.

A third question arises upon the exclusion of declarations said to have been made by Eisenlord at times long subsequent to the time when this alleged marriage ceremony took place. One witness was called, and the plaintiff offered to prove by him that Eisenlord had said to him in 1863 or 1864 that he was married and had a wife, and that it was Margaret Lipe. The plaintiff offered to prove by another witness that Eisenlord had said he was married and had an heir, a son, the one witness had teased him about, the plaintiff herein. This was in 1867 or 1868. Eisenlord died in 1885. The evidence was objected to as incompetent, and as not characterizing any act or thing which could render it admissible. The objection was sustained and the plaintiff excepted.

The fact is undisputed that the deceased Eisenlord and Margaret Lipe never lived together or cohabited as man and wife. Mo declarations of his could, therefore, characterize or explain the nature of a cohabitation which confessedly never existed. It is equally undisputed that Eisenlord never had anything to do with this alleged son. They never lived together, and if they ever met there is no proof of such fact aside from the possible inference arising from some of the alleged declarations, and they only went to the extent of an inference that Eisenlord had seen the plaintiff. These declarations, therefore, did not in any manner characterize or explain the footing upon which the plaintiff and Eisenlord had ever lived together or even met.

Under such circumstances the question arises as to the admissibility of the proposed evidence for the purpose of proving, or as corroborative proof of a marriage in an action of this nature. They would be admissible upon the trial of an action to which the person making them was a party.

It has been held in England and in some of the states of this Union that evidence of declarations as to a former marriage was -competent in the trial of an indictment for bigamy against the partv making them. 1 Whar. on Ev., § 86 and note: Miles v. U. S., 103 U. S., 304.

But in this state it has been held that such evidence was not sufficient in a prosecution for bigamy to establish a marriage, even against the party making the admissions. People v. Humphrey, 7 Johns., 314; Gahagan v. People, 1 Park. Cr., 378. The court held them admissible to corroborate the proof of the actual marriage.

In cases where a cohabitation between a man and woman was proved at the time when the declarations of the parties were made, they have been admitted in evidence even in the lifetime of the parties making them, upon the principle that they were a part of the res gestee, accompanying, characterizing and explaining the nature of that cohabitation as being matrimonial, rather than meretricious. They were admitted as competent proof corroborative of the claim of a marriage between the parties so cohabiting. It was stated that proof of cohabitation, conduct, reputation, reception in family and in society, holding each other out as husband and wife, all tended to prove a marriage, and that in a perfect case they'all combined, the lesser facts attending upon and explaining the material and important fact of cohabitation. These principles are illustrated in the authorities herein cited. 1 Bish. on M. & D., § 439; 1 Ph. Ev., Cow.. Hill & Edwds. notes, p. 251,. note 91, Read v. Passer, 1 Esp., 213; Leader v. Barry, id., 353; Matthews on Presump. Ev., 283; Fenton v. Reed, 4 Johns., 52; In re Taylor, 9 Paige, 611; O’Gara v. Eisenlohr, 38 N. Y., 296; Chamberlain v. Chumberlain, 71 id., 423; Badger v. Badger, 88 id., 546.

All these cases do not speak of the principle upon which the declarations were admitted, but it plainly appears that there was-cohabitation, and the declarations, reputation, holding themselves-out as married persons, etc., all came in as adjuncts to strengthen the inference and to corroborate the presumption of marriage- resulting from such cohabitation, and as explanatory thereof, and therefore as part of the res gesta.

How far the principle of res gesta extends was somewhat discussed in Badger v. Badger, supra, by Finch, J., but the point here was not decided. I do not see that these declarations, in the-face of evidence that there never was any cohabitation between the parties, can be claimed to have been part of the res gesta even under the most extended definition of that term, and some other ground must be sought for their admission, if they be competent at all.

It seems to me that they are competent as hearsay evidence in a case of pedigree. Such a case is a well known and recognized exception to the general rule excluding hearsay evidence. This-case involves without doubt a question of pedigree simply. It is what is termed in the books a purely genealogical controversy. Peter 0. Eisenlord is upon the plaintiff's claim the common ancestor of all the parties, while the defendants only deny the plaintiff’s relationship to him. The sole question involved is as to this relationship of the plaintiff, and that depends upon the fact of a marriage having taken place between Eisenlord and the plaintiff's mother before his birth. The exception regarding the admission of hearsay evidence in case of pedigree is not confined to ancient facts, but extends also to matters of pedigree which have recently transpired; and the hearsay as to deceased witnesses is admitted as to facts which have occurred in the presence of living witnesses. 1 Ph. on Ev., Cow., H. & Edwds’ notes, p. 248 ; Vowles v. Young, 13 Yes., 140. Matters of pedigree consist of descent and relationship, evidence of declarations of particular facts such as births, marriages and deaths. Id., 251.

In eases of pedigree hearsay evidence of persons who from their situation were likely to know is admissible when the person making them is dead. Jackson ex dem. Ross v. Cooley, 8 Johns., 128.

It is not the question whether such evidence is sufficient to-prove the marriage, but only whether it is competent. In many cases it will be readily seen such evidence may under the circumstances be the only evidence which can be obtained, and there-might be no evidence of cohabitation. In those cases the declarations might be less open to criticism and entitled to much greater credence than where the facts were recent and other evidence readily attainable, if the truth were in that direction. The weight to be given this kind of evidence depends upon the facts surrounding each particular case. It is plain, however, that in cases of pedigree the declarations to be admissible need not be a part of the res gestae, for if they were they would be admissible on that ground irrespective of any question of their admissibility as in a case of pedigree. The exception to the general rule in the latter case takes a wide range. Traditionary declarations become the best evidence sometimes, when those best acquainted with the fact are dead. When derived from those who are most likely to know the truth and are under no bias to misrepresent the fact, such evidence affords a reasonable presumption of the truth. Starkie on Ev., p. 47 (9th Am. Ed., 1879).

Upon questions of pedigree, i. e., in a controversy merely genealogical, hearsay evidence is allowed as to the time of birth of a certain party, as to a marriage, death, legitimacy or the reverse, consanguinity generally and particular degrees thereof and of affinity.' Per Knight-Bmce, V. Chan., in Shields v. Boucher, 1 De G. & Sm., 40-52.

The term pedigree, says Greenleaf, embraces not only descent and relationship, but also the facts of birth, marriage and death, and the times when these events happened, and the rule permits hearsay evidence of the declarations of deceased -members of the family upon these points in any case involving pedigree. 1 Greenl. on Ev., §§ 103, 104.

The declarations, to be admissible, need not be upon the knowledge of the declarant. If this were so the main object of permitting hearsay evidence would be frustrated, as it seldom happens that the declarations of deceased relations embrace matters within their own personal knowledge. Thus evidence that a deceased member of the family said that he heard from others of his family the facts which he states, is admissible. 1 Whar. on Ev., § 205; Doe ex dem. Banning v. Griffin, 15 East, 293 ; Doe ex dem. Fuller v. Randall, 2 Moore & Payne, 20. The evidence is, of course, not rendered less admissible where the declarant knows the fact which he declares. For the purpose of proving a marriage in cases of pedigree, where the object is to trace relationship, the declarations of deceased members of the family are competent. 1 Whar. Ev,, § 212.

It has been stated that declarations in regard to particular facts are not competent. This is true in cases where proof of a custom, right of way, of common and the like is offered. But in a caso of pedigree it is always a particular'fact that is to be proved and in relation to which the declarations of the deceased person are offered, and in such cases the particular facts stated, such as birth (place or time, where material), marriage and death are competent. 1 Ph. Ev., C., H. & Edwds.’ notes, m. p., 251; 1 Whart on Ev., § 209.

In respect to such proof of particular facts, it has been said that a birth, however, from a single woman, a birth from a married woman, a death, a marriage, is a particular fact or a single act which, of course, is provable by hearsay (hearsay from a proper quarter) on a question of pedigree.” Per V. Chan. Knight-Bruce in Shields v. Boucher, supra.

The only case looking to the contrary that I have found is Westfield v. Warren, 3 Halsted (N. J.), 249, where Ewing, C. J., said that where marriage was to be shown as a substantive, -independent fact, it was within one of the exceptions to the general rule and that hearsay evidence could- not be received. The case was one regarding the settlement of a pauper and might perhaps have been placed upon the ground that it was not a case of pedigree at all. In Rex v. Erith, 8 East, 539, Chief Justice Ellen-borough held, in a case of a settlement of a pauper, that it was .not a case of pedigree, but simply a question as to -what place an undisputed birth derived from acknowledged parents had taken place in.

I think it entirely clear that from the nature of the case, as well as upon authority, a case of pedigree forms an exception to the general rule as to proof of a particular fact by hearsay, reputation or tradition. As to what is a case of pedigree an examination of the question shows that a case is not necessarily one of that kind because it may involve questions of birth, parentage, age or relationship. Where these questions are merely incidental and the judgment will simply establish a debt or a person’s liability on a contract, or his proper settlement as a pauper and things of that nature, the case is not one of pedigree, although questions of marriage, legitimacy, death or birth are incidentally inquired of. Whittuck v. Waters, 4 C. & P., 375.

Thus in Haines v. Guthrie, L. R., 13 Q. B, D., 818, it was held both in the Queen’s Bench Division and in the court of appeal that declarations of a deceased father were not admissible in evidence to prove the age of his son who had been sued for the price of a horse sold him, and who had set up the defense of infancy. They would have been admissible, the court stated, if the case had been one of pedigree. Brett, M. R., in the course of his opinion in the court of appeal, shows the absence of those facts which make up a case of pedigree, for he says, “What the family of the defendant is is immaterial, whose son he is is immaterial, whether he is a legitimate or an illegitimate son is immaterial, and whether he is an elder or a younger son is immaterial; no question of family is raised in the case.”

It simply involved the point of the age of a defendant for the purpose of thereby determining his liability upon a contract which he had made, and upon which, if of age, he was liable. The judgment would in such case establish no fact in any contest the defendant might have in regard to the property depending upon his being a member of his father’s family and his age at any particular time. It was not at all a genealogical controversy, but a mere collateral issue, and hence the rule in pedigree cases did not apply. In the case at bar, however, the case is solely one of pedigree, and the evidence must be judged of with regard to this fact.

The case of In re Taylor, 9 Paige, 611, where the chancellor held that the declarations of one of the parties made after the co habitation had ceased could not be admitted in evidence, was not a pedigree case, but only involved the appointment of a committee for the father, who was insane, and such declarations were held inadmissible as not being a part of the res gestae.

A careful examination of the question has led me to the conclusion that the evidence of Flanders and Saltsman, regarding Eisenlord’s declarations, should have been received as in a case of pedigree. Other evidence, of course, may be offered that may be definite enough to be competent, though most of what was offered, other than that to which I have alluded, was altogether too vague to be admissible. It identified no one and really amounted to nothing.

Although admissible, the evidence is liable to grave suspicion. Indeed, we are bound to say that this whole case presents itself as full of suspicion. The silence of the woman during all these years as to the marriage, silence which was continued until the death of her alleged husband, is in and of itself a suspicious fact. Admissions of a marriage are under such circumstances most unsatisfactory and open to grave doubt. If such declarations were in truth ever made, there are many motives which it is impossible to fathom, and which may at the same time operate upon an individual and induce him to make an admission of this kind when it is wholly untrue. Where the facts are of comparatively recent occurrence, and the alleged declarations of the deceased are at war with his known actions during his life, and where there was no cohabitation or recognition of the party as wife or husband, it may be averred that the evidence is to be looked upon with very great distrust.

Still, within the authorities, the evidence is competent. Under our rulings, there may be evidence enough in the case to require its submission to a jury.

The judgment must be reversed and a new trial granted, costs to abide event.

All concur; Andrews and Finch, JJ., on first two grounds; Gray, J., absent.


author: Van Wyck, J.

text:
    Henry A. W. Wood, Resp’t, v. Edward Gordon, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    1. Pleading—Counterclaim—Reply.
    When the new matter as set forth in an answer approaches too closely the boundary line between new matter constituting an affirmative defense and new matter setting forth a counterclaim, the pleader must label his plea if he desires a reply without an order of the court; a prayer for affirmative relief is not sufficient to force a reply.
    2. Lease—Mistake—Reformation.
    In an action against the defendant as a hold-over tenant, he claimed that his lease was to be for twelve and a half months to October i, 1890, instead of September 15th, as stated therein. He testified that he signed the lease without reading it after stating that he would take the premises for a year, or to September 15th, and subsequently said to plaintiff’s agent: “My term is still twelve and a half months,” and that the agent replied in the affirmative and showed him an endorsement on the lease to that effect. This was denied by the agent. Held, that the evidence did not justify a reformation or modification of the lease, and that a direction of a verdict for the plaintiff was correct.

      Appeal from judgment in favor of plaintiff, entered on verdict directed by the court.

      Charles De Hart Brower, for pl’ff; James P. Campbell, for deft.
   Van Wyck, J.

This is an appeal by defendant from a judgment entered upon a verdict directed against him by the court. The action was against defendant, as tenant holding over after the expiration of his term as fixed in a written lease under seal, which Contained the following recitals, that the premises are let “from September 15, 1889, to September 1, 1890;” to pay “said yearly rent” and “ on paying said yearly rent.” Upon the back of the lease is endorsed : “Henry A. Wise Wood to Edward Gordon. Lease, dated August —, 1889. Term, twelve and one-half months; begins September 15, 1889, terminates September 1, 1890; annual rent, $600.”

The answer denies all the allegations of the complaint, and, among other things, affirmatively alleges that the written lease which was signed by defendant was drawn and prepared by plaintiff’s agent, who, at the time that it was signed by defendant, stated to him that it was a lease for the term of twelve and a half months, and that upon such assurance he accepted the lease, occupied the premises, and paid the rent, and the answer prays that any written instrument, expressing any different term of hiring, be modified so as to express the real agreement. At the opening of the trial defendant moved for judgment on the pleadings; upon what ground does not appear from the record, but his points indicate that it was for failure of plaintiff to reply or demur to the answer. This motion was properly denied. It seems safe to say that a rule has been established, which requires that when the new matter as set forth in an answer approaches too closely the line, by no means distinctly visible at all times, called the boundary line, between new matter constituting an affimative defense and new matter setting forth a counterclaim, the pleader must label his plea, if he desires or expects a reply without an order from the court, and so, too, it is held'that the defendant’s prayer for affirmative equitable relief will not alone be sufficiently explicit to force a reply, but that he must characterize his plea as a counterclaim before he can success- . fully complain of the plaintiff’s failure to demur or reply. This rule, which is enforced against the defendant to prevent his technical effort for judgment without trial, will be turned to his aid when he is met at trial by the plaintiff’s objection to his giving proofs of his allegations in order to secure his affirmative equitable relief, for he will then be allowed to make such proof and obtain such relief, notwithstanding that he has not labelled his plea as a counterclaim.

Another complaint from this defendant is, that he was not allowed to go to the jury. The trial judge was very considerate of defendant’s interest and allowed him to give evidence to substantiate his contention, and, after hearing him, assumed control of the case and properly directed a verdict against him. Mr. Brower, who is the person alleged in the answer to be the agent by whom the lease was drawn and prepared, testifies that he was the plaintiff’s agent in the management of this house and two others; that he drew and prepared the lease in question; that he did not have authority to sign it for plaintiff, who signed it in person, and handed it to him to deliver to defendant. If "this testimony should be absolutely eliminated from the case, all evidence of authority by Mr. Brower to act for plaintiff would disappear, and if allowed to stand it would prove affirmatively that he had no authority to sign the lease, and, of course, none to alter or modify it; and if he had done so in writing and by express terms it could not avail the defendant in the absence of knowledge by plaintiff.

An examination of defendant’s testimony had best be made by quoting from it quite fully. The defendant says that he saw Mr. Brower but twice, first on September 3, 1889, and again on 11th of the same month, and continues: “ Upon the 3d of September, I called upon Mr. Brower * * * and told him I was the party who had rented the flat * * * then he (Brower) produced a form of lease dated August 15, 1889, to run to September 1, 1890; it was to run from August 15, 1889, to September 1, 1890. I said to Mr. Brower, that I had not rented the flat from Mr. Judge for that term, that I had taken the lease of it for one year from September 15,1889, to September 15,1890. Mr. Brower said, You had better let me give it to you from the first. I said No, sir, my rent is paid where I am occupying until September 15, and I will take from September 15 to September 15; he said: All right; I will have the lease altered to that effect.” So it comes from defendant’s own lips that his understanding was that his term was to expire on September 15, 1890, and yet he does not vacate the premises until September 30, fifteen days after the term was to expire, as he originally understood it, and now he seeks by what in nature is a suit in equity to reform the lease by having it read so as the term will have expired not on September 15, but on October 1, 1890, one day after he vacated the premises. The defendant continues in his testimony, “ and the next interview I had with him (Brower) was upon the 11th of September, when I went to his office and laid my check for fifty dollars upon his desk, and said there is the first month’s rent; I then without looking at the lease, I then signed the lease.”

Taking the defendant’s testimony as true down to this point, it would follow that he then thought he had signed a lease without reading it, which made his term for twelve months, that is from September 15,1889, to September 15, 1890, and had paid his rent for the first month. The defendant’s testimony continues: “After I had the lease signed, Mr. Brower said, Mr. Gordon, I make it a practice to collect all mj^ rents upon the first of the month, so that I can have matters straightened out by the 15th, and make my returns promptly ; I would like if upon the 15th of October you will send me your check for $25, which is for a half month’s rent; I said, Mr. Brower, that would still constitute that half; he said, Yes, that would still constitute that half month; I said to him, My term is still twelve and a half months, is it not? he said, Yes.” It appears from his testimony that a moment before when he signed the lease he thought it had been drawn in accordance "with his instructions of September 3d, and that his term was for twelve months. Defend- ' ant’s testimony continues : “I then picked up the lease and looked at it and said, that is not stated here; then he called my attention to the back of the lease and said; But it is so stated there; this is simply an agreement or paper which forces you to keep the flat for not less than one year.” Of course all of this is denied by Mr. Brower. The defendant certainly has not made out a case which would justify either court or jury in determining that he was entitled to have the written lease so modified or reformed as to read that the letting and hiring was for a term of twelve and a half months, i. e., from September 15, 1889, to October 1,1890, instead of a term from September 15, 1889, to September 1, 1890, as is expressly recited in the lease. The defendant admits that he held and occupied the premises until September 30, 1890, which was thirty days after the term provided for in the lease had expired, and hence was what is called a hold-over tenant, and, upon the landlord’s election, is liable for the month’s rent of fifty dollars sued for.

Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs.


text:
    Compton, Resp’t, v. Heissenbuttal et al., App’lts.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    Contract—Breach—Damages.
    Under a contract of affreightment defendants agreed to pay “all wharf-age at place of consignment.” They having failed to do so, after notice, the wharfinger took proceedings in rem, under which the vessel was seized and on notice thereof the defendants agreed to pay the bill or bond the vessel, but did neither. Plaintiff, ten days after the seizure, paid the wharfage and expenses to regain possession of the vessel. Held, that the amount so paid and the damage suffered by plaintiff by the detention of the vessel were recoverable under the provision of the contract; that plaintiff w'as justified in relying on the promise of defendants and waiting a reasonable time to enable them to defend before releasing the vessel by himself paying the claim.
    Appeal from judgment entered upon the verdict of a jury.

      Putney, Bishop & Slade, for app’lts; Hyland & Zabriskie, for resp’t.
   Van Wyck, J.

Under a contract of affreightment the plaintiff agreed to transport for defendants a cargo of coal, by his canal boat “ John Le Yally,” from South Amboy to their yard at Gowanus Creek, Brooldyn, and they were to pay the freight and “ all wharfage at place of consignment.” In March, 1882, the boat with cargo reported at place of consignment alongside of the dock of one Wood, and was by defendants detained there for ten days, entitling Wood to ten dollars for wharfage, and then, by defendants’ instruction, she proceeded to New York with cargo still aboard. November, 1882, Wood presents his bill of ten*dollars to plaintiff, who informs him that defendants had agreed to pay it, and asks and obtains a few days in which to inform them. He sees defendant Heissenbuttal, who says: “I will settle the bill You need not look any further about the bill.” Ten days after-wards the United States marshal seizes the boat in proceedings in rem, instigated by Wood for the wharfage. Whereupon plaintiff again visits Heissenbuttal, who tells him: “ You need not give yourself any further trouble about it; I will either pay the bill or bond the vessel, so that you can have it; ” neither of which he does, and ten days after the seizure the plaintiff pays the marshal $55.54 costs and expenses of seizure and detention, and the wharfage of ten dollars, and thereby regains possession of his boat; and sues for these two sums, and also for $100 for the loss of the use of boat for the ten days; all of which, together with seventy-seven dollars interest, makes $242.54, the amount of the verdict. The appellant insists that the measure of damages which should prevail in this case precludes the recovery of more than ten dollars, the wharfage, and' interest thereon, and that the $55.54, the expenses and costs of regaining possession of his boat, which the plaintiff claims as damages, is too remote, and of course that the $100 for loss of the use of boat for the ten days is damage still further removed from the limit line.

By their express agreement to pay “ all wharfage ” the defendants assumed, so far as the plaintiff is concerned, a primary obligation, to which the liability of the plaintiff or his boat, is secondary, and although as to the wharfinger the boat itself can be held liable, and to that end he may, by proceedings in rem, have her seized and held by the executive officer of the United States court until it decrees her sale; still the defendants have in effect by their express contract agreed to avert this very disaster, by paying the wharfage, for they are presumed to know the exact course which the law will pursue in case of their failure to do so. The rule of law is that persons will be presumed to have contemplated that such damages will flow from their default as persons of ordinary care and caution would reasonably expect to result from their failure and neglect to perform some act which another is under contract to perform, and with whom and in whose stead they have agreed to perform it. The seizure and detention of a vessel is to be reasonably expected by those who have failed to pay the wharfage due for the time which she has laid alongside of the dock, and as the plaintiff first notified the defendants that the dock owner had presented a claim for wharfage, it was their duty to pay it as they had originally agreed and, upon failure to do so are liable to him for his necessary costs and expenses in releasing her from such seizure. When again they were notified of the seizure, requested to pay or defend, and promised to do either the one or the other, the plaintiff was justified in relying upon such promise and waiting a reasonable time in order that they might have the opportunity to which they were entitled of defending, before the plaintiff was called upon to release her from the seizure and regain her possession, by himself paying the claims against her, and so put a stop to all further damage.

The verdict of a jury should not be disturbed which finds that the plaintiff did so rely and that ten days was such reasonable time under the circumstances, and awards the usable, value of the boat for that time as damages for her detention, and also the costs and expenses of relieving her from seizure.

Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs. '


author: McGown, J.

text:
    Amelia Gregory, Resp’t, v. August Fichtner, Ex’r, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    Conversion—Proof of.
    In an action for conversion plaintiff testified as to her ownership of the jewelry in question and its value, and a witness testified to a demand for the property and refusal. Defendant did not cross-examine plaintiff as to her knowledge of the value or offer any evidence. Held, that the evidence was sufficient to sustain a verdict for plaintiff.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Hiram Ketcham, for resp’t; Straley, Hasbrouch & Schloeder, for app’lt.

       Reversed, ante, 192.

   McGown, J.

We do not find, after a careful examination of the appeal book herein, any sufficient reason why we should disturb the judgment entered herein on the verdict of the jury. The action was for conversion of several articles of jewelry alleged to be owned by the plaintiff. The action was commenced on or about March 17, 1885. The plaintiff testified as to her ownership of the property and as to its value. Defendant declined to cross-examine the plaintiff as to her knowledge of its value, and offered no evidence to contradict her testimony on that point. Plaintiff’s witness, Minna Walters, testified that she called upon the defendant with the plaintiff, in the latter part of February or the early part of March, 1885, and plaintiff then said, “ Herman, will you please give me the five diamond rings and all my jewelry,” etc. The defendant “ refused to give it to her,” and that he (defendant) said “ that whatever he had he would keep, and that she should go.away from there.”

The cause of action accrued when the demand was made and the return and delivery of the property refused. After the plaintiff had rested and the motion to dismiss had been denied, defendant's counsel stated that he had no testimony to offer. The trial justice fairly and fully, in his charge, submitted all the evidence and the issues of fact to the jury, who rendered a verdict in favor of the plaintiff for the sum of $952. The rulings of the trial justice, to which exceptions were taken by defendant’s counsel, were correct, and the exceptions thereto are without merit. The jury passed on the questions of fact submitted, namely, as to the plaintiff’s ownership of the property, as to the demand and as to its value, and there was sufficient evidence to sustain their verdict.

The judgment and the order denying the motion for a new trial appealed from, must be affirmed, with costs to the respondent.

Ehrlich, Ch. J., concurs.


author: Ehrlich, Ch. J.

text:
    Robert J. A. Kreuzen, Resp’t, v. The Forty-second Street, Manhattanville & St. Nicholas Avenue R. R. Co., App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    1. Negligence—Street railroads.
    While plaintiff was riding on one of defendant’s cars the driver jumped off and the conductor ran through the car shouting that he was not going to be killed. Plaintiff followed him to the platform, and was then knocked off by a collision of some kind not explained. Held, that the facts, unexplained, showed a clear breach of duty on the part of the carrier, affirmatively establishing negligence.
    .2. Same—Release.
    A release of damages, until disaffirmed by tendering back the consideration received therefor, is valid even against an attorney’s lien where the procedure necessary to protect his interests has not been followed.
    Appeal from entered on verdict in favor of plaintiff

      William C. Trull, for app’lt; S. F. Hyman, for resp’t.
   Ehrlich, Ch. J.

The evidence shows that the driver jumped off and the conductor ran towards the rear of the car shouting that he was not going to be killed, and as the plaintiff followed him out and had his foot on the back platform he was knocked off and severely injured. What knocked him off does not distinctly appear, but it was evidently a collision between the car and something else and not of a sudden and unexpected character, but something likely to happen. The danger must have been imminent, for it caused the driver and conductor to abandon all control of the car, leaving the occupants to their fate.

The plaintiff could not explain the whys and wherefores of the . accident. He found everything in confusion, and that those having control were seeking safety in flight, and naturally undertook to follow their example, and before he discovered the real cause of the excitement he was thrown down, stunned and injured. It was an unusual occurrence, one which the driver and conductor might have explained, but did not. Unexplained, the facts proved a clear breach of duty on the part of the carrier, affirmatively establishing negligence. Shearman & Red. on Neg., § 59.

The rule that negligence will not ordinarily be implied from the mere occurrence of an accident does not therefore apply. It was not error on the part of the trial judge in declining to charge that it did apply to this case. All the other requests were properly disposed of, and the charge itself was unobjectionable.

The difficulty in the case, is presented by the. general release executed by the plaintiff and set up in the supplemental answer. No fraud in respect thereto was practiced on the plaintiff. He received all he expected to get, and the only grievance is that his .attorney was not paid. The law prescribes the manner in which the attorney may protect his interest in the litigation, and the procedure is stated in Oliwill v. Vanderhalven, 26 N. Y. State Rep., 115 ; 7 N. Y. Supp., 99.

This practice was not followed, so that the attorney is not in •a position to assert his rights upon this appeal

The plaintiff did not disaffirm, the release by tendering. back the consideration for it, and cannot sustain his recovery. Cobb v. Hatfield, 46 N. Y., 533 ; McMichael v. Kilmer, 76 id., 46 ; Schiffer v. Dietz, 83 id., 300; Gould v. The Cayuga Bank, 86 id., 75.

The release unrescinded for the fraud alleged was valid as to the plaintiff and effectual against the attorney’s lien for nonconformity to prescribed practice.

For these reasons the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Wyck, J., concurs.


text:
    Matthew C. Grier et al., Ex’rs, Resp’ts, v. Hazard, Hazard & Co., App’lts.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    1. Trial—Direction of verdict.
    A statement by defendant's attorney at the close of the case that he does not see any question of fact in the case is equivalent to an admission, and authorizes the court to direct a verdict.
    2. Corporations—Liable for work ordered by corporators.
    Where work is ordered by corporators in contemplation of the corporate formation and goes to its benefit, the corporation is liable therefor.
    Appeal from judgment entered on verdict in favor of plaintiffs.

      Gruber, Bard & Landon, for app’lts; Burnett & Whitney, for resp’ts.
   Ehrlich, Ch. J.

At the conclusion of the trial the defendants attorney said he did not see any question of fact in the case, which statement is tantamount to an admission on which the court was. at liberty to act The court is not bound to discover a point or objection in the case when counsel frankly concede that none exist. The court properly acted on the concession and directed a verdict No objection was raised by demurrer, or in the answer, as to the capacity of the executors to sue on the contract alleged, and that objection has therefore been waived. Code, § 499.

The work was evidently done in contemplation of the corporate formation, and went to its benefit Mr. Hazard, who ordered the work, seems to think he should not pay for it because the corporation got the benefit of it, and the corporation thinks it ought not to pay for the work because Hazard ordered it This may sound well to all concerned except the plaintiffs, who are entitled to-their earnings.

Upon the entire case it is apparent that no injustice has been done, and that the judgment should be affirmed, with costs.

Van Wyck, J., concurs.


text:
    The H. B. Smith Company, Resp’t, v. Charles P. Chapin App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    New trial—Verdict contrary to instructions.
    In an action upon a contract the defendant alleged that it was made by reason of false representations, and that a sum claimed to have been paid thereon was not a payment, but a loan to plaintiff. The court charged that if the jury found the misrepresentations were made they should find a verdict for defendant for the amount of the loan; but if not, they should find for plaintiff. The jury returned a verdict for defendant. Held, that in view of the instructions and the verdict rendered the trial court properly ordered a new trial on the minutes.
    This action was brought to recover the contract price, and for -extra work, for erecting in the house of the defendant “ a steam and hot water heating apparatus.” The contract was in writing, and the amount to be paid under said contract was the sum of .$870. The sum of $35.80 was claimed for extra work ordered ■by the defendant
    The plaintiff alleges that -$500 had been paid on account, and •claims the balance due of $405.80, besides interest
    The defendant admits the making of the contract, but alleges that certain representations and statements were made to defendant relating to the merits and ability of said apparatus to do the heating of defendant’s house, which statements and representations were false, and alleges that the sum of $500, referred to as having -been paid on account of the contract, was not a payment, but was •a loan and an advance made to plaintiff by defendant
    The action came on for trial on December 13, 1889, and after the charge of the trial justice, which was to the effect that if the jury found that the misrepresentations alleged were made, plaintiff could not recover, and they should find a verdict for defendant for the amount of such loan; but if no misrepresentations were made, they should find a verdict for plaintiff for the amount claimed, the matter was submitted to the jury upon all the evidence taken, who returned a verdict in favor of the defendant The plaintiff moved for a new trial on the minutes, and the trial justice granted the motion; and on the 11th day of February, 1890, an order was entered setting aside the verdict and granting a new trial. From this order defendant appeals.

      Smith, Bowman & Close, for resp’t; Remson & Parsons, for app’lt.
   McGown, J.

We have carefully examined the case on appeal, also the exceptions therein, and considering the instructions given by the trial justice in his charge to the jury, and also the verdict rendered herein, we think that the action taken by the trial justice in granting the order appealed from was a correct and proper one under the circumstances as disclosed upon the trial, and that the trial justice exercised a proper discretion in granting such order, and that the rights of each of the parties to the action would be best served by a new trial herein, in accordance with said order.

The order appealed from will, therefore, be affirmed, with costs-to the appellant

Ehrlich, Ch. J., and Yah Wyck, J., concur.


text:
    Adolph Van Praag et al., Resp’ts, v. James A. Flack, Sheriff, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    Sheriffs—Liability for failure to return execution.
    In an action against a sheriff for failure to return an execution within the time required by law, the amount of the execution is the measure of damage, unless it appears that the execution debtor had no property out of which the debt could be collected. Where there appears to have been some property, and the sheriff does not undertake to show that it was of less value than the execution or exempt from levy and sale, a verdict for the amount of the execution will not be disturbed as against the weight of evidence.
    This action was brought to recover from the defendant the sum of $350.63 upon a judgment recovered in this court by the plaintiffs, against one Frederick Schurtz, on March 21, 1890, upon which judgment an execution was issued and delivered on March 21, 1890, to the defendant, then sheriff of said city and county, against the property of said Schurtz, directing said sheriff to satisfy the said judgment out of the personal property of said Schurtz, etc., and to return said execution to the clerk of this court within sixty days after the receipt thereof by said sheriff, upon the ground that the said sheriff had failed to return the execution within sixty days,’ as required therein.
    Upon the trial the following facts were admitted: The recovery of the judgment as above stated, and that an execution was issued thereon and delivered to the defendant on March 21,1890, for the sum of $350.63.
    The defendant, in his answer, admits that more than sixty days, have elapsed since the delivery of the execution to him, and as a further and separate defense alleges that he delivered said execution to one of his general deputies, and, in substance, further alleges that his said deputy made a levy, and that the attorney for the plaintiff therein instructed said deputy to collect said judgment in monthly installments of fifty dollars each, and to hold said execution until the whole amount thereof was collected in full.
    The action was brought before Justice Griegerich and a jury on the 9th day of December, 1890. Evidence was given on the part of the plaintiff, and also the defendant, as to the quantity and nature of the property in the possession of Schurtz, the defendant in - such judgment, at the date of the delivery of the execution to the sheriff, and also as to the facts whether or not the attorney for the plaintiff who issued the execution had directed or authorized the deputy to hold said execution that had been-delivered, and to collect the same in installments, and to hold and not return the same within the sixty days, as required by said execution.
    After the testimony had been closed on each side, it was submitted to the jury under the charge of the trial justice, and the jury rendered their verdict in favor of the plaintiff for the sum of $361.88, the amount of the judgment and interest
    A motion was made by the attorney of the defendant to have the verdict set aside, upon the ground that it was against the weight of evidence, and the law, and for a new trial, which motion was denied, and an order was entered denying said motion, from which judgment and order defendant appeals.

      George W. Gallinger, for resp’ts ; David Tim, for app’lt.
   McGown, J.

The only questions of fact in dispute herein, upon which it was necessary for the jury to pass, were as to whether there 'was any property in the possession of Schurtz, the defendant in the judgment, at the date of the receipt of the execution by the sheriff, subject to levy and sale under the execution, and as to whether the attorney of the plaintiffs had authorized or requested the deputy sheriff Williams not to return the execution within the time specified.

Evidence was introduced on each of the above questions on the part of the plaintiff and the defendant, and the trial justice in his charge to the jury directed their attention to each of the questions in dispute, and to the testimony of each of the witnesses who testified in relation thereto, and we think he fully and fairly presented the entire case to the jury. He also called the attention of the jury to the contradictory nature of the evidence. In fact, instructed the jury that if they believed the testimony adduced on the part of the defendant, that their verdict must be for the defendant, and that if they believed the testimony on the part of the plaintiff, then that their verdict must be for the plaintiff. Thus the jury necessarily had to pass upon the credibility of the several witnesses.

The jury had a right to credit the testimony of any of the witnesses, or to discredit their testimony unless corroborated. The statute has given an action to a creditor against a sheriff for not returning an execution, and the settled doctrine of the courts is, that where it has not been returned, he, the sheriff, is prima facie liable for the debt, but he may mitigate the damages by showing that the defendant had no property on which the judgment could be levied. See Swezey v. Lott, Sheriff, 21 N. Y. 484.

There was evidence on the part of the plaintiff, and also of the defendant, that there was some property in the possession of Schurtz, the defendant in the judgment, on March 21, 1890, and the defendant herein did not undertake to prove that the property found on the premises of Schurtz was of less value than the execution, nor did he prove that such property was exempt from such levy and sale. As to whether the levy was actually made, the testimony of the defendant’s own witnesses is contradictory. The amount of the execution is the measure of damages, unless it appears that the defendant in the judgment had no property out of which the plaintiff herein could have collected the debt Bowman v. Cornell, Sheriff. 39 Barb., 69.

And as to whether the defendant had no property on which the j adgment could be levied was a question of fact, to be determined by the jury upon the evidence. The jury passed upon all the questions of fact submitted to it, and found in favor of the plaintiff, and we do not find any good reason for disturbing their verdict, rendered upon a conflict of testimony, which it was the special province of the jury to decide. Nor do we think that the verdict was against the weight of evidence.

The verdict of a jury will only be disturbed when it is clearly against the weight of evidence, or where there has been some improper or illegal act on the part of the jury. The rulings of the trial justice we think were correct, and the" exceptions throughout are without merit

The judgment and order appealed from must be affirmed, with costs to the respondent.

Ehrlich, Ch. J., and Van Wyck, J., concur.


text:
    Mary A. Hall, Resp’t, v. Thomas Canary, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    Appeal—Verdict.
    Where the issues were entirely issues of fact, the evidence conflicting, and the case fully and fairly submitted by the trial justice in his charge, the verdict should not be disturbed by the appellate court.
    This action was brought to recover the sum of $548.46 for feed, etc.,’ alleged to have been sold and delivered by plaintiff to the defendant, between the 1st and 17tb days of May, 1890. The defendant, at fol. 16 of printed case, admits the delivery “of the goods mentioned in the complaint,” and sets up as a partial defense that the plaintiff charged more than the-market price for the goods; that the goods were not of the best quality, as agreed upon; that defendant suffered loss by reason of the inferior quality of the goods delivered, and asks for judgment on the counterclaim for the sum of $350.
    The action came on for trial before Justice Van Wyck and a jury on the 14th day of November, 1890. Evidence was offered on the part of the plaintiff and defendant as to the value of the goods, and on this point the evidence was contradictory. The case was submitted to the jury under the charge of the trial justice, and the jury rendered a verdict in favor of the plaintiff for $500.
    Defendant’s counsel moved for a new trial on the minutes, exceptions, etc., which motion was denied, and on the 17th day of November an order was entered on said motion denying said motion. From that order defendant appeals.

      Edward Browne, for resp’t; Albert L. Sire, for app’lt.
   McGown, J.

We have carefully examined the evidence herein and also the exceptions taken upon the trial, and we do not consider the exceptions well taken, but think they are without merit The issues raised were entirely issues of fact, the evidence thereon being contradictory, to be passed upon by the jury. Such issues were fully and fairly submitted to the jury by the trial justice in. his charge, and the jury rendered a verdict in favor of the plaintiff for the sum of $500.

. The amount claimed by the plaintiff was the sum of $548.46, with interest. Evidence was introduced on both sides as to the value of the goods, the defendant stating, on his cross-examination, that “ if the goods were all right as to quality, the prices would not be excessive.” The jury, in rendering their verdict for $500, instead of for the whole amount claimed, $548.46, evidently passed upon the evidence as to value, and made a deduction in favor of defendant for the sum of $48.46, thus finding on the question of the value of said goods only the sum of $500.

We do not find any reason for interfering with the verdict as rendered, and the judgment appealed from must be affirmed, with costs to the appellant.

Ehrlich, Ch. J., concurs.