author: Lewis, J.

text:
    The People, Resp'ts, v. Carson J. Sheldon et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Conspiracy—Restraint on trade.
    Defendants, who were retail coal dealers, formed an association called the Lockport Coal Exchange, the members of which were required to sell at prices fixed by the association. Soliciting business, except in a certain way, was prohibited, and dealers were not permitted to sell in large quantities at reduced prices, and penalties for disobedience were prescribed. Prices could only be advanced or reduced by a five-sixths vote One dealer did not join, and, on notice of this fact being given to the wholesale dealers who furnished coal for the city, they refused to supply him. Held, that defendants were properly convicted of a conspiracy to commit acts injurious to trade.
    Appeal from a judgment of the Niagara county sessions, convicting the defendants of the crime of conspiracy, and from an order of that court denying the defendants’ motion for a new trial.

      K M. Ashley, for app’lts ;

      P. F King, for resp’ts.
   Lewis, J.

The defendants were convicted in the Niagara county sessions of the crime of conspiring together to commit acts injurious to trade. They were retail dealers in coal in the city of Lockport, and with eight or ten other dealers in coal in that city they organized an association called the Lockport Coal Exchange. They adopted a constitution and by-laws, the provisions of which are very voluminous. It is not necessary to rehearse them. Many of them were innocent and to be commended. The main purpose, however, of the association was to fix prices below which coal should not be retailed in Lockport and its vicinity.

The scheme of the organization, if fully carried out, practically compelled every dealer of coal in that city to join the association and regulate his business by its constitution and by-laws. They were required to sell coal at prices fixed, from time to time, by a vote of the members of the association. The members were required, when joining the organization, to pay an initiation fee of $100 and to pay annual dues of five dollars.

Penalties were prescribed for a violation of the constitution and by-laws of the association. Soliciting business was prohibited, except in the manner prescribed in the constitution. Dealers were not permitted to take club orders of associated buyers at reduced prices. Under the head of “Discipline,” it was provided that should a member be charged with violating any of the provisions of the by-laws or any rule or resolution of the exchange, he should be summoned before the secretary to answer the charge. If the secretary should decide to sustain the charge, the member was to be declared in default and considered in default until five-sixths of the members should vote to reinstate him. By being in default, he forfeited all rights to the money, property or other-value held by the exchange. If charged with violating any provision of the constitution or by-laws, the member was required to-mate affidavit that he had in no instance sold or delivered coal for which he had not received the full price at which the majority of the other members were selling coal of the same size, at the-same time, and that he had not directly or indirectly given any rebate, commission or other concession equivalent to cash, thereby actually reducing the established market price made by the Lock-port Coal Exchange. “ When a member defies the exchange by persistent wrong-doing, he is declared to be in default and, if persistent, the secretary shall notify the shippers of coal to the Lock-port market that the said member is in default and persistent and for this reason is not entitled to the privileges of membership in the Lockport Coal Exchange.”

The constitution further provided that the price of coal at retail should, as far as practicable, be kept uniform, and it required a five-sixth vote of all members of the Exchange, at any meeting, to advance or reduce the retail price of coal; no price was to be made at any time amounting to more than a fair and reasonable advance over wholesale rates, or that was higher than the current prices of the exchanges at Rochester and Buffalo, when figured upon corresponding freight tariff. Fourteen of the coal dealers of the city joined the association, and they included all the dealers but one in the city. One dealer neglected to qualify as a member.. Notice was given to the wholesale dealers, who furnished coal to the dealers in Lockport, of the failure of said dealer to join the association, and the wholesale dealers receiving such notice, though they had been accustomed theretofore to sell coal to said dealer,, refused thereafter to furnish him with coal. After the organization of the association,- a meeting of the members was held, and they voted to fix the price of certain kinds of coal at $4.75 a ton. Such coal, theretofore, owing to the cutting of prices among the-dealers, had been selling at less than cost; the evidence tended tosh ow that the price of $4.75, fixed by the association, was a fail-price for coal at that time in Lockport. The constitution provided for a secretary and treasurer of the association, who should have-access to the books of the dealers, to enable him to ascertain if they were conforming their business to the rules of the association.

The jury found the defendants guilty, and they were severally sentenced to pay a fine of fifty dollars, or each stand committed to the common jail of Niagara county, not exceeding one day for each dollar of said fine, in case of failure to pay the fine. The question presented by this appeal is whether the defendants were proven guilty of the crime for which they were convicted. It is an important question, especially in view of the large number of similar organizations existing in this country at the present time,. and the important influence they exert upon business affairs. The purpose of the association, if carried out, would undoubtedly have had an important effect upon the coal traffic in the city of Loclcport.

It would have materially affected and practically prevented •competition in one of the necessaries of life. An arbitrary price at which coal should be sold was to be fixed by a majority vote of the members, and every ton of coal was to be sold at the price thus fixed, no more nor no less. A purchaser who desired a large quantity of coal could not obtain better rates than one desiring to purchase a single ton. While the rate which had been fixed by the association, the evidence tended to show, was a reasonable one, the constitution gave them power to change the rates at any time, and there is nothing in the constitution prohibiting their fixing extortionate prices, provided associations of the same character in Buffalo and Rochester should also establish extortionate prices. Trade is defined by Jacobs, in his Law Dictionary, to mean “ Mutual traffic, buying, selling or exchange of articles between members of the same community.”

Bouvier, in his law dictionary, defines trade as “ Any sort of dealing by way of sale or exchange. ”

It was held in the case of the People v. Fisher et al., 14 Wend., 9, that a combination among the journeymen shoemakers of the village of Geneva, for the purpose of regulating the price for manufacturing boots and carrying such rules into effect by overt acts was indictable as a mindemeanor. This was before the passage of the law permitting the orderly and peaceful assembling or co-operation of persons employed in any calling, trade or handicraft for the purpose of obtaining an advance in the rate of wages or compensation, or of maintaining such rate.

In Dewitt Wire Cloth Co. v. New Jersey Wire Cloth Co., 14 N. Y., Sup. 277, in the N. Y. common pleas, special term, it was decided by Judge Pryor that an association of manufacturers of wire cloth formed for the avowed purpose of regulating the price of-the commodity, each of the members stipulating under a heavy penalty that he will not sell at less than a specified rate, was contrary to public policy and illegal.

He refers to a number of authorities which held that whatever destroys, or even restricts any competition in trade, is injurious, if not fatal to it, and that a combination to control prices is illegal.

It was held in Leonard v. Poole, 114 N. Y., 371; 23 St. Rep. 753, that conspiring to unlawfully advance the price of an article of food was unlawful.

In Hooker v. Vandewater, 4 Denio, 349, the proprietors of five several lines of boats engaged in the business of transporting persons and freight on the Brie and Oswego canals entered into an agreement among themselves, fixing the rates of freight and passage upon their boats and to divide the net earnings among themselves according to certain proportions fixed in the articles; it was held to be a combination tending to destroy competition between the several lines engaged in the business and unlawful. Judge Jewett speaking for the court, says: “ The transaction amounted, as I think, to a conspiracy to commit an act injurious to trade, within the legal meaning of the statute denouncing it as a crime, and was, therefore, illegal and void. It is the policy of the law to encourage trade and commerce, and combinations which tend in restraint thereof aré illegal. Agreements made to take trade out of the realms of competition, are against public policy. Santa Clara M. & L. Co. v. Hayes, 76 Cal., 387, even although it may not appear that such agreement did really produce any result detrimental to public interests. Atcheson v. Mallon, 43 N. Y., 147. the case seems to have been fairly submitted to the j ury and they found the defendants to have been guilty of acts which tended to injure trade. We think their verdict was justified by the evidence. The judgment and order appealed from should be affirmed and the case remitted to the Niagara county sessions with directions to proceed theron.

Dwight, P. J., and Macomber, J., concur


source: Caselaw Access Project

author: Macomber. J.

license: Public Domain

text:
    The People ex rel. George A. Benton, District Attorney, Resp't, v. The Court of Sessions of Monroe County, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Criminal law—Courts have no power to suspend sentence after plea OF GUILTY.
    Criminal courts have no power to suspend sentence after a plea or verdict of guilty, except for causes stated in the Code. It is not sufficient cause to show that the prisoner had previously borne a good character ; that he was sorry for his offense and had made money restitution, or that his punishment would be a sore affliction to himself and to the members of his family.
    Appeal by the defendant, the court of sessions of Monroe county, from a final order made and entered at special term, in Rochester, on the 6th day of July, 1892, directing a peremptory writ of mandamus to issue out of the court, directed to the defendant, commanding that the defendant cause to be brought before it the body of one John Attridge, and impose sentence upon him, on his plea of guilty to an indictment for grand larceny in the second degree.

      H. B. Hallock, for app’lt;

      George A. Benton, for resp’t.

       Affirming 46 St. Rep., 255.

   Macomber. J.

One John Attridge was indicted by the grand jury of the Monroe oyer and terminer, in January, 1892, for grand larceny in the second degree, in that, while in the employ of the firm of Brewster, Crittenden & Co., as salesman' and collector, he wrongfully appropriated to his own use the sum of $2,000 of the firm’s money. The case having been sent for trial to the court of sessions of Monroe county, the prisoner was arraigned and pleaded guilty to the indictment. Thereupon, the county judge of Monroe county, presiding at the court of sessions, pronounced judgment against -the accused and sentenced him to confinement in the Elmira Reformatory until discharged by law. The court, however, was composed, in this instance, of the county judge and two justices of sessions. Both of the latter dissented from the sentence as pronounced by the presiding judge. The prisoner, having been remanded to’ the custody of the sheriff, was subsequently discharged upon a writ of habeas corpus issued by a justice of the supreme court, who decided that the sentence imposed by the county judge was not legal, because it was not by a majority of the court, and, for that reason, remanded the prisoner to the custody of the sheriff in order that the court of sessions might pronounce a legal sentence.

On the 14th day of March, 1892, the prisoner appeared again in the court of sessions, when the district attorney renewed his motion that judgment be pronounced. The .justices of sessions announced as the decision of the majority of the court, that sentence would be suspended during the good behavior of the defendant. The county judge dissented.

There is no conflict in respect to the facts of this case. The justices of sessions appear to have acted, in part at least, upon a petition signed by sixty-nine citizens of the city of Rochester, men •of high character and representing nearly all professions and businesses, requesting that sentence of the accused be suspended, for "the reason that he had made restitution to his employers of all the moneys embezzled by him, and that, in the judgment of the petitioners, an opportunity should be given to him to lead a better life without the disgrace of confinement and punishment in a penal institution.

Though the accused, after being discovered in his embezzlements, had departed the state, he voluntarily returned into the state and the jurisdiction of its courts, but after proceedings had been instituted for his extradition. It is claimed for him, however, that having become penitent he determined to return and give himself up to justice of his own notion.

The accused is a young man of twenty-two years of age, having a wife and child to support, and was of previous good character. These and other circumstances stated in the petition to the court, as well as matters doubtless within the knowledge of a majority of the court, appealed strongly for leniency, in this particular instance, with a view of enabling this young man, during a course of good behavior, to redeem his character as far as possible from the stain placed upon it. There are probably not many judges of •experience who have not, under like circumstances, and in the ■like hope of redeeming youth from criminal ways, assumed the •existence in criminal courts of this prerogative, and have suspended judgment after conviction, and who have witnessed flowing therefrom no evil, but good alone. Our observation leads us to believe that, assuming such discretionary power to exist, there has not been in practice such an abuse of it as to call for rebuke or animadversion. The case of the accused appeals strongly for the exercise of such discretionary power.

If such power existed under our criminal laws, the order appealed from should be reversed and the prisoner allowed to go upon his own recognizance, until such time as he should violate the conditions imposed upon him.

But we are constrained to say that our criminal laws permit of the exercise of no such discretion. Section 12 of the Penal Code is as follows:

“ The several sections of this Code, which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed.”

Section 471, of the Code of Criminal Procedure, provides: “ After a plea or a verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment.” And § 482 provides “ If no sufficient cause be alleged or appear to.the court why judgment should not be pronounced, it must thereupon be rendered.”

Section 483 of the Code of Criminal Procedure provides that, “ where a discretion is conferred upon the court as to the extent of the punishment,” it may hear, in a summary way, facts in aggravation or mitigation of the punishment.

These provisions of the Codes require the criminal courts, after a conviction of the accused "person upon a verdict or upon a plea of guilty, to fix and prescribe the punishment and pronounce judgment at a time to be named by the court.

Section 471 of the Code of Criminal Procedure, above quoted, does not contemplate a case where “no sufficient cause can be alleged ” why the court should not pronounce judgment, except such cause or cáuses as have a legal bearing upon the guilt of the accused, or such as may first be brought to the attention of the court alter such conviction, as, for instance, arresting the judgment for the various causes stated in the Code, or an order granting a new trial. It is not sufficient cause to show, as was done in this instance, that the prisoner had borne a good character before this accusation was made against him ; that he was sorry for his offense and had made money restitution, or that his punishment would be a sore affliction to himself and to the members of his family ; these things commonly attend the conviction of all persons for crimes.

We are unable to find anything in the criminal laws of this state permitting the criminal courts thus tq exercise a quasi power of pardon after conviction.

It follows, therefore, that the order directing a peremptory writ of mandamus to issue, directing the court of sessions of Monroe county to bring before it John Attridge and to pronounce judgment against him, should be affirmed.

Order appealed from affirmed, and a peremptory writ of mandamus directed to be issued.

Dwight, P. J., and Lewi J., concur.


author: Macomber, J.

text:
    Alice L. Monroe, Resp't, v. George H. Monroe, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Divorce—Action to set aside—Bar.
    A motion to set aside a judgment of divorce on the ground that it was procured by fraud, duress, undue influence and coercion, and the denial thereof on the merits, is not a bar to an action to set aside said judgment on the same grounds. The proceedings and decision are only a bar to another motion without having procured leave to renew.
    Appeal by the defendant, George H. Monroe, from an interlocutory judgment entered in Monroe county on the 16th day oi June, 1892, sustaining the plaintiff’s demurrer to the sixth defense in the defendant’s answer as insufficient at law upon the face thereof.

      W. Martin Jones, for app’lt;

      George D. Reed, for resp’t.
   Macomber, J.

This action is brought to set aside a judgment of divorce obtained by default against the plaintiff, upon allegations that the same was procured through fraud, duress, undue influence and coercion. Sundry defenses are set up in the defendant’s answer, the sixth of which is to the effect that the plaintiff made a motion upon affidavits in the original action brought for divorce by the husband against the wife, and the same was heard at the special term, and was denied upon the merits of the affidavits; and that such proceedings and decision at special term were a bar to the maintenance of this action. The plaintiff demurred to this defense under § 494 of the Code of Civ. Pro.

The remedy, if any, which the plaintiff had against this plea in bar of the further maintenance of the action is by demurrer. Goodman v. Robb, 41 Hun, 605; 5 St. Rep., 242. We think that the motion made at the special term is not a bar to this action, but was only a bar to another motion for the same purpose without having procured leave to renew the same. If there formerly existed any doubt about this proposition, it was effectually settled by the decision in the case of Blank v. Blank, 107 N. Y., 95. In that case the husband brought an action against the wife to set aside the marriage, and induced her to abstain from appearing or defending the action, informing her that she was liable to be prosecuted for bigamy, thus operating upon her fears, etc. After the decree annulling the marriage had been entered, the wife made a motion at special term to open the default and for leave to defend the action, upon the ground that she had been misled, coerced and deceived into omitting timely to appear and defend therein. This motion was denied upon the merits. Subsequently the wife brought an action to set aside the decree on account of fraud and intimidation, and the husband pleaded the original judgment and the motion at the special term and the decision therein in bar, and upon the trial of the case the special term held the same to be a bar. This judgment having been sustained at the general term by a divided court, an appeal was taken to the court of appeals, where it was reversed, the court there holding that neither the original judgment nor the motion made at the special term was a bar to the maintenance of the action by the wife to set aside the original judgment for fraud and deceit. We deem this authority decisive of this appeal. If there be anything in the proceedings before the special term which bear upon other matters pertaining to the defense, such as procrastination of the plaintiff in bringing this action, and the like, there is nothing in this decision which will prevent the defendant from doing so, for all that we decide upon this appeal is, that such, proceedings and decision of the special term should not constitute a bar to the maintenance of this action.

The interlocutory judgment appealed from should be affirmed.

Interlocutory judgment appealed from affirmed, with costs. ,

Dwight, P. J., and Lewis, J., concur.


author: Macombbr, J.

text:
    Josephine Moschell, Resp't., v. Francis Boor, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Supplementary proceedings—Receiver—Appeal.
    The appointment of a receiver in proceedings supplementary to execution is an order made in the course of such proceedings and is reviewable only under § 2433 of the Code. Such an order is not appealable.
    Appeal by the defendant, Francis Boor, from an order of the county judge of Monroe county, entered August 22, 1892, appointing a receiver of the defendant’s property in proceedings supplementary to execution.

      John R. Fanning, for app’lt;

      Q. Van Voorhis, for resp’t
   Macombbr, J.

On the 4th day of December, 1891, the plaintiff recovered a judgment in the supreme court against the defendant for the sum of ten thousand and sixty dollars and twenty-seven cents, upon which an execution was issued and subsequently returned unsatisfied; and thereupon proceedings supplementary to execution were instituted in behalf of the judgment creditor against the debtor, before the county judge of Monroe county. A reference- was ordered, and upon the coming in of the evidence taken before the referee the county judge appointed a receiver of the defendant’s property, and from that order this appeal is taken.

We think that this order is not appealable. Section 2433 of the Code of Civil Procedure declares: “ Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed only as follows:

“ 1. An order made by a judge out of court may be vacated or modified by the judge who made it, as if it was made in an action, or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued.” The appellant’s counsel calls attention to §§ 1347 and 1348 of this Code to be considered in connection with § 2433. But §§ 1347 and 1348 refer to orders made in actions, as distinct from special proceedings. Proceedings supplementary to execution are by the Code declared to be special proceedings. The case of Peo. ex rel. Grant v. Warner, 51 Hun, 53; 20 St. Rep., 573, arose upon a proceeding to punish a witness for contempt for not appearing before the referee in supplementary proceedings, but proceedings for contempt are themselves special proceedings, independent of the action or special proceeding in which they may be taken, and an order made therein cannot be regarded as an order made in the course of the original proceedings.

The appointment of a receiver of a debtor’s property in proceedings supplementary to execution is, on the other hand, an order made in the course of such proceedings, and consequently is reviewable only under § 2433 of this Code.

It follows that the appeal should be dismissed.

Appeal dismissed, with ten dollars costs and disbursements.

Dwight, P. J., and Lewis, J., concur.


text:
    In the Matter of Proving the Alleged Will of Joshua Raplee, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Will—Probate.
    Upon appeal from a "decree of a surrogate’s court, revoking the probate of a will which had been duly admitted to probate upon the ground that the decedent was. incapable of making a will at the time of its execution, it appeared that there was no evidence before the surrogate which, standing alone, was sufficient to defeat the probate. Held, that such failure of evidence raised simply a question of law, and § 2588, therefore, having no application, the original decree must be confirmed.
    2. Same—Incompetency.
    An expression of opinion by a witness that a certain act is irrational, and indicates unsoundness of mind, is no evidence of unsoundness of mind.
    Appeal by George Raplee, one of the executors of the last will of Joshua Raplee, deceased, and by Erastus Raplee and others, infants, by J. E. Parkhurst, special guardian, from a decree of the surrogate of Yates county, dated and entered February 19, 1892, revoking the probate of the last will and testament of Joshua Raplee, .which had been duly admitted to probate October 1, 1888.

      J. F. Parkhurst and William S. Briggs, for app’lts;

      John Gillette, for resp’ts.
   Macomber, J.

Joshua Raplee, of the town of Barrington, in the county of Yates, died August 31, 1888, leaving a last will, which bears date September 20, 1886. This will was admitted to probate by the surrogate of Yates county on the 1st day of October, 1888, as a will of both real and personal property. Within one year after such probate, namely, on the 16th day of September, 1889, two of the children and next of kin and heirs-at-law of the testator, namely, Celestia Wallington and Jane Arwine, filed a petition with the surrogate praying for revocation of the probate of the will upon the ground that the testator was not, at the time of making and subscribing the will, of sound mind and memory and was incapable of executing the same. Upon the return of citations duly issued to all parties interested in the controversy, much evidence was taken, the result of which was that the surrogate made his decree, which was entered on February 19, 1892, revoking the probate of this will upon the ground stated in the petition, namely, that the decedent was incapable of making a will at the time of the execution of the paper theretofore admitted to probate. From that decree this appeal is taken by one of the executors named in the will, and by sundry of the next of kin of the deceased.

The appeal is taken both upon the law and the facts. But there is no controversy in respect to the formal execution of' the will by the testator, nor of the legality and sufficiency of the provisions therein contained. The only question is, whether the testator was possessed of a disposing mind and memory at the time he executed this will.

Under § 2588 of the Code of Civil Procedure, if we come to a conclusion upon this question of fact contrary to that of the surrogate, the order following our decision would be for a trial by jury of the material questions of fact arising upon the issues between the parties. But this section of the Code does not require us to order such a trial when the evidence, appearing upon the record on the appeal, is insufficient to raise a question of fact within the legal meaning of that term. This matter has been the subject of former judicial inquiry; and the decision of the court of appeals in the Matter of the Will of Hunt, 110 N. Y., 278; 18 St. Rep., 118, is authority for holding that this provision of the statute is not peremptory in case of a reversal of the surrogate upon the question of the testamentary capacity of the testator. The court there say: “ The language in this section requires an order for a jury trial only where the reversal is founded upon a question of fact, and the legislature undoubtedly intended that only where such was actually the case, and there was a real conflict of the evidence, and the surrogate’s court and the supreme court differed on the case, should the conflict be settled by a jury trial in the mode prescribed; but that a new trial before a-jury should be deemed necessary when there is no conflict in facts and the matter is one of the conclusions from the facts, is not a construction reconcilable to reason, and we should refuse our sanction to such a construction.” See, also, the cases cited in that opinion.

If there was no evidence before the surrogate in behalf of the contestants of the will, which, standing alone, was sufficient to defeat the probate of the will, it is our duty, we think, to regard such failure of evidence as raising a question of law, and that, consequently, the decree revoking the probate should be reversed and the original decree admitting the will to probate confirmed. We have looked into the details of the evidence adduced in behalf of the contestants of the will and have made an abstract of them; but even this abstract wrould occupy too much space to be set forth at large. Of the sixteen witnesses who were examined ■ in behalf of the contestants, not one of them gave any facts which had a tendency to prove that the testator had not a disposing mind at the time of making the will; though all, or nearly all of them, after describing the conduct of the testator, at different periods during two or three years preceding his death, testified that such conduct impressed them as being irrational.

But an expression of opinion by a witness that a certain act is irrational and indicates unsoundness of mind, is no evidence of unsoundness of mind. Facts must be given from which it may be judicially determined that the unsoundness of mind exists, before the legal presumption of sanity and of disposing mind can be overcome. There is among all these witnesses a concurrence of statement that the testator was a very vigorous man for his age, and was very active in directions rarely attempted by old men, such as speeding the favorite fast horses which he owned, and in hooking up and driving unbroken colts. He is shown by them to have been at this time a man of strong will, and one who managed his farm unaided, except by hired help. His comprehension of the nature and extent of his property, and his ability to manage it properly, is not seriously brought into question. But it was shown that .he, at times, had epileptic fits, and, after such a seizure he became, for two or three days, weak in mind as well as in body, so that he failed, at such times, to recognize his son-in-law and others. But when he recovered from such attacks bis mind again became clear and strong, and he would resume his usual avocations. The will in question was made by him two weeks after one of these epileptic convulsions, and when no fact or circumstance is shown to exist bringing into doubt his ability to make a will. Without evidence of his want of capacity at that time, or at a time near it, no case can be said to have been made out by the contestants. It is not disputed but that the testator went voluntarily, and at his own suggestion, to the county seat of Tates county, there to have prepared and executed his last will, and that he gave particular instructions in regard to the disposition which he desired to be made of his estate. One of the subscribing witnesses, Mr. Beilis, a lawyer, had previously drawn two wills for the testator, and the changes which were made in the subsequent wills were such that would naturally follow the changed condition of his affairs, and were, in each instance, reasonable, and showed a keen foresight. For instance, in the first will, the testator provided for a legacy to his grandson, Byron Walling. But by the second will he revoked this bequest, for the reason which was assigned by himself, of the • “ careless and reckless manner of living ” of the former object of his bounty. The reasonableness of this change is not even attempted to be disputed in the case before us.

The new provision contained in the will probated, and which constitutes the only difference between it and the second will, is the following provision: “In case of either of the children of Mary E. Baplee, and Olista Ann Baplee shall die before their father, without leaving any issue them surviving, then, in that case, I hereby give and bequeath the portion of said children so dying, as aforesaid, to the brother and sisters of the one so dying, as aforesaid, aiid not to the father, Hiram Eaplee and Erastus Eaplee.” The origin of these changes was with the decedent himself, and not with the scrivener, and that they were reasonable and just, under all the circumstances, can admit of no doubt, for Hiram Eaplee and Erastus Eaplee were insolvent and owed many debts.

We are of the opinion that the evidence adduced in behalf of the petitioners for the revocation of the letters testamentary was insufficient, standing alone, to overcome the evidence of the subscribing witnesses, and the deductions to be made from the undisputed facts relating to the execution of this will. There is, therefore, no question of fact before us, but it is a case of failure of proof, and this, under the decision already cited, renders it unnecessary to order a trial by jury.

It follows that the decree appealed from should be reversed.

Decree of the surrogate of Yates county appealed from reversed, with costs to the appellants, payable by the respondents personally, and the original probate of the will confirmed, with costs payable by petitioners.

Dwight, P. J., and Lewis, J., concur.


text:
    The Birdsall Company, Resp't, v. Steven B. Ayres, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Contract—Arbitration.
    While an action, brought to recover a balance due upon a contract to furnish asteam apparatus, was pending and upon the calendar,the parties entered into an agreement in writing, by which the cause went over the term, and a test was directed to be made of the apparatus by the defendant and one W., and in case defendant failed to do so, lie agreed to pay the balance due upon the contract, which he also agreed to do in case the test was satisfactory to W.; if not satisfactory, plaintiff agreed to make it so. Held, that the agreement was not an arbitration of the matter by W.
    2. Discontinuance—Reference.
    A consent to a reference of the issues in an action made in open court is a complete abandonment of any claim that a prior stipulation worked a discontinuance of the action.
    Appeal by the defendant, Steven B. Ayres, from a judgment of' the supreme court, entered in Yates county, August 1, 1892, on the report of a referee.

      Wm. T Morris (Thomas Carmody, of counsel), for app’lt;

      M. A. Leary, for resp’t.
   Macomber, J.

This action was brought to recover a balance due upon a contract made between the plaintiff and the defendant, whereby the former was to furnish a steam apparatus for heating the latter’s building. The substance of the answer is, that the plaintiff failed to comply with the terms of the contract in that the heating apparatus was defective, and was incapable of heating the block in question according to the terms of the agreement. While the case was pending and was upon the calendar of the circuit court, at the term held in June, 1891, the parties with their attorneys entered into an agreement in writing, by which the cause went over the term and a thorough test was directed to be made of the steam apparatus by the defendant under the supervision of one William H. Wise; “and in case said Ayres shall fail to do so, he hereby agrees to pay on demand the balance due upon the contract for steam heating between himself and the said Birdsall Company. If the test above mentioned is satisfactory to said Wise, said Ayres agrees to pay the balance due upon said contract upon demand, together with the costs of this action. If such test is not satisfactory, the said Birdsall Company shall, with all reasonable despatch, under the direction of said Wise, make the steam heating apparatus put in by them for said Wise satisfactory to said Wise, and when satisfactory to said Wise that plaintiff has performed the contract, said Ayres agrees to pay on demand the balance due upon said contract. ”

The result of this arrangement was, that Wise undertook to adjust the matter between the parties; examined the apparatus, and recommended certain changes, which it is not necessary to state in detail, costing the sum of $24.88, one-half of which, namely, $12.44, each party to this action should pay. This proposition was accepted by the parties, and the matter adjusted accordingly.

This disposition made by the expert, Wise, does not seem to have been made in pursuance of the terms of this contract. The counsel for the defendant now takes the position that the agreement in writing above mentioned removed the action from court, and was tantamount to an arbitration of the matters covered by the issues in the case. Accordingly, on motion, the court at special term allowed the defendant to bring into court the sum of $201, admitted by him to be due to the plaintiff, and ordered that unless the plaintiff should accept this sum in full discharge of the action, the same should be deducted from any recovery that might be obtained herein. This amount was duly tendered by the defendant to the plaintiff, and was refused because the tender did not cover the costs of the action. Subsequent to all of these negotiations and finesse, and at a subsequent term of the circuit held on the 23d day of May, 1892, upon consent given in open court by the attorneys of the respective parties, the cause was referred to the referee whose report is made the subject of this review.

The learned referee in his opinion clearly disposes of the contention made, that the written • agreement by which Wise should be employed to adjust the matters between the parties was an arbitration of the questions presented by the complaint and answer. He clearly points out the distinction to be taken between the office of arbitrator and that of Mr. Wise, which he characterizes as those solely of an expert.-

The judgment entered on his decision might be safely affirmed upon the grounds stated bv him; but we think that there is a further reason for it, and that is, that whatever view might have been taken of the written agreement between the parties appointing Wise to look into their matters of controversy, it is apparent, first, that the parties themselves mutually abandoned any effort to carry out the terms of that agreement; for Mr. Wise did not report in accordance with the terms of the stipulation, but made an independent suggestion outside of the same which the parties acquiesced in. Secondly, the consent to a reference of the issues presented by the pleadings was a complete abandonment of any claim which might subsequently be made that the stipulation made in June, 1891, worked a discontinuance of the action. Under this order of reference made by consent in open court, what else could the referee have done except to hear the case upon the merits as presented by the pleadings, and so hearing, decide it ?

He had no discretion in the premises. The order of reference necessarily implied that the action had not abated by reason of the written stipulation, but on the contrary, was in existence, and was to be brought to trial by the parties.

For these reasons, therefore, in addition to the cogent discussion of the question given by the learned referee, we think that the judgment appealed from should be affirmed.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    Michael Doyle et al., App'lts, v. John F. Unglish et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Trial—Burden of proof.
    The action was in form for money loaned by plaintiffs to defendants in the sum of $3,135, payment thereon of $2,083.56 being admitted, the answer was a general denial, payment, and a counterclaim. Upon the trial it appeared that the moneys alleged to have been loaned were payments upon consignments of dried apples at an agreed price. The court refused to charge that the burden of proof as to the terms of the contract set up by defendants was upon them, and charged that the same was upon the plaintiffs. A verdict was rendered for defendants. Held, that the refusal to charge and the charge made were correct.
    Appeal by the plaintiffs, Michael Doyle and Albert S. Bigelow, from a judgment of the supreme court, entered in Monroe county January 21, 1891, on a verdict of a jury at the Monroe circuit.

      M. H. Briggs, for app’lts;

      J. H. Ohadsey, for resp’ts.'
   Macomber, J.

This action was in form upon an account against the defendants for moneys loaned by the plaintiffs to them in the sum of $3,135. The complaint admitted payment of $2,083.56 upon such indebtedness. The answer was a general denial, payment, and a counterclaim amounting to $102.29. Upon the trial the real facts of the dealings of the parties were disclosed, which showed that the moneys which were alleged to have been loaned to the defendants by the plaintiffs were payments upon consignments of dried apples at an agreed price, and that drafts were drawn, by the .defendants upon the plaintiffs, for the amount of’goods as they were delivered, or as nearly as they might be, and which drafts were actually so honored and paid by the plaintiffs to the amount ot $3,143. The jury rendered a verdict for the defendants for the amount of their counterclaims.

The only point made upon this appeal relates to the refusal of the court to charge the jury as was requested by the appellants, that the burden of proof as to the terms of the contract set up by the defendants was upon them, and in charging to the contrary, that the burden of proof thereof was upon the plaintiffs themselves. The plaintiffs demanded a judgment for a balance of $1,063.44, with interest, and, to entitle them to recover that sum, or any other sum, they were bound to prove that such indebtedness existed against the defendants. The form in which the plaintiffs saw fit to put their complaint, namely, for moneys loaned and advanced, did not change upon the trial the real issue. Their allegations were denied by the defendants; and it was incumbent, therefore, upon the plaintiffs to establish them before a recovery could be had. The right of the plaintiffs to recover anything depended wholly,as the jury was properly instructed,upon the terms of the contract of purchase and sale existing between the parties. It was fully explained to the jury, by the learned trial justice, that if the contract for the sale and delivery of the dried apples was as claimed by the plaintiffs, a recovery should be had by them for the amount claimed in the complaintbut that, on the contrary, if the contract was in accordance with the terms alleged by the answer and sworn to by the defendants, there would not only be nothing due to the plaintiffs, but that the defendants would be entitled to recover the amount of their counterclaim. This was purely a question of fact for the determination of the jury ; and they have found, as is to be presumed in the absence of a case containing all the testimony, a verdict fully sustained by the evidence.

It follows that the judgment appealed from should be affirmed.

Judgment appealed from, affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    William H. Walker, Resp't, v. The American Central Insurance Company of St. Louis, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Insurance (eike)—Evidence.
    In an action to recover upon a policy of fire insurance, the defense was that the policy in suit was intended by plaintiff and the defendant and its agents to take the place of another policy in like sum, existing between the parties at the time of the fire, and which would have expired in a few days. On the trial plaintiff was permitted to testify to a conversation which he had with the agent of another insurance company with a view of showing that it was his purpose to obtain a policy in such company in place of the policy of defendant which was to have expired. Defendant’s agent had already testified that plaintiff had agreed to permit him to renew the old policy. Held, that plaintiff’s testimony was competent.
    Appeal by the defendant, the American Central Insurance Company of St. Louis, from a judgment of the supreme court entered in Livingston county, May 2, 1892, on the verdict of a jury at the circuit; and, also, from an order denying the defendant’s motion for a new trial made on the minutes of the court.
    A. A. Washburn, for app’lt;
    A. A. Nash, for resp’t
   Macomber, J.

This action was brought to recover upon a policy of fire insurance, dated February 1, 1891, running for the period of one year, upon the stock and merchandise owned by the plaintiff in the village of Caledonia, N. Y. By a fire six days after the issuing of the policy, namely, February 6, 1891, substantially a total destruction of the plaintiff’s merchandise ensued, and a consequent loss to the plaintiff of the full amount of this policy, and of other policies of insurance then in force upon the property.

The answer denies the furnishing of proper proofs of loss, but that point was not seriously made upon the trial. The real defense consists of the fourth paragraph of the answer, which is, in substance, that this policy was intended by the plaintiff, and the defendant and its agents, to take the place of another policy in the like sum of $1,000, then existing between the parties, bearing date the 17th day of February, 1890, and which would expire February 17, 1891. This defense is called in the answer a counterclaim ; but it is not a counterclaim. It is rather new matter constituting a defense by way of avoidance, within the meaning of § 516 of the Code of Civil Procedure, and if established by evidence would totally defeat the plaintiff’s claim. Upon the trial it was shown, in pursuance of this part of the answer, that there had been actually issued by the defendant to the plaintiff a policy bearing date the 17th day of February, 1890, insuring this property for a period of one year in the sum of $1,000. This policy was outstanding at the time of the burning of the plaintiff’s property, and the defendant, after examination, sent the amount of it by draft to the plaintiff, acknowledging liability under that policy, but denying any liability under the policy which is made the subject of this action. The question whether this policy in suit was intended as a substitute for the old policy, and was not to take effect until the 17th day of February, 1891, was submitted to the jury by the learned trial justice. A clear preponderance of the evidence was in favor of the conclusions reached by the jury, namely, that it was the purpose of the plaintiff and of the defendant’s agent that additional insurance, over and above the $1,000 represented by the old policy, should be issued by the defendant to the plaintiff. Indeed, the defendant’s agent himself testified, that in the first conversation which he had with the plaintiff upon the subject of the new policy he advised the latter to take out additional insurance, urging as a reason for such action the serious fire and damage sustained by certain merchants in the neighboring village of Cnurchville a short time before. Although he testified that the plaintiff declined to take out further insurance, yet a preponderance of the evidence, and the circumstances attending the transaction, such as issuing a new policy, instead of delivering the usual renewal receipt, show quite satisfactorily that the plaintiff intended to increase the amount of insurance upon his property. Such increase made by the defendant, together with other outstanding insurance upon the same property, did not in fact exceed the amount for which property of this description is commonly insured.

The plaintiff was permitted by the court to testify to a conversation which he had with the agent of another insurance company, with a view of showing that it was the purpose of the plaintiff at the time indicated to write a new policy in the sum of $1,000, to take the place of the policy of the defendant which expired February 17, 1891. The agent with'whom this conversation was had was formerly the agent of the defendant, and was the person through whom the old policy was issued. Technically speaking, this evidence, probably was not competent as an original and independent conversation, unconnected with other matters. But the fact that the plaintiff had made an application to another company to take the place of the defendant in the original $1,000 risk, after the policy in suit was agreed upon, was admissible, under the evidence given by the defendant’s agent, Mr. Harmon, which was, in substance, that the plaintiff had agreed to permit him, as the agent of the defendant, to renew the old policy.

It was, we think, competent for the plaintiff to refute that testimony and to adduce the circumstances of his application elsewhere in support of such contradiction, for, after all, the question whether the new policy was to take the place of the former policy was one of intent on the part of the plaintiff and the defendant’s agent.

Judgment and order appealed from should be affirmed.

Judgment and order appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


author: Dwight, P. J.

text:
    The People, Resp'ts, v. Charles H. Laurence, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Larceny—Indictment.
    An indictment for grand larceny in the first degree charged that the defendant obtained possession of two street cars by certain false pretenses and representations, and that possession was thus obtained with the intent to appropriate them to his own use, but it did not contain an allegation that after obtaining the possession he did actually so áppropriate them. AM, that since the alleged false pretenses and representations were not of a character upon which crime could be predicated, no crime was charged in the indictment.
    Appeal from a judgment of the court of sessions of Niagara, county convicting the defendant of the crime of grand larceny in, the first degree.
    The following is the text of the indictment:
    “ The grand jury of the county of Niagara, by this indictment,, accuse Charles H. Laurence of the crime of grand larceny in the first degree, committed as follows:
    “ That the said Charles H. Laurence, on or about the 10th day of August, in the year of Our Lord one thousand eight hundred and ninety-one, at the city of Lockport, within said county of Niagara, with force and arms, with intent to deprive and defraud the Lockport Street Railroad Company, a corporation duly organized and existing under and by virtue of the laws of the state of New York, of the proper goods and chattels hereinafter mentioned, and of the use and benefit thereof, and to appropriate the same to the use and benefit of him, the said Charles H. Laurence, did then and there feloniously, falsely and fraudulently pretend and represent to the said Lockport Street Railroad Company, if the said Lockport Street Railroad Company would permit him, the said Charles H. Laurence, to ship to Buffalo two of the horse cars, numbered, respectively, seven (7) and eight (8) of the said Lockport Street Railroad Company, that he, the said Charles H. Laurence, would have the said two horse cars so transformed that they might ■ be run by electricity as a motive power instead of by horse power, and return the said two cars, so transformed, to the barn of the said Lock-port Street Railroad Company, in Lockport, with all possible speed, and ready and fit to be used upon the tracks of the said Lockport Street Railroad Company before the 1st day of January, 1892, and the said Lockport Street Railroad Company, then and there believing the said false pretenses and representations so made as aforesaid by the said Charles H. Laurence, and being deceived thereby, was induced by reason of the false pretenses and representations so made as aforesaid, to deliver, and did then and there deliver, to the said Charles H. Laurence the said two horse cars, numbered respectively seven (7) and eight (8) of the said Lockport Street Railroad Company, of the proper goods, chattels and personal property of the said Lockport Street Railroad Company, and the said Charles H. Laurence did then and there feloniously receive and obtain the said proper goods, chattels and personal property of the said Lockport Street Railroad Company by means of the false pretenses and representations as aforesaid, with intent to deprive and defraud the said Lockport Street Railroad Company, feloniously, and of the use and benefit thereof, and to appropriate the same to his own use.
    “ Whereas, in truth and in fact, the said Charles H. Laurence' did not then, nor at any time, ship to Buffalo the said two horse cars, numbered respectively seven (7) and eight (8), to be transformed so that they might be run by'electricity as a motive power instead of by horse power, and did not intend to have the said two horse cars so transformed, and did not return or intend to return the said two horse cars, so transformed, to the barn of the said Lockport Street Railroad Company, in the said city of Lock-port, with all possible speed, and ready and fit to be used upon the tracks of the said Lockport Street Railroad Company before the 1st day of January, 1892, and has never since returned the said cars to the Lockport Street Railroad Company, but sold the said two horse cars and appropriated the proceeds thereof to his own use and benefit.
    “And whereas, in truth and in fact, the pretenses and representations so made as aforesaid by the said Charles H. Laurence to the said Lockport Street Railroad- Company, were then and there in all respects utterly false and untrue as he, the said Charles H. Laurence, at the time of making the same, then and there, well knew.
    “And the said Charles H. Laurence, on the day and in the year aforesaid, at the city of Lockport, within the said county of Niagara aforesaid, in the manner and form aforesaid, and by the means aforesaid, obtained from the possession of the owner thereof, the said Lockport Street Railroad Company, the said two horse cars, numbered respectively seven (7) and eight (8), of the worth and value of three hundred and seventy-five dollars each car, with intent to deprive and defraud the true owner, the said Lock-port Street Railroad Company, of its property and of the use and benefit thereof, and to appropriate the same to the use of him, the said Charles H. Laurence, and the said two horse cars, he, the said Charles H. Laurence, from the possession of the true owners thereof, the said Lockport Street Railroad Company, by means of the false pretenses and representations so made as aforesaid, feloniously, did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.
    “P. F. King,

      “District Attorney of Niagara county.1

      B. Crowley, for app’lt;

      P. F. King, dist. att’y, for resp’ts.
   Dwight, P. J.

We are of opinion that the indictment in this case charges no offense. It purports to charge the crime of larceny committed by means of false pretenses and representations. But the facts stated do not constitute that offense. The pretenses and representations alleged are in the nature, only, of promises, or agreements, and relate wholly to future actions or events; it is elementary that not even fraud can be predicated of representations concerning the future. Gray v. Palmer, 2 Rob., 500; aff’d court of appeals, 41 N. Y., 620. Neither at common law nor under the Penal Code of this state do such statements constitute false pretenses. Ranney v. The People, 22 N. Y., 413; The People v. Blanchard, 90 id., 314.

But the district attorney argues that, though the allegations purporting to charge false pretenses are not sufficient for that purpose, they may be treated as surplusage, and the residue will be sufficient to charge larceny at common law; and this, we may suppose, was the effect of the decision of the learned trial court, given in response to a motion to direct a verdict of not guilty, in the following terms: “We have reached the conclusion that this indictment is sustainable as an indictment vi et armis, not as an indictment for obtaining the property by false pretense." And so, perhaps, it might have been if, as the district attorney assumes, it anywhere charged the defendant with obtaining possession of the property by means of the alleged false pretense and, afterwards,' with felonious intent, appropriating it to his own use; or even if it anywhere charged him in general terms with stealing, talcing and carrying away the property without making it a part of the charge that it was done by means of the alleged false pretenses and representations. But such is not the case. There is the charge that the defendant obtained possession of the property by the false pretenses and representations alleged; but this is coupled, only, with the charge that possession was thus obtained with the intent to appropriate it to his own use, and there is nowhere the allegation that after so obtaining the possession he did, actually, so appropriate.

So also it is charged in the last paragraph of the indictment, that the defendant did steal, take and carry away the property in question, “ contrary to the form of the statute,” &c., but this, it is expressly alleged, he did “ by means of the false pretenses and representations aforesaid.” It is impossible to find in the indictment any charge that the defendant committed the crime of larceny except by means of the alleged false pretenses and representations therein described; and since those pretenses and representations were not of a character upon which crime could be predicated, we conclude that no crime was charged in the indictment.

The judgment and conviction should be reversed and the defendant discharged.

Judgment and conviction of the court of sessions of Niagara county reversed and the defendant discharged.

Macomber and Lewis, JJ., concur.


text:
    Joseph Donnelly, App'lt, v. John Donnelly et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Partition.
    Upon the trial of an action for the partition of certain real estate, it appeared that the prea.ises in question had been devised, with other property, by the mother of the parties to the suit, to one A., in trust for a particular purpose, with power to receive the rents and profits, sell or mortgage, and out of this was bequeathed to plaintiff fifty dollars. Held, that the cumiiaint was properly dismissed.
    Appeal by the plaintiff, Joseph Donnelly, from a judgment entered in Niagara county, May 24, 1892, upon the report of a referee, dismissing the complaint upon the merits.

      Henry M. Davis, for app’lt;

      David Millar, for resp’ts.
   Macomber, J.

This action was brought to partition certain real estate on Niagara street, in the city of Lockport, under a claim that the plaintiff’s interest was one-third thereof, while the other two-thirds belonged to the defendants, John Donnelly and Jane Larkin. The common title was formerly in the mother of these parties, Catherine Donnelly, who died, leaving a last will, on the 29th day of June, 1889. This will was not proven until after the beginning of this action, which was in June, 1891, but the evidence establishing its due execution is entirely satisfactory. By it the testatrix gave all of her property, real and personal, to one James O’Kane, in trust for a purpose particularly' set forth, but not necessary here to recite, with power to receive the rents and profits of the real estate, and, in his discretion, to sell the same or mortgage it, if the trustee should deem either of those things necessary to carry out the purpose of the will. Out of this property there was bequeathed by the testatrix to her daughter, Jane Larkin, the sum of $300, and the sum of fifty dollars to the plaintiff, Joseph Donnelly ; the rest of her property was given to the defendant, John Donnelly.

This will being established, it is very clear that the plaintiff has not a right to the possession of an undivided one-third, or any other part, of this real estate, but has a claim only for the sum of fifty dollars, under the will, to be recovered by an entirely different mode.

But it is further contended by the learned counsel for the appellant, that the premises on Niagara street, which were acquired by Catherine Donnelly in March, 1865, were so acquired by virtue of an exchange therefor of certain other lands on New Main street in the same city, and to the possession of one-third of which the plaintiff claims he was entitled as one of the three heirs at law of his father, Peter Donnelly, the husband of Catherine Donnelly, and that Catherine Donnelly having procured an order of the county court of Niagara county, permitting her to make a conveyance of the lands on New Main street, she was chargeable in equity, as the trustee of the plaintiff, for an undivided one-third of the premises now in dispute and subsequently acquired by her, in part at least, with the proceeds of the sale of the New Main street property.

The proceedings in the county court are contained in the printed record and they conclusively refute this contention, and show that Catherine Donnelly, as special guardian, was directed tó and did sell the plaintiff’s interest, while an infant, in such premises, and that the proceeds of such sale, viz.: $202.18, were distributed as follows; $25.00 for the costs of the proceeding in the county court for the sale of the infant’s real estate, $150 to be retained by the special guardian in satisfaction of her claims for advances made by her for the education and support of the infant, and the balance of the moneys, $27.18, were directed to be retained by the special guardian subject to the further order of the court. The plaintiff, therefore, does not appear to be borne out in his claims, which are; first, that his mother died intestate, and, secondly, that the real estate on Niagara street was impressed with the trust growing out of the sale by his mother of the land on New Main street.

It follows, therefore, that the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


author: Barnard, P. J.

text:
    Joseph Hubert, Resp't, v. Sarah E. Bedell, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Animals—-Vicious.
    Plaintiff, on entering defendant’s yard to cut grass which had been given him by her manager, was attacked and bitten by her dog, which had previously bitten others. Reid, that defendant was liable for the damages sustained.
    3. Same—Damages.
    In such case a verdict for $191 is not excessive.
    3. Same—Evidence.
    Proof of plaintiff’s daily earnings is admissible in such an action, although their loss is not specially pleaded, as such loss is the necessary result of the injury.

      Appeal from judgment in favor of plaintiff, entered on verdict for $191.19.
    Action for injuries sustained by the bite of defendant’s dog.

      Arthur S. Tompkins, for app’lt;

      Snider & Hopper, for resp’t.
   Barnard, P. J.

The plaintiff went upon the defendant’s premises to cut grass which had been given him by defendant’s manager for the cutting. Almost as soon as he entered the yard, without any reason, he was savagely attacked by a large dog belonging to the defendant and bitten severely. The damages were not excessive. It was proper to prove the daily earnings of the plaintiff. Such loss was involved in the ordinary and necessary result of an injury and was not special or peculiar damages which needed being pleaded. Jutte v. Hughes, 67 N. Y., 267.

The judgment should be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


text:
    Owen Feeney, App'lt, v. The Minnisceongo Towing Co., Resp't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Negligence—Mismanagement of tug.
    Plaintiff was in charge of a barge which was towed by defendant’s tug. The captain of the tug was drunk; and others on hoard, who were laborers, undertook to manage her, but by turning the wheel the wrong way ran it aground, when the barge was driven against it by a heavy sea, and plaintiff was injured. Held, sufficient proof of negligence to require submission of that question to the jury.
    (Dykman, J., dissents.)
    Appeal from judgment dismissing the complaint.
    Action to recover damages for injuries sustained through the negligence of defendant, its employees or servants in the management of a steam tug.

      Arthur S. Tompkins, for app’lt;

      Wm. McOauley, Jr., for resp’t.
   Barnard, P. J.

The plaintiff was in charge of a barge on the Hudson river at Grassy Point. The defendant owns- a tug boat. The tug company from here undertook to tow the plaintiff’s barge up the Minnisceongo -creek. The plaintiff avers that the tug boat ran aground by unskilful management out of the channel, and the plaintiff’s barge was thrown against it, whereby the plaintiff was injured. The proof shows that the barge was about twenty feet behind the tug, and that the captain of the tug had charge of the tow. He was not in his place, and was drunk. There were two other men on the tug, and they undertook the direction. They were brick yard laborers. The tug ran aground. There was a high wind. The wind, notwithstanding the utmost efforts of the people on the barge, was driven against the tug. A sea drove the barge so strongly against the tug that the plaintiff was injured quite seriously. The men on the tug turned the wheel the wrong way, which occasioned the tug to ground. There was sufficient proof of negligence to go to the jury. There was no proof of contributory negligence which a trial court could say, as matter of law, was sufficient to take that question from the jury.

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

Pratt, J., concurs; Dykman, J., dissents.


author: Dykman, J.

text:
    Harriet S. Rumsey et al., App'lts, v. The New York & New England Railroad Co., Resp't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Costs—When title to land not involved.
    An action for damages resulting from the obstruction of the approach to plaintiffs’ upland from the river and for injunction, where no invasion of possession or injury to the freehold is alleged, involves no question of title to real estate, and plaintiffs on recovering nominal damages are not entitled to costs.
    Appeal from order vacating taxation of costs in favor of plaintiffs and directing the clerk to tax costs in favor of defendant.

      H. H. Hustis, for app’lts;

      W. 0. Anthony, for resp’t.
   Dykman, J.

This action was commenced for the recovery of damages resulting from the obstruction of the approach to the plaintiffs’ upland from the Hudson river and for an injunction.

Upon the trial the plaintiffs recovered a verdict of six cents damages. The judge who held the circuit refused to give a certificate that title to land came in question, but the clerk, notwithstanding such refusal, allowed and taxed a full bill of costs to the plaintiffs.

Upon the motion of the defendant the court, at special term, vacated the taxation and ordered the clerk to tax costs in favor of the defendant.

From that order we have this appeal.

There was no claim in the complaint in this action for an invasion of the possession of the plaintiffs, or for any injury to the freehold, and it was, therefore, unnecessary for them either to allege or prove- their title.

It follows that no question of title arose either" upon the pleading or upon the trial, and the plaintiffs can recover full costs upon no other ground.

The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Dency J. Young et al., Ex'rs, App'lts, v. Hallock F. Luce, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Evidence—Books op account.
    The books of a parly can be proven against a deceased person. The rule as to the proof of books of account is not changed by § 829 of the Code.

      Appeal from judgment in favor of defendant, entered upon report of referee.

      Payne & Benjamin, for app’lts;

      George F. Stackpole, for resp’t
   Barnard, P. J.

The action is brought to recover a balance due upon two notes held by Noah N. Young in his lifetime against the defendant. The answer avers payment of the notes in full. The evidence showed that the defendant was a butcher, and had sold meat and other things to the deceased for some years before his death, and had a mutual account with the deceased. Proof was given that the account was, in large measure, in the handwriting of defendant’s son, and that the defendant kept honest books of account. A great portion of the items on the bill were delivered by the defendant’s son at the residence of deceased. The books of account were properly received in evidence. They were proven under the old rule in Vosburgh v. Thayer, 12 Johns., 461. The rule is not changed by § 829 of the Code.

The books of a party can be proven against a deceased person. McGoldrick v. Traphagen, 88 N. Y., 834; West v. Van Tuyl, 119 id., 620; 28 St. Rep., 549.

The proof of payment of the notes was sufficient without the small balance due upon the books. The indorsements on the notes, with the payment of $250 by check made September 20, 1883, not indorsed, would overpay the notes.

The judgment should, therefore, be affirmed, with costs.

Pratt and Dykman, JJ., concur.


text:
    George F. Wellman, App'lt, v. The Sun Printing & Publishing Co., Resp't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Libel—Publication concerning plaintiff’s deceased wife.
    A publication in a newspaper to the effect that plaintiff’s wife died under circumstances which aroused his suspicions that she had caused her own death by procuring a miscarriage, solely affects the deceased, and is a personal wrong which Hied with her.

      2. Same—Pleading—Demurrer.
    Á mere statement in the complaint that the article was published of and concerning the plaintiff, does not, under the principle that a demurrer admits the complaint, make out a cause of action.
    Appeal from order sustaining demurrer to the complaint.

      A. J. Moore, for app’lt;

      Franklin Burtlett, for resp’t.
   Barnard, P. J.

The complaint states that Sophia Wellman, the plaintiff’s wife, died under circumstances which aroused her husband’s suspicion that she had caused her own death by procuring a miscarriage upon her person. The article states that the plaintiff was a lawyer. The complaint states that the article was published to injure the plaintiff. No cause of action is stated in favor of the plaintiff. The injurious publication solely affects the deceased lady, and is a personal wrong which died with her. Cregin v. Brooklyn, etc., R. R. Co., 75 N. Y., 192.

There is an allegation that the article was published of and concerning the plaintiff. No libellous statement against him is made in it. The mere statement in the complaint that the article was published of and concerning the plaintiff does not, under the principle that a demurrer admits the complaint, make out a cause of action. Fleischmann v. Bennett, 87 N. Y., 231.

The facts stated are at variance with this allegation. The libel is upon the wife. The libel is not supported by reason of the plaintiff’s professional character being injured by the libel. No charge is made against the professional character of plaintiff, and no legal reason exists why the plaintiff, as a lawyer, should be injured by it

The order sustaining the demurrer should, therefore, be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


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    William A. Hansee, Resp't, v. The Brooklyn Elevated Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Witness—Impeachment of plaintiff.
    In an action for negligence, evidence that the plaintiff has made claims against other railroads for injuries is inadmissible to discredit his testimony, unless connected with the injury in question or accompanied by proof that such claims were dishonest.
    2. Negligence—Evidence.
    Under an averment that the injury to plaintiff’s hand was serious, permanent and painful, evidence to show that such injury affected his general health is admissible.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $500.
    Action to recover damages for injuries to plaintiff’s hand caused by the negligence of one of defendant’s conductors.
    Iloadly, Lauterbach & Johnson (W. Id. Cohen, of counsel), for app’lt;

      W. F. O'Neill, for resp’t.
   Barnard, P. J.

The proof established a clear case of negligence against the defendant On the 20th of December, 1886, he was a- passenger on the defendant’s cars, and while he was in the act of getting off the train the conductor, who was intoxicated, pulled the door shut with a great deal of force and caught the plaintiff’s right hand and quite seriously injured him. The jury found a verdict of $500. The verdict is very moderate if the plaintiff’s evidence be credited. The only question therefore upon appeal is whether any error was committed on the trial. The defendant offered on the trial to prove that the plaintiff had made a claim for damages against the West Shore R. R. Co., and against the Delaware & Hudson Railroad Company. This was excluded unless connected with this injury. This was not claimed, but it was claimed that a right to cross-examine the plaintiff as to other injuries was proper to discredit the witness and to show that this claim was manufactured. The evidence was properly excluded. The mere fact that the plaintiff had been a witness before and had had other claims for damages for injuries against other corporations, would, of itself, prove nothing. The merits of each case must be tried. A mistaken claim would be of no importance as establishing a character for asserting manufactured claims of injury-

A witness’ credibility cannot be affected unless something more is proven than that the plaintiff had made claims for injuries at other times of other companies. A party may sue as often as he is injured, and there is no presumption that can properly be based upon such actions without proof of facts showing, or tending to show, that the claims were dishonest. The case is not like that class of cases where other frauds are permitted to be proven to show the fraudulency of the contract asserted by a party against, a fraudulent vendee. The evidence that the injury to the hand occasioned an injury to the general health was properly admitted. It was the direct consequence of the injury and the complaint, avers that the injury to the hand was serious, permanent and painful. There was a sufficient averment to support the testimony as to the general health. The evidence on the trial was conflicting; not as to the accident, for the plaintiff and his son are the only witnesses as to the occurrence. The manager of the defendant testifies as to subsequent declarations and conduct of the plaintiff. The defense impeached the general character of the plaintiff for credibility. The case was tried with great thoroughness, and the conclusion reached by the jury upon the disputed facts should be decreed final on appeal.

Judgment and order denying new trial affirmed, with costs.

Pratt and Dykman, JJ., concur.


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    Theodore F. Freund, Pl'ff, v. Charles E. Ostrander, Def't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Vendor and purchaser—Title—Adverse possession.
    Plaintiff and his grantors have occupied the premises in question under a chain of title beginning with a deed from one A., dated in 1861. There had been a prior deed to one G., in 1851, and G. died leaving no infant, heirs. Held, that plaintiff had a good title by adverse possession.
    Submission of controversy without action.

      Elliott J. Smith, for pl’ff;

      George H. Bruce, for def’t.
   Barnard, P. J.

The plaintiff and his grantors have occupied the premises in question continuously since January, 1862, under operative conveyances. The several owners while in possession have erected and maintained buildings and otherwise improved the lands under their claim of title. In March, 1892, the plaintiff agreed to sell the land to the defendant by deed according to the provisions of chap 475, Laws of 1890. The agreement contained this clause : “ And it is mutually understood and agreed by and between the parties to the contract, that the party of the second part shall not refuse to take title to said premises by reason of the party of the first part having, or claiming to have, title by adverse possession, unless that the party of the first part does not hold a good title by adverse possession.” The record of deeds in the clerk’s office of Suffolk county shows a record of a deed conveying the premises in question, by Catharine Fleet to Horace Greeley, dated April 5,1851, and recorded June 14, 1854. Horace Greeley died leaving no infant heirs. The plaintiff’s title is good under § 369 of the Code. The entry of the plaintiff and his grantors was under a claim ^of title founded on a written instrument as being a conveyance'"of the premises in question, and there has been a continued occupation and possession of the premises included in the deed for over twenty years under the same claim. By § 368 of the Code mere possession is presumed to be under the legal title, and occupation by another is deemed to have been in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for twenty years before the commencement of the action.” Such an adverse possession is proven by the long occupancy under a series of warranty deeds from the beginning of 1862 to the present time. In Price v. Brown, 101 N. Y., 669, it did not appear that any of the plaintiff’s grantors were ever in the actual possession of the lands.

A title acquired by adverse possession is as good as one obtained by grant. Sherman v. Kane, 86 N. Y., 57.

There should be judgment for the plaintiff upon the submitted case, with costs.

Pratt and Dykman, JJ., concur.


author: Pratt, J.

text:
    In the Matter of the Proceedings of The Long Island Railroad Co., Resp't, to acquire title to lands of Charles Moran et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Condemnation proceedings — Petition to acquire land by railroad.
    An allegation in a petition to acquire title to land by a railroad that the owner demands an unreasonable price, is a sufficient allegation of a. failure to agree.
    2. Same—Contiguity.
    The requirements of the statute of 1881 as to contiguity and accessibility apply only to cases where the land is taken for earth and gravel.
    3. Same—Use op steam.
    The petitioner has a right under the act of 1876 to use steam power on Atlantic avenue, notwithstanding the contract made in pursuance of the tunnel act of 1859.
    Appeal by the owners of property from order appointing commissioners of appraisal in condemnation proceedings under the general railroad act of 1850.

      John M. Bowers and J. G. Reid, for app’lts;

      K. B. Hinsdaler for resp’t.
   Pratt, J.

This is an appeal by the owner of property from an order appointing commissioners to appraise land sought to be taken by the petitioner under the general railroad laws of the state.

The first objection urged is that the statement in the petition that the petitioner had been unable to agree with the owner upon a price for the land is not sufficient to confer jurisdiction.

This is not valid. The petition does state as a fact that the owner demands an unreasonable price. This is a sufficient allegation under the authorities. Matter of West Shore R. R., 64 How., 216; Matter of Suburban R. T. Co., 38 Hun, 553; Matter of Met. Elevated R. R., 12 N. Y. Supp., 502, 506.

We think the petition was sufficient in form and substance. It was verified as required by the rules of court, and stated all that was possible tó be stated under the circumstances of the case. Neither is there any merit in the objection that the premises sought to be condemned were not contiguous to the petitioner’s railroad.

1. The statute does not require contiguity except in special cases, of which this is not one.

The provision for contiguity was brought .into § 21 of the general railroad act by the amendment of 1881, chapter 649. Prior to that time the section stood as amended by chapter 224 of 1877. The amendment of 1881 interpolated the following clause, “or for filling any structures of, or for constructing, widening or completing therewith or thereon any embankment, or the road-bed of such railroad, when thereby greater safety or permanency may be secured, and such lands shall be contiguous to such railroad and reasonably accessible to the place where the same are to be used for such purpose or purposes."

This amendment gives the right to condemn land for earth and gravel for embankments (which the act prior to 1881 did not authorize N.Y. & C. R. R. v. Gunnison, 1 Hun, 496); but limits the right to lands which are contiguous to the road and “ reasonably ” accessible to the place where the same are to be used.

These two adjectives, “ contiguous ” and “ accessible,” clearly go together; and the latter, with the language which qualifies it, implies that the property which is condemned, to be carried away; the phrase “reasonably accessible to the place where the same are to be used ” is utterly meaningless as applied to a piece of real estate which is to be used as such.

Therefore the interpolation of 1881. stands by itself, and the requirements of contiguity and accessibility apply only to cases where the land is taken for earth and gravel. But the land sought is contiguous in fact unless, as claimed by the land owner, the petitioner has no title to the land now used as a railroad on Atlantic avenue, and this is the main contention in the case.

It is conceded, or not denied, that petitioner is now using steam for propelling power on Atlantic avenue, and desires to condemn the land in question for the same purpose.

It may well be said that this question is not involved in this proceeding, for the reason that the petitioner would have a right, as a railroad using steam, to condemn land for its use, although upon this part of its road it intended only to use horse power; but this is too technical, for the reason that, in part, it does intend to use steam, and these proceedings are instituted for that purpose. Neither is it very material what were the original powers granted to the petitioners in their charter as to determining by what force their cars should be propelled.

It is plain that before the passage of what is called the Tunnel act in 1859 and 1860, the petitioner had a right to use steam, and the whole question here must turn upon the effect to be given this act last referred to, and the act of April 28, 1876, chap. 187.

The Tunnel act provides for the appointment of commissioners to make a contract with the Long Island Bailroad Company for the closing of the tunnel and the withdrawal of the use of steam on Atlantic avenue. Such a contract was made with the Long Island Bailroad Company, and it gave its assent thereto, and received the consideration therefor, and thereby its right to use steam on said avenue ceased, and all laws allowing said company to use steam within the corporate limits of the city of Brooklyn, by the force of said act and the confirmation of the report of such commissioners, were repealed.

The appellant here claims that these proceedings had the effect to permanently abolish the right on the part of the petitioner to úse steam in the city of Brooklyn. On the other hand, the petitioner claims that the act of April 28, 1876, restores the right to use steam, notwithstanding the Tunnel act and the agreement thereunder.

I think it may well be contended that here was a contract between the landowner, represented by the state, i. e., commissioner, on one hand, and the railroad company, on the other, by which the railroad was to be, and was, paid for abandoning the use of steam on the Atlantic avenue for the benefit of the abutting owners, who were taxed for such benefit.

The petitioner’s contention is that, as matter of law, the taxes or assessments were laid and collected by the legislature under the taxing power, and if the legislature saw fit it could the next day after the collection of the assessment authorize the railroad company to again use steam on the avenue ; and such seems to be the course of the decisions upon that subject. The fault, if any, belongs to the law-making power.

There can be no profit in discussing the various decisions that have been made by the courts during the last fifteen years upon the question whether the petitioner has the right to use steam on Atlantic avenue, as they are all one way and that favorable to the railroad company. People v. L. I. R. R. Co., 80 Hun, 510; People v. B., F. & C. I. R. Co., 89 N. Y., 75; A. S. Barnes v. L. I. R. R. Co., in Supreme Court; Geirs v. Same, City Court; Milton v. Same, U. S. Circuit, Eastern Dist., and other cases not reported.

If this was a new question we well might hesitate to adopt such a doctrine without a careful consideration of the arguments suggested by the appellant.

After such a long and uniform course of decisions upon a question, no reversal except by the court of last resort ought to be attempted.

Order affirmed.

Barnard, P. J. and Dykman, J., concur.


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    Michael Brennan, Resp't, v. Patrick Brennan, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)
    Specific performance—Paroi agreement to exchange land.
    The parties, who are brothers, agreed by paroi to exchange their lands, and plaintiff delivered a conveyance of his land and paid a sum agreed on; while defendant gave plaintiff possession of his land, but gave no conveyance, and after twenty years, demands rent. Held, a plain case for the enforcement of a verbal contract for the exchange of land. '
    Appeal from judgment declaring plaintiff to be the owner of ■certain land and requiring defendant to execute a deed to him thereof.
    Action to compel the specific performance of an oral agreement, made in 1870, for an exchange of land. Plaintiff in pursu- j ■anee thereof executed and delivered a conveyance of his land and gave defendant $1,200 in gold, and entered into possession of i ■defendant’s land, but defendant never gave a deed thereof, but, in j 1890, demanded rent of plaintiff.

      George W. Mead (G. G. Reynolds, of counsel), for app’lt;

      Geo. W. Wingate, for resp’t.
   Dykman, J.

It is the object of this action to enforce the specific performance of a verbal agreement for the exchange of real property.

The parties are brothers, and in the year 1870 they made an .agreement, which was not reduced to writing, by which the defendant agreed to exchange certain real property which he owned with the plaintiff for certain real property which he owned and twelve hundred dollars in money.

In execution of that agreement the plaintiff conveyed his property to the defendant at the time and paid him twelve hundred dollars in money and gave him possession of the property, and the defendant gave the plaintiff possession of the property he was to receive, but failed to give him any conveyance thereof.

Both parties remained in possession of the respective properties.

The cause has been tried at the special term and the trial judge has found the facts as we have stated them, and according to the •contention of the plaintiff, and a careful examination of the testimony conducts us to a full concurrence with his conclusions both of fact and law.

The defendant is evidently endeavoring to withhold this property from the plaintiff after having received full compensation therefor, and this is a plain case for the enforcement of a verbal contract for the sale and exchange of land.

The testimony is exceedingly contradictory, but the trial judge has deduced the truth therefrom.

The case is peculiar and depends so much upon its own features that we deem an extended opinion unnecessary.

We concur entirely with the decision and judgment. It enforces justice and defeats a fraudulent design.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J.,concur.


text:
    T. Ella Carpenter, Resp't., v. Edgar Knapp, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Trial—Rulings as to admission or evidence.
    An error in the exclusion of evidence is cured by the subsequent admission of such evidence.
    3. Same—Limitation or witnesses.
    The court has power to limit the number of witnesses each party may examine as to any question where the opinion of witnesses is competent evidence.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action to recover damages for slander. Plaintiff was assistant postmistress, and had been legally separated from her husband. 'The alleged charges imputed unchastity to her.
    The court on the trial limited the number of witnesses as to plaintiff’s character to four on each side.

      Wm. R. Woodin, for app’lt;

      Fred. F. Ackerman, for resp’t.
   Barnard, P. J.

The complaint avers the utterance of slanderous words by the defendant concerning the plaintiff on several different occasions. One of these occasions was at a meeting of a Biblical Institute. The answer states that this occurrence was made at the invitation of the meeting, upon an inquiry made by the institute as to certain alleged improper relations between the plaintiff and a member of the institute. Upon the trial the court refused to permit proof of the fact as to these charges being a subject of discourse. The ruling might have force if the proof had not subsequently been admitted. The defendant’s witnesses, Hansberger, McCrone, Williams and Miller, all testified that the inquiry before the institute was as to certain alleged improper relations between the plaintiff and one Beanblossom, a student of the Biblical Seminary. The error was cured. Neil v. Thorn, 88 N. Y., 270.

The only proof of character, proper under the pleadings, was the general character of the plaintiff. The defendant could not, as a part of the proof affecting this inquiry, prove the names of the witnesses who said her general character was bad, nor what was said by each about the plaintiff. Upon cross-examination by the plaintiff, such questions w J> Id be proper to affect the credibility of the witness and the might of his testimony on that subject. The court had the power to limit the number of witnesses each party might examine as to any question where the opinion of witnesses was competent evidence. Sizer v. Burt, 4 Den., 426.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    James McCaldin, App'lt, v. William A. Parke et al., Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. MEGLieENCB—Wharf owner—Depth of water.
    , Where the owner of wharf undertakes that a vessel 190 feet long and sixteen feet draft can unload at his dock, it is his duty to know that the undertaking is based on the fact represented, and the omission to know this is negligence.
    2. Same.
    Defendant’s chartered a vessel to deliver lumber at their wharf, and represented that there should be sixteen feet of water at the wharf. In running into the dock bow on the vessel ran on a ledge of rock seventy feet out, and was damaged. Held, that defendants were liable for such damage.
    Exceptions to dismissal of complaint, ordered heard, in, the first instance, at general term.

      W. W. Goodrich, for pl’ff;

      Edward M. Shepard, for resp’ts.
   Barnard, P. J.

The plaintiff was the owner of the steamer “ Caroline Miller,’’ The defendants chartered the vessel to carry lumber for them from Port Royal, South Carolina, to New York. The defendants agreed that there should be sixteen feet of water ' at the wharf. On the 12th of April, 1887, the vessel arrived with a cargo of lumber at the port of New York, and were ordered by the defendants to discharge the same at their yard in Hunters Point. The plaintiff had made with the vessel two preceding trips, and delivered at the same place the cargo without accident. On this occasion the vessel was loaded so as to draw a little over fifteen feet of water. The tide was about half ebb, and in running into the dock the vessel struck on a ledge of rocks at the bottom of the East river some seventy feet outside of, and in front of, the defendants’ bulkhead. The depth of water was sufficient to float the vessel at -the dock, and there was sufficient depth of water to approach the same if the vessel had approached the dock either from the north or south inside of the rocks. On the occasion in question the vessel ran in bow on with an ebb tide, and the stern of the steamer was carried by the tide so that she struck on the rocks and was injured. The vessel was 190 •feet long. The rocks, at low tide, are twelve or thirteen feet below the surface, and as the tide falls about five feet, at the time of the collision there was not water enough to float the vessel. The complaint avers that the defendants knew of the danger of the approach, and agreed that the water was sufficient for the plaintiff’s vessel at all turns of the tide. There was no proof given of the knowledge of the defendants of the existence of the rocks, but the defendants- both testified that they had never heard of the ledge of rocks before this accident. The proof did not show that an accident had ever happened before at this point, and that vessels of even larger draft had landed at defendants’ dock safely. The question presented is, whether it was the defendants’ duty to measure the depth of water at this point and inform the plaintiff of the result.

The plaintiff establishes by numerous authorities that an owner of a dock is liable for neglect to keep the dock in repair, and the approaches thereto m suitable order for the business of those who are invited to deliver freight on the dock. The principle settled by the cases is that the owner must suffer the cause of the accident to exist by neglect. That if he knew of a hidden danger he must give notice of it, or he, in the exercise of ordinary care and diligence, should have known of the obstruction and removed it. O'Rourke v. Peck, 24 Blatchford, 473; Nickerson v. Tirrell, 127 Mass., 236.

There was no proof, upon the trial, that the defendants knew of the existence of the ledge of rocks in question. The defendants both affirmatively testified that they neither knew or had ever heard of it. Just before the accident the defendants caused the river bottom in front of the dock to be dredged out so as to be some fifteen feet át “ mean low water.” This dredging did not go beyond forty feet from the dock. The question is simplified to this: Wore the defendants, who engaged for sixteen feet of water, bound to give sixteen feet of water at the point of the accident? We think they were. An approach must mean that portion of the frontage of the dock which a vessel must pass through to reach the same even bow on. That is a legitimate way of approach, so that the bow being fastened to the dock, the stern of the steamer would be carried by the tide alongside of the dock. It was negligent in the defendants to engage for a depth of water which should not take in the length of the vessel for which a depth of sixteen feet was to be given. In the absence of this undertaking there was no proof of negligence. The ledge of rocks at the bottom of the East river, some sixty feet from the dock, would, ordinarily, be without the scope of the defendants care and duty to remove. When they undertook that a vessel of 190 feet in length and sixteen feet draft could unload at the dock, it was their duty to know that the undertaking was based upon the fact represented, and the omission to know this was negligence. The case should have gone to the jury under the evidence.

The exceptions should, therefore, be sustained, and a new trial granted, with costs to abide event.

Pratt and By khan, JJ, concur.