author: Barrett, J.

text:
    The Mayor, etc., of New York, Resp’ts, v. Patrick Reilly, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Municipal corporations—Contract—Delay in performance.
    In a contract made with the defendant Reilly by the city of New York through the commissioner of public works it was provided that Reilly was to begin work at a time designated by the commissioner and finish in twenty-three days. No time was designated, but Reilly proceeded of his own accord. The contract provided that-the commissioner might terminate it for “ unneccessary delay.” Held, that as no time had ever been designated to commence, the contractor was not in default.

      2. Same.
    It also provided that mason work was to cease on December 1 unless the commissioner otherwise directed by written notice. A part of the work was mason work and no work was done before December 1. Held, that as no time to commence was designated and no notice permitting mason work after December 1 was ever given, the commissioner had no power to abrogate the contract.
    3. Same.
    The agreement also provided that if the contract was taken away from the contractor for delay and relet and an extra expense was thereby caused the contractor must pay, on notice from the commissioner, the excess so-due. Held, in an action against the contractor and his sureties, that failure to give notice of the excess to be paid was a defense.
    The court at circuit directed a verdict in favor of the plaintiffs, and ordered the exceptions to be heard in the first instance at general term. This is a hearing upon such exceptions.

      John J. Townsend, and the corporation counsel, W. FL. Clark, for resp’ts; L. Lafiin Kellogg, for app’lt Kelly; Arthur E. Smith, for app’lt Reilly; Joseph Fettretch, for app’lt Williams.
   Barrett, J.

This action is upon a bond to the plaintiffs, given by all the defendants, to secure the faithful performance by Reilly of a sewer contract, awarded to him by the commissioner of public works and executed contemporaneously with such bond. It will not be necessary to consider all the exceptions, as there are one or two which we think fatal to a recovery. It was provided in the contract that Reilly should commence-the specified work “ on such day and at such place or places as the said commissioner (of public works) may designate, and progress therewith so as to complete the same on or before the expiration of twenty-three days thereafter.” The commissioner never-made the designation authorized by this clause, but Reilly commenced work without it. This was all very well so long as matters proceeded satisfactorily, but when the commissioner became dissatisfied with Eeilly’s progress, and sought to abrogate the contract because of what he deemed “ unnecessary delay,” he was bound to set the twenty-three days running. He could not charge the contractor with unnecessary or any delay until he had at least fixed the time and place for the commencement of the work. That Eeilly voluntarily proceeded is immaterial. It was not the delay incident to voluntary action which was contemplated, but delay when there was an obligation to proceed. If, for instance, the time of commencing work had been specified in the contract, the contractor might have forestalled that time, but he would not have been bound to do so. Nor could he have been charged with neglect because he failed to utilize all the intervening time. His contract obligation to commence work at the specified date would govern, and he could not well be derelict until then.

The same principle applies where the time of commencing is to be fixed by a particular official. The duty to proceed arises only when the official has acted. Then, too, it must not be overlooked that the contract is highly penal and confers almost arbitrary power upon the commissioner. It provides that “ if at any time the said commissioner shall be of opinion and shall so certify in writing that the said work or any part thereof is unnecessarily delayed * * * he shall have the power to notify the aforesaid contractor to discontinue all work or any part thereof under the contract. Hpon this notice being given, the contractor “shall discontinue said work,” and the commissioner is then authorized to complete it, by contract or otherwise, and in case the expense shall exceed the sum which would have been payable under the contract to charge the excess to the contractor, who agrees to pay it “ on notice from the said commissioner of the excess due.”

It is but reasonable that before the commissioner acts under these extreme provisions, the strict letter of the contract with regard to the time of commencing the work should be observed. The contractor’s rights cannot be taken away by the mere opinion of the commissioner until there is at least a precise legal basis for its exercise. There is another consideration which strengthens this construction. The contract provides that “mason work of all kinds shall cease on the first of December in each year unless the commissioner of public works shall otherwise direct by written notice, and then shall be continued only for such time as may be designated in such notice, and no work shall be resumed before the time appointed by said commissioner.” How can any contractor whose contract calls for mason work be charged with delay occurring after the first of December, so long as he has received no such written direction to proceed? A designation under the contract of the time to commence work (involving mason work), given after the first of December, might possibly be treated as equivalent to a written direction to proceed with all the ivork called for by the contract, although, where there is other than mason work to be done, that is extremely doubtful.

Without such a designation, however, there can surely be no question of unnecessary delay, after the 1st of December, with regard to mason work called for by the contract, but not specially directed in writing to be done. Here the contractor neither received notice to commence work at a particular time nor a notice authorizing the mason work. Assuming, then, that the commissioner substantially complied with the statute requiring his certificate of unnecessary delay, we think he was not authorized to abrogate the contract in the manner he did, under the then existing circumstances.

The failure of the commissioner to give Reilly notice of the sum which he was required to pay was also ground for a nonsuit. The agreement was to pay “ on notice from the commissioner of the excess so due.” Notice from some one else was not the condition. It must be remembered that this was not an ordinary promise to pay money acknowledged to be due, but, in substance, damages for the breach of a contract, such damages to be liquidated in a particular way. One claiming a sum thus brought about should be held to strict compliance with every prerequisite to payment, especially in an action against sureties.

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

Yah Bruht, P. J., and Bartlett, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Nathaniel Hooper et al., App’lts., v. Charles McCullough Beecher et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Trial—Stipulation—Notice.
    By the giving of a stipulation setting down a case for trial on a given day a party is estopped from asserting that the case was not in a condition to be tried on such day; and, in such case, it is not necessary for the other party, who is insisting upon a trial according to the stipulation, to return within twenty-four hours a notice of trial for a later date, served subsequent to the giving of such stipulation.
    Appeal from order refusing to adjourn the trial of an action.

      F. Bien, for app’lts; G. F. Tracy, for resp’ts.
   Van Brunt, P. J.

A new trial of this action having been ordered by the court of appeals, the case was restored to the calendar and noticed for trial by the defendants for the April term, 1890, and the same duly placed upon the calendar. In August, 1890, an amended complaint was served and an answer thereto made in October, 1890; and a reply was also served in the same month.

On the 8th of December, 1890, the parties filed a stipulation with the clerk setting the case down for trial on the second Monday of January, 1891. When the case was reached upon the calendar of the special term the plaintiffs served a notice of trial for the first Monday of February, which notice was retained by the attorney for the defendants, and moved to strike the case from the calendar on the ground that new issues having been framed it was necessary to serve a new notice of trial, and to file a new note of issue. The motion was denied and the case set down for trial on the 16th of January, on which day the motion was renewed and denied, and from the order thereupon entered this appeal was taken.

It seems to us clear that by the giving of the stipulation setting the case down for trial on a given day the plaintiffs are estopped from asserting that the case was not in a condition to be tried upon the day upon which they agreed to try the same.

The objection that the notice of trial was received and retained and not returned within twenty-four hours cannot avail the appellants, because they had notice at the time of the service of this notice of trial that the defendants were insisting upon the trial, and claiming the right to a trial, because of the stipulation made in December, 1890, and that the right to a trial did not depend upon the service of a new notice of trial. This was giving the plaintiffs clear and definite notice that the notice of trial which was then served would not be recognized, and he was not in any degree misled by reason of its retention.

We tliink, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels and O’Brien, JJ., concur.


text:
    In the Matter of the Will of John Patterson, Deceased.

      (Supreme Court, General Term,, First Department,

      Filed February 11, 1891.)

    Will—Undue influence.
    A testator, then very ill and sick, made a will on the 18th and changed it on the 19th. The latter made no serious changes, except in reducing a. legacy to a person not related to the testator. His brother, the residuary legatee, and who was also the principal beneficiary under the will, was made an executor of the second will. The subscribing witnesses declared the testator rational, and no witness proved irrational acts or words. Held, that the charge of undue influence was not made out.
    Appeal from a decree of the surrogate rejecting a paper writing, dated April 19, 1888, propounded as the last will and testament of John Patterson, deceased, and refusing probate thereof.

      William Q. Choate, for app’lts; Charles R. Beckett, for resp’ts.
   Barrett, J.

There seems to have been some misunderstanding in this case with regard to the terms of the decree appealed from. The learned surrogate in his opinion expressly placed his. judgment upon the fact that the paper offered for probate was not the free and voluntary, unrestrained act of the deceased.” He did not intimate a doubt as to the due execution and attestation of the instrument, nor did he express a decided opinion upon the question of testamentary capacity. On the contrary, he made the following observations upon the latter head:

“ Whether the. testator was actually capable at the time he executed the paper of executing a will under the very liberal construction of our statute which the courts have given and which I have been compelled to follow in several cases, it is not necessary for me to decide. Rot very much evidence has been given on that point. That the man was in a desperately sick condition, very near to death, with a very limited testamentary capacity and very limited mental strength, is established to my satisfaction by the evidence of Mr. Hoyt, without reference to the evidence of any other witness in the case.”'

The learned surrogate added, that although he might be justified on the proof in holding that there was not mental capacity, he preferred “to dispose of the case upon the other proposition,” namely, undue influence.

The decree, nevertheless, adjudges, in addition to the finding of undue influence, that the will was not executed or attested in the manner prescribed by law for the execution and attestation of last wills and testaments, and that the testator was not competent to execute the same.

We find no evidence in the case to support the finding with regard to the execution of the instrument, and as the question was not -adverted to in the opinion, we assume that the error was that of the draftsman and that the form of the decree was not minutely scrutinized. There certainly was ample evidence of the execution of the will in the manner prescribed by law. The testimony of the subscribing witnesses was sufficient, and it was not in any way shaken.

As to the question of testamentary capacity, we do not entertain the doubt expressed by the learned surrogate. It is true that the testator was very ill and very weak, but the proof of his mental capacity was quite sufficient. This instrument was executed on the 19th day of April. On the 18th of the samemonth the testator executed another will, which was admitted to probate on the application of the present contestants. His mental capacity when he executed the first will is not questioned, and while it is evident that the testator was nearing his end and becoming physically weaker day by day, his mental capacity was not destroyed nor materially affected within the next twenty-four hours. Indeed the mental power which he exhibited on the 19th seems to have been as great as that shown on the 18th. He told the lawyer who drew the instrument that he was not satisfied with the will of the day before and that he wished it changed. He also told this lawyer “to whom the different amounts were to be given.” The will was read to him before it was executed, and although he was so weak physically that he could only make his mark with assistance, the subscribing witnesses, both of whom were apparently disinterested, declared that mentally he was entirely rational. Indeed one of them stated that the testator was as clear as he (the witness) and the learned surrogate were when the testimony was being given. Hone of the witnesses observed any irrational acts, or anything tending to show that the testator was unable to comprehend the business attending the making of his will.

Upon the question of undue influence, the learned surrogate rests his opinion mainly upon the fact that the proponent, George W. Patterson, employed the lawyer who prepared the instrument, and exhibited much excitement with regard to its hasty execution. He was determined, the respondents insist, -to have it done. There are several salient facts in this case which lead us to differ with the conclusion thus arrived at. In the first place, George W. Patterson and his sister, Eliza Brogan, were the testator’s only heirs at law and next of kin. They were the natural recipients -of his bounty.

By the will of the 18th of April, as to which there is no pretense of undue influence, the testator gave this sister the income of $10,000 for life, and upon her death the principal sum was given to George W. Patterson. He then gave the income of $5,000 to his niece, Louisa Brogan, for life, and upon her death the principal sum was also given to this brother. And after giving certain legacies to other parties, he made this brother his residuary legatee. The difference between the dispositions of property in this will and in that made the next day was so slight that it is difficult to perceive any motive for undue influence. Eliza Brogan’s rights are substantially the same in the later instrument So are Louisa’s. The legacy to Daniel Paxton, who is one of the executors named in both wills, is increased by $500. That to James B. Hackett, who was named as an executor in the first will, but not in the second, is decreased from $4,500 to $1,000. The legacy of $1,500 to Daniel Kelly, the son of one of the testator’s friends, remains the same, and the only change with respect to that legacy is that it is made payable immediately. The residuary legatee, George W. Patterson, is thus a gainer by the second will to the extent of but $3,000 from an estate showing $64,000 of personalty, besides a house and lot in this city. The substantial complaint seems to be that Mr. Hackett has lost $3,500 of his original legacy, and also his ex-ecutorship. Ho one dependent upon the testator’s bounty comes forward to make any complaint. The testator's property has gone in a natural channel, substantially as he desired, even when acting in the absence of his brother, and the whole trouble seems to have arisen from Mr. Hackett’s unwillingness to permit this brother to administer upon the estate jointly with Mr. Paxton. When George W. Patterson learned the contents of the first will, he expressed to the testator a desire to be made an executor. This desire was perfectly natural, and its expression was entirely proper under the circumstances. Who, indeed, should have a voice in the administration if not the man who was to receive the great bulk of the estate ? It is no wonder that he was excited upon learning that, although he was the principal legatee, he was not named as executor, and was thus deprived of the ordinary protection to his rights which would be afforded by his having a share in the administration. He did not request his brother to make him sole executor. He simply asked to share that office with one of the gentlemen named as executor in the first will. He does not appear to have been responsible for the cutting down of Mr. Hackett’s legacy.

Even as to the executorship, there was no threat, no undue persuasion, no subjection of the will, no overpowering influence exercised upon a weak mind, none of the usual indicia of undue influence. There was in fact no need of undue influence. The simple request of a natural residuary legatee was sufficient to effect the slight and reasonable changes made in the first will. There is, in truth, nothing in the trivial facts of this case to bring it within the most extreme view of undue influence taken in any of the authorities. What relevancy the incident of the diamond pin has, to support the charge of undue influence we •cannot imagine. The testimony of one of the subscribing witnesses with regard to this incident is as follows:

“ George W. Patterson said to his brother, You have a diamond pin.’ It was on his undershirt, on the testator’s flannel shirt It was a large diamond pin, perhaps as large as my first finger nail; it was quite brilliant. George W. Patterson then said: ‘ You promised to give me that pin.’ In the meantime Mrs. Cahill flew down in front of him. She said: ‘You shan’t give him that pin, you promised it to me.’ So they didn’t either one get it. Then the testator, who was then in a dying condition, waived them both away -and with a curse, ‘ To hell with you ’ or something like that.”

This would seem to indicate anything but subjection on the part of the testator. It exhibited greed on the part of George W. Patterson and Mrs Cahill, but not control. If it exhibits anything but greed, it is the entire absence of any overmastering influence. It was an inaccurate view of the evidence to speak of this effort on George’s part to possess himself of this pin as “a disgraceful and horrid attempt to remove by force a jewel from the shirt of his brother.” Mo force was used, and even persuasion failed. The incident was exaggerated and should not have been treated as in any sense crucial.

Upon the whole, we think this will should have been admitted to probate, and therefore the judgment appealed from should be reversed and an order made directing a trial by jury in the court of common pleas of the material questions of fact arising upon the issues between the parties. The issues to be framed upon notice.

Yak Brukt, P. J., concurs; Bartlett, J., concurs in the result.


text:
    Julien T. Davies, Rec’r, v. The New York Concert Co. Resp’t, (Limited), App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Bills and notes—Coepobations—Estoppel.
    Where a person gave a note on behalf of a corporation, as alleged, without authority from it, and subsequently on two separate occasions the corporation paid it, it is too late to claim that the person was unauthorized.
    2. Recbiveb—Omission fbom: schedules does not pbevent becoyeby of ASSETS.
    A receiver was appointed of a firm and did not include in the schedules of assets certain bonds which were the basis of this action. Held, that as the evidence showed title in the receiver, this was not important.
    8. Payment—Estoppel.
    Where the defendant was indebted to a bank and the over draft was made good by a note given through persons who were connected with both corporations, and the loan actually was used for the benefit of defendant and subsequently the means for paying the note were furnished by one of its officers who took charge of its bank business with the knowledge of the defendant, it cannot thereafter deny knowledge and authority and claim that payment was made by a volunteer.

      Motion for new trial on. exceptions ordered to be heard in the first instance at the general term.

      W. H. Arnoux, for app’lt; W. B. Bornblower, for resp’t.
   Van Brunt, P. J.

Upon the trial of this case both the plaintiff and defendant requested the court to direct a verdict in their respective favor. The court refused to direct a verdict in favor of the defendant, to which exception was taken, and directed a verdict in favor of the plaintiff, which was also excepted to. Under this condition of the record there is no question of fact before the court, and only questions of law are to be considered, among which is the question as to whether there was any evidence before the court tending to established the facts necessary to support the verdict as directed.

The plaintiff is the receiver'of the insolvent firm of Grant & Ward, and as the successor to the rights of that firm has been authorized to bring this action. Among others who were partners in that concern were James D. Fish, president of the Marine Bank, and Ferdinand Ward, who were also directors in the defendant company.

The defendant is a domestic corporation, owner of the building known as the Casino in which it conducts the business of theatrical and operatic performances.

In March, 1888, the defendant issued and sold to Grant & Ward the whole of a series of coupon bonds secured by mortgage upon its property. These bonds were paid for at par, and it was at the time of this transaction that Fish & Ward became directors, and Ward the treasurer of, the defendant. All the books relating 1o the finances of the corporation were kept at the office of Grant & Ward, and the financial part of the company’s affairs was transacted by Fish & Ward, and Mr. Doty who was an employe of Ward, and who in July, 1883, became treasurer of the defendant in the place of Ward who resigned. The bank account of the defendant was kept at the Marine National Bank in New York city, and in July and August of 1883, it was overdrawn from time to time to various extents. It having been learned that the bank examiner was to visit the bank, its cashier demanded that the account be made good, but the company had no money to make the account good, and no securities upon which to obtain a loan. It was thereupon agreed between Fish & Ward and Doty, that he, Doty, on behalf of the defendant, should give a note for $15,000, and Ward would furnish as collateral such of the above mentioned bonds as remained in the office of Grant & Ward. Upon that day Doty drew the note in the name of the Company for $15,000, payable on demand, dating the same back, and Ward gave Doty twenty-two bonds to pledge as collateral to the note, and Doty took the note and bonds to the bank and delivered the same to the cashier, and thereupon entered the amount of the loan in the pass books of the defendant, bringing the account of the defendant from an overdraft to a slight balance in its favor. The details of this transaction were entered upon the books of the defendant company, the entry upon the check book being under the date of August 16th, as follows: “Borrowed from the Marine National Bank on $22,000 New York Concert Company’s bonds $15,000.”

There was some evidence, although slight, that the treasurer reported the fact of this loan at a directors’ meeting, but there was no evidence that he ever stated that he had given a note. The first six months interest on the loan was paid by a check, countersigned by the president, the entry upon the stub of the check-book stating that the check was drawn to pay interest on loan of $15,-000 from August 16th to February 15, six months. Subsequently Grant & Ward and the bank failed, and both went into the hands of receivers.

In 1884 the receiver of the bank called for the payment of the loan, and the loan not being paid the receiver applied thereafter the coupons of the bonds in payment of the interest due on the loan, and in part payment also of the principal.

In 1888 Judge Arnoux came to the receiver of the bank to make some negotiations in regard to the matter of this note and bonds, and wanted to buy the note. The receiver of the bank told him that the note was secured by a collateral of $22,000 of bonds, which he had been notified by the receiver of Grant & Ward belonged to him and hence he could not sell the note as the collateral was more than the amount due, and whatever there was over, if the Concert Company ever paid the bonds, he proposed to apply on the debt of Grant & Ward. Hence he proposed to keep the collateral and pay the note by a sale if it would fetch it. It further appears that the receive!’ of the bank had applied to the receiver of Grant & Ward for leave to sell this collatteral, which the last named receiver assented to provided that the bonds should be sold at par and interest and provided the note for $15,000 should be paid from the proceeds of the sale and marked and treated as paid. The receiver of the bank and Judge Arnoux had several interviews, and the receiver told him that if he sold to him the collateral he would be obliged to mark the note “paid," and send it to the company as paid. The judge said he did not care for that, and the result of the negotiations was that the bonds were sold, the note marked paid by the receiver, and the bonds and note delivered to Mr. Bitch, the partner of Judge Arnoux. It further appears that the defendant subsequently paid these bonds and also again paid the note to Judge Arnoux.

The receiver of Grant & Ward subsequently made a demand upon the defendant for the return of the twenty-two bonds to him or payment thereof; the defendant refused to accede to the request, and this action was brought to recover to the extent to which the coupons and proceeds of the bonds had been applied to the payment of the note. As above stated, upon these facts the court directed a verdict to which exception was .taken, which exception is now presented for review.

There is evidence of many other facts in connection with this transaction which it has not been deemed necessary to mention, in respect to some of which there is an apparent conflict of evidence, but in the shape in which the questions involved come before this court this conflict of evidence cannot be considered, but it must be resolved in favor of the ruling which has been made by the learned court.

It is claimed upon the part of the defendant that the plaintiff cannot recover because Grant & Ward were not shown to be the owners of the bonds and because neither Doty as treasurer of the defendant, nor its president, nor the two combined, had any right to create any indebtedness or borrow any money in the name or on behalf of the defendant from the Marine Bank without the authority -of the board of directors, and no such authority was given to them or either of them; that the said note for $15,000 signed and delivered on the 29th of August, and antedated to the 15th of August, was signed without the knowledge or authority of the defendant and the same was never ratified by said company and was utterly void as against the company; that Doty had no authority to borrow or pledge said bonds or either of them and in fact he did not borrow and pledge same either individually or as treasurer of said company, but simply delivered the same to the cashier of the bank as clerk of said Ward and acting under his directions; and that this whole transaction took place without the knowledge or authority of the defendant, and without any subsequent ratification thereof by it.

There are various other propositions advanced in opposition to the ruling of the court, but it is not necessary to repeat them at length, because they are substantially involved in those to which attention has already been called.

The claim that Grant & Ward were not the owners of the bonds, and that, therefore, the plaintiff, as receiver, had established no claim in this action, seems to be based upon the proposition that, because in the schedules of assets as filed they were not mentioned by the receiver, he has proved no title. We think the evidence clearly justified the learned court in holding that Grant & Ward were the owners of the bonds, and their mere omission from the schedules by the' receiver in no manner tended to weaken the force of the evidence showing that these bonds came from the assets of Grant & Ward to the hands of the defendant to be pledged as collateral to the note.

It seems to us further that the evidence in this case not only justified but compelled the finding that Doty in all his trransactions in reference to this loan of $15,000 acted clearly within the scope of his authority.

It seems to us that the fact that he had the authority to make this note is established beyond question, because prior to the commencement of this suit such authority never has been questioned.

In fact, his authority seems to have been considered so complete by the directors of the defendant that, even after this note had actually been paid, they thought it necessary to pay it over again, for it appears from the evidence without dispute that these bonds were sold for the purpose of paying this note, and that it was the condition under which the receiver of Grant & Ward consented to the sale of the bonds by the receiver of the bank that the proceeds should be applied to the payment of the note and the note marked “paid." And it further appears that when the receiver, the holder of the note, received the proceeds of the sale of the bonds he applied them to the payment of the note, marked it paid and delivered it over to be handed over to the defendant. Of all these negotiations and transactions with the receiver of the bank the officers of the defendant were cognizant, and the authority of Doty in making this loan or in signing this note was never questioned.

Under these circumstances, it seems to us it is too late for the defendant now to say that Doty had no authority to sign this note, when they acknowledged it as a doubly valid obligation. It is said they have not ratified the action of Doty, but it seems to us they have ratified it not only once but twice in the most deliberate and formal way, having provided on two occasions the means for its payment.

But it is said that the note having been paid out of the proceeds of the sale of these bonds, it was a payment of the obligation of the defendant by a volunteer. That position entirely ignores the fact that, the evidence justified the finding that Doty, Fish and .Ward were managing the financial affairs of the defendant corporation, and that they were in the habit of borrowing money for it, as appears by the existence of these overdrafts, and there is no pretense but that the money resulting from these overdrafts was devoted to the business of the corporation, and that the amount of this loan went to pay the debt of the corporation to a very large amount, and the balance went into the ordinary bank account of the corporation. How will this corporation be permitted to say, with the proceeds of this note in its pocket, that Doty had no authority to borrow upon the note ?

And if he had authority to borrow upon the note, he had equal authority to make the note secure. He had authority to borrow these bonds for the purpose of pledging them as collateral for the note, and this transaction has been ratified by the defendant company. Knowing that these bonds had been borrowed for that purpose, and had been pledged as security for this note, they participated in the transaction by which these bonds were applied to the payment of their debt. There was no pretense or suggestion then, when their debt was being paid, that some volunteer was paying it. The means were provided by and with the knowledge of these directors for the payment of this note, and not a word is said about a want of authority upon the part of Doty to borrow the bonds and to pledge them as collateral to the note. And this conduct is in entire consonance with the testimony in regard to the financial affairs of this corporation.

It appears that the management of its financial affairs were committed to Mr. Ward and Mr. Fish, and that the directors trusted in their judgment so far as the bank account was concerned. The president testified that he did not consider it a part of his duty to oversee them, or what was being done in regard to the finances of the company; that he did not know whether the bank account was overdrawn, nor did he consider it part of his duty to ascertain, because it was entirely under the control of Fish or Ward; the management of the bank account was entirely under their control.

Now it is well settled that where a board of directors have acquiesced in the assumption upon the part of one of its officers of the exclusive management of its bank business, the bank cannot dispute the binding force of the arrangement made by shch officer in reference to its bank business. Martin v. Webb, 110 U. S., 7; Fifth Nat. Bk. v. Navassa Phosphate Co., 119 N. Y., 256; 29 N. Y. State Rep., 686.

In the case at bar the evidence goes further, and supports the conclusion that the management of the financial affairs of the defendant was expressly committed to Messrs. Fish and Ward and Doty.

A large amount of space in the briefs of the respective counsel is devoted to the discussion of the peculiar relations arising between Grant & Ward and the defendant resulting from this transaction. It does not seem necessary to enter into this discussion, because the fact appears that Grant & Ward, at the request of the defendant, supplied the means for paying its debts, which now the defendant desires to keep without recognizing the obligation to repay that which it virtually borrowed.

The amount of the damage which Grant & Ward sustained is the amount of the proceeds of their bonds which was applied to the payment of this note.

This is the amount for which the verdict was directed, and we see no reason for interfering therewith.

The exceptions should be overruled, and the plaintiff should have judgment upon the verdict, with costs.

Brady and Daniels, JJ., concur.


author: Brady, J.

text:
    Thomas J. Turnier, Pl’ff, v. Richard Lathers, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Negligence—Evidence.
    The plaintiff, an ice dealer, while attempting to deliver ice, by a hand-elevator, to a tenant in an apartment house, was injured because the rope of the elevator broke. Plaintiff made no proof of any defect in the rope or elevator. EM, that he had not made out a prima facie case of negligence. It is only where a contractual relation exists between the parties that the doctrine, res ipsa loquitur, applies.
    Exceptions ordered to be heard in the first instance at the general term.

      S. 0 Baldwin, for pl’fif; Richard O' Gorman, for def’t
   Brady, J.

The plaintiff sought to recover damages for injuries received while attempting to deliver ice to a tenant in the apartment house No. 178 East Ninety-third street in this city, owned by the defendant. An elevator or dumb waiter was provided in order more easily to lift or send articles to the upper floors. It could be worked by any person by means of an endless rope, and near it there was a speaking tube placed in the wall which enabled the occupants upon the different .floors to converse with each other. On the 9th November, 1888, the plaintiff essayed to deliver 15 pounds of ice to one of the tenants as already suggested. He placed the ice on the elevator and began to hoist it, having previously given the signal to the floor to which it was to be sent, when the rope mentioned broke and the dumb-waiter was precipitated, striking him upon the head, knocking him senseless and causing to him serious injuries. There is no pretence that the plaintiff was negligent in any respect, and although some legal propositions other than the one to be discussed were presented, it will not be necessary to consider them.

The signal point is the absence of any evidence of the condition of the elevator or the rope, the plaintiff resting his case upon the mere proof of the accident. Why the rope broke is, therefore, left to conjecture opinion, unsupported by proof, and speculative theory. In other words, the plaintiff depends upon the fact that the rope broke and the waiter or elevator fell. This was not sufficient to establish his cause of action. It was necessary for him to prove something, either showing negligence per se or from which it might be presumed or inferred. The rule res ipsa loquitur does not apply except where contractual relations exist between the parties. Wiedmer v. N. Y. El. R. R. Co., 114 N. Y., 468; 23 N. Y. State Rep., 859; Cosulich v. Standard Oil Co., 33 N. Y. State Rep., 287, 293. The learned justice delivering the opinion in the last case, said the court below failed to recognize a distinction which has been carefully guarded by the courts of this state, as well as by nearly all of the jurisdictions in the country, between actions founded on negligence where no contract existed between the parties and those in which the defendant owed no other duties than to use such ordinary care and caution as the nature of the business demanded to avoid injury to others. And it is said (see 2 Thompson on Negligence, 1227), but it is believed that it is never true except in contractual relations, that the proof of the mere fact that the accident happened to the plaintiff will amount to prima facie proof of negligence on the part of the defendant. The cases in confirmation of this rule might be multiplied, but that is deemed unnecessary.

The exceptions taken to a refusal to permit proof of what the person said, supposed to be in charge of the premises, in regard to the elevator or dumb waiter are of no value. There was no evidence that he was charged with any power to represent the de-. fendant in any respect, or that he was the janitor of the building, so called. There is no value, either, in any of the other exceptions. The plaintiff’s difficulty was the absence of the essential proof mentioned, and all the attempts to supply it by collateral circumstances failed for the reason that the testimony offered was not admissible.

The complaint was for these reasons properly dismissed, and • the exceptions should be overruled and the defendant should have judgment, with costs.

Yak Brunt, P. J., and Daniels, J., concur.


author: Brady, J. Van Brunt, P. J.

text:
    Robert Connor, Pl’ff, v. Charles Connor et al., Def’ts.

      (Supreme Court, General Term, Frst Department,

      Filed February 11, 1891.)

    Partition—Reference—Publication of notice.
    Section 1562, Code Civil Procedure, as amended in 1887, states that, upon a reference directed as prescribed by § 1561, “ the referee must cause a notice to be published once in each week for six successive weeks in such newspaper published in the county wherein the place of trial is designated as shall be designated by the court directing said reference, and also in a newspaper published in each county whereip the property is situated, requiring each person,” etc. The property in question was situated only in New York county and under the designation of the court publication was made in only one newspaper published in said county. Held, sufficient; the section does not require publication in two newspapers unless the property is situated in two counties.
    Appeal from an order entered herein denying a motion to vacate the interlocutory judgment entered herein.

      Kelly & MacEae, for app’lts; B. F. Me Cahill, Matthew Daly, Francis J. Bischoff, William E. Syme, Thomas J. Me Cahill and John Whalen, for resp’ts.
   Brady, J.

This is an appeal by the defendants McGarrity, who were purchasers at the sale in partition herein, from an order made by Mr. Justice Andrews refusing to set aside the interlocutory judgment on the ground that notice to creditors having ■liens against the párties to the action by advertisement was not given and that as there are lien creditors not cut off the sale of the premises was irregular and should not be confirmed. Concurrently with the motion to set aside the judgment, a motion was made to confirm the sale, but the proceedings were stayed pending this appeal. The alleged irregularities were as follows:

First. That a certain corporation known as the John Kress Brewing Co., a mortgagor, had not been made a party to the action and had not received notice of the application for the judgment.

Second. The second alleged irregularity is that the referee advertised for liens for six weeks (6) in only one newspaper.

The first objection is of no value, for the reason that the notice of Us pendens in this action was filed on the 7th day of June, 1889, and the mortgage was not executed or recorded until the 23d day of November, 1889, which was more than six (6) months after the filing of the Us pendens. It is expressly provided by § 1671 of the Code that a person whose conveyance is executed or recorded after the filing of the notice of Us pendens is bound by all proceedings taken in the action after the filing of the notice to the same extent as if he were a party to the action. Fuller v. Scribner, 76 N. Y., 190; Kindberg v. Freeman, 39 Hun, 466. The next objection in regard to the publication does not seem to be well taken. Section 1562 of the Code provides where a reference is directed in an action of partition, the referee must cause a notice to be published once in each week, for six (6) successive weeks, in such newspaper published in the county wherein the place of trial is designated as shall be designated by the court directing the reference, and also in a newspaper published in each county in which the property is situated, requiring each person not a party to the action who at the date of the order had a lien upon any undivided share or interest in the property to appear, etc. It appears from the record that the notice thus required was published in a newspaper designated by the court, which newspaper was published in the county of the place of trial, namely, in ¡New York county, where the property of which partition is sought is situated

The appellant’s contention is that notice should be published in two (2) newspapers published in ¡New York county, because the property is therein situated and because it is the county for the trial of the action. Prior to 1887 it was necessary to make publication in the state paper, but in that year an amendment was adopted by the legislature substituting a local newspaper for the publication of the notice required to be given. There is nothing in the section mentioned which requires a publication in two newspapers unless the property of which partition is sought is in two counties, as clearly indicated by the language of the section, which, after providing for a publication in the county wherein the place of trial is designated, provides also for the publication in a newspaper published in each county wherein the property is situated, and the provision thus applied would require and would secure a publication of the proceeding in each county wherein any of the property sought to be partitioned was situated. The publication, it must be observed, is not to be made in “ newspapers,” but in “such newspaper.” This language confirms the propriety of the construction adopted and shows clearly that the publication in newspapers in any of the counties wherein the property is situated was not provided for and was not contemplated, but one newspaper only. For these reasons the order appealed from must be affirmed.

Daniels, J., concurs.

Van Brunt, P. J.

I cannot find from the record that the newspaper in which publication was made was ever designated by the court. But the referee having reported the publication to the court, and the court having confirmed his action, such confirmation was equivalent to an original designation. I concur, therefore, in result.


text:
    Lewis Sanders, App’lt, v. Agnes Gordon Soutter and William K. Soutter, Impl’d, Resp’ts.

      [Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Exectjtobs and administratobs—Release—Action to set aside.
    Plaintiff, who held a claim for professional services against the widow of one of the heirs of the estate represented by defendants, took an assignment of her claims under the will o£ her husband to a share in said estate. A proceeding brought by the widow to compel defendants to account was dismissed by the surrogate on production of a release signed by her. Held, that plaintiff’s remedy was by appeal or by motion to set aside the decree, and not having taken that course he was precluded from maintaining an action to set aside the release as having been obtained collusively.

      2. Same—Pleading.
    The complaint alleged the death of defendant’s testator, the qualification of the executors, misconduct on their part, that they had allowed a large part of the assets to be used by a firm in which one was a partner, and which failed; th it one of the heirs died, leaving his share to his wife and children; that his executor has been discharged without securing his share in the first mentioned estate, and that he connived at the use of said assets by the firm; that the widow of said heir assigned all her interest in said share to one 0., by whom it was conveyed to plaintiff; that the widow was appointed administratrix of her husband, and brought proceedings to compel defendants to account, who produced a general release from her, and an approval of her accounts and the proceeding was dismissed, and that such settlement and release were collusive and fraudulent. Held, that it did not state facts sufficient to constitute a cause of action.
    Appeal from a judgment and decree entered May 14, 1890, dismissing the complaint as to the defendants, executors of James T. Soutter, Sr., on the merits, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
    The case came on to be tried at the special term before the Hon. Miles Beach, J., and the complaint was dismissed by him before any evidence was taken on the first defense set up in the executors’ answer by way of a demurrer. “ 1. That the complaint does not state facts sufficient to constitute a cause of action.” One of the two demurrable defenses not waived by the failure to interpose a formal demurrer. Code, § 499.
    The complaint alleges the death of James T. Soutter, Sr., in February, 1873, testate; the probate of his will in Ulster county, in July, 1873; the appointment and .the qualifications of the defendants, Agnes Gordon Soutter and William K. Soutter as executors; the devise and bequest of one-half of his estate to his widow Agnes, and one-tenth thereof each to his five children, William K., Robert, James, Emily W. Dix, and Eliza FT. Bell; that the personalty exceeded $1,100,000, of which a portion only was inventoried and appraised at $695,461.64, a large portion of which, consisting of bonds, was directed to be divided in kind among the legatees; that Mrs. Soutter intrusted the whole administration of the estate to her son William K. Soutter, of whose administration of the trust funds she approved; that William K. was engaged with Timothy H. Porter and others as bankers and brokers, under the firm name of Soutter & Company, from January, 1873, to September, 1883. On the 28th of September, 1883, Soutter & Company failed, owing upwards of two millions of dollars, with assets of less than $500,000 ; during the whole of said period said firm of Soutter & Company, through the instrumentality of William K. Soutter, as executor, had control of the stocks and bonds of the estate and proceeds thereof, not distributed, without security to the estate, without keeping any account of the benefits devived from such use, without paying the legal rate of interest on the money so used, or anything for the use of the stocks and bonds; that they charged the estate excessive and usurious interest; that said William K., as executor, through Soutter & Company, sold a large amount of the securities belonging to said estate to pay claims of Soutter & Co. and usurious interest thereon, amounting to over $400,000, some of which were not debts of the estate, others greatly in excess of the amount due, and others incorrectly stated to the prejudice of the estate, without having first proved the same or having them allowed by the surrogate; that the executors unlawfully diverted upwards of $74,000 from the personal estate to paying taxes on real estate ; they made unauthorized and unsecured loans amounting to upwards of $78,000; unlawfully paid assessments on stocks exceeding $5,000; charged usurious and unnecessary interest in the month of November, 1873, amounting to $4,330.50; in illegal commissions $51,367.91; made an erroneous charge of $2,-782.60; converted stocks and bonds of the Laclede Gas Co., and the St. Louis Gaslight Co.; made an unlawful investment in the coupons of the Mobile and Montgomery Railroad bonds of $123,535.09 ; illegally sold and disposed of the state bonds below value instead of dividing in kind; made an unlawful loan to Soutter & Co. of upwards of $100,000; converted Mobile City bonds, which is a total loss par value $10,000.
    2nd. That Robert Soutter died intestate July 18, 1873; will probated July 31st in New York county, appointing Timothy H. Porter executor and others now dead, who qualified, devising and bequeathing one -half of his real and personal property to his widow, Charlotte A. Soutter, now the Duchess d’Auxy, a defendant herein, the other half in trust for his four children, share and share alike, shares to be paid on their attaining respectively twenty-five years of age; the death of the daughter Pauline; the participation of said Porter as one of the firm of Soutter & Go. with William K. Soutter, and the executors of James T. Soutter, Sr., in all the wrongful acts aforesaid; that on the 10th of March, 1884, said Porter accounted in the surrogate’s court and was discharged, having failed to reduce to possession the share of the estate of Robert Soutter in a large amount of the stocks, bonds, securities and moneys of the estate of James T. Soutter, the elder, but continued to use, and permit the same to be used, in the business of Soutter & Co., in violation of his trust and duty as such executor and trustee; that as trustee for the children who are not yet twenty-five years of age, he was succeeded by the defendant’ The Farmers Loan & Trust Company.
    3d. That on the 17th of August, 1887, Robert So utter’s widow, the Duchess d’Auxy, sold, for value, her rights as legatee under the will of Robert Soutter, including the claim in suit, to Henry Cranston, who, on the 27th of April, 1888, for value, sold the same interest to William J. Amend, who, on the 30th of April, 1888, sold the same interest, for value, to the plaintiff, who is now the holder and owner thereof. That of the two first assignments and of plaintiff’s claim the defendant executors had due notice.
    4th. That on the 6th of December, 1888, the Duchess d’Auxy obtained letters of administration with the will annexed on the goods, etc., of Robert Soutter, with power to prosecute only and not to collect or compromise claims. That on her petitition to the surrogate of Ulster county, a citation was issued to the executors of James T. Soutter, Sr., to render their account for judicial settlement and citing the plaintiff also. That the defendant executors filed their accounts, and exceptions thereto were filed on behalf of the administratrix and plaintiff, and the proceedings were adjourned to June 7, 1889, whereupon the said executors produced from the Duchess d’Auxy, individually, and as administratrix, a general release to the defendants, individually and as executors of James T- Soutter, Sr., and also an approval of their accounts, in consideration of the payment to her by said executors of her distributive share of- the estate of James T. Soutter (this appears by the answer to have been executed in the month of February, 1889), whereupon, on motion of the executors’ counsel, the surrogate, against the objection and protest of plaintiff, a party to the proceeding, ordered that the said proceedings be discontinued and the petition dismissed, which was done.
    5th. That such settlements so made were collusive and fraudulent, and made with the intent to deprive the plaintiff of his rights aforesaid, whereupon the plaintiff brought this action to set aside the release, to compel the executors to account and to maintain, ascertain and satisfy plaintiff’s interest as assignee, and for further and other relief.

      Lewis Sanders, for app’lt; Delos McCurdy, for resp’ts.
   Brady, J.

The plaintiff by his proceeding before the surrogate to establish the liability of the executors of James T. Soutter, by which his claim would be secured. He was the creditor of the Duchess d’Auxy for professional services, and seems to have fortified his demand by an assignment originally made by her to Henry Cranston of all her right, title and interest as legatee under the last will and testament of Robert Soutter, and by mesne assignments to the plaintiff. When the matter was before the surrogate on the petition of the duchess the executors obtained from her appropriate releases, and presented them to him, who thereupon, against the objection and protest of the plaintiff, both as attorney of record for the duchess and on his individual rights, ordered the proceeding dismissed. Ho appeal was taken from that result, and nothing was further done in that proceeding by the plaintiff to maintain his rights either by appeal or upon the ground that the settlement was collusive. He had no claim against the estate of Robert Soutter, deceased, of which the duchess was the administratrix with the will annexed, but against her individually for professional services rendered her. His claim under the assignment, however, depended for its value upon the result of the proceedings to account, in which he had an interest created by it, and was therefore speculative, while his demand for services was meritorious. His redress consisted of an appeal, or a motion to set aside the decree of the surrogate, upon proof of facts showing the collusion by which the decree was obtained. He adopted neither, and his claim must rest therefore in abeyance until that decree is set aside or modified, inasmuch as it precludes any action against the executors of Jajnes T. Soutter.

Aside from these views, it was held in Matter of Soutter, 105 N. Y., 519, 520; 8 N. Y. State Rep., 6, that the proper remedy of the duchess, who was the appellant in that case, and in which her claim was sought to be enforced against the executors of James T. Soutter, was to have an administrator de bonis non with the will annexed of her husband’s estate appointed, who could call the executors of James T. Soutter to an account, and compel payment by them to him of whatever might still be due under the will of James T. Soutter to the estate of Robert Soutter, and would have ample power, by proceedings before the surrogate or by a suitable action, to call the proper parties to an account for the ' estate of James T. Soutter. That suggestion seems to have been adopted, and the duchess appointed and a proceeding before the surrogate commenced by her, as appears from the statement of the facts of this controversy. If it be the fact, however, that the plaintiff has acquired by the assignment the right to commence an action against the defendants, it is necessary in order to enable him to maintain it, as cogently suggested by the learned counsel for the defendants to allege:

First. That some portion of the estate of James T. Soutter, to which the estate of Robert Soutter became entitled, still remains in the hands of the defendant executors, undistributed and unaccounted for.

Second. That the estate of Robert Soutter, became and is entitled to have and receive such portion of the said first estate, the same not having been delivered or paid to the executor of Robert Soutter, or bis successor in trust.

Third. That the executor of Robert Soutter arid his successor neglected or refused to collect from the estate of James T. Soutter the portion thereof to which Robert was entitled, and have been discharged or removed.

None of these facts are alleged in the complaint. And it must be also remarked that the complaint fails to allege that the duchess had any actual interest in the estate of Robert Soutter at the time of the alleged assignments, or either of them, and, as suggested by the learned counsel for the respondents, for aught that appears in the complaint she may have received from the estate of Robert Soutter all the moneys to which she was entitled, if any. There is no allegation in the complaint that she had not. It must be further said that regarding this action as one to create and enforce a lien that the plaintiff has as an attorney, the complaint fails to state a cause of action entitling him to relief.

By the common law such a lien arises only after judgment, and as it is competent for the parties acting bona fide to settle and discontinue a suit before the judgment without the consent of the attorney he is remitted by its doctrines to his remedy against his client for his compensation. He has no right to bring an equitable action to enforce his inchoate right as an attorney even where there has been a fraudulent settlement of the case. Randall v. Van Wagenen, 115 N. Y., 527; 26 N. Y. State Rep., 438. And by statute his proceeding to enforce his lien must be in the action or matter in which the fees were earned and as to which his lien is preserved. Code, § 66.

For these reasons it is thought that the plaintiff’s case was properly disposed of, save that the complaint should not have been dismissed on the merits. The dismissal was upon the ground that the complaint did not state a cause of action, which is in effect a demurrer.

The judgment must therefore be modified by striking out the words “ on the merits,” and as thus modified affirmed,” without costs to either party.

Van Brunt, P. J., and Daniels, J., concur.


author: O’Brien, J.

text:
    Henry B. Pierce, Rec’r, Resp’t, v. Dessa Mayer et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    COEFOEATIONS—JUDGMENTS AGAINST INSOLVENT—INJUNCTION.
    An injunction to restrain the collection of judgments recovered against an insolvent corporation obtained in an action brought by its receiver to s$t aside such judgments, will not be disturbed where it appears that such judgments were recovered for alleged advances to the corporation, and a month after the last alleged advance and four months after the first no entry of any such loan was made on the books of the corporation.
    Appeal from ah order continuing injunction.

      Morris J. Hirsch and Mark M. Schlesinger, for app’lts; G. H. Phelps, for resp’t.
   O’Brien, J.

In an action brought by the attorney-gen eral to dissolve the corporation “ Mark Mayer ” for insolvency and illegal .acts, the plaintiff was appointed receiver, and he brought this action to set aside a number of judgments simultaneously obtained by the appellants, upon two grounds: First, that the corporation and the other defendants had entered into a conspiracy for the purpose of obtaining a preference in violation of the statute in such case made and provided ; and, secondly, that said judgments were fraudulent in fact, having been obtained upon claims having no legal existence, or being largely in excess of the amounts actually due.

Upon the first ground the question was carefully examined' in the case of Dickson v. Mayer, 35 N. Y. State Rep., 482, in which case no proof was offered to substantiate any claim that the indebtedness, upon which the judgments are entered, was fictitious, and, therefore, the conclusion reached in that case is not binding in the decision of the case at bar.

Without, however, discussing that question again, it is sufficient for the purposes of this appeal briefly to consider the second ground upon which this action is predicated, and the injunction order based, viz., fraud in fact upon the part of the defendants in obtaining the judgments upon claims wholly or in part fictitious.

It appears from the papers that all the moneys which it is ■claimed Dessa Mayer loaned to the corporation, amounting to about $4,000, were loaned in the months of March, April, May and June, 1890. It is sworn to in the affidavit of Whipple, made on the 25th of August, 1890, that in July, 1890, he saw the books of the corporation in Brooklyn, and that there was not at that time any credit to the account of Mrs. Mayer, or any entry in her favor on any of said books, but that there was a memorandum or slip showing $400 to her credit. The affidavit also showed that the books consisted of ledgers, bills payable book and a cash book, the latter showing first entry of all transactions.

It may be claimed that by Whipple’s affidavit sworn to September 9, 1890, he has qualified the foregoing statement. But it will be seen upon an examination of his affidavit that he has not in any manner retracted or qualified that which he asserted in his affidavit of August. In his affidavit sworn to in September he states as follows : that in said affidavit (referring to the affidavit sworn to in August), he stated that when he last saw said books of said company the only item to the credit of Mrs. Mayer therein was a slip or memorandum showing $400 to her credit; and that by said allegation it was not his intention to convey the idea that said corporation was only indebted to Mrs. Mayer for $400, but that said books, posted only to March 8, 1890, simply showed an indebtedness to that amount.

In a prior portion of the affidavit he states that he only posted said books up to March 8, 1890, and that the last time he saw said books in July, 1890, they were only posted up to March 8, 1890, and were in Brooklyn.

This second affidavit may be entirely true, and yet be not at all inconsistent with the affidavit made in August, because in that affidavit he says that the cash book did not contain any entry showing any indebtedness to Mrs. Mayer, and in his affidavit of September he says that the posted books did not show any such indebtedness.

It is clear that if these moneys had been loaned by Mrs. Mayer at the date stated they would have been entered in the cash book, and the evidence derived from the affidavits of the affiant Whipple is that in July, 1890, a month after the last advance, and four months after the first, no entry was made in the books of any such loan. This necessarily casts grave suspicion upon the good faith of the claim now made by Mrs. Mayer for these large advances.

It may be said that this evidence in respect to the claim of Mrs. Mayer does not affect the good faith of the claim of Kaufman, but it appears from the manner in which the judgments were entered in this "case and the use to which the judgments of both parties were put, viz.: to coerce the other creditors into a settlement, that these two parties were acting in concert.

For these reasons the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Daniels, J., concur.


text:
    The People ex rel. Edward Fanning, App’lt, v. Charles F. MacLean et al., Com’rs, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Municipal cobpobations—Police—Removal.
    Relator was removed on" a charge of intoxication. Three witnesses, in-eluding the police surgeon, testified that he was under iiie_ influence of liquor; while relator’s witnesses testified generally to an earlier hour, and relator testified that he took a single drink before going to bed and his condition resulted from that act. Held, that there was no such preponderance of evidence in his favor as called for a reversal.
    Certiorari to review the removal of the relator.

      Louis J. Grant, for app’lt; JohnJ. Delaney, for respts.
   Brady, J.

The charge against the relator was intoxication. The testimony given to sustain it was sufficient for that purpose, and although the evidence in response tended to show that he was not intoxicated as charged, it was not so preponderating as to require us to set aside the determination of the commissioners. Unless the evidence preponderates so as to thus demand our judgment the appeal is not available. People ex rel. McAleer v. French et al., 119 N. Y., 502; 30 N. Y. State Rep., 72. Three witnesses, including a police surgeon, the latter having examined him especially to ascertain his condition, proclaimed that he was under the influence of liquor and the proof in his favor related generally to an earlier hour than that proof, and was negative in character as to that time, although some witnesses, including the relator, spoke of the hour and time stated the charge. The answeir of the relator was that he had taken a single drink of whiskey before going to bed and that his condition, whatever it was, resulted from that act. This court can do nothing for him. The responsibilities of policemen are such that unless they must be in condition to assume them and not voluntarily unfit themselves for duty. Perhaps it may be well to say that the better way, say the best way, for a policeman to retain his shield and to advance in the line of promotion is to be what known as a temperance man. The social pleasures to be derived from tippling are dangerous allies and should be ¿voided if possible. It may be regarded as a great sacrifice to give up such practice, but the greater sacrifice of position preponderates in importance in every possible view that can be taken of it.

Judgment affirmed.

Van Brunt, P. J., and Daniels, J., concur.


text:
    The Manhattan Electric Light Co., .App’lt, v. The Consolidated Telegraph & Electrical Subway Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Depositions—Examination before trial.
    An order for the examination of the defendant before trial should not be allowed where it plainly appears by the papers that it is sought, not for the purpose of establishing the cause of action alleged in the complaint, but to anticipate the evidence to be offered by the defendant in order that plaintiff may prepare to meet it.
    Appeal from order vacating order for the examination before trial of the treasurer of the defendant

      B. F. Einstein, for app’lt; W. V Gohen, for resp’t.
   O’Brien, J.

We are of opinion that the order appealed from should not be disturbed. It is plainly apparent upon the face of the papers wpon which the order for the examination of the treasurer of the defendant was granted, that the object of the examination is not for the purpose of establishing by the evidence to be adduced thereon the cause of action set out in the complaint, but rather to ascertain the nature of the evidence by which the defendant proposes to establish its defense to that cause of action, in order that the plaintiffs may prepare themselves with other evidence to meet the claims which may be advanced by the defendant upon the trial-

The Code has not authorized the examination of a party before trial for any such purpose.

The case of Spero v. West Side Bank, 27 N. Y. State Rep., 29, relied upon by the counsel for the appellant, presented an entirely different question.

It was apparent in that case that the testimony of the plaintiff was absolutely necessary for use upon the trial by the defendant, and that he was the only party by whose testimony the facts could be established upon which the defense rested.

In the case at bar, the avowed object of having an examination before trial is for the purpose of investigating the testimony thus offered. It is clearly not wanted for use upon the trial, but it is desired in order that the plaintiff may be able to anticipate the evidence offered upon the part of the defense.

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

Yaw Brunt, P. J., and Daniels, J., concur.


text:
    Lewis S. Chase, App’lt, v. Marie L. Kellogg, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Contract—Fraud—Bona fide holder.
    Promises in writing to pay a certain sum monthly in consideration of services to be rendered, are simple contracts and not promissory notes, and the rules as to bona fide holders do not apply to them. If the signature was obtained by fraud, or a restriclion placed upon their delivery, or the signature was executed in contemplation of a future arrangement to be made in connection wilh defendant’s business, these are all defenses to the contracts into whosesoever hands they may come.
    Appeal from judgment entered in favor of the defendant upon the verdict of a jury, and from an order denying the plaintiff’s motion for a new trial.

      M B. Leavitt, for app’lt; E. 0. Perkins, for resp’t.
   Van Brunt, P. J.

This action is brought to recover upon two certain contracts for advertising in railroad guides alleged to have been made by the defendant. The answer denied the making of the contracts and also set up the fact that if signed they were so signed without knowledge of their contents, and that the defendant’s was obtained fraud.

Upon the trial of the case it was admitted that the contracts were signed by the defendant; and it was claimed upon the part of the plaintiff that one Dr. Groff being the agent of the defendant negotiated these contracts with the plaintiff and procured their signature by the defendant and delivered "them to the plaintiff.

The evidence upon the part of the defendant was that she was doing business in Eighty'-third street,' and Dr. Goff came to her and told her that she was selling an article for which he had a previous contract Some discussion about the rights of the parties took place, at which Dr. Goff said that the only way for them to do was to go into a mutual contract and for her to take part in the sale of this tea: that the defendant said she would speak to her business adviser and Dr. Goff could also speak to him. Thereafter it was agreed that Dr. Goff would from a certain date handle this particular brand of tea in his own manner for the benefit of both.

The evening before the contract with Dr. Goff was to go into effect, he came to the defendant’s office and after some conversation he produced the contracts in question, which he said he wotild like the defendant to sign. She referred Goff to her business adviser, and his reply was that he had approved of the way they were going to do business the next day, and he wished the defendant would sign the contracts. He further said, “ Will you sign these papers, Mr. Dimpfel (the business adviser) has approved of them and we will have all the rest settled after." Thereupon she signed the contracts but did not read the papers and did not. know what they were. The next morning when Dr. Goff came, Dimpfel and the defendant were there and Goff was told that they would have no business whatever with him. The witness thereupon asked Goff what the papers were that he had made her sign the night before; he replied, “Oh, never mind about them." The witness said, “ Give them back to me.” He said, “ All right, I will be back and give them to you.” And from that day to this she never saw Dr. Goff, and never heard of these papers until six months afterwards. It appears that Goff delivered them to the plaintiff, who swears that he kept the advertising space ready for the use of the defendant, but never gave any notice to the defendant that he was keeping them for her or asked her to send the advertisement which would be inserted. He testified that he called at the defendant’s office several weeks afterwards to see about it, but was told she was absent. He saw somebody there whom he thought was the bookkeeper, and he was then told that the defendant had rescinded the contracts, and after that he did not make any demand until the money was all due.

Upon this evidence the court submitted the question to the jury that if these contracts were obtained by Dr. Goff by fraud, the defendant was not liable; and also that if the jury believed that the contracts were obtained by Dr. Goff conditionally, and he delivered the contracts after that in fraud of her rights, she was entitled to a verdict; and also that if the defendant delivered them conditionally to Goff, and in violation of the restrictions placed upon them he delivered them to the plaintiff, then the verdict should be for the defendant. •

To these propositions the plaintiff excepted, which exceptions present the questions involved upon this appeal.

We think that the error into which the appellant has fallen in the consideration of this case is in treating these contracts as promissory notes, and that the appellant stands in the position of a bona fide holder of a piece of negotiable paper.

It is true that they read we promise to pay to the order of the plaintiff so many dollars per month. But that is followed by the statement of the consideration of an executory contract upon the part of the plaintiff; and it is clear that they have none of the qualities which attach themselves to ordinary commercial paper. These being simply contracts whereby the defendant agreed to pay to the plaintiff a certain sum monthly in consideration of services to be rendered, the relations of bona fide- holder by no means apply.

If the signature was obtained by fraud; if the contracts were delivered and a restriction placed upon their delivery; if their signature was in contemplation of a future arrangement to be made in connection with the business which the defendant was carrying on, all these, were defenses to the contract into whosesoever hands they might come. It appears from the evidence in this case that this man Goff was in no respect the agent of the defendant. It is true he represented himself so to be, but this by no means made him so. The parties were simply negotiating for a business arrangement which never was consummated, and Goff never had any right according to the evidence to bind the defendant by any transaction which he might enter into.

It is claimed that the defendant having placed it in his power to impose upon the plaintiff in respect to this contract, thereupon the loss should fall upon her. But it is to be observed that the plaintiff, although agreeing to furnish this space in advertising papers, and although receiving these contracts from a person who was a stranger to the contracts, never attempted for weeks to notify the principal, and then after he had been informed that these contracts had been rescinded, never took any steps whatever to communicate with the defendant. It would appear that he was pursuing the course of a man who desired to hold the defendant to a •contract without performing any services thereunder; and we do not see that he presents himself exactly in the position of one who has been greatly wronged or who has suffered great loss by reason’ of the fact that the contracts had been delivered to him. There is not a particle of evidence that he has done a thing upon the faith of the contract.

The judgment and order should be affirmed, with costs.

Brady and Daniels, JJ., concur.


author: Daniels, J.

text:
    The People, Resp’ts, v. Charles Webster, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Criminal law—Evidence.
    After certain non-experts bad testified as to their opinion of the defendant’s conduct, an expert was asked as to his opinion of non-expert testimony in medical matters, and allowed to answer that it was the result of his observations that they were given to exaggerating the symptoms of themselves or their friends. Held, error.

      2. Same—Charge. .
    On a trial for homicide, where the defense was insanity, the court charged the jury that if they found as a fact that the defendant was sane when he killed the deceased, he was guilty of a criminal homicide, and it was for them to determine the degree of his guilt. Meld, error; that it was for the jury alone to decide whether the act was criminal, even if he were not insane at the time, and that the direction was an usurpation of their province.
    Appeal from a judgment of the court of general sessions of the county of New York, convicting the defendant of the crime of manslaughter in the first degree, and from an order denying a motion for a new trial.

      William F. Howe, for app’lt; Henry B. Stapler, ass’t dist. atty., for resp’ts.
   Daniels, J.

The defendant was charged by the indictment with the crime of murder in the first degree, for killing Eobert McNeill. The evidence tended to establish the fact that the deceased had been criminally intimate with the defendant’s wife, and after information of that fact had reached the defendant, and. when he'was in a saloon near his own residence, he was informed that the deceased with a friend had been inquiring for him. The defendant then left the saloon, and crossed to his own residence, passing these two persons as he went in. He there obtained a revolver and returned to the street, when he made an exclamation referring to that intimacy, and at once discharged the revolver in the direction of the deceased. The first discharge was without effect, but the second inflicted a mortal wound, thereby producing the death of McNeill. The occurrences were such as to indicate the commission of the offense charged in the indictment

The defense made was that of insanity, and evidence was given of the preceding life, habits, health and peculiarities of the defendant, from which, with the circumstances attending the killing, and their own observations, medical witnesses testified that in their judgment he was insane, and was so when the homicide took place. Other witnesses, not permitted by the law to give a general opinion, characterized his acts and conversations, within their knowledge, to have been irrational. The attention of one of the medical witnesses, who was sworn and examined on behalf of the defendant, was directed to that character of evidence, and questions were put to him by the counsel for the People, which elicited these answers:

Q. What is your opinion, as an expert, of the value of an opinion in medical matters of anon-expert? A. I think that sometimes it 'is exceedingly valuable, and at other times utterly valueless.

Q. Explain in what cases you think it exceedingly valuable ? A. When the person who gives the testimony has a mind so constituted that he can appreciate; that they are careful observers; if a person who is a careful observer states what he sees, his testimony is of value; a good many persons might observe, and their opinion would be of no value.

Q. Do they not almost always exaggerate?

Objected to; objection overruled; exception.

•A. Not necessarily; no, sir.

Q. Is it not the result of your observation that they almost always exaggerate ?

Objected to; objection overruled; exception.

A. I think people are very much given-to exaggerating either their own symptoms or the symptoms of their friends as a general rule.

The inquiries were clearly improper and should not have been allowed to be answered. It was for the jury to judge of the wit- . nesses making the answers referred to and of the effect which should be given to the limited opinions expressed by them. Their evidence as the law permitted it to be taken by those witnesses was before the jury, for them to consider with all the qualifications arising from their appearance, their intelligence, bias, habits of thought, and the correspondence of their conclusions with what they had observed, or heard the defendant say. And its force was not to be diminished by the opinions which other witnesses might be inclined, or disposed, to express concerning them. People v. Lake, 2 Kernan, 358; Reynolds v. Robinson, 64 N. Y., 589.

The objection taken to the reception of the evidence was general, and, in ordinary cases, would be rejected as insufficient. But this rule is now inapplicable to criminal trials, when the evidence itself is so manifestly improper as to need no particularity by way ■of objection to point that out. That was the nature of the final answer obtained from this witness on this subject, for it must have tended to subject the evidence of the other witnesses to discredit in the minds of the jury.

The observations of the learned judge presiding at the trial ■concerning testimony obtained from medical, or expert witnesses, •could havfe been no less prejudicial with the jury. It was a statement of the convictions or conclusions created by listening to the testimony of this class of persons in other cases, forming no part ■of this trial. And as objectionable as evidence would have been to prove what had transpired in the cases referred to for the purpose of sustaining the correctness of the expressions which were made to the jury. These were that:

“Bach side has called experts, and they have given their ■opinions upon an assumed state of facts. So that it leaves you untrammeled to determine what the facts are. Now, in this case a hypothetical question was put to two doctors, and if I remember "the evidence, it fairly and in the main stated the history of this case, and both of them have sworn that, in their judgment, at the time the defendant committed the act he was insane. Non-experts, as I have said, have also stated the same opinion. The People have also called an expert, which shows how doctors disagree. I have tried a great many homicide cases, and other cases, in which doctors have been , called as witnesses, and it is the most remarkable circumstance that you can always obtain an equal number, as a rule, to swear on both sides of any question. A great many people consider for this reason that their testimony is unreliable. It is not for me to' say that, but for you to determine how reliable or unreliable it is.. It is my experience and observation that you can get doctors to swear on both sides of any question.”

And they practically added the testimony derived from the experience of the judge, which could not be without effect in the minds of the jurors.

It was also observed in the course of the charge that:

“ The defendant admits that at the time and place alleged in the indictment, and by the means therein stated, he killed the deceased therein named. There is no claim or pretense on the part of the defendant that if he was sane at the time of the killing there is any legal excuse or justification for this • act. Therefore, if from the evidence in this case you find, as a matter of fact, that the defendant was, at the time he killed the deceased, insane to the degree which the law defines as rendering a person irresponsible and unaccountable for his acts, your verdict will be not guilty by reason of his insanity at the time. If, on the contrary,- you find from the evidence, as a matter of fact, that he was sane at the time he killed the deceased, then he is guilty of a criminal homicide, and it will be for you to determine the degree of his guilt.”

The final conclusion was that, if the defendant was not insane, then he was guilty of a criminal homicide, and the only question was the degree of his guilt. This direction was a usurpation of the province of the jury. It was for them alone to decide whether his act was criminal, even if he were not at the time insane. The law provides for placing the facts before them, upon which their judgment is to be formed, and then leaves it to them to conclude whether the act charged was criminal or not. This they were not in this case left at liberty to do. For the judge decided it to be criminal if the defendant was not proven to have been insane, and thereby withdrew so much of the case from the deliberations of the jury. This was not proper and may have been injurious to the defendant. McKenna v. People, 81 N. Y., 360.

These observations of the judge were not made the subject of exception by the counsel for the defendant-. But that does not deprive him of the right to have them considered and acted upon by an appellate court. For by § 527 of the Code of Criminal Procedure it has been provided that a new trial may be ordered on the decision of an appeal when justice requires it, “ whether any exception shall have been taken or not in the court below.” The defendant was entitled to a trial according to the well-defined rules of the law, and that, it is reasonably plain, he has not had. To secure him that trial another investigation of his case is necessary. And upon that he is now to be tried in all respects as though he had not been once tried already. Code Grim. Pro., § 544. The verdict, in other words, will be completely set aside, not only so far as it may be a shield to him, but also so far as it has made him the subject of punishment.

The judgment should be reversed and a new trial ordered.

Yah Brunt, P. J., and Brady, J., concur.


text:
    Catherine Scott, Adm’rx, Resp’t, v. The Third Ave. R. R. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Negligence—Charge.
    In an action for the death of plaintiff’s intestate no gross negligence on the part of defendant was shown. The court charged that “ there may be mutual negligence, and yet one party have a right of action against the other,” and “the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him.” Held, error, and that it was not cured by a charge that if the negligence of the dead man in any manner contributed to the collision which resulted in the injury the verdict must be for the defendant.
    2. Same.
    A refusal of a request to charge that the jury are not to draw any deductions against either party from objections made and evidence excluded is erroneous, as such refusal affirms the converse of the proposition.
    Appeal from judgment on verdict.

      Wm. K Cohen, for app’lt; Geo. W. Wilson, for resp’t.
   Brady, J.

This action was brought by the plaintiff to recover damages for the loss of her husband, who, it was alleged, was killed by the negligence of the defendant. During the trial several exceptions were taken by the defendant and several also to-the charge, refusals to charge as requested by the defendant and to requests to charge by the plaintiff which were granted. In the view taken of some exceptions it will not be necessary to consider the others. It was charged as follows: “ There may be mutual negligence, and yet one party have a right of action against the-other.”. And, also, “The plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him.” For the accuracy of the first request excepted to the learned counsel for the plaintiff relies chiefly upon the cases of Thomas v. Kenyon, 1 Daly, 142; Thurber v. H. B., M. & F. R. R. Co., 60 N. Y., 326; Murphy v. Orr, 96 id., 14; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id., 562, and Moebus v. Herrmann, 108 id., 349; 13 N. Y. State Rep., 648.

In Thurber v. Harlem B., M. & F. R. R. Co., the plaintiff was a boy about nine years old. He was knocked down by one of the horses attached to the defendant’s railway cars, and run over while in the act of crossing the Boston road, in the town of Morrisania, a part of which is occupied by their railway. The accident oc-' curred in midday, and the plaintiff was in plain view of passengers and the person who was acting as driver. All the witnesses agreed that the car might have been stopped while running over the space of a few feet, and a very slight check on the speed at which it was running would have prevented the collision and consequent injury.' The omission of the driver to check the progress of the car was said to be culpable negligence, for which the defendant must respond, unless, said the court, it appears from the ■whole case, that the injury is not attributal to that cause. ” The question of contributory negligence was considered, nevertheless, and regarded as. a controlling element. This is not, therefore, an authority for the proposition that the plaintiff may recover if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avert it It was a case of culpable negligence, gross negligence, displaying a reckless disregard of the obligations'of duty, an indifference, cruel and wanton, of the safety of life and limb upon a public highway. It is correctly asserted, even in this state, where the doctrine of negligence is limited as contrasted with other states, that defendants may be held responsible for injuries, received on the highway resulting from their gross negligence, amounting to willful indifference or disregard of the protective duties which they may owe to the public, but that rule is not applicable to this case, assuming it to exist in this state, inasmuch as the defendant’s conduct does not present the elements which must be present.

When, indeed, these are the features of the defendant’s conduct, the plaintiff’s contributory negligence cannot be invoked by them for protection. As justly said in Beach on Contributory Negligence, § 22, p. 69, “ when the wrong doing of the defendant is merely negligence, the contributory negligence of the plaintiff may operate as a defense; but when the defendant’s conduct is wanton and willful, it is no longer negligence, and the question of the plaintiff’s conduct as a defense cannot arise.” But to pursue these cases, in Murphy v. Orr the plaintiff was an infant between three and four years of age, and the appellant attributed no want of care by the plaintiff. The question was as to the sufficiency of the proof of the negligence of the driver of the horses attached to a truck, which was considered abundant. In Seybolt v. N. Y., L. E. & W. R. R. Co., there was no question involving in any way the contributory negligence of the decedent who, at the time he was killed on the defendant’s road, was there as a postal clerk. In Moebus v. Hermann, 108 N. Y., 349; 13 N. Y. State Rep., 648, the person injured was a lad of seven years, and the jury found that the child was not careless, but the defendant’s driver was negligent, and this finding was made after the propositions on which the case was made to turn were formulated with due regard to the preservation of every legal right of the defendant The doctrine of contributory negligence was carefully observed and presented. The liability of the defendant as asserted in the charge under consideration was not declared in that case or the principle advocated, although it was said that the driver either saw the child and recklessly drove over him, or failed to see him because of inattention; that is, he was looking another way and conversing with a fellow servant, a fact approaching and suggesting the doctrine of gross or willful negligence. The case of Thomas v. Kenyon was brought to recbver damages caused by the negligence of the defendant in permitting water to run from his premises upon those of the plaintiff. In that ease it is said there may be mutual negligence, and yet one party have a right of action against the other. This is the formula adopted by the plaintiff’s counsel herein taken from that case and employed as we have seen. 'The illustration of this proposition shows how inappropriately it was invoked herein. It is, ■ “ If a man negligently lie down and fall asleep in the middle of the public road and another failing to exercise ordinary care should drive over him, the party injured would have a right of action against the other,” and the cases cited to sustain it are Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St., 172; Trow v. C. R. R. Co., 24 Ver., 494; Davies v. Mann, 10 Mees. & Welsby, 546, and Butterfield v. Forrester, 11 East., 60.

In Trow v. Vt. Central R. R. Co., Kerwhacker v. C. C. & C. R. R. Co., and Davies v. Mann, the doctrine declared is that the plaintiff may recover if he have used ordinary care to avoid the injury sustained, but this is only' another method of stating the proposition that he may recover if he be free from contributory negligence. If he could avoid the injury by the exercise of ordinary care, he should do so, and the omission of that duty would undoubtedly show negligence. How far these authorities sustain the bold proposition laid down in the case of Thomas v. Kenyon, may be easily understood

This case illustrates the danger of employing detached sentences taken from opinions and urging them upon the attention of the trial court evidently without sufficient consideration of their bearing upon and relation to the case in hand, and which at first blush seem to be applicable because expressive of an instinct of natural justice, but which have only a special significance, and that wholly dependent on facts upon which they must rest. There is no adjudication in this state in a case kindred to this which declares the proposition that there may be mutual negligence and yet one party have a right of action against the other. See on this subject Wilds v. R. R. Co., 24 N. Y., 430; Cordell v. N. Y. C. R. R. Co., 75 id., 330.

If the proposition had been that a recovery might be had, although there was mutual negligence, provided the defendant’s conduct was wanton and wilful as contradistinguished from ordinary negligence, it might be sustained by authority to be inferred from adjudication of the qourt of last resort in this state, but not otherwise, inasmuch as the authorities are super-abundant declaring that the person injured must be shown to have been free from contributory negligence. The appellant as we have thus seen has two points, therefore, favorable to a reversal of the judgment, namely the charge that the plaintiff may recover notwithstanding his own negligence exposed him to the risk of injury if the defendant after becoming aware of his danger failed to use ordinary care to avoid injuring him, and the farther unqualified charge that there may be mutual negligence and yet one party have a right of action against the other.

It is supposed that the charge that “ If the negligence of the dead man in any manner contributed to the cause, the collision which resulted in the injury, the verdict must be for the defendant,” overcame the errors mentioned ; but this is incorrect. The charges considered were pointed, specific, and were so broad that standing upon the record unrecalled they were fraught with danger to the defendant’s rights.

It must be further said that the defendants were entitled to the charge refused, namely, that the jury were not to draw any deductions against either party from objections made and evidence excluded, a request made doubtless to protect them from the prejudicial impressions that might be created by a close contest and ingenious effort and device, resorted to by their counsel unsuccessfully. It is secondary in importance, but'the refusal to charge it affirmed the converse of the proposition, namely, that the jury could draw deductions against either party from objections made and evidence excluded. The evidence on the part of the plaintiff was such as to require careful consideration of the question of negligence on both sides of the controversy, and the issue should have been left unembarrassed by any element which would permit erroneous conclusions to be indulged prejudicial to the defendant. The struggle by them through their counsel to avoid responsibility was marked and impressive from the numerous objections and exceptions taken.

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

Van Brunt, P. J., and Daniels, J., concur.