text:
    In the Matter of the Petition for Habeas Corpus of Nicholas Roach.
   — Order reversed. Opinion by

Daniels, J.


source: Caselaw Access Project

license: Public Domain

text:
    Charles F. Russell v. Samuel W. Allerton.
   —Motion for reargument denied.


text:
    Stephen Tunstall, Respondent, v. Walter W. Winton, Appellant.

   — Motion for resettlement denied.


author: Brady, J.

text:
    The People of the State of New York ex rel. James Preston, Respondent, v. Stephen B. French, etc., Appellant.

   — Order reversed and proceedings remanded; trial of issues directed as suggested in opinion of

Brady, J.

Opinions by Davis, P. J., and Brady, J., and by Daniels, J., dissenting.


text:
    Elisha Carpenter v. The New York, Lake Erie and Western Railway Company.
   — Motion denied.


text:
    The People of the State of New York ex rel. The Twenty-third Street Railway Company v. The Commissioners of Taxes and Assessments.
   — Order affirmed.


author: Davis, P. J., and Brady, J.,

text:
    Caroline Harbeck, Appellant, v. John H. Harbeck, Respondent.

   — Judgment affirmed, without costs. Opinions by

Davis, P. J., and Brady, J.,

and by Daniels, J., dissenting.


author: BaRNAed, P. J.:

text:
    SAMUEL A. AVILA, Respondent, v. THE MANHATTAN CHEMICAL COMPANY OF NEW YORK, Appellant.

      Election — effect' of the affirmance by a principal of an unautlm'ieed sale by his agent — he cannot thereafter take the goods from the vendee.

    A receiver appointed by this court placed a quantity of white lead held by him in the hands of Lockwood & McClintock for sale.. February 19, 1881, the action in which he was appointed was settled and the property, or its proceeds, was transferred to the Brooklyn White Lead Company; On February eighteenth McClintock & Lockwood had sold some seventy-four casks of the lead to the defendant. Thereafter the Brooklyn White Lead Company brought an action and had this sale set aside as fraudulent. Subsequently the plaintiff in the present action, as the assignee of the Brooklyn White Lead Company, brought an action against McClintock & Lockwood and recovered a judgment against them for the proceeds of the said lead so sold to the defendant. There after he demanded the lead of the defendant, and upon its refusal to deliver it he brought this action to recover its value.

      Held, that the plaintiff by bringing his action against the brokers to recover the proceeds of the sale ratified the said sale and could not thereafter reclaim the white lead from the vendee.
    Appeal from a judgment in favor of tlie plaintiff, entered upon tbe trial of this action by the court without a jury.
    This is an action for an alleged conversion by the defendant of seventy-four casks, 48,862 pounds, of sugar of lead, the property of plaintiff’s assignor.
    It appeared that Messrs. Lockwood & McClintock were employed by one Marcellus Massey, a receiver appointed by tbis court, to sell a quantity of sugar of lead held by liim as sucli receiver. The action in which the receiver was appointed was settled, and the property in the hands of the receiver or its proceeds were transferred by the receiver to the Brooklyn White Lead Company on the 19th of February, 1881.
    On the 18th day of February, 1881, the seventy-four casks had been sold by Lockwood & McClintock to defendant. This sale was repudiated by the Brooklyn White Lead Company on the ground of the fraud of the defendant, and they brought an action to rescind the sale and recovered a judgment rescinding it on November 7,1881.
    Thereafter, the plaintiff, as the assignor of the Brooklyn White Lead Company brought an action against William Lockwood and Emory W. McClintock to recover the proceeds of the sale, to the defendant, of the sugar of lead mentioned in the complaint, and recovered judgment therein against said Lockwood & McClintock in the sum of $7,408.48, on June 26, 1882, which judgment is still in full force and effect.
    It was adjudged iii that action that the said Lockwood & McClin-tock had received from the defendant for the said sugar of lead the’ sum of $7,598.88 as the proceeds of the sale thereof to defendant.
    The defendant contended that such action against Lockwood and McClintock, and its prosecution to judgment, was the election of a remedy inconsistent with the present action and prevented its prosecution.

      Kelly <& McRae, for the appellant.

      William RF. Dyfonan, for the respondent,
   BaRNAed, P. J.:

It is true that a. party may have as many separate actions for a trespass as there are trespasses and receive one satisfaction. The title to the property remained in the owner until satisfaction, and that transferred the title by operation of law. The present case does not fall within this principle. In February, 1881, the plaintiff’s assignor owned the property in question. It was then in the possession of Lockwood & McClintock, brokers. These brokers fraudulently sold the property to the defendant, and in September of the same year the sale was judicially declared fraudulent and void and that the plaintiff’s assignor had the right to the possession thereof. In November following this 'judgment of September, 1881, the plaintiff brought an action against the brokers for that “the defendants (the brokers).as agents and brokers of the Brooklyn White Lead Company, a domestic corporation, in the course of their employment and in their fiduciary capacity as such agents and brokers received and had to the use of the said Brooklyn White Lead Company, seventy-six hundred dollars, which money belonged and was due to said company.” The plaintiff thus adopted the illegal sale, which he had the right to do, and recovered a judgment against the brokers for the proceeds of the sale.. The plaintiff, as the assignor of the white lead, company, could either adopt the sale or reclaim the goods. The authorities seem to hold that he cannot do both. In Bank of Beloit v. Beale (34 N. Y., 473) it was held that after an action against one Sherwood, for moneys fraudulently misappropriated, it was too late to follow the property. That case is not decisive, because an execution was issued against Sherwood’s person, and he was arrested. Under the cases this was a satisfaction. In Morris v. Rexford (18 N. Y., 552) it was held that when a fraudulent sale had been disaffirmed it barred an action for the price. In Rodermund v. Clark (46 N. Y., 354) it .was held that any decisive act of the party, with knowledge of his rights, determines his election; to the same effect is held by Taussig v. Hart (49 N. Y., 301). In Fields v. Bland (81 N. Y., 239) there was an execution issued and collected in part, but no particular stress is laid, upon that fact. The judgment against a wrong-doer for “goods sold and delivered” was held conclusive against the plaintiff in his action against a joint wrong-doer. In the present case the action against the brokers was begun after full knowledge of all the facts. The sale to the defendant was ratified by plaintiff and he recovered a judgment against them for money received as the brokers of his assignor. It is too late to pursue the property. The two remedies are entirely inconsistent.

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

• Peatt, J., concurred; DyehaN, J., not sitting.

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


author: BaeNaed, P. J.:

text:
    FLORIAN FRIEDMAN and ADEL FRIEDMAN, Appellants, v. THE GOLD AND STOCK TELEGRAPH COMPANY, Respondent.

      Telegraph company — formed to transmit stock quotations and other news — it cannot refuse tofwrnish the news to one wishing to subscribe for it.

    The complaint alleged that the defendant was a corporation organized and doing business under the laws of this State in respect to telegraph companies; that it maintains and operates lines from the Stock Exchange, in New York, through various portions of that city and of Brooklyn; that it “was organized and is maintained for the purpose of transmitting, and its object is to transmit over the lines so established by it, and through its stock reporting instruments and general news reporting instruments, to all persons who hold, and to all persons, who desire to hold, its said stock and news reporting instruments, certain quotations, news and information, which quotations, news and information are owned and controlled by it for the purpose of being so transmitted.” It then alleged that .the plaintiffs had entered into an agreement by which the defendant had agreed to, and had placed in. their office the said instruments and furnished the said information, the agreement to continue in force until May 1,1882; that shortly before that date the defendant threatened to remove the said instruments, and refused to continue or renew the said agreement, which would result in great loss to the plaintiffs. The plaintiffs prayed for an injunction restraining the removal of the instruments or their disconnection from the defendant’s wires.

      Held, that a demurrer interposed to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, should be overruled.
    That the defendant being a public corporation should make no distinction in. respect to the persons who wished to partake of the privileges which it was. created to furnish.

      Breese v. The United States Telegraph Oompany (48 N. Y., 132) distinguished.
    Appeal from an order sustaining a demurrer interposed to the complaint, and from a judgment in favor of the defendant entered thereon.
    The plaintiffs sue to prevent the defendant from depriving them of two stock instruments and thereby injuring their business.
    The complaint alleged, in substance, that the plaintiffs are copart-ners and dealers in stocks; that the defendant is a corporation organized and doing business under and by virtue of the laws of the State of New York in respect to telegraph companies, passed April 12, 1848, and subsequently, and the several acts amendatory thereto; that it uses and maintains telegraph lines, under and by Virtue of said acts, from the Stock Exchange, in the city of New York, through various portions of the said city and of the city of Brooklyn; that said defendant “ was organized and is maintained for the purpose of transmitting, and its object is to transmit over the lines so established by it, and through its stock reporting instruments and general news reporting instruments, to all persons who hold, and to all persons who desire to hold, its said stock and news reporting instruments, certain quotations, news and information, which quotations, news and information are owned and controlled by it for the purpose of being so transmitted; ” that the instruments in question, consisting of a stock reporting instrument and a general news reporting instrument, were placed in plaintiffs’ office about October 1, 1880, and remained there until May 1, 1881, under an oral promise on plaintiffs’ part to pay for them at the rate of $200 per month; that prior to May 1, 1881, the defendant assented to a proposition to reduce the price to $125 per month on condition that plaintiffs would enter into an agreement to keep the instruments at this reduced price for at least one year; that plaintiffs accepted this condition, and thereupon a contract was made by which they agreed to keep the instruments till the 1st of May, 1882; that just prior to May, 1882, the. defendant threatened to remove the instruments, whereupon this suit was brought and the injunction obtained; that plaintiffs’ business is such that it cannot. be carried on unless they have the use of the information conveyed through the instruments in question; that they have gone to great expense in renting and fitting up their offices in New York and Brooklyn, and a great loss will be caused to them in this respect if the instruments are removed; that they are willing to pay any price paid by others for the instruments, and to conform to any conditions imposed on othersthat it is the universal custom of the defendant to place such instruments in all hotels, saloons, offices, stores, and all other places where they are wanted.
    The defendant first answered the complaint, but just before the case was about to be tried it obtained leave to withdraw the answer and to interpose a demurrer, which was sustained by the court.

      F. W. Gatlin, for the appellants.

      Melville Egleston and O. W. West, for the respondent.
   BaeNaed, P. J.:

It seems to me that it is not the correct view of this complaint to assume from it that the company defendant is only to be held responsible for non-performance of duty specified in sections 11 and 12, of chapter 265, Laws of 1848. The duties which the commissioners are required to perform to the public are therein defined it is true. The complaint, however, charges that this telegraph company was organized and is maintained for the purpose of transmitting, and its object is to transmit over its lines “ and through its stock reporting instruments and general news reporting instruments, to all persons who hold and to .all persons who desire to hold its said stock and news reporting instruments, certain quotations, news and information, which quotations, news and information are owued' and contributed by it for the purpose of being so transmitted.” Telegraph companies are public; have the right to take land under the laws providing that lands may be taken for a public use. The act requires them to transmit dispatches with impartiality and good. faith. ”

For the purpose of applying to a profitable use certain instruments owned by it, the defendant has applied its lines to these instruments whenever required by persons who desire to use the instruments and has entered upon the business of collecting a certain class of news and transmitting it over its wires to the individuals using the instruments. ^The defendant still remains a public corporation owing the duty impartially to grant the fight to all who comply with its rules to have the privileges furnished. That there is no objection appears from the complaint. The plaintiffs have the instruments and pay, and are willing to pay, the price agreed upon which shall be established. The defendant has no right arbitrarily to take away the instruments by force without default! The case of Breese v. The United States Telegraph Company (48 N. Y., 132) does not touch a case like this. It is there decided that a by-law requiring important messages to be returned and verified at half rates was not an unreasonable by-law. This case seems to be an entire new one in the courts of this State. Upon principles of justice a public corporation should make no distinction in respect to persons who wish to partake of the privileges which it was created to furnish.

The corporation can either be deemed to have assumed to forward to the plaintiffs every message transmitted over its wires, or to be a public corporation to do the acts it undertakes to do in the way provided by it by means of the line erected for public use.

The judgment should be reversed, and demurrer overruled, with leave to defendant to answer in twenty days on payment of costs.

Peatt, J., concurred.

Present — BaeNAed, P. J., Dteman and Peatt, JJ.

Judgment sustaining demurrer to plaintiff’s complaint reversed^ and demurrer overruled, with leave to defendant to answer in-twenty days on payment of costs.


author: Barnard, P. J.:

text:
    KATHLEEN HICKEY, by NICHOLAS HICKEY, her Guardian ad litem, Respondent, v. JOHN D. TAAFFE, Appellant.
    Negligence— liability of one who employs a child under fourteen yea/rs old in a dangerous business —1876, chap. 122— Contributory negliqence of a child.

    The plaintiff, a girl about fourteen years old, was employed by the defendant in his steam laundry. She was first employed to sort and prepare collars for washing. Subsequently she was employed to feed collars and cuffs into an ironing machine, which consisted of two pair of iron rollers, one in front of the other. The rollers revolved one upon the other under a heavy pressure, and the collars and cuffs inserted between the first pair of rollers were drawn through and received by another employe from the second pair. While the plaintiff was attempting to take a lap out of a collar she had placed between the rollers her hand was caught, drawn between them, and severely injured.
    In an action by her to recover the damages so sustained:

      Held, that it was for the jury to say whether the plaintiff was engaged in a business or vocation dangerous to her life or limbs, within the meaning of section 1 of chapter 122 of 1876, making it a misdemeanor for any person to employ any child under sixteen years of age in such a business or vocation.
    That if the employment of the plaintiff was a violation of the said act the defendant was liable for the damages she had sustained, provided that the jury should find that she had not, taking into consideration her youth, been guilty of contributory negligence.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The defendant is the owner of a steam laundry in Brooklyn. The collars and cuffs are ironed by machinery propelled by steam power. The defendant employs a number of girls to work the machines and prepare the goods for ironing. About the 1st day of April, 1882, the plaintiff, who was then a little over fourteen years of age, was employed by the defendant’s sister, who was acting as defendant’s forewoman, to “ bunch ” collars and cuffs preparatory to their being'washed. She worked at this for about two months at two dollars a week. About the 1st day of J une, 1882, defendant’s forewoman, Miss Taaffe, set the plaintiff to work on a machine known as “ The Troy Collar and Cuff Ironer.” This machine is composed of four rollers, two in front and two in the rear, all worked by cog-wheels at the ends. The bottom roller in front and the top roller in the rear are hollow in the center to admit of a row of gas lights running through them by which they are heated to 250 or 300 degrees of heat, sufficient to iron collars and cuffs. The other two rollers are much larger. They are covered with canvas or muslin. The rollers are pressed together by weights suspended at the bottom of the machine. It requires two operators to work the machine, one in front to put the collars and cuffs in, the other in the rear to receive them. Plaintiff worked at the front. There was no “ shipper ” or “ lever ” on the machine with which to stop or start it on the day on which plaintiff was injured. It had to be stopped by throwing off a belt with the hand. The plaintiff was directed by defendant’s forewoman to feed the machine by putting the ends of the collars and cuffs in between the rollers. The rollers revolved at a rapid rate and drew the goods in as soon as caught.
    Evidence was given tending to show that on July 26,1882, while plaintiff was working the machine a collar with the end turned down or lapped had just got caught in the rollers before she discovered the lap. She attempted to take the laj) out before it got through. Her finger became entangled in the buttonhole and her hand was quickly drawn in between the heated rollers and was there crushed and burned. This' action was brought to recover damages for the injuries so sustained.

      Gerard B. Van Wart, for the appellant.

      P. Keady, for the respondent.
   Barnard, P. J.:

It is the general rule that an employe assumes the risks of the employment. (DeGraff v. N. T. C. and H. R. R. R. Co., 76 N. Y., 125.) If the master provides safe implements for the employment he is not liable for injuries sustained by the servant in the course of the employment. This rule governs cases where the means used are of the greatest power. The master is not required to furnish the safest machinery in use. He may select and provide such as he chooses, provided only they are well made, strong and safe. In the present case this rule has been changed by statute. By chapter 122 of the Laws of 1876, it is provided that if any person use a child under the age of sixteen years in any business dangerous to the life and limb of such child, he shall be guilty of a misdemeanor. It is also in the same act provided that if one who has the care and custody of a child shall willfully cause or permit the child to be placed in such a situation that its life may be endangered he shall be guilty of a misdemeanor. This act made a new rule of duty in respect to children under the age of sixteen. The plaintiff was fourteen years and four months 'old. She was employed by the defendant and at first was put at an employment suitable to children, then she was put to feed an ironing machine; her duty was to put collars and cuffs so that the machine should take them between large metal rollers which would, by great pressure, draw the article between the rollers and by heavy pressure complete the process of ironing. The articles were damp and starched and of necessity limber. v The girl had to take such an article and hold it near enough to the machine to be caught between the rollers. Upon the occasion in question her hand was drawn in between the rollers and destroyed. The duty imposed on the master is not answered solely by a criminal punishment, for a misdemeanor. (Knupfle v. Knickerbocker Ice Co., 84 N. Y., 488.) A violation of an ordinance of a city, restricting rate of speed, is there held to be some evidence of negligence, even if tlie ordinance provided a penalty for its violation. In Willy v. Mulledy (78 N. Y., 310) a private action was given under a law which provided that its violation should be a misdemeanor. The statute then imposed a rule of duty upon the defendant which will sustain an action in favor of any one injured by the violation of it. The negligence upon the part of defendant is absolutely made out if the occupation to which the girl was put fell within the law of 1876. That was a question for the jury; the machine is described minutely, its power is manifest and the manner of operating it fully described. Upon this part of the case the verdict is abundautly sustained. Great stress is put by the appellant upon the question of contributory negligence upon the part of the plaintiff. This question is one for the jury, and the age of the child is a fact to be duly considered. When it is improper to nonsuit the verdict will be upheld, and a nonsuit in this case would not be permitted. (McGovern v. N. Y. C. and H. R. R. R. Co., 67 N. Y., 417; Barry v. N. Y. C. and H. R. R. R. Co., 92 id., 289.) The judgment of a child of the plaintiff’s age is immature. The watchfulness which springs- from a sense of danger is not to be expected to the same extent as in persons of mature years. The statute meant to protect them from being exposed to danger. For these reasons the judgment should be affirmed, with costs.

DyKmaN and Pbatt, JJ., concurred. ,

Judgment and order denying new trial affirmed, with costs.


author: BARNARD, P. J.:

text:
    In the Matter of the Estate of JOHN A. L’HOMMEDIEU, Deceased.
    Will— lapse of legacies — when they pass under the residuary clause.

    A testator, after giving legacies to certain persons named, provided by Ms will as follows: “ I do hereby devise, give and bequeath to the aforesaid Mary E. L. Hallet, all the remainder of my property, both personal and real, in my possession at the time of my decease, not otherwise disposed of in the foregoing will, to her heirs and assigns forever.”

      Held, that legacies which had lapsed, by the death of the legatees in the lifetime of the testator, passed under the residuary clause.

      Appeal from a decree of the surrogate of Orange county, upon the final accounting by the executors of John A. L’ilommedieu.

      Thomas J. Hitch, Jr., for Coles L’Hommedieu, appellant.

      W. J. Welsh, for the executors, respondents.
   BARNARD, P. J.:

The only question presented by this appeal is whether a lapsed legacy passes under the general residuary clause. The testator gave legacies to certain half-brothers and a, half-sister who died before the testator, and thus these legacies lapsed. 'Ey the third clause of the will he gave to one Mary E. L. Hallett “all the remainder of my property, both personal and real, in my possession at tlie time of my decease not otherwise disposed of in the foregoing will, to her heirs and assigns forever.” This case is not like Kerr v. Dougherty (79 N. Y., 328). In that case there was a residuary clause which included certain religious corporations which could not take. The court held that the portion of the residuum which thus failed was undisposed of. It is a settled rule of construction that a residuary clause carries all which is not legally disposed of by the will, unless a contrary intention is manifested from the will'itself. Such an intention cannot be deduced from the mere absence of words, or that the testator failed to provide for the contingency upon which the lapse was occasioned. A testator is supposed to-have given away from the residuary legatee for the sake of the.particular legatee. (King v. Woodhull, 3 Edw. Ch., 79; Kerr v. Dougherty, supra; Floyd v. Carow, 88 N. Y., 560).

The judgment should bo affirmed, with costs.

Peatt, J., concurred.

Present — BaeNAed, P. J., DyemaN and Peatt, JJ.

Part of decree of surrogate appealed from affirmed, with costs.


author: BaRnaed, P. J.:

text:
    CHARLES C. DUNCAN, Appellant, v. GEORGE JONES, as Treasurer of the Association publishing the “New York Times,” Respondent.

      Actions against the president or treasurer of an unincorporated association — the officer so sued cannot he examined as a party before trial — Code of Civil Procedure, sees. 870, 1919 — as to what actions, against unincorporated associations, maybe brought against their president or treasures'.

    When an action to recover damages for the publication of a libel is brought against the treasurer of an unincorporated association, as authorized by section 1919 of the Code of Civil Procedure, the person so named as treasurer is not a party to the action within the meaning of section 870 of the Code of Civil Procedure, authorizing the examination of parties before trial.

      Semble, that an order for his examination as a witness, under subdivision 5 of section 872 of the said Code might, in a proper case, be made.

      Queers, as to whether the said section 1919 is applicable to an action for libel, or whether it is applicable only to actions brought for the assertion of property rights strictly so-called. (Per Barnard, P. J.)
    Appeal by the plaintiff from an order made at a Special Term, vacating an order previously made requiring the defendant George Jones to. appear and submit to an examination as to certain matters.
    The action is for libel. The defendant is sued as treasurer of a joint stock association, under the statute. (Code, § 1919.)
    The complaint avers the facts necessary to the bringing of such an action, viz., that the defendant is the treasurer of 'such an association, and that the same consists of more than seven persons.
    The answer, while averring that there is an “ association publishing the New York Times,” denies the above allegations of the complaint..
    The facts, as to which the defendant was ordered to be examined, were: 1. The existence of the joint-stock association; 2. That it consisted of seven or more members; and 3. That the defendant is its treasurer.
    The ground on which the order for the defendant’s examination was vacated, was that he could not be required to testify to any facts essential to sustain an indictment against himself and his associates for the alleged libel, and thát the composition of the association was such a fact.

      JR. D. Benedict, for the appellant.

      B. F. Finsiein, for the respondent.
   BaRnaed, P. J.:

The defendant named in the summons and complaint is not a party to an action within the meaning of sections 870 and 872 of the Code; The action is one for damages sustained, for an alleged libel published in the New York Times of and concerning the plaintiff. It is brought against George Jones, as treasurer, under section 1919 of the Code of Civil Procedure. When a copartnership or joint-stock association is composed of more than seven persons, this section provides that an action may be brought against the president or treasurer of the unincorporated association who represents, for the purpose of the action, the association itself The president or treasurer need not be a member of the association, as owner of stock, or be a, person interested in the partnership. His death does not terminate the action, nor does the death of any stockholder or owner have that eifect. If a treasurer die, or is removed', his successor, or the president, must be named in his place. The treasurer, in the present case, is not averred to be a person interested in the paper, except as treasurer. No judgment goes against him individually; he cannot be arrested. No execution can be issued upon the judgment against his property or person. It does go against the personal property of the association only. (Code, §§ 1920, 1921). What effect may be given to his answer, thus legally sued and standing for the association, is a question not before us. He can admit nothing outside of' the answer, to bind the owners. The statute is designed to reach a party who represents the issue. Can the treasurer admit, other than by answer, who the owners are ?

The application was not framed to call for his examination as a witness, who is not a party under subdivision 5 of section 872. The affidavit may be frill enough to justify an order to examine the treasurer as' a witness. Neither as party or witness is he exempt from examination upon the papers presented. A treasurer is not necessarily one of the association. If he is an owner, then he cannot be compelled to testify to any fact which tends to convict him of a criminal offense. Proof that he was an owner in the association wo i ld be snch a fact. The witness can assert his privilege when examined. The judge did not pass upon the question of the sufficiency of the affidavit as to witnesses. The order should be affirmed, because he is not the party to the action in the technical sense required by section 870 under which the order was issued

There is a serious question whether an action of this nature can be brought against a treasurer under section 1919. That section is based upon chapter 258, Laws of 849. The suits were permitted for or against a treasurer of a joint-stock company by that act, with like effect as if all sued or were sued “ as regards the joint rights, property and effects of such joint-stock company.” Does this language cover a libel published by the association, or is it confined to the assertion of property rights, strictly so-called % This question ■can more properly be determined at the trial.

Order affirmed, with costs and disbursements;

DykmaN and Peatt, JJ\, concurred.

So ordered.


author: BarNAed, P. J.:

text:
    GEORGE H. PRIOR, Respondent, v. JOHN J. WHITE, Respondent, Impleaded with GEORGE W. MELVIN, Appellant.

      Mechanics’ liens in Brooklyn — notice of the legal steps taken to enforce it must he filed with the county clerk — -1862, chap. 478, sec. 7, sub. 8.
    One Melvin, in December, 1870, filed a lien for services rendered by him. as a subcontractor in erecting a house in Kings county, as provided by chapter 478 of 1863, and thereafter commenced an action in the City Court of Brooklyn to foreclose it. Subsequently the plaintiff, the original contractor, filed a lien against the same property and brought an action in the County Court to foreclose it, Melvin being made a party defendant. Thereafter the City Court stayed all proceedings in the aclion brought by Melvin until the determination of the one brought by the plaintiff. Melvin having failed to file with the county clerk any notice of the legal steps taken to enforce his lien, the latter, upon the expiration of a year from the time of the filing of the lien, noted the fact of his failure so to do in the book of liens as provided in subdivision 3 of section 7 of the said act.
    Held, that such entry was properly made by the clerk, and that Melvin’s lien was thereby discharged.

      MushMtt v. Silverman (50 N. Y., 360) followed.

      Appeal from a judgment, entered upon the trial of this action by the county judge of Kings county without a jury.
    This action was brought to foreclose a mechanic’s lien created by a notice filed as provided by chapter 478 of 1862.
    The defendant White, who owned the land, which was situated in the town of Gravesend, Kings county, contracted with the plaintiff Prior to erect a house for a specified sum. Liens against the property were filed by the plaintiff, and the other defendants who had been employed by him. Melvin, one of the defendants, filed lis lien on December 11,1879, and on the 3d day of January, 1880, -commenced an action in the City Court of .Brooklyn to enforce it. The plaintiff’s notice of lien was filed and this action was commenced in the County Court on January 6, 1880. Subsequently an order was made in the City Court staying- all further proceedings in Melvin’s action until the determination of this one. On December 23, ] 880, the county clerk of Kings county made the following entry in relation to the Melvin lien in his book of liens : “No notice filed of legal steps taken to enforce this lien, December 23, 1881.” The court below held that the failure of Melvin to file such notice destroyed and discharged his lieii.

      George B. Adams, for the appellant.
    , A. G. Shenstone, for the respondent Prior.

      Jesse Johnson, for the respondent White.
   BarNAed, P. J.:

The question presented arises under chapter 478 of the Laws of 1862, “ An act for the better security of mechanics, laborers and others who perform labor or furnish materials for buildings and ■other improvements in Kings and Queens counties.” After providing for the lien, the act provides for a discharge of the lien “by an entry of the clerk made in the book of liens after one year has elapsed since .the filing of the claim, stating that no notice has been given to him of legal steps to enforce the lien.” (Sec. 7, sub. 3.) One George W. Melvin filed his notice of claim in due time, and commenced, in fact, proceedings by action to enforce the same within the year required by the lien statute. Subsequently the plaintiff also in due time filed his claim and brought his action to enforce the same. The County Court, in which both actions were pending, stayed the actions brought by Melvin until the plaintiff’s action was decided, for the reason that that action would settle the issue presented by Melvin. The case was tried, but before the trial the year expired, and the clerk, after the year expired since Melvin’s claim was filed, made, at the instance of the plaintiff, the entry discharging the lien, because of the fact that no notice was given him of the legal steps taken to enforce the lien. The court thereupon decided that the lien was properly canceled. This decision is in accordance with Mushlitt v. Silverman (50 N. Y., 360), The lien law permits an owner to notify the claimant to bring his action to enforce his lien within thirty days after the notice and upon- filing an affidavit of service of the notice and the lapse of the time without an affidavit by the claimant of the commencement of the action, the lien shall be canceled. An action was in fact commenced in time by Mushlitt against the owner, but the claimant did not file this affidavit. The Court of Appeals held the lien discharged. The court say that “ when the act declares, as it does, that the lien may be discharged in any one of several methods, the happening of any of the events, or the performance of any of the acts mentioned, opei-ate per se as a discharge, without the necessity of further acts by any person.” The stay of proceedings in the action of Melvin to enforce the lien did not excuse the omission to file the notice with the clerk of the legal steps taken. That was not a proceeding in the action. The claimant must keep his lien a continuing and existing one before the court is empowered to enforce it. If there had been no stay, the notice to the clerk was necessary, and in point of fact the action was tried in the present action. The judgment should be affirmed, with costs.

Pratt, J., concurred.

Present — BarNArd, P. J., DvKMAN and Pratt, JJ.

Judgment of County Court affirmed, with costs.


text:
    EDWARD PLACE, Respondent, v. PETER RILEY, Appellant.

      Execution —form of, when issued upon a judgment recovered in an action against an absconding debtor served by publication — Oode of Civil Procedure, secs. 438, 1370 — When an execution and the sale had thereunder will be set aside.

    On May 7, 1878, this action was commenced by the service of the summons upon the defendant, by publication, under section 438 of the Code of Civil Procedure, as an absconding debtor. On August fifth an attachment was issued and a levy made upon real estate belonging to him. August twentieth a judgment was entered by default, and on the same day an execution was issued thereon, under which the real estate attached was sold to one Owen Riley, who, after the expiration of the time to redeem, secured a deed thereof from the sheriff, and subsequently conveyed it to certain parties, who entered into possession of and improved the premises. In October, 1880, the defendant returned to this State, procured his default to be opened, and upon the trial of the action obtained a verdict in his favor. He then moved to have the sale set aside upon the ground that the execution was irregular in that it required the sheriff to satisfy the judgment out of the personal property attached, and if that was insufficient, out of the real estate attached, instead of requiring him to satisfy it first out of the personal property attached; second, out of any personal property belonging to the debtor; third, out of the real estate attached, and fourth, put of any real estate belonging to the debtor at the time the judgment was docketed, as required by section 1370 of the Code of Civil Procedure.

      Se Id, that the execution and the sale had* thereunder were irregular, and that’ the motion should be granted, i
    Appeal from an order made at a Special Term denying a motion made by tbe defendant to have a sale under an execution, issued upon a judgment recovered in this action, and the deeds given in pursuance thereof, set aside as irregular.
    The action was begun on the 7th day of May, 1878, by the service of a summons on Peter Riley, by publication, and was brought to recover the sum of $131, a balance alleged to be due from the defendant to plaintiff for goods sold and delivered.
    An order of attachment was issued on August 5, 1878,- under which the defendant’s real estate was attached.
    Tlfe defendant was not personally served with process, and did not appear herein. Judgment was taken against him by default August 20, 1878, for $226.37. On the same day an execution was issued upon the judgment to the sheriff of Queens county, which commanded him to satisfy the" judgment out of the personal property attached in the action and if that was insufficient, then to satisfy it out of the real property theretofore attached. The premises attached were levied upon and sold under the said execution by the sheriff, in the latter part of October, in the year 1878, and bid off on the day of sale by Owen Riley, for $500, and after the time to redeem had expired they were conveyed by the said Riley to Whittaker and Willetts, who are really the respondents on this motion.
    Peter Riley, the defendant, did not return home until about October 1, 1880. He then had the default opened and the judgment set, aside, and defended the said action on its merits and obtained a verdict from a jury in 1882.
    Thereafter he made this motion to have the execution and sale vacated and set aside as irregular.

      George A. Mott, for the appellant.

      Foster J. Stephens, for the respondent.

      A. JV. Weller, for the purchaser.
   Barnard, P. J.:

• This is a hard case. The plaintiff procured an attachment against the defendant as an absconding debtor. There was proof tending to show very strongly that the defendant left the State of New York under such circumstances as would justify the inference that he intended to cheat creditors. The summons was served by publication. The papers do not show the affidavits on which the order to publish was issued, and it must be assumed that they made out a case under section 438 of the Code. A general execution was issued, and under it the sheriff of Queens county sold the defendant’s real estate. The property brought probably less than half its value. The time to redeem runs out, and the purchaser at the sheriff’s sale conveyed the land to Whittaker and Willetts who now occupy the same. After the time for redemption expired, the defendant returned to this State. He applied to open the case and answer He obtained such leave, answered, tried the case before a jury and succeeded in his defense. Thus the defendant has been sold out for a debt which didn’t exist. This fact does not determine the case. The judgment was regular and in full force when the sale was made. The purchaser bought on the faith of the judgment, and his grantees have bought on the faith of this title and have made large repairs on the premises. The execution was not regular. I assume from the papers that the attachment was against a resident who had fled with evil intent. It is also to be' inferred that the order of publication was based upon the same allegation. Only two executions were proper. If the publication was against a non-resident, then the execution could only go against the property attached. If the publication was made as provided for .cases of residence and concealment in the State the execution must have gone against, first, the attached property; second, other personal property; third, attached real estate; fourth, other real estate. (Code, §■ 1370.) The principle established is that non-residents shall only answer by the attached property, and residents shall answer generally but in certain prescribed order of sale. This execution violated this section. It let out from the levy personal property of the alleged debtor not actually attached. The sale of the real estate .was therefore irregular and void. There is proof tending to show other personal property than that attached, but in the absence of such proof the execution must follow the statute so that actual search by the sheriff should determine the fact. The omission was not a mere irregularity and thus amendable. The case is as if an execution should direct the sale of the debtor’s lands in the first instance.

The order should be reversed, and' the execution and sale under it be set aside, without costs.

DykmaN, J., concurred; Pkatt, J., not sitting.

Order reversed, and motion granted setting aside execution and sale under it, without costs.


author: .Barnard, P. J.:

text:
    CHARLES F. STROHM, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Damages m an action by a father for injuries to his child — when the vei'dict will not be set aside as excessive.

    la an action by a father to recover .the damages occasioned by the negligent injury of Ms child by the defendant, it appeared that the child was a bright boy about fourteen years of age; that at the time of the accident he was going to school and learning easily and well; after the accident he became stupid and nervous, and at times delirious; that he required careful nursing and'medical attendance, and.his symptoms indicated that his disease was epilepsy and that it was likely to be of long continuance, with the chances against his final recovery.

      Held, that a verdict of $5,000 would not be set aside as excessive.
    Appeal from a judgment in favor of the plaintiff, entered upon tlie verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought by the plaintiff to recover for the past and prospective loss of services of his son, who had been injured by the defendant’s negligence, and for thé expenses of medical attendance and nursing occasioned thereby.

      Tracy <& JDe Witt, for the appellant.

      Carpenter.& Roderick, for t,he respondent.
   .Barnard, P. J.:

The reasons urged against a recovery for the accidental injuries suffered by the plaintiff’s minor son have been passed upon in the action brought by the boy himself. We held in that action that the evidence was sufficient to uphold the finding of the jury that the injuries were occasioned by the sole negligence of the defendant. There remains only the question of the excessiveness of the damages given by the jury to the father for the loss of services of the child during his minority. The jury gave $5,000. It appears that,the lad was about fourteen years old; was a bright child, going to school and learning easily and well before the accident. After it be became stupid, was rendered nervous and sick, and at times delirious. He has required careful nursing and medical attendance; his symptoms indicate epilepsy, and a very long continuance of his disease with the chances against his final recovery. The expense incurred have already been live or six hundred dollars. The prospect of the continuance of large medical and other .expense is established by the evidence. The question of the damages in such a case is one of peculiar difficulty. The action is only for compensation, but it includes prospective damages as well as those suffered up to the trial. This gives a large discretion to the jury which really can rest upon no definite proof. The boy may die early. He might have been of no use to the father if he had been unhurt. Who can tell? The question of necessity goes to the jury for determination. If the verdict is not so large as to raise an inference of partiality, prejudice, passion or corruption in the jury, it binds appellate courts. No specific value of a boy’s life is capable of proof beyond the facts given in this case. His possibilities were boundless. They were destroyed. In actions for negligently killing children verdicts of this amount have been upheld to the extent of this verdict. By statute in such cases it is only the pecuniary value of the child’s' life which is received. When the expenses incurred are so large, and when the promise of future expenses so great, their verdict is not unreasonable.

Judgment should be affirmed, with costs.

Pratt, J., concurred.

Present — Barnard, P. J.; Dykman and Pratt, JJ.

Judgment and order denying new trial affirmed, with costs.


text:
    ALEXANDER HAMILTON and Others, as Trustees of the Liverpool and London and Globe Insurance Company, Respondents, v. CHARLES GODFREY GUNTHER, Appellant, Impleaded with Others.

      Equitable set-off— when it will be allowed — when the ti'ustees of a foreign insurance company foreclosing a mortgage will be compelled to set off the amount due from the company on a policy of insurance to the mortgagor.

    One Gunther having executed three separate mortgages for $10,000 each on real estate owned by him to Hollishe & Sackett, trustees, procured a policy of insurance against fire for $21,300 from the Liverpool and London and Globe Insurance Company, the loss being made payable to the mortgagees. The policy provided that the company should have the right to demand an assignment of the mortgage, at its option, whenever it claimed that it was not liable to the owner upon the policy at the time of the loss, and that all securities held as collateral to the mortgage should be assigned with it. Gunther at the same time pi'ocured a' policy for $8,500 from the same company upon his furniture, made payable to himself. In August, 1879, the property was burned and the loss was fixed upon one policy at $20,078.94, and upon the other at $8,500. In December following the plaintiffs, acting as the trustees of the fund required to be kept in this State by foreign insurance companies by chapter 888 of 1871, demanded and received an assignment of the mortgages. In November, 1881, Gunther brought an action upon the policies and recovered, on March 6, 1882, a judgment for $30,745.27, from which the company appealed to the Supreme Court of the United States. In December, 1883, this action was brought to foreclose the mortgages. ’

      Held, that the defendant Gunther was entitled to have the amount due upon the two policies of insurance set off against the amount due upon the mortgages.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury and upon orders overruling demurrers interposed by certain of the defendants.

      George H. Forster, for the appellant.

      William Allen Butler, for the respondents.
   Barnard, P. J.:

There is no dispute as to the facts in this case. In November, 1877, the defendant Gunther, being the owner of certain real estate, executed three mortgages thereon to Hollishe & Sackett, trustees, each for $10,000. The defendant procured of the Liverpool and London and Globe Insurance Company a policy of insurance against fire to the amount of $21,300, on the buildings on the mortgaged premises, loss payable to the mortgagees, Hollishe & Sackett. He also procured from the same company a policy upon the furniture for $S,500. This policy was not payable to the mortgagees, but to the insured. The policy held by the mortgagees contained a clause that the company issuing the policy should have the right to demand an assignment of the mortgage at its option, whenever it claimed that there was no liability as against the owner; and that all securities held as collateral should be assigned with the mortgage. Both these policies were alive on August 15,1879, when both buildings and furniture were destroyed. The losses were made out and fixed at $20,078.91 on one policy, and $8,500 on the other. This was in August, 1879. The claims were not paid, and in December following the plaintiffs took an assignment of the mortgages, under the clause in the policy. The defendant brought suit upon the policies, and on the 28th November, 1881, he recovered a verdict thereupon to the amount of $29,977.38, which, subsequently, on March 6, 1882, matured into a judgment for $30,745.27. The company appealed to the United States Supreme Court from the United States Circuit where the judgment was rendered. In December, 1883, the plaintiffs bring this foreclosure action upon the mortgages. I think there can be no doubt of the right of the plaintiffs to sue. The legislature, by chapter 888, Laws of 1871, required foreign insurance companies doing business in this State, to transfer to trustees, and vest the title in them to certain assets of the company, which should be a portion of the capital of the company, for the purpose of business here. The act is indeed silent as to the right to collect, but that follows from the title. All incidents of ownership are included in the title, and among them the right to collect it. I think there is no doubt but that an offset good against the company would be good against the plaintiffs, who are mere trustees for the company. The offset would not be good against the trustees individually or collective^. It would go, if proper, against the fund itself, and it would be proper if it existed against the fund represented by the plaintiffs as trustees. This case is not one within the rule of counter-claim or set-off. The plaintiffs bought a mortgage secured collaterally by a policy of $21,300 issued by the company for which the plaintiffs are trustees. If Hollishe & Sackett had received the money from the insurance company, it would, as a matter of course, have paid the mortgage so far as received. When the plaintiffs took the assignment they filled two capacities. ' As trustees they held the mortgage, but the company were the debtors for a security which accompanied the mortgage. By this act the plaintiffs paid the mortgage so far as the amount due upon the policy would pay it. It might take longer or shorter time to settle what the amount is, but until it is settled the mortgage is not good except for such of it as exceeds this loss by fire. I do not think the rule is different as to the policy for $8,500, which was not held by Hollishe. The loss had occurred. The plaintiffs bought a lien upon the land of the insured. They became creditor and debtor as to that policy. The two claims have passed into one judgment. Under these circumstances it seems to me inequitable to permit the mortgagees to sell the land when the presumption of record is that the amount of the judgment is due from the plaintiffs’ company to the defendant Gunther.

The judgment should be reversed, and a new trial granted, costs to abide event. The demurrers of certain defendants were not good, and were properly overruled.

Pka.it, J., concurred.

Present — Baknakd, P. J., Dvkman and Pbatt, JJ.

Judgment reversed and new trial granted, costs to abide event. Demurrer properly overruled.


author: DyKMAít, J.: Peatt, J.

text:
    BERNHARDT MULLER, Appellant, v. THE CITY OF NEWBURGH, Respondent.

      Negligence — liability of a city to one injured by falling on a slippery sidewalk — notice to the city of the existence of the defect must be shown.

    The plaintiff, while passing along a street in the village of Newburgh at about eight o’clock in the evening of Sunday, January ninth, slipped upon some ice and fell and broke his arm. Four or five inches of snow had fallen on the preceding Thursday, after which it had rained and had then frozen hard. At the time of the accident a light snow was fading which covered the ice. There was no defect in the sidewalk and no proof that the city had notice of the existence of the ice.
    In an action by the plaintiff to recover damages for the injuries so sustained: Held, that the plaintiff was properly nonsuited, as there was no proof of any negligence upon the part of the defendant. (Pratt, J., dissenting.)
    Appeal from a judgment in favor of tbe defendant, entered upon a nonsuit directed at the circuit.

      Grant B. Taylor, for the appellant.

      Russel Headley, for the respondent.
   DyKMAít, J.:

It is the claim of the plaintiff in this action that he was injured and damaged by a fall in one of the streets of the city of Newburgh, and that the negligence of its municipal officers intervened to produce the result.

The trial of the cause developed the following facts : On Sunday the 9th day of January, 1881, about eight o’clock in the evening, as the plaintiff was walking along the sidewalk in Carpenter street he slipped and fell and broke his left arm near the wrist. There was ice frozen on the sidewalk; it was snowing at the time and there was snow on the ice sufficient to cover it. Four or five inches of snow fell on the Thursday before and then it rained and froze ■ hard. It may be inferred from the testimony that the rain fell and the ice formed soon after the snow storm on Thursday; so that we have a case where the snow first came down on the sidewalk, and was softened by the rain, and then the whole- mass was' congealed and hardened as it lay, and while a light show was yet falling on this surface of ice, the plaintiff slipped and received his injury; the whole state and condition of the sidewalk at the time being the result of natural causes, unaffected by any artificial or external interference. There was no defect. in the sidewalk itself. The snow fell on Thursday, but it does not appear when the rain came or the ice formed. There was no proof that the municipal authorities had actual notice of the existence of the ice, and we cannot say it had remained so long as to become notorious or to justify the inference of notice to the municipal authorities that it was there. In fact the plaintiff testified that he walked down and up there the day previous and did not see the ice on the pavement. It would, therefore, be very severe to charge the city with constructive notice of the existence of the ice under such proof. This action is founded on the neglect of the municipal corporation to remove this cause of danger, and proof of negligence in that respect is essential to its maintenance. Has that been' produced. The proof is that the snow and rain fell from heaven, obedient to the laws of nature, and were hardened to ice by the wintry cold, and neither of these occurrences were under the control of the defendant. The presence of the ice produced the fall of the plaintiff; its formation was caused by the cold weather of winter, and the defendant had no notice either actual or constructive of its existence. The city was responsible only for the exercise of reasonable diligence after the unsafe condition of the sidewalk was known to its officers by either actual or constructive notice, and as there was no such notice it seems to follow that there was no neglect. It is not practicable for the municipal corporations of this State to establish an incessant inspection of their streets, and without that it is impossible to guard against the conditions arising from natural causes. In our latitude climatic changes are frequent and sudden. Ice and snow may dissolve into water during the day, even in winter, and spread over the sidewalks and harden to ice in the night, or the pavements may become slippery from moisture or rain, and both these causes may produce accidents and injuries which no extent of vigilance or care would prevent and which the corporation cannot be called on to. redress. They do not guarantee or insure the safety of their citizens. Casualties and misfortunes are incidental to so'ciety and to individuals, and when they result from natural causes they cannot be adequately redressed by law. In our climate the streets and sidewalks are icy and slippery in the winter, and this condition is produced by natural, causes and does not depend on any care or skill in their construction or reparation. The traveler must then beware and exercise care and caution commensurate with the increased danger. He may be passing over smooth ice formed within a few hours which is unknown to any officer and which it is impractical to remove. If traveling with animals lie must see that they are sharp shod, if on foot he must proceed with care and caution. If failing in this he sustains injury he is in such case without redress. It is not intended to intimate that, in no ease of accident or injury resulting from surface ice or other natural causes, there can be a recovery against the municipality,, but only that no recovery can or should be afforded in cases like this.

The judgment should be affirmed, with costs.

OulleN, J., concurred in the result.

Peatt, J.

(dissenting):

I have concluded that this case should have been submitted to the jury and hence that a new trial should be granted. Plaintiff slipped and fell upon an icy place iu defendant’s sidewalk about eight p. M., Sunday, January 9, 1882. A light snow had been falling from about one o’clock p. m. until the accident. I do not regard this fact as an element of any importance on this appeal, except so far as it illustrates the dangers resulting from the previous condition of the walk. The storm was too recent to justify the inference of defendant’s knowledge of this new or increased danger. (Blakeley v. City of Troy, 18 Hun, 167.) The difficulty with the case results from the previous condition of the street. There was testimony tending to show that from the preceding Thursday the walk had been in a dangerous condition resulting from an accumulation of snow and ice to the depth of three or four inches, and that no ashes or other material had been used to obviate this danger. It does not appear whether this dangerous condition arose from smooth or uneven slipperiness, nor does it seem important in my view of the case. It may have been uneven. Ordinary observation teaches us that snow may become padded or packed upon a sidewalk in little mounds and even in ridges. If that was the cause of the danger the case might face within the precedents applicable to uneven walks, for it appears the accumulation was-three or four inches in depth. So, too, it might have been smooth but no less dangerous. It is enough that the witnesses, without objection, declared that the walk was in a dangerous condition because of this accumulation of ice and snow; dangerous because slippery, and therefore especially perilous in view of the possibility of future light snow storms which would certainly , obscure and perhaps increase the danger. I cannot concur in the views that the defendant was not liablé because this accumulation of ice resulted from natural causes'as distinguished from human agency. The defendant was bound to keep its streets in a safe condition. Its liability does not depend upon the cause which resulted in the dangerous condition of the walk. If it had become obviously and notoriously dangerous from natural causes the liability, in my view, would be quite as plain as if the peril resulted from the wrongful act of some trespasser. I fail to discover any material distinction between cases of danger from mere slipperiness of the walk, the result of defective construction (Cromarty v. City of Boston, 34 Am. Rep., 381; 127 Mass., 329), or snow and ice or other slippery substance unreasonably left upon it. (Todd v. City of Troy, 61 N. Y., 506.) It is quite as much an obstruction to the traveler that he slip down, as that he stumble over some projection or, step into some depression and fall down. So, too, he is equally obstructed whether he be required to avoid a projection, a pitfall or a slippery place in the street. The only distinction in any way affecting liability between defective construction and subsequent obstructions lies in the degree of activity required to remedy the difficulty. In the former case the municipality would be presumed to know the defects in construction and would be required to act immediately, while in the other some notice, either actual or constructive, would be necessary before the duty of action would arise. Rut whatever may be said of the case on principle, it seems to me that the recent authorities clearly indicate the duty to remove or otherwise obviate a known danger resulting from snow and ice, whether their presence result from natural causes or from some unauthorized human agency. In Todd v. City of Troy (61 N. Y., 511), the trial judge charged the jury that the municipal authorities are called upon to observe, notice and see that the public streets, in time of winter, are reasonably cleay'ed of snow and ice, and that if the presence of ice upon the sidewalk did occasion the fall of the plaintiff, and the ice was slippery by reason of cold weather, then the defendant is not liable unless it also appeared that the accumulation of ice at that point had remained there so long as to make the obstruction public and notorious. These rules were unqualifi-edly stated and have been unqualifiedly affirmed. I think they state the principle which applies to and governs this case.

The remaining question relates to the constructive notice of the dangerous condition of this walk, for no ^actual notice was asserted. I cannot say that the interval of three or four days, between Thursday and this accident, was too short a time for such a condition of the street to become notorious; at all events it seems that a jury might, properly have drawn that inference. The question of contributory negligence is, of course, in the case; the plaintiff had better opportunity to discover this danger than the defendant’s officers. It had all the while existed within seven feet of his own door. He had been in the street. If the defendant was chargeable with notice of the fact, it would be odd indeed if plaintiff had failed to discover the same difficulty. But he may not have known it. If he did not know it he stood in especial danger. It is obvious that this also was a question for the jury. (Todd v. City of Troy; Blakeley v. City of Troy, supra; Goodall v. Crofton, 31 Am. Rep., 535; 33 Ohio, 271.) Even if he had seen the ice there before it would be a fair question for a jury whether he was bound,, under all the circumstances, to remember the fact and avoid that place. If these views are correct, it follows that the judgment should be reversed and a new trial awarded, with costs to abide the event.

Judgment affirmed, with costs.


author: DtKmaN, J.:

text:
    THE NEW YORK AND BROOKLYN FERRY COMPANY, Respondent, v. JOHN H. MOORE and Others, Appellants.

      Evidence — the fad that a toll gatherer unaccountably grows rich during the time of his employment does not impose upon■ him the burden of proving himself innocent of embezzlement — the burden of proving the allegation of the complaint rests upon the plaintiff.

    In an action "by a ferry company to recover money alleged to have been embezzled from it by the defendant while acting as its gate-keeper and toll gatherer, the burden of proving that the money was taken and kept by the defendant rests upon the plaintiff. There is nothing in the' confidential relation existing-between the parties which imposes upon the defendant the duty of proving-that he has faithfully accounted for all the moneys he has received.
    The fact that, although seemingly very poor when ho entered into and while he continued in the employment of the plaintiff, he accumulated during that time, and still has a large amount of money and property, does not impose upon him the duty of disclosing the sources from which it was derived.

      Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      James M. Smith, for the appellants.

      William O. Be Witt and Joseph A. Burr, Jr., for the respondent.
   DtKmaN, J.:

The chief object of this action is to recover money claimed to have been embezzled from the plaintiff by the defendant, John H. Moore; the relief demanded against the other defendants being subsiduary to the main purpose.

The action is brought to compel the principal defendant to account to the plaintiff, as its trustee for the money he had received, .and to pay over such amounts thereof as he has appropriated to his own use, and to impress the property purchased by him with such funds, with a trust in its behalf. Two actions were commenced ■originally, but they were tried and are to be treated as one. John H. Moore entered the employ of the ferry company in 1866, as night watchman. Soon after he was made .bridgeman, and in 1868 •or 1869 became gateman or toll-gatherer of the team-drivers. Then in December, 1870, he became ferry-master, to receive the fares from the foot passengers passing through the ferry gates, and ■continued in that position until January, 1883. The allegation ■against the defendant is that at divers times during his employment he received from a great number of persons large sums of money, rising to more than two hundred thousand dollars in amount, in payment of tolls which belonged to the plaintiff; that the plaintiff is unable to state ttie. exact amount so received, for the reason that the defendant falsely, fraudulently and willfully so kept his accounts, and altered the same, that the various items making up the amount ■do not all appear therein; that the defendant has falsely, fraudulently and willfully retained and converted to his own use a large portion of these moneys, and omitted to make any record or entry thereof in his accounts; that the defendant has failed and refused to account to the plaintiff respecting such moneys, and refused to pay t-lie same, and has deposited the same in different banks, and used the same in the purchase of real property in his own name.

The allegations material to a recovery are all denied, and the duty to substantiate them, is devolved on the plaintiff. In this action, as. well as in all others, the evidence on the part of the plaintiff must support the averments of the complaint; neither fraud nor embezzlement will ever be presumed by the law. The burden of proof is on the party asserting the fact, and remains on him throughout. (Heinemann v. Heard, 62 N. Y., 448). All that is intended or included in the expression that the burden of proof is shifted or changed is, that proof has been presented which must prevail unless it is answered by countervailing testimony; that is, that the evidence introduced, if uncontradicted, establishes the fact alleged, and therefore requires balancing or obviating testimony; but it never was held that a defendant was required to prove that the fact was not as alleged by the plaintiff. (Lamb v. Camden, etc., R. R. Co., 46 N. Y., 271.)

The position of the plaintiff seems to be that the burden of proof is devolved on' the defendant to establish affirmatively the fairness of his dealings with the company by reason of the relation he sustained thereto. To this point a long list of cases are cited where actions or proceedings have been instituted for the proof of instruments beneficial to persons sustaining confidential relations to the maker, and where, as a rule of evidence, it has been held that that •circumstance may, in some cases, require something more than formal proof of the execution of the instrument, not because fraud is presumed, but because it might be rendered more probable than in transactions between strangers. (Post v. Mason, 91 N. Y., 547.) Cowee v. Cornell (75 id., 100) belongs to the class of cases referred to, and as if to show that it never was to be extended to cases like this, the opinion states that “the trust and confidence or the superiority on one side, and weakness on the other, must be proved in ■each of these cases; the law does not presume them from the fact for instance that one party is a grandfather and old, and the other a grandson and young, or that one is an employer and the other an ■employe.”

In the case of Post v. Mason (supra) it was decided that the fact that a will executed by one having full testamentary capacity contains a legacy to the draftsman, an attorney, who had long been the counsel of the testator, did not alone raise a presumption ‘in aid of one seeking to overthrow the will that the influence of ihe attorney was unduly exercised; nor did it, in the absence of evidence, warrant a presumption that the intention of the testator was improperly or fraudulently controlled ; that it was therefore necessary in an action brought to set aside the will to give some evidence tending to show fraud or undue influence. This shows that the rule of evidence invoked against the defendant has been modified, but at its best it had no application to a case like this. There is here no person with confidential relations seeking to enforce a beneficial provision. The relation between these parties was that of master and servant, and if that was confidential the defendant is seeking nothing in this action. But in an action between master and servant, or principal and agent, was' an implication of fraud or wrong ever made against the defendant. Was it ever held in such an action that the plaintiff was relieved from proof of his case by any presumption in his favor. Deeply as the law abhors fraud and crime, it equally abhors the imputation of either, except upon clear and controlling evidence.” (Townsend v. Stearns, 32 N. Y., 214.)

Our examination of the case must, thei-efore, proceed on the theory that the duty rested on the plaintiff from fii-st to last on the trial to prove the embezzlement charged, and that the defendant was not inquired to prove or satisfy the court that the fact was not as alleged by the plaintiff against him.

On the threshold of the case we are met with the very serious objection that there is no proof of the substantial and fundamental fact, the body and foundation of the offense alleged. There is no proof that the plaintiff has lost any money, or that any of its money has been misappi-opriated or embezzled. The testimony introduced to show that on several occasions Moore put money in his pocket instead of placing it in the bag provided for that pul-póse proves but little. The money was all in his possession, and it was his duty to carry it to the office of the company; and proof that he placed some of it in his pocket falls far short of proof that he retained it apd did not return it to the company as his duty was. The money could be earned in his_ pocket as safely and well as in the bag, and there is no proof that it was not. The worst that can be claimed for this proof is that it is a slight cii’cumstance against the defendant.

The 'great fact relied on by the plaintiff to establish its claim and maintain this action is the possession of property and money by Moore, in quantities and sums beyond all that could be accumulated by him from the salary he received. His bank accounts were introduced to show regular deposits during the time he was in rhe service of the plaintiff, and from this fact a presumption was sought to be raised that the money taken - from the plaintiff was deposited as it came, but the inference does not result legitimately or necessarily from the fact. Neither does the faet exclude any inference but that of guilt. The defendant may have been in the possession of other resources, and it was not proven that he was not. His poverty and his small salary did not establish it, and he was not called on to prove the sources of his income. The law at all times presumes-his innocence, and the plaintiff was required to prove his guilt by a preponderance of testimony; certainly that might have been done by circumstances leading directly to the result, but that conclusion could not be deduced from circumstances depending'on conjecture. Proof was made of the possession of money and property, to render it probable that they were the result of the embezzlement claimed ; but that testimony established but a probability at most and that does not amount to proof. Certain things are the usual concomitants of each other, and to establish the existence of one where direct proof is wanting we prove the existence of the other or co-relative fact, and thus seek to establish the existence or reality of the principal fact. Such was the mode of proof pursued in this case. It was sought to establish the embezzlement by proof of the possession of money, but the two facts are not co-relative, and it is vicious and fallacious to reason from the one to the other.

Put it is claimed that the defendant occupied a fiduciary relation to the plaintiff and was bound to account for all the property he received, and that the burden of proof was on him in such accounting. ’ In the examination of this position it must be borne in mind that the complaint proceeds on the theory that the defendant has accounted, but that his accounts are false and fraudulent.

We cannot hold the defendant responsible under such a charge until it is established by evidence. No burden of proof was devolved on him until testimony was introduced by the plaintiff to establish the charge. If any inference can be drawn against the defendant from his omission to testify or make explanations, only such as is warranted by the evidence introduced by the plaintiff will be indulged in. (Wylde v. Northern R. R. Co., 53 N. Y., 156.) So that we are brought directly back to the question of the plaintiff’s testimony which we find insufficient to justifythe conclusion claimed.

Some minor circumstances are relied on. When Moore was questioned by the officers of the plaintiff respecting his possession of property and money he made false and contradictory statements and denied that he had money on deposit in any bank. This had little tendency to show that he embezzled from the plaintiff what he had.

When arrested by the officers the defendant offered them $500 to allow him to go into his house for five minutes. Why this offer was made was not explained. Moore had nothing about his person which it would avail him to conceal. He had only his bank passbooks, and they were only duplicates of the books of the bank of which an inspection could at any time have been secured.

It is claimed by the plaintiff, and found by the trial court, that when the defendant was arrested he attempted to escape by flight, but there is no proof to sustain the finding. The testimony of the officer was that he saw Moore come out of his house when it was raining pretty hard and look down the street, and then turn from his house and go up a block, and then the witness and his brother officer saw him on the next corner, and he looked down and started to walk very quickly. Then the officers went over, and he had got into a run then, and they caught up to him just one door from his house, and arrested him. So far as appears, he did not know he was to be arrested, or that the. officers were near him, or that he was flying from anything, or that he knew he was unsafe. He first walked very quick, and then got “into a run.” That may have been induced by haste, or .by the rain, or any other cause, but not by a desire to escape an arrest which he did not apprehend. There is no proof that he was then aware of the institution of any proceedings for that purpose, much less that the officers were then on his track.

After all has been said and considered, the case comes to this: The defendant was in the service of the plaintiff in a position to embezzle its money, and with opportunity for malfeasance, but that alone will not justify the inference that it was committed; he is in the possession of wealth, but there is no proof that it was improperly acquired, and we do not think he was bound to reveal its sources. If a master who has believed his servant to be poor, after the lapse of years finds him in the possession of money and riches, may he summon him to court on suspicion and compel him to disclose his secret ? Such a practice would re-establish the inquisition. Where would the limit be placed % Must all clerks and employes who acquire or accumulate money go into court and disclose the sources of their good fortune on the demand of their employer ? We are aware of no rule of law rendering it permissible for one to demand the secrets of another because he is the employer and the other a financial clerk, and without such a rule this action has no support. This view renders the examination of the testimony, introduced on behalf of the defendant, unnecessary.

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

Barnard, P. J., concurred.

Present — BarNard, P. J., Dr KM an and Pratt, JJ.

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


author: Pkatt, J.:

text:
    CHARLES S. KENNEDY, Appellant, v. THE NEW YORK LIFE INSURANCE AND TRUST COMPANY, Respondent.

      Service of a summons by publication — the affidavit must show that the defendant cannot after due diligence be found within the State — Code of Procedure, sec. 185.
    In an action to foreclose a mortgage an order for rlie service of the summons by publication upon certain of the defendants was made upon an affidavit which - stated that the said defendants “ cannot after due diligence be found within this State, they being residents as follows, viz.: ” (naming three different States in which the said defendants respectively resided); “that the summons herein was duly issued for said defendants, but cannot be served personally upon them by reason of such non-residence.”

      Held, that the affidavit failed to show that the defendants -could not “ after due diligence be found within the State,” as required by section 133 of the old Code, and that the court had no power to make the order.

      Oarleton v. Om'leton (85 N. Y., 313) followed.

      (¿utm-e, as to whether it would have been sufficient to have stated positively in the affidavit that “due diligence had been used,” or whether the facts constituting such due diligence 'should have been stated. (Per Pratt, J.)
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The defendant, by a written contract dated March 17,1883, agreed to sell to the plaintiff the premises No. 91 Maiden lane, New York, the plaintiff paying down $500 at the time of signing the contract. At the adjourned time of closing the transaction, viz.', May 8, 1883, the plaintiff refused to accept the defendant’s deed, alleging that the title was defective. *
    This action was brought to recover the $500 paid down by the plaintiff and his expenses, amounting to $231, on the examination of the title, with -interest. The defect complained of was the insufficiency of an affidavit used on a motion for an order to serve by publication certain of the defendants in a foreclosure suit, through which the defendant’s title was derived.
    The affidavit upon which the order was made stated, among other things, “that the said Samuel Hurlburt, Edward N. Hurlburt, Lemuel Hurlburt, Elizabeth N. Hurlburt, Daniel Kempton, George A. Fuller and Samuel Stedman cannot after due diligence be found within this State, they being residents as follows, viz,: The said Samuel Hurlburt and Edward N., Lemuel and Elizabeth N. Hurl-burt, of Baltimore, in the State of Maryland; the said Daniel Kempton, of Paterson, in the State of New Jersey, and George A. Fuller and Samuel Stedman, of Lawrence, in the State of Massachusetts ; that the summons herein was duly issued for said defendants, but cannot be served personally upon them by reason of such non-residence.”

      J. T. Marean, for the appellant.

      R. E. Robinson, for the respondent.
   Pkatt, J.:

This case falls within the principle laid down by the Court of Appeals in the case of Carleton v. Carleton (85 N. Y., 313). The affidavit upon which' the order was based, so far as it concerns the question here, is as follows : The said Sarah Hurlburt, and others, cannot, after due diligence, be found within the State; they being residents of Baltimore, in the State of Maryland. Bat the summons herein was duly issued for said defendants, but cannot be served personally upon them by reason of such non-residence. The first part of the affidavit is the equivalent of saying that the defendants, being residents of Baltimore, cannot be found within, the State. It is a conclusion or opinion formed from the fact that the defendants were non-residents. Neither does the bare statement that the defendants cannot after due diligence be found, state or imply that any effort or attempt had been made to serve within the State. It in no sense is a statement of fact, but is purely the statement of the opinion of the affiant. The last part of the, affidavit is equally deficient of any necessary statement of fact to confer jurisdiction for granting the order stating that the summons herein was duly issued for said defendants,” does not imply any diligence to serve it. No fact is stated in the affidavit from which the judge, to whom it was presented, might infer that an attempt had been made to serve within the State. It does not even state that any attempt was made.

The law requires proof that a defendant cannot be found after due diligence, or proof of such a state of facts as to show that diligence would .be of no avail in affecting a service within the State. Proof as to where the defendant actually was at the time, would excuse any effort to serve at another place.

It is plain under the case of Carleton v. Carleton that merely alleging that a defendant is a non-resident affords no ground for assuming that due diligence has been used.

It is not necessary to determine whether it would have been sufficient if the affidavit had positively stated that “ due diligence had been used ” or whether a statement of the facts constituting due diligence was essential, as no such proof is contained in the affidavit.

If these views are correct, it follows that the judgment must be reversed, and a new trial granted, costs to abide event.

Present — BakNAkd, P. J., Dykmau and Pkatt, JJ.

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


author: PRATT, J. :

text:
    MORRIS H. SMITH, Respondent, v. THE LONG ISLAND RALROAD COMPANY, Appellant.

      Compensation for services rendered — when a promise to pay for the services rendered to a company by one of its officers will not be implied.

    The plaintiff was elected and acted as the secretary of the defendant in 1870 and for five successive years thereafter. During all this time he was employed as a clerk by the defendant, and was not at any time a stockholder or director of the company. At the time of his election the by-laws did not provide any salary for the secretary, nor was any such provision subsequently made, although the plaintiff spoke once to the president and once to a director of the company about it.
    In an action by the plaintiff to recover upon a quantum meruit the value of the services so rendered by him as secretary:

      Meld, that he was not entitled to recover, as no express or implied promise on the part of the company to pay him for his services was shown.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Edward E. Sprague, for the appellant.

      B. F. Dunning, for the respondent.
   PRATT, J. :

This is an appeal from a judgment in favor of the plaintiff, for compensation for services rendered as secretary of the defendant during the five years from April, 1870, to April, 1875.

Plaintiff was elected secretary of defendant in April, 1870, and re-elected four successive years, and acted as secretary during the intervening period. The claim was upon quantum meruit. At the time of plaintiff’s election to the office of secretary the by-laws of the company made no provision for a salary to its secretary, and no action of the company was at that time, or subsequently, taken,, fixing any salary to the office of secretary, or to the incumbent, the plaintiff. At the time of his first election to the office he was employed as a clerk in the office of the financial agents of the defendant, and continued to be employed during the entire period he served as secretary. He was not at any time himself a stockholder or director of the company.

At some time after his election as secretary he spoke to the president about compensation, but it does not appear that any compensation was fixed, or agreed to be paid. He also spoke upon the subject to one of the directors, with like result; and no application or demand for salary or compensation was made to the company, or to vote or fix such salary during his entire secretaryship. It seems clear to us upon this state of facts, that plaintiff cannot recover, and that the learned referee erred in the'judgment rendered.

Ordinarily it is enough for a party claiming compensation for services to show that such services have been performed. The law will then raise an implied promise to pay. But when it is made to appear from all the circumstances that there was no contract of employment, that there was no hiring, or that the services were voluntarily given, and that no compensation was intended by the parties, the implication of a promise to pay is rebutted, and the action must fail. (Maltby v. Harwood, 12 Barb., 477; Wood on Master and Servant, 862; Pendleton v. Empire Stone Dressing Co., 19 N. Y., 13).

In the case at bar it would seem that the expectation of compensation, the implication of a promise to pay the plaintiff as secretary of the defendant, is wholly rebutted by the facts. The plaintiff was not hired as a clerk, employe, laborer or servant, by the defendant, in the sense in which those terms are usually used. He was elected an officer of the corporation under by-laws which determined the office, its duties, its term, and the manner of the election, but which did not provide a salary attaching'to the office.

A secretary of a corporation is not a servant in the ordinary and usual sense in which the term is used. (Gurney v. Atlantic and Great Western Railway Co., 58 N. Y., 367; Coffin v. Reynolds, 37 N. Y., 640.) And in the absence of a by-law fixing the salary of an officer of a corporation, or any express promise to pay, no compensation for such services upon quantv,m meruit can be recovered. (Talcott v. Olcott Manufacturing Co., 11 N. Y. Weekly Dig., 141; Kilpatrick v. Penrose Ferry Bridge Co., 49 Penn. St., 118.) And this doctrine has been held in this department in several unreported cases. It is true that in those cases the reason of the decision was put upon the ground that officers of corporations being usually directors, are trustees, and hence may not retain compensation out of the trust funds, but in the two reported cases above cited such reason is not given, and there seems no good reason why the restriction should be made as indicated.

But irrespective of the rule above set out, it seems clear that the presumption of a promise to pay the plaintiff, as secretary, by the defendant, is entirely rebutted by all the circumstances. He accepted a,n office to which no salary attached, and to which none was fixed. One of the directors says that plaintiff spoke of compensation, though plaintiff does not confirm the statement, yet none was then promised or fixed. The implication is that the directors did not intend to fix compensation nor to pay for services. Plaintiff then served one year and neither makes demand for salary nor receives any, nor was a salary fixed, and, notwithstanding, he continues to permit himself to be elected a second year,-accepting the office, and to be so elected three several, consecutive times thereafter under similar conditions. The natural inference from these circumstances is that no compensation was expected and none implicitly promised. His employment, and continued employment with the financial agents of the corporation, may account for his willingness to accept the office without compensation, but at all events it is quite clear that he did so accept it, whatever may have been his reason. Upon these grounds, we are of opinion that the judgment should be reversed and new trial ordered, with costs to abide the event.

Present — Babnabd, P. J., Dykman and Peait, JJ.

Judgment reversed, and new trial granted.


author: Dyeman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANIEL H. STONE, Appellant.

      Peiyury — a conviction cannot' be had upon the uncorroborated testimony of one witness.

    The defendant was indicted, tried and. convicted of the ofíense of perjury, in having falsely sworn, in an action in the Supreme Court, that he had paid to one Booraem certain moneys which he had received for her. The only direct evidence of the non-payment of the money was the testimony of Booraem. Upon the trial of the indictment evidence was given tending to show that certain receipts produced hy the defendant, upon the tria! of the former action, which purported to be signed by Booraem, were not signed by her, but were forgeries.
    Meld, that this evidence did not so directly corroborate the direct testimony of Booraem as to the commission of the offense charged in the indictment, as to justify the conviction of the defendant.
    Appeal from a judgment of tlie Court of Sessions of Queens county, convicting the defendant of the crime of perjury.
    The offense was alleged to have been committed in an action brought in the Supreme Court by Candace E. Y. B. Booraem against the defendant, an attorney, to recover money alleged to have been received by him, as her attorney, in an action to foreclose 'a mortgage, and to have him compelled to convey certain premises to her.
    Upon the trial of this action the defendant testified that he had paid the money received by him to Mrs. Booraem, and produced what purported to be receipts therefor, signed by her. He was indicted for having falsely .sworn that he had paid the money to her.

      Horace Graves, for the appellant.

      Benjamin W. Downey and Ohaimeey Shaffer, for the people.
   Dyeman, J.:

It is an ancient and salutary rule of law that a conviction for the crime of willful and corrupt perjury cannot be secured and sustained on the uncorroborated testimony of one witness. The underlying principle of this rule is that if there be but one witness to prove the allegation of falsity, then oath is placed against oath and it remains doubtful where the truth lies, the oath of the accused which is alleged to be false being sufficient to counterpoise the testimony of a single witness. Formerly the testimony of two witnesses was requisite to a conviction, but that rule has been relaxed. Now what is required is evidence sufficient to counterbalance the oath of the defendant, and the legal presumption of his innocence. The testimony of the single witness for the prosecution must be corroborated by material and independent facts or circumstances sufficient to destroy the equilibrium produced by the two oaths.

Tested by these fundamental and material rules the testimony in this case is insufficient to sustain the conviction of the defendant.

The perjury set up in the indictment is false swearing to the payment of money to Mrs. Booraem, and she testified to its falsity. There was much testimony adduced on the trial respecting a receipt which Stone had produced on the main trial, but he is not indicted for false swearing in reference to the receipt or the signature it wears. That testimony is not therefore corroborative for the prosecution here. If all the exhibits produced by the defendant on the trial were forged it is quite immaterial here. The only question here is whether the defendant committed willful and corrupt perjury when he swore on the trial at Special Term that he had paid Mrs. Booraem the money. The indictment contains no charge that Stone testified in any way respecting the signatures to the two receipts. The allegations are that the receipts were false and forged and that the defendant produced them, but the indictment is for perjury in making a false oath that he had paid money and not for swearing' that the receipts were genuine.

The accused was therefore called on to answer the charge of perjury contained in the indictment, and the public prosecutor was called on for proof of that offense, and when he produced one single witness to prove that the money had not been paid, he had taken but one step towards the conviction of the defendant. lie had then produced an equilibrium which he was required to destroy, and that destruction could not be accomplished by proof that the defendant had committed the crime of perjury without proof of material and independent facts or circumstances tending directly to corroborate the testimony of the main and only witness; on the question of payment he could not require a conviction.

The argument for the prosecution seems to be that because Stone testified to the payment of the money and produced in corroboration of his testimony a receipt which is shown to be false and fabricated, that makes against his testimony and is sufficient confirmation of the single witness to justify the conviction. But does that prove any more than the failure of the receipt To corroborate the testimony of Stone ? If that be all then it does not assist the prosecution. What the law required was confirmation of the single witness. If Stone provided fabricated receipts they may fail to support him but they fail also to corroborate the testimony of the people.

On the whole testimony the conclusion is reached that there was not sufficient confirmatory proof in corroboration of the single witness to justify the conviction.

The judgment of conviction should be reversed.

PRATT, J., concurred.

Present — BarNArd, P. J-., Dykman and Pratt, JJ.

Conviction and judgment reversed.