text:
    John Garwood, Resp’t, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Evidence — Competency oe — Divebsion oe wateb — Action eob damages.
    In an action to recover damages alleged to have been sustained by the plaintiff by reason of the diversion by the defendant of water from a certain creek, the witnesses who¡ testified to the damage were practical millers, well acquainted with the business and familiar with the mill and stream in question. Held, that these facts permitted the conclusion that they knew something of the results of the business of milling, the corpus and rental value of such property and the impairment of the latter by the reduction to a certain specified extent of its productive power.
    2. Same—What “common knowledge.”
    ' A certain witness was allowed to testify to the grinding capacity of a certain quantity of water. It appeared that this witness had experience which enabled him to state the quantity of grain ground by a specified power. But it also appeared he got the number of horse power from “ Leffels ” tables, and that these tables were ordinarily used by millwrights, and by all of them considered accurate. Held, that the united acquiescence of millwrights in the accuracy of said tables and of the result of computation founded upon them could be treated as the common knowledge of men of that profession, and their computations so made as competent evidence. That the evidence was properly admitted.
    3. Same—Weight oe expebt testimony.
    ' The measure of intelligence of witnesses in respect to the matters on which they express their opinion is one of degree, and it is a question for the jury as to the weight they are entitled to if they by their avocation, experience and opportunity, come in the class of persons who may be deemed competent to have and express an opinion.
    4 Same.
    The water abstracted from said creek was pumped into a reservoir to supply the defendant’s railroad engines with water. Held, that the evidence of the defendant’s train dispatcher on the division of the road as to the number of trains running through the place in question, in giving which he referred to a hook, kept in his office, of entries of the movement of trains, was properly admitted.
    5 Same—Taken on former trial.
    There had been a previous action brought by the same plaintiff against the same defendant involving the same question except as to a different period of time. The evidence of a certain witness taken on said trial as to the quantity of water consumed in running trains was admitted. Held, no error.
    6. Same—Evidence of diversion bt others—Competent.

      H Id, That the defendant had the right to prove that water was taken from the creek above plaintiff's mill by other means than those produced by defendant.
    Appeal from judgment entered on verdict of Genesee circuit, and from order denying a motion made on case and exceptions for a new trial.

      Greene, McMillan & Gluck, for app’lt; James Breck Per.kins, for resp’t.
   Bradley, J.

This action was commenced in April, 1883, to recover damages alleged to have been sustained by the plaintiff by reason of the diversion by the defendant of water from Tonawanda creek, at Batavia, in the county of Genesee, subsequently to March 10, 1879. The plaintiff had a grist and flour mill supplied and operated by water from the creek about three miles below the location of the defendant’s pumps.by which it raises water from the creek into its reservoir or tank to supply its railroad engines with water. It is said that during the dry season of the year, which is said to occupy four months or more annually, the creek is not capable of furnishing water sufficiently to operate the plaintiff’s mill but a short time daily. And it is claimed by him that this deficiency is increased, and the use of his mill essentially impaired by this diversion made by the defendant for the supply of its engines with water. In that respect the evidence of the respective parties presents a diversity of fact. While that on the part of the plaintiff tends to prove that the water so diverted and taken from the creek by the defendant would furnish head in the plaintiff’s mill pond, and supply power sufficient to enable him to grind at his mill six to eight bushels of wheat daily, the evidence on the part of the defense is to the effect that water so taken would not add any perceptible difference to the head in the pond or to the efficiency of the power to propel the machinery at the mill or to its results. This action is between the same parties and for a like cause (embracing a later period) as that of Garwood v. N. Y. C. and H. R. R. R. Co. (17 Hun, 356; affirmed, 83 N. Y., 400). And the questions presented mainly arise upon exceptions taken to the reception and rejection o£ evidence.

After giving some evidence tending to prove the quantity of water pumped daily from the creek by the defendant and its effect upon the grinding capacity of the mill, a witness was asked to give his opinion of the rental value of the mill in view of the situation, and its rental value during the years in question if water had been added to his pond, distributed through each day, sufficient to grind six bushels, of wheat, to the introduction of which objections and exceptions were taken on the ground that the witness did not appear competent to express an opinion and that no-basis was shown upon which to predicate it. There was then some evidence, although by no means conclusive, from which the jury might find that the grinding capacity o£ the mill was reduced to the extent embraced within the inquiry put to the witness by the diversion complained of.

And the witness, although not a civil or hydraulic engineer, was a practical miller on the creek and was somewhat familiar with the plaintiff’s mill and its operation. He, also, had some information of the price for which mills were sold. We think he was within the rule of competency required, to express his opinion. And the same may be said of the other witnesses who gave their opinions, on the same subject.

The measure of intelligence of witnesses in respect to the matters on which, they express their opinions is one of degree, and is a question for the jury as to the weight they are entitled to, if they by their avocation, experience, and opportunity come in the class of persons who may be deemed competent to have and express opinion. The fact that the witnesses were practical millers, well acquainted with the business, and familiar with the mill, and this, stream, permitted the conclusion that they knew something of the results of the business, the corpus and rental value of such property, and the impairment of the latter by the reduction to a certain specified extent of its product-! ive power.

This depended largely upon the results involving all the-consequences to the business of the mill as well as the good will of it as the loss of profits directly occasioned by the-deficiency-front the reduction of the quantity of flour, etc., manufactured, caused by the alleged diversion of water.

One witness, who was a millwright, acquainted with the-mill, its wheels and efficiency, and with the defendant’s pumps, having stated what quantity of water the two-pumps continuously operated would take from the creek, was asked to state the grinding capacity of that quantity of water at this mill, which he was permitted to answer under the objection and exception taken by the defendant’s counsel on the ground that there was no foundation laid for the evidence. It is true that it had not appeared that the two pumps were constantly in operation, but it was not error for that reason to receive the evidence. It then appeared that the pumps were operated to supply the defendant’s reservoir for the purposes before mentioned, and it was not incompetent to show as one fact what the means provided enabled the defendant to accomplish, although the question simply was, what quantity of water was actually taken from the creek, the effect of such abstraction upon the working capacity of the plaintiff’s mill, and its consequences.

The inquiry to which this objection was taken, so far as the requisite facts were wanting to give it effect, presented a question of order of proof which came within the discretion of the trial court. While it appeared by the evidence of this witness that he had experience which enabled him to state the quantity of .grain ground by a specified power, he got the number of horse power from Leffel’s tables who is the manufacturer of the turbine wheel. This appeared on the cross-examination. And when examined by the plaintiff’s counsel, he answered that Leffel’s tables were ordinarily used by millwrights, and by all of them considered accurate. To this objection and exception were taken.

We think the united, acquiescence of millwrights in the accuracy of these tables and of the results of computation founded upon them, may be treated as the common knowledge of the men of that profession, and their computations so made as competent evidence. Schell v. Plumb, 55 N. Y., 592; People v. Insurance Company, 78 id., 128.

There was no error in the reception of the evidence of such recognized accuracy and the general use made of the tables. The evidence of the defendant’s train dispatcher of the Western division of its road was read as to the number of trains running on it between Rochester and Buffalo through Batavia daily, and he referred to a book kept in his office of entries of the movements of the trains upon the western division, which embraced that portion of the road. Objection and exception were taken to his evidence of the number of trains passing over that part of the road. There was no error in its reception. The witness had some personal knowledge of the movements of the trains, and some views founded upon it which he ex pressed. It was not a mere statement of contents of the books as such. There is no apparent reason in support of the objection to the reception of evidence that the plaintiff had wheat at his mill to grind, and which he was unable there to make into flour by reason of deficiency of water to run the mill. This was the effect of the evidence. And proof of the fact that he took some of it elsewhere to have ground, and sold some, although unimportant, did not add anything material to the main fact in that respect to the prejudice of the defendant. We see no error in the reception of the evidence objected to, of. Upton, taken on the trial of a former action as to the quantity of water consumed in running trains from Batavia to Rochester. The principle and extent of' consumption for the like purpose, conditions being the same, may be deemed the same one period of time as another. The question of bearing of this evidence is one of degree merely. No reason appears why evidence that water was taken from the creek above the plaintiff’s mill by other means than those produced by the defendant, was not competent. The defendant had the right to prove that water was so taken by the village of Batavia for its purposes ahd the extent of such diversion. But this was matter of defense, and its exclusion when offered on the cross-examination of the plaintiff’s witness was within the discretion of the court at that stage of the trial. And no such proof seems to have been offered after the defendant entered upon the affirmative defense at the trial.

In view of the facts developed by the defense in respect to the quantity of water taken by the defendant from the creek, it is by no means clear that the plaintiff had from such cause sustained or was entitled to recover damages to the amount of the verdict ($250) upon the basis of the estimates by the plaintiff’s witnesses. And upon the whole evidence the amount of the verdict is quite feebly supported.

But without proceeding to more specifically refer to the evidence and the inferences derivable from it which enabled the jury to reach the result they did, we think a question of fact was presented for the jury in respect to the amount of such damages so occasioned upon which they were permitted to give the result represented by their verdict. There seems to have been no error at the trial to the prejudice of the defendant.

The judgment and order should, therefore, be affirmed.

Smith, P. J., concurs; Haight, J., not sitting.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Elizabeth R. Wells, Resp’t, v. World’s Dispensary Medical Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Physician—Assumes to hate ordinary skill—When liable for RESULT OF TREATMENT.
    A physician assumes to have, and for his protection must have, at least ordinary professional intelligence and skill, and, with his best judgment, to exercise it in the treatment of the patient. When his errors are those of judgment only, if he keeps within recognized and approved methods he is not liable for their consequences.
    2. Practice—Burder of proof—Weight of evidence.
    The burden of proof is, with the plaintiff, to establish the facts upon which the right to recover depends and the mere fact that the credibility of a witness against her is involved does not have the effect to prove the non-existence of the fact testified to by said witness.
    Appeal from judgment entered on judgment of Erie circuit, and from order denying motion on case and exceptions for a new trial.
    The defendant is a corporation, having for its business the practice of medicine and surgery, and for that purpose has in its service physicians and surgeons. The complaint alleges that by the false representations of the defendant, by its servants, the plaintiff was induced to and did submit to an operation for the removal of a tumor, designated as a fibroid tumor, located in the walls of the uterus, with which they represented she was suffering, that in doing so she suffered intense pain and came near losing her reason and life, and as a consequence, and by reason of the subsequent neglect of the defendant, she was thereafter greatly afflicted with pain and became a confirmed invalid and substantially helpless, that, in fact, she had no tumor, and that the defendant’s servants, knowing that there was no tumor, made such representations and induced her to submit to the operation for the purpose of obtaining money from her, and alleges some other matters to the effect that the defendent neglected and refused to render to the plaintiff or to permit her to have necessary and proper treatment, which her condition required. The plaintiff had a verdict of $6,000. The defendant appeals.

      Adelbert Moot, for app’lt; H. J. Swift, for resp’t.
   Bradley, J.

The plaintiff came from Ohio to the defendant’s hotel in Buffalo, October 22, 1879, with a view to medical treatment. She had then been afflicted for several years with retroflexion of the womb and inflammation of the adjacent structures, and had been under medical treatment.

Shortly after her arrival at the defendant’s hotel a history of her case was taken by the medical attendants. An examination was made, both digital and specular, and she was informed that she had a uterine tumor, and they -advised its removal. And in a few days she submitted to the operation for its removal, which was performed with a platinum knife, heated to a white heat by a galvanic battery. This is termed in surgery a galvano cautery.

The immediate effect of the operation upon the plaintiff was prostration, and followed by great pain in its locality, which continued while she remained at the defendant’s hotel. And the evidence tends to prove that since the operation she has suffered more and been less able to be about and attend to the performance of service than she had been before then. This she attributed to the alleged improper treatment by the defendant while under its care, and mainly to the surgical operation before mentioned.

The physicians who made the examination of the plaintiff and participated in the operation were three in the defendant’s service. One of whom is said to make a specialty of female diseases, and mainly had charge of that department of the medical treatment of the association. Another was an operating surgeon of the establishment, and the third was the financial and business manager of the institution.

They seem to have been united in judgment that the operation should be performed, and by their evidence agree in the fact founded upon personal examination that the plaintiff had at the location mentioned a fibroid tumor of the size of a Concord grape.

The first question requiring consideration is whether the evidence was such as to permit the jury to find that there was no tumor. If there was none the conclusion was' justified that the defendants either did not possess or exercise the ordinary skill which the defendant undertook they had and which they assumed to exercise, as it does not necessarily appear that anything more than the use of ordinary professional skill and care were required to distinguish a tumor situated as this was said to be from any other and less serious condition.

The defendant’s three physicians referred to, by their evidence, state positively that there was a tumor; that they felt it, and with the aid of a speculum, saw it distinctly; that it was removed, and after its removal they looked at it. If their evidence is believed, there was a tumor and they removed it.

This was treated by the trial court as a question of fact for the jury, and submitted to them. These three witnesses had such relation to the defendant, and to the transaction of advising the operation and performing it as to present to some extent the question of the credibility of their evidence in that respect. Dean v. Van Ostrand, 23 N Y. Week. Dig., 97.

Yet if there is no evidence fairly tending to prove to the contrary, the fact must remain as stated by them that there was a tumor, because the burden is with the plaintiff to establish the facts upon which the right to recover depends, and the mere fact that the credibility of a witness against her is involved does not have the effect to prove the nonexistence of the fact so testified to. Wallace v. Berdell, 97 N. Y., 13.

The evidence of one witness (D'r. Adams), on the part of the plaintiff, was that he treated the plaintiff for about two years prior and up to July, 1877, and incidentally thereafter, until August 25, 1879; that during all that time he found no tumor in or about the uterus; that he made a digital and speculum examination on August 25, 1879; that there was then as there had been some enlargement of its neck, but nothing he would call a tumor; that a tumor there would have to be very small not to be observed; that there might be difficulty about it, but if of the size of a Concord grape it ought to be discovered; that it would not necessarily be discovered by one examination, probably would be if examination thoroughly made; that if it had been of that size he should have noticed it; that a fibroid tumor could not have its inception, and develop itself there to the size of an ordinary grape in two months, and that it would take at least a year for it to grow to the size of a robin’s egg or hickory nut, and might take longer if of remarkably slow growth. Another doctor says that a fibroid tumor is of slow growth. And others say that it some times grows rapidly, and might within that time develop from an imperceptible condition to the size represented as that of this one. This is said to have been an interstitial tumor, which is more difficult of diagnosis, and removal than one with a pedicle. There is also the evidence of a doctor that some weeks after the operation he examined the plaintiff, and although he saw a scar at the place of the operation, he thought there had been no tumor there, but upon his further evidence and that of others, as shown by the record, it very clearly appears that a few weeks after the operation, no condition necessarily appeared which could enable one to tell whether or not a tumor had existed there and been removed. The examination which Dr. Adams says he made in August, 1879, was within two months of the examination by the defendants, and when they say they found the tumor. Upon the whole evidence the jury may have found that at the time Dr. Adams made such examination the tumor was there, and escaped his observation because then much smaller than it was two months afterwards. And there is some evidence to the effect that there are other conditions which may be mistaken for a tumor, but that does not, so far as we are able to observe from the evidence, seem to apply to this case so as to justify the conclusion that a skillful physician would be led into such an error. While the evidence on the part of the plaintiff in view of the other evidence (exclusive of that of the defendant’s physicians), did not necessarily prove that there was no tumor there at the time of the operation, we think it was sufficient to present a question of fact in that respect for the jury. In view of the questions submitted to them by the trial court, the verdict for the plaintiff did not necessarily depend upon their finding that there-was no tumor, but although they may have found that-there was one removed by the defendant’s physicians, they may have found for the plaintiff, because the operation, should not have been performed, “or was not properly per formed.

And here arises the inquiry whether those questions-should have been submitted to the jury for their consideration and as a substantive ground of liability of the defendant in the eyent they found that there was a tumor removed. The defendant’s counsel took exception to the submission to the jury of any question of fact other than that whether or not there was a tumor, and to the refusal of the court to charge that if there was a tumor the verdict should be for the defendant. The question will be considered in view of those exceptions.

The defendant’s physicians assumed to have, and for its protection were required to possess, at least ordinary professional intelligence and skill, and with .their best judgment to exercise it in the treatment of the plaintiff. They were not required to insure results or to guarantee that the consequences would be beneficial. While the responsibility of the medical practitioner and surgeon is great, and care proportionally should be observed in the exercise of his professional employment, when his errors are those of judgment only, if he keeps within recognized and approved methods, be is not hable for their consequences. Leighton v. Sargent, 27 N. H., 460; S. C., 59 Am. Dec., 888; Carpenter v. Blake, 60 Barb., 488; 50 N. Y., 696; S. C., 10 Hun, 358, affirmed 75 N. Y., 12; Boldt v. Murray, 2 N. Y. State Rep., 232. Upon the assumption that there was a tumor, the burden was with the plaintiff to prove that the doctors either had not the professional skill which they assumed to have, or were required to possess, of that having such skill they failed to exercise it in directing and performing the operation. There is no evidence to justify the conclusion of their want of the requisite professional intelligence, unless it is found in the manner which they treated the plaintiff’s case. The manner and means of the operation are not very seriously criticized by the evidence. The galvaniocautery was one of the approved methods of surgical operations, and seems to have been a useful procese to prevent; hemorrhage. There is nothing remaining in the structural conditional at the place of removal which indicates that the-instrument was applied in an improper manner in the removal of the tumor. But there is evidence tending to prove that the plaintiff’s condition was worse after than before the operation, and to justify the inference that its effect was an aggravation rather than a beneficial remedy. _ The plaintiff had been under medical treatment and without cure for many years. Of this the defendant’s doctors were advised, and, assuming as before, that they found a tumor and that, in their judgment, its removal was essential and would be beneficial in its results, the defendant was not-liable for the consequences that followed, unless the plaintiff’s situation was such as to require of ordinary professional intelligence and skill the knowledge or reasonable apprehension that results injurious, or those which did, would follow. The condition in the parts involved was that of inflammation. And if the inflammation was acute the evidence tends to prove it could not be properly made, but that in such case it should have been delayed until such condition subsided. The evidence is not that it was acute but chronic inflammation. And in view of the trouble of retroflexion of the womb, from which the plaintiff was suffering, whether it was advisable or proper to perform the operation, seems by the evidence to be the subject of difference of opinion.

Since its performance it is easy to see its effect, and that it probably had better not have been done, not however on account of any structural defect or deformity produced by it, because there was none such, but for the reason that it probably had the effect to increase the inflamation caused by another organic disease or difficulty, and through it produced consequences unfavorable to the condition and comfort of the patient. And the question to some extent arises whether this effect of such cause was within the knowledge required to constitute the ordinary and reasonable intelligence and skill of the medical profession. As before remarked, mere error in judgment as disclosed by consequences produces no liability when there is no departure from a professionally approved line of action. By this is not meant that every skillful member of the profession would or should necessarily adopt precisely the same remedy for a like condition. Such an arbitrary rule would have the effect to unduly qualify the right of exercising judgment required by attending circumstances, temperament, and physical condition of patients, and the complication of diseases and physical troubles involved, but in the main to observe and take the benefit of the past experience and learning of the profession and adopt them as the rule of action when practicable rather than new and experimental methods. Much must necessarily rest in the judgment of the attending physician.

The difference of opinion in respect to the propriety of a specific treatment may be one of judgment rather than skill, and therefore insufficient to present the question of liability upon the charge of malpractice as one of fact, else it would be difficult to find a cause of unfavorable results from medical treatment which would not furnish a question in that respect for the jury.. The evidence in the case at bar on this subject is largely matter of the opinion of members of the profession and of difference of judgment as to the propriety of the operation referred to. On the one hand it is said that in view of the condition of the parts involved it was improper to attempt the removal of the tumor, while on the other hand it is said that the tumor may have been regarded as an exciting cause, and that its removal would be deemed proper with a view to the treatment of the other difficulty, although there was then chronic inflammation.

There is also evidence tending to prove that a tumor of the size of and situated as was this one, was of itself substantially harmless, that it might disappear by the natural process of absorption, that on account of the other structural and the inflammatory condition aggravation may have been apprehended as the consequence of the operation, that pelvic inflammations are exceedingly grave and fatal in their results, and that an operation during the existence of that condition would almost certainly increase the inflammation, and the patient being in a condition of prostration, “the shock of the operation would be likely to produce serious if not fatal consequences;” that a tumor situated ns this was, with other parts affected as they were, should not be removed by operation unless and until it became a necessity for the safety of the patient, and that there was no immediate necessity, apparent or real, for the removal of this tumor.

This operation was performed shortly after the plaintiff came to the defendant’s place for treatment and without the previous application of palliatives to reduce or allay the inflammation. This is also a subject of criticism by some of the evidence. While on the part of the defense it is to the effect that there was no inflammatory condition requiring attention, and that a chronic inflammation merely was no cause to interrupt the operation, but that in view of all the apparent conditions it was proper practice. There was much evidence upon the subject given on the part of the respective parties. And it cannot be harmonized. But we think that given on the part of the plaintiff was sufficient to present a question of fact for the jury, and to permit them to find that the defendant, through its physicians in concluding that the operation to remove the tumor should be made and in doing it at the time it was performed, failed to exercise the ordinary and reasonable medical intelligence and skill which they assumed to have and undertook to exercise in the treatment of the plaintiff. And that apprehension of consequences seriously unfavorable to her health and condition from such operation was within the knowledge requisite to such intelligence and skill. The difficulty arising upon the conflict of the evidence is deemed settled by the jury, and we cannot say that their finding is so against the weight of the evidence as to require or justify disturbance of their verdict. The statement in the complaint of the cause of the action in respect to the subject last considered is not complete and may be somewhat defective, but the action was tried upon the merits in all its aspects. And the matter of pleading does not, nor do any exceptions founded upon the cause of action as alleged in the complaint require consideration. Hone of the exceptions seem well taken.

The judgment and order should be affirmed.

Smith, P. J., and Haight, J., concur.


author: Haight, J.

text:
    Andrew Zeigler, Resp’t, v. Letitia J. Galvin, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Mechanic’s lien—Laws 1880, ch. 143—What necessaby to establishment OB BIGHT TO LIEN UNDEB.
    Laws 1880, chapter 143, provide that any person who shall thereafter perform any labor, or furnish any materials which have been used, or are to be used, in building, altering or repairing any house, building, or other improvement upon lands, or appurtenances to such house or building, by virtue of any contract with the owner thereof, or his agent, or with any contractor, or sub-contractor, or any other person contracting with the owner of said lands * * shall * * * have a lien, etc. Held, That under this act in order for a person to acquire a lien, the work must be performed, or the materials furnished, by virtue of a contract with the owner, or his agent, and that it was not sufficient to create the right to such lien that the work was performed, or the materials furnished, with the knowledge and consent of the owner of the premises.
    3. Same—Estoppel—Extent ob.
    That a statement that there was enough due to the contractor upon the work to pay the claim of a sub-contractor who had filed a lien upon the premises, if it operated as an estoppel, did so only so far as it related to the amount due, and did not reach the right to establish and maintain the lien.
    Appeal from a judgment entered upon the decision of the Erie county court.

      Nathaniel W Norton, for resp’t; William L. Marcy, for app’lt.
   Haight, J.

This action was brought to foreclose a mechanic’s lien. The defendant, Letitia J. Galvin, was the owner of a house and lot in the city of Buffalo. About the-month of August, 1884, her husband, Michael J. Galvin, entered into a written contract with one Michael Galvin, a. contractor, to make certain repairs and improvements upon the house. The plaintiff, a sub-contractor, filed a fien and brought this action to recover the amount alleged to be due from the contractor to him. The trial court found as facts that the contract was made by her husband with her full knowledge, consent and approval, and in pursuance of her desire that more room should be added to the house; that-the contract was intended, and did improve and benefit the property, and that she knew of the contracts and improvements being made at the time they were made, and was desirous that they should be made; that at the time-of making the contract, her husband resided upon the premises with her and his family, which he wholly provided for and maintained, and that she had no separate-business or income, nor did she assume or promise personally to pay any part of the consideration in the contract for the improvement of the premises; that her husband in fact-intended to carry out the contract himself, and to pay the-consideration therein named, to the contractor, according to the terms of the contract, and that she did not expect or intend to pay any part thereof herself.

As conclusions of law, the court found that her husband was her agent in fact, and that the plaintiff was entitled to a judgment establishing his lien upon the premises for the sum his due, and that he was entitled to judgment that the property be sold, etc., to satisfy the same.

Upon the facts found we must differ with the trial court -as to its conclusion “that her husband was her agent in fact.” Her knowledge, consent and approval that the improvements should be made, standing alone,' is not sufficient to constitute an agency.

The trial court, as we have seen, has expressly found that her husband made the contract himself and intended to carry it out and pay the consideration named to the contractor, and that she did not expect or intend to pay any part thereof.

It appears to us that this finding is inconsistent with the-theory that she was acting as principal and her husband as. agent. For if her husband was agent and she principal, then she would become bound by the contract, and would be obliged to pay the amount that became due thereon, and. the same could be enforced against her. The fact that she did not expect nor intend to pay herself, and that her husband did, tends strongly to show that the husband contracted as principal and not as agent.

This is further evident from the other finding to the-effect that the husband resided upon the premises with his family, which he wholly provided for and maintained, and that she had no separate business or income. If she had no separate business or income, she may have had nothing with which she could pay the contractor, and the necessary consequence would be the sale of her premises to pay the -debt. Her husband, living with, her upon the premises, had the right, with her consent, to rebuild and improve the-same, at his own expense, for his own comfort and convenience and that of his family; he had the right to so contract and bind himself without involving his wife.

This view leaves but one other question necessary for our determination, and that is, whether or not a contractor or sub- contractor can establish a lien for work performed and material furnished when there is no contract on the part of the owner or his agent, but where the work performed and material furnished is with the knowledge and consent of the owner.

Chapter 143 of the Laws of 1880, under which the hen in question was filed, provides as follows:

“Any person who shall hereafter perform any labor or furnish materials which have been used or are to be used in building, altering or repairing any house, building or other improvement upon lands or appurtenances to such house or building by virtue of any contract with the owner thereof, or his agent, or with any contractor or sub contractor, or any other person contracting with the owner of such lands * * * . shall * * * have a hen,” etc.

It wifi be observed that under this act, in order for a person to acquire a hen, the work must be performed or the materials furnished by virtue of a contract with the owner or his agent This act is local and is hmited to the city of Buff aid

Chapter 305 of the Laws of 1844 provided:

"Any person who shah hereafter, by virtue of any contract with the owner thereof or his agent, or any person, in pursuance of an agreement with any such contract or * * * shah * * * have a hen.”

The words: “By virtue of any contract with the owner thereof or his agent,” are identical with those appearing in the act under consideration Under the former act these provisions were considered in the case of Jones v. Walker (63 N. Y., 612), in which it was held that no hen could be perfected for the reason that the work was not performed or material furnished under any contract with the owner or his agent. The case resembles the one under consideration; the wife was the owner of the premises; she resided with her husband in the house; the husband maintained the family; it did not appear that he had any other property or income or that she assumed to pay any of the charges in respect to the premises; the contract was made-with her husband, all as in the present case.

In the case of Cornell v. Barney (94 N. Y., 394), the action was to foreclose a mechanic’s lien in the city of New York. The statute applicable to that city provided that-every person performing labor upon or furnishing materials to be used in the construction, etc., of any building shall have a lieii, etc., where done or furnished at the instance-of the builder or his agent. In that case it was held that no recovery could be had against the owner, for the-reason that the work was not done or material furnished at his instance or that of his agent.

The language of the statute in that case is also similar to the one under consideration, and it appears to us that these authorities must be controlling upon the question.

We have not overlooked the cases of Otis v. Dodd (90 N. Y., 336), Burkitt v. Harper (79 N. Y., 273), Husted v. Mathes (77 N. Y., 388), and kindred cases, in each of which the statute provided for a lien where the work was performed or the material furnished, with the consent of the owner, and for this reason they are distinguished, from the case of Jones v. Walker, to which we have referred upon the ground of the difference in the statutes under which the Hen was sought to be perfected.

It is contended on the part of the respondent that the appellant had a conversation with one of the plaintiff’s-attorneys, just prior to the HHng of the lien, in which she stated that there was enough due upon the contract with the contractor to pay the claim of the plaintiff, the subcontractor, and that she is now estopped because of this, conversation. But the estoppal, if any, would only go to the question as to the amount due upon the contract, and does not reach the question as to the right of the plaintiff to establish, and maintain a Hen. We are aware that this conclusion may result in a loss to the plaintiff and seem a hardship, inasmuch as her property has been benefited by the plaintiff’s labor; but this reason cannot change the effect of the statute or be considered in construing the same. Contractors and sub-contractors must conform to* its provisions, for they cannot be changed to meet the exigencies in individual cases. The wife who has a homestead coming to her through her mother (as in this case), may be willing, even pleased, to have her husband repair and improve the same, and yet, if she has no income or resources with which she can pay for the repairs or improvements, she might not have consented or be wiUing that they should be made if, in order to pay for the same, she-had to submit to a sale of her homestead.

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

Smith, P. J., and Bradley, J., concur.


author: Smith, P. J.

text:
    George Adolph, Resp’t, v. Courtlandt De Cen et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Costs—Appeal ebom justice coubt—Who entitled to—When the BECOVEBY MOBE EAYOBABLE—CODE ClY. PBO. § 3070.
    Judgment was rendered in a justice’s court in the city of Buffalo in favor of the plaintiff for $200 and $5 28 costs. An appeal was taken to the superior court for a new trial stating that the judgment should have been for only $30 in favor of plaintiff. Plaintiff offered to reduce the judgment to $150. The answer was amended and a payment of $100 and counter-claims amounting to $380 set up and judgment demanded. A reply was served to the counter-claims. The referee found that the defendant was indebted to the plaintiff in the sum of $562, and that under the amended answer they established counter-claims amounting to $459.69 which left a balance due plaintiff of $102.31 with interest. Held, that the plaintiff was entitled to costs. That the amount he recovered exceeded the sum which he offered to accept in satisfaction of the judgment and also his recovery in the justice’s court.
    2 Counteb-claims—When extinguished—Code Crv. Pbo. §§ 2947 and 2948. sued 1
    The counter-claims were not extinguished by the judgment in the justice’s court under Code Civ. Pro. § 2947 for the reason that the amount of the counter-claim was $200 more than the judgment recovered before the justice Section 2948. subd. 1.
    3. Pbactice—Taxation of costs.
    The clerk had taxed the costs for plaintiff ex parte but on the return of the notice of retaxation had disallowed costs to plaintiff and taxed them in favor of defendant. The special term gave plaintiff costs, allowing the sum at which they were taxed by the clerk ex parte. Held,, error, that the defendant had a right to be heard before the taxing officer upon the items of the bill. That the correct practice would have been to set aside the taxation of the clerk and send the matter back to him with a direction to retax the plaintiff's costs on notice.
    Appeal from an order made at a special term of the superior court of the city of Buffalo, setting aside the clerk’s taxation of costs in this action in favor of the defendants, and allowing to the plaintiff the sum specified as costs and disbursements in a judgment entered by him herein, nineteenth May, 1886. The appeal has been duly certified to this court.

      Frank B. Perkins, for App’lts; Geo. M. Osgoodby. for Resp’t.
   Smith, P. J.

The following facts appear by the stipulation of the parties: Judgment was rendered in a justice’s court in the city of Buffalo, sixteenth November, 1878, in favor of the plaintiff against the defendants, for $200 damages and $5.28 costs. The complaint in the justice’s court alleged that defendants were indebted to plaintiff for whiskey barrels sold to, and cash paid for, defendants, and demanded judgment for $200. The answer was a denial only, The defendants appealed from the judgment to the superior court, for a new trial, alleging certain grounds of appeal, and stating that the judgment should have been more favorable to defendants, in that it should have been in favor of plaintiff for thirty dollars instead of $200. On tenth December, 1878, an offer to modify the judgment so as to reduce the recovery to $150, was made by the plaintiff, but it was not accepted. February 14, 1879, the appellants obtained an order in the superior court, giving them leave to amend their answer, and they accordingly served an amended answer, which set up (in addition to the answer in the .justice’s court), payment of $100 and upwards; and counter-claims amounting to $380.95, and demanded judgment against plaintiff for $450, besides costs. A reply was served to the counter-claim, and the cause was referred for trial. The referee reported that defendants were indebted to plaintiff in the sum of $562, and that under their amended answer they established counter-claims amounting to $459.69, which, deducted from plaintiff’s claim, left a balance due plaintiff of $102.31, which with interest upon it to date of report, amounted to $105.20. By the judgment in the superior court, the counter-claims of the defendants set up in their amended answer to the amount of $459.69 were satisfied and cancelled, and a recovery for $105.20 in addition was had by the plaintiff. Judgment was entered nineteenth May, 1886, on the report, for $105.20, with interest from date of report, $44.85, making $150.05, besides costs.

Upon these facts, we think the plaintiff is entitled to costs, for the reason that the counter-claims extinguished, and the sum reported in his favor, exceed in amount not only the sum which he offered to accept in satisfaction of the judgment, but also his recovery in the justice’s court. Code, § 3070; Tompkins v. Ives, 36 N. Y., 75, and cases there cited by Foster, J. The appellants’ counsel contends that the counter-claims should not be taken into the account, they having been extinguished, as he claims, by the justice’s judgment.

In that he is mistaken. Section 2947 of the Code cited by him does not apply, for the reason that the amount of the counter-claims is $200 more than the judgment recovered before the justice. Code, § 2948, subd. 1. It follows that so far as the order appealed from denies costs to the defendants and holds that the plaintiff is entitled to costs it is right.

But in allowing to the plaintiff as his costs and disbursements, the sum of $70.25 at which they were taxed by the clerk, ex parte, the order is erroneous. Instead of doing that, it should have set aside the taxation of the clerk and sent the matter back to him with a direction to re-tax the plaintiffs costs on notice. The defendants have not been heard before the taxing officer upon the items of the bill. The costs were first taxed ex parte, entered in the judgment and notice of re-taxation was then served. Defendants appeared and insisted that the plaintiff was not entitled to costs, but that the clerk should tax costs in favor of the defendants, and they presented their bill for that purpose. The clerk ruled accordingly and taxed defendants costs, and consequently there was no hearing upon the items of the plaintiffs bill, and no occasion to call them in question.

The order appealed from should be modified in accordance with these views, and, as so modified, affirmed, without costs of this appeal to either party.

Haight and Bradley, JJ., concur.


text:
    Ida E. Salisbury v. The Union and Advertiser Company.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Libel—Privileged publications—Judicial proceedings—Malice— Code Civ. Pro., § 1907.
    The publication of a fair and true report of any judicial proceedings without malice is privileged. See Code Civ. Pro., § 1907. Malice will not be presumed, but must be proved tó permit a recovery for libel.
    2. Same—Rule as to what is a pair report.
    The publication must be fair, not garbled so as to produce misrepresentation, nor by suppression of some portion of the evidence or proceedings have the effect to give a false or unjust impression to the prejudice of some parties concerned, but the report need not be verbatim or embrace the entire proceedings. It may be an abridged or condensed statement. If it is a substantially fair account it is sufficient.
    3. Same—What the privilege covers—What excluded—Code. Civ. Pro., § 1908.
    It is not the reporters judgment of the correctness of his comments and their import, but their accuracy and fairness alone which give immunity. The statute expressly excludes from the operation of its provisions the headings of the publication or any other matter not part of the proceedings, added to the report of it.
    4. Practice—When new trial not granted to party non-suited.
    A new trial will not be granted to a party non-suited or against whom a verdict is directed when the court is satisfied that a verdict for such party would be set aside as against the evidence.
    Motion by the plaintiff for a new trial on exceptions taken at Monroe circuit, and ordered heard at general team in the first instance.
    The action is libel. The charge is founded upon the publication by the defendant in its newspapers of what purports to be an indictment and proceedings upon it in the court of sessions of Monroe county, with the heading and what precedes that of the indictment. The publication commences and proceeds as follows: “Was it a disgrace for Rev. James A. Fellows to clandestinely meet Ida Salisbury in the Methodist Church at East Henrietta? The tongues of scandal lovers were set going some time ago by the report that Rev. James D. Fellows had been seen in the First Methodist Church at East Henrietta, for the purpose of meeting there clandestinely a young woman named Ida Salisbury. The persons who saw him there were Irwin Smith and Herbert C. Dikeman. At the last grand jury these young men were-indicted, and the following is a copy of the indictment presented to the court against them. Then follows the indictment, and after it is added: “ This morning Nathaniel Footeappeared before the court of sessions and demurred to the-indictment on the ground that it does not state sufficient specific facts to constitute a crime, that no averment is made that the accused did anything that would bring disgrace upon the Rev. James A. Fellows. He claimed that if the indictment meant anything it meant blackmail, but as it stands it does not charge any sinister or unlawful motive against Mr. Fellows. Mr. Foote cited many authorities to support his points.” The indictment was found as set forth and proceedings were had in the court.
    The article was written by the reporter of the defendant and for its newspapers. He was present in the court at the proceedings of the demurrer and its argument by counsel, and. he testified that “the article as reported contained a fair statement of what occurred, that it contained the substance-of what took place,” that on the argument the defendants’ counsel “ asked the question of the court whether it was a disgrace for the statement to be made as charged in the indictment.” The district-attorney testified that the defendants’ counsel in his argument stated in substance that the question seemed to be “Was it a disgrace for Mr. Fellows to have gone to the church and met Miss Salisbury just as it was stated in the indictment.” And that the judge presiding stated that “ the crucial question of the case was whether it was a disgrace for Mr. Fellows to have done what the boys threatened to charge him with having done.” The evidence as to what occurred on an argument was not questioned. The trial court directed a nonsuit.

      Daniel L. Salisbury, for pl’ff.; Nathanniel Foote, for def’t..
   Bradley, J.

The publication of a fair and true report of any judicial proceedings without malice is privileged. Code Civ. Pro., § 1907. This was substantially the rule at common law, and was founded on the principle that the advantage to the community from publicity of proceedings in courts of justice was deemed so great that the occasional inconvenience resulting from it to individuals should yield to the public good.

The publication of such proceedings is treated as made without reference to the individuals concerned and solely for the information and benefit of society until the contrary appears. And therefore the presumption of malice does not arise and such publication is privileged. The King v. Wright 8 Durn, & E. 293, 298; Wason v. Walter, 4 L. R. Q. B. 73, 87. The ground upon which the liability for libel rests is malice on the part of the author or publisher. And when the published matter tends to disgrace or degrade the party concerned, and is false, the presumption of malice arises in support of an action for damages unless it come within the classes of privileged communications or publications, when malice must be proved to permit a recovery. King v. Root, 4 Wend., 113; O’Donaghue v. McGovern, 23 id., 26; Decker v. Gaylord, 35 Hun, 584.

In the case at bar there was no evidence of malice on the part of the defendant other than that furnished by the publication itself, and it was dependent upon the fact that the article was not a fair and true report of the judicial proceedings referred to. Whether it appeared so clearly by the evidence that it was a fair and true report of the proceedings as to justify the conclusion to that effect as matter of law, or the evidence such that it should have been submitted to the jury for their determination in that respect is the main question for consideration here. The latter course is required if a construction can be placed on any portion of the article which does not bring it within the proceedings had, provided such portion contain defamatory matter or charges against the party seeking relief. The contention on the part of the plaintiff is that the heading of this publication does not necessarily import that it is part of the judicial proceedings nor does it necessarily appear that it was such in fact. The article is set out in the complaint entire, and it is in view of the evidence to be construed as a whole to ascertain its necessary import and that of its several parts.

The heading states a question which standing alone might be construed as libelous. But connected with what follows it appears to be a question presented in or by a judicial proceeding. Such a proceeding appears to have been had founded upon an indictment, which is embraced within the article as published, and when reference is had to the evidence it further appears that the question represented by this-heading was substantially the proposition presented by counsel to the court, and by the court declared to be the question raised by the demurrer to the indictment. The indictment alleges that the defendants in it threatened to accuse Mr. Fellows of having gone into the Methodist church at East Henrietta “for the purpose of clandestinely meeting Ida Salisbury,” which accusation “they threatened to make public against Mr. Fellows and the disgrace of such intended meeting as aforesaid and to expose and impute to him such disgrace,” etc. While the indictment alleged a purpose only on the part of Mr. Fellows, the question whether its consummation would have been a disgrace was perhaps' legitimately the subject for discussion upon the question whether the indictment charged a criminal offense. That however, is not important. It is sufficient to constitute the privilege of its publication that such proposition was embraced in and part of the judicial proceedings, and that as published it was a fair report in that respect. Some cases are cited which the plaintiffs counsel claims qualify that proposition. Flint v. Pike, 4 Barn. & Cress., 473, 6, D. & R., 528; Delegal v. Highley, 3 Bing. N. C., 950, 5 Scott, 154.

This would place upon the publisher of judicial proceedings the responsibility of determining between what of them are and are not legitimately pertinent to the matters involved in the proceeding. If the courts ever-attempted to establish any such doctrine we think it was not accomplished, and that the common law rule does not now impose any such burden and hazard on the publisher of judicial proceedings. Wason v. Walter, L. R., 4 Q. B., 73, 92. And the doctrine of the early cases in England which denied the privilege to the publication of ex parte judicial proceedings have been overruled and it is extended to thém as well as to those inter partes. Usill v. Hales, 3 C. P. Div., 319; S. C., 30 Moak, 188. In Stanley v. Webb (4 Sandf., 21), the early and then current English cases were adopted as the rule of the decision that the privilege did not embrace ex parte judicial proceedings. That question is not here and it is unnecessary to consider the policy of the rule which embraces the publication of ex parte judicial proceedings within the privilege or excludes them from it. The statute before referred to makes in its terms, as expressed, no qualification other than that the proceedings be public, which is requisite at common law. The publication must be fair, not garbled so as to produce misrepresentation, nor by suppression of some portion of the evidence or proceedings have the effect to give a false or unjust impression to the prejudice of some parties concerned. But the report need not be verbatim or embrace the entire proceedings. It may be an abridged or condensed statement. And if it is a substantially fair account it is sufficient. Odgers on Libel and Slander, 251; Andrews v. Chapman, 3 C. & K., 289; Hoare v. Silverlock, 9 M. G. & S., 20; Turner v. Sullivan, 6 L. T., 130; Blake v. Stevens, 4 F. & F., 232; S. C., 11 L. T., 543. The difficulty in the defense of cases of this character may arise from what appears in the caption of a report or comments of a reporter, if any such is given to or made in the article published, which may unduly characterize the nature and effect of the proceedings in its relation to the parties to it or to others in a manner not fully justified, or so as to produce an impression derogatory in character which the proceedings themselves might not furnish.

In such case the publication will not as matter of law be deemed within the protection of the privilege. It is not the reporter’s judgment of the correctness of his comments and their import, but their accuracy and fairness alone which give immunity. The statute does not give any protection to the publisher in that respect but leaves him subject to the responsibility which the common law imposes by expressly excluding from the operation of its provisions the heading of the publication or any other matter not part of the proceedings, added to the report of it. Code Civ. Pro., § 1908. In referring to this the counsel has cited several cases which it is contended go in support of the plaintiff’s right of action. They were well decided upon the situation and facts presented by them. But in the view taken of this case they have no application to it. Taking together the caption, statement, ana indictment, constituting the entire article with the evidence of the proceedings there seems to be no oportunity to give the former any interpretation other than as importing reference to the proceeding and the question appearing to have been presented in it, which the evidence clearly shows was part of it, and that such was the proposition there urged by counsel and announced by the court as the one to be determined. And the statement of the report in other respects seems to have been confined to the matters within those alleged in the indictment and embraced in the proceedings.

A new trial will not be granted to a party non-suited or against whom a verdict is directed when the court is satisfied that a verdict for such party would be set aside as against the evidence. We think that such would have been the result fairly required in this case. And for that reason the ruling of the trial court on the defendants motion for non-suit was not error.

The motion for a new trial should be denied and judgment directed for tire defendant.

Smith, P. J., and Haight, J., concur.


text:
    The People, etc., ex rel. The West Shore Railroad Co., App’lts, v. Alfred D. Pitman et al., Assessors of the Town of Brutus, Cayuga Co., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Certiorari—Writ of issued under Laws 1880, chap. 269, to review ASSESSMENT—EFFECT OF OMISSION TO MAKE AND DELIVER STATEMENT REQUIRED BY 1 R S., 414, § 2.
    A writ of certioi’ari was issued upon the petition of the relator, under and pursuant to Laws 1880, chap. 269, to review an assessment roll. Held, that the penalty prescribed by 1R. S., 414, § 2, for the omission to present the written statement therein directed to be made and delivered by an incorporated company to the assessors, .or one of them, of the town or ward in which such company was liable to be taxed, according to the provisions of the statute, being the only one, the courts had no power to impose any other
    3, Assessors—Right to hearing before, 1 R. S., 393, §§ 19, 20—Unaf-fected BY FAILURE TO MAKE AND DELIVER STATEMENT.
    It is provided by 1 R. S., 393, §§ 19,20, that all persons conceiving themselves aggrieved by an assessment, are entitled to a hearing before the board .of assessors. Held, that the relator, a corporation, was entitled to such a hearing, as well as any natural person, and that it could not be deprived thereof by its failure to comply with the statute provisions requiring the filing of a written ststement.
    3. Same—Power to correct errors in assessment upon complaint made.
    The assessors had power to relieve the relator upon hearing and examining complaints made by it, if injustice had been done, even though they did not have the aid of the statement required in making the original assessment, and the failure to make and deliver such statement to the assessors did not deprive the relator of the right to a hearing on grievance day, and a correction of the roll by the assessors, if just and proper, and the relator being entitled to correction on grievance day, had the right to have the same enforced through the writ for a review,
    4. Certiorari—Issuance op writ—To whom it should be issued.
    The rule that the common law writ of eertim'ari should issue to the persons or officers having the custody and control of the determination or papers sought to be reviewed, and which are required by the writ to be returned, is inapplicable to a writ issued under this statute; and it is sufficient that the writ should issue to the board of assessors, although the assessment roll had, according to the statute requirement, been filed with the town clerk.
    5. Same—Return when not conclusive—Power to take evidence.
    The common law rule that the return to a writ of certiomi is conclusive as to the facts required by the writ to be returned, is inapplicable to the return provided for under this statute, as by that statute the court is empowered and might take such evidence as might be necessary to their determination of the matter, and such evidence should form a part of the proceedings upon which the determination of the court should be made.
    6. Same—Hearing on return—Proper practice.
    It is not usual or customary practice to quash the writ upon a hearing based upon the return. Upon such a hearing the court should make a final order in the proceedings, either nullifying, confirming, or modifying the determination under review.
    Appeal from an order of the Monroe special term quashing a writ of certiorari.

      John M. Davy, for app’lt;C7ies/er M. Elliott, for resp’ts.
   Haight, J.

The writ in this case was issued upon the petition of the relator, under and pursuant to chapter 269 of the Laws of 1880, to review the assessment roll of the town of Brutus in Cayuga county. The assessors, among other things, returned that the assessment roll made by them had been duly filed in the office of the town clerk before the writ was allowed and served, and that no statement was served upon them by the relator showing the real estate owned by it in the town, and the cost of such real estate. Upon such return the special term, on motion, made an order quashing the writ upon the ground that it appeared from the return that "the relator had not made and delivered to the assesors a written statement, as required by section 2, volume 1, page 414, of the Revised Statutes. This statute provides that “ The president, cashier, secretary, treasurer, or other officer of every such incorporated company shall, on or before the first day of July in each year, make and deliver to the assessors, or one of them, of the town or ward in which such company is liable to be taxed according to the provisions of the sixth section of the second title of this chapter, a written ■statement specifying:

1. The real estate, if any, owned by such company, the towns or wards in which the same is situated, and the sums actually paid therefor. * * *

4. If the statements above required or either of them shall not be furnished by any company to the assessors and to the comptroller within thirty days after the time above provided, the company neglecting to furnish such statements or either of them shall forfeit to the people of this state for each statement omitted to be furnished, the sum of two hundred and fifty dollars.” Other provisions follow for collecting the penalty prescribed and for omitting the same in case the. comptroller shall be satisfied that the omission to file the statement was not willful. It was undoubtedly the duty of the relator to have made and delivered the statement required by this statute to the assessors, and by failing so to do it may have become liable for the penalty prescribed; but no other punishment is prescribed by the statute, and we do not understand that the courts have'power to impose any.

The statute further provides that “The assessors shall complete the assessment roll on pr before the first day of August in every year, and shall make out one fair copy thereof to be left with one of their number. They shall forthwith cause notices thereof to be put up in three or more public places in their town or ward. Such notices shall set forth that the assessors have completed their assessment roll, and that a copy thereof is left with one of their number at a place to be specified therein where the same may be seen and examined by any person interested until the third Tuesday of August, and that on that day the assessors will meet at a time and place, also to be specified in such notice, to review their assessments. On the application of any person conceiving himself aggrieved it shall be the duty of the said assessors on such day to meet at the time and place specified and hear and examine all complaints in relation to such assessments that may be brought before them.” 1 R. S., 393, §§ 19, 20.

It will be observe- that under this statute all persons conceiving themselves aggrieved by the assessment are entitled to a hearing before the board of assessors, and we apprehend that the relator was entitled to such hearing as well as any natural person, and that it could not be deprived thereof by its failure to comply with the statute requiring the statement to be filed before July first of the year.

The statute further gives the assessors the power to make any corrections in the assessment roll that shall appear just after hearing and examining the complaints of those conceiving themselves aggrieved.

. It is thus apparent that the assessors could at this time have relieved the relator if injustice had been done, even though they did not have the aid of the statement required, in making the original assessment.

We are consequently of the opinion that the failure to make and deliver the statement to the assessors did not deprive the relator of the right to a hearing on grievance day and a correction of the roll by the assessors, if just and proper. And if the relator was entitled to this correction on grievance day, it has the right to have the same enforced through the writ issued for a review herein.

Our attention has been called to the case of The People, etc., ex. rel., The Mutual Union Telegraph Co., v. The Commissioners of Taxes, etc., (31 Hun, 568; affirmed in 99 N. Y., 254). The affirmance, however, appears to have been placed upon the ground that the relator neglected to appear before the commissioners of taxes on grievance day and enter complaint in reference to the assessment. Had the relator in the case under consideration neglected this remedy given by the statute, it might well be deemed to have waived any further right to review. But it appears on the return that the relator did appear on grievance day, through its authorized agent and attorney, and request that the valuation of' its property be changed and reduced; and that it then delivered to the assessors a sworn statement of its real estate and property within the town, together with its cost and value.

It'is now contended by the respondents, that the order quashing the writ was properly granted for the reason that the original assessment roll had been filed with the town clerk at the time that the writ was issued, and that the clerk was a necessary party to the writ. The order of the special term, however, was not made upon this ground; and we are of the opinion that it could not have been properly sustained if it had been.

We are aware that the common law writ should issue to the person or officers having the custody and control of the determination or papers sought to be reviewed and which are required to be returned by the writ; but the statute under which this writ was issued is quite different. The original assessment roll is not required to be returned. Ho stay of proceedings takes place. The officer to whom the writ is issued may return certified or sworn copies of the roll or papers required and may concisely set forth such other facts as may be pertinent and material to show the value of the property assesssed on the roll and the grounds for the valuation. Ho officers could wéll do this but the officers upon whom devolve the duty of making the assessment.

The statute provides mat the assessment roll, when completed and verified by the assessors, shall, in towns, on or before the first day of September, and in incorporated villages and cities, at the time prescribed by their respective charters, be delivered to the town, village or city clerk, there to remain with such clerk or officer for a period of fifteen days for public inspection; and that public notice that such assessment roll has been completed and delivered to-such officer must be given; and that the fifteen days within which the writ must issue, provided for by this statute, commences to run from the day or the time when such notice is first given. It will thus be seen that the roll is delivered to-the clerk for public inspection, and that the writ must issue within fifteen- days; that the roll is required to remain in the hands of the clerk for such inspection after the notice lias been given. If, therefore the respondents’ position is correct, the clerk in every instance would be the officer to whom the writ would have to issue. Such, however, does not appear to be the meaning or the intent of the statute in question. People, etc., ex rel. The Ulster and Delaware Railroad Co. v. Smith and others, 24 Hun, 66.

At common law, the return to a writ of certiorari was conclusive as to the facts required by the writ to' be returned; but such, however, is not the case in reference to the return provided for by this statute, for it expressly provides that upon the hearing, if it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court; and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made. The relator, therefore, was not bound by the return made by the respondents. It might have been able to furnish evidence that the statement required by the statute had been made and served. The court-should have given it an opportunity to do so if requested. A motion to quash the writ is somewhat in the nature of a demurrer. It is ordinarily based upon the papers upon which the writ was issued. It may properly be granted when it appears that the court had no jurisdiction, where the papers are insufficient to authorize it, where improper parties are joined or proper parties omitted, etc. It is not usual or customary practice to quash upon a hearing based upon the return. Upon such hearing the court should make a final order in the proceedings, either nullifying, confirming or modifying the determination under review.

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

Smith, P. J , and Bradley, J., concur.


text:
    Eliza B. Wing, Resp’t, v. The City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1887.)

      2. Nuisance—Discharge of sewage into stream—Evidence—What admissible IN ACTION FOR DAMAGES.
    In an action brought to restrain the defendant from continuing certain alleged nuisances charged to have been created by the discharge of sewage from two of its outlet-sewers into a stream flowing through plaintiff’s premises, and to recover damages occasioned thereby. Held, that any evidence that tended to show the value of the use of the premises, free from the effects of the nuisance, or such value when the premises were subject to those effects, was competent.
    3. Same—What may be proved.

      Held, that upon this ground evidence was properly received of the value of the premises in case the defendant’s sewage had not discharged into the stream passing through plaintiff’s premises. So also evidence of improvements made upon the premises, calculated to enhance the value of their use. So also evidence of the actual or within proper limits the probable effect of the stream polluted by such sewage in producing malaria and other forms of disease.
    3. Same—Mere speculative evidence not admissible.
    Certain witnesses were allowed to testify that in their opinion excrement from cholera patients passing into the sewer and thence into the stream would not become disinfected when they reached plaintiffs premises. Held, error, that the evidence was entirely speculative as there was no evidence of the existence of cholera in the city at any time during the continuance of the alleged nuisance.
    4. Same—Cross-examination—Extent.
    A question put to an expert as to whether in his opinion the samples analyzed by him as stated on his direct examination could have been taken from a stream polluted as assumed by the questions, Re,d, proper on Cross-examination. That on cross-examination questions may be asked which would elicit testimony tending to modify or explain what the witness had stated oh his direct-examination.
    5. Same—Analysis made for another trial—When competent.
    The analysis of water, made in another case, (the water being taken from the stream in question at a point about half a mile above the plaintiff’s premises) was properly received in evidence as its condition tended to throw light upon.the condition of the water of the same stream at the point where plaintiff’s premises were situated.
    6. Same—Statements based upon tables in books not admissible.
    Testimony as to the amount of excrement discharged into the stream from said sewers based upon tables or statements taken from writers was not competent evidence, and the books themselves if offered could not have been received.
    Appeal from a judgment entered on the report of a referee.

      Ivan Powers, city attorney, for app’lt, Walter 8. Hubbell, for resp’t.
   Smith, P. J.

This action was brought to restrain the defendant from continuing certain alleged nuisances charged to have been created by the discharge of sewage from two of its outlet sewers into Thomas creek, a stream flowing through plaintiff’s premises, in the town of Brighton, and to recover for damages occasioned thereby. The referee awarded damages to the amount of $1,376.83, and an injunction. The issuing of the injunction was stayed, however, for six months, upon certain conditions specified in the report, to enable the defendant to abate the nuisance in the meantime.

The only questions that need be considered arise upon exceptions taken to rulings of the referee upon the admisiMlity of certain items of evidence, which were received by him against the defendant’s objection. Several of the items referred to were properly received as bearing upon the subject of the depreciation of the value of the use of the plaintiff’s premises by reason of the nuisance complained of. Such depreciation was a proper subiect of consideration in fixing the amount of damages. Francis v. Schoellhopf, 53 N. Y., 152, Jutte v. Hughes, 67 id., 271. Any evidence that tended to show the value of the use of the premises free from the effects of the nuisance, or such value when the premises were subject to those effects, was competent. Upon this ground, evidence was properly received, of the value of the premises in case the defendant’s sewage had not discharged into the stream passing through plaintiff’s premises. So, also, evidence of improvements made upon the premises, calculated to enhance the value of their use. So, also, evidence of the actual, or, within proper limits, the probable effect of the stream polluted by such sewage, in producing malaria and other forms of disease.

But there was an item of evidence received under the latter head, which we think was incompetent. We refer to the testimony of certain witnesses that in their opinion excrement from cholera patients passing into the sewers and thence into the stream would not become disinfected when they reached plaintiff’s premises. This testimony was entirely speculative. There was no evidence of the existence of cholera in the city at any time during the continuance of the alleged nuisance. But it is very clear that the reception of the testimony did no harm, for the reason that aside from it, there was ample evidence in the case to sustain the judgment in all respects.

The question put to Prof. Lattimore as to whether, in his opinion as an expert, the samples analyzed by him, as stated on his direct examination by defendant’s counsel, could have been taken from a stream ‘polluted as assumed by the question, we think was proper on cross-examination. It was pertinent, as it called for an answer that tended to modify or explain the testimony given by the witness on his direct-examination, and the question, so far as it was hypothetical, was proper for the purpose, and was based upon facts then proved, or which might be fairly claimed to have been proved. People v. Lake, 2 Kenr., 358; Guiterman v. Steamship Co., 83 N. Y., 358; Cowley v. People, id., 464; Forsyth v. Doolittle, 122 U. S. S. C. R., 586.

It was also proper to ask Mr. Holley, on cross-examination, in view of what he had previously testified to respecting the appearance of the stream at different times when he had observed it, whether it was possible that on some days the stream might look very black, and on the succeeding day look very clear. In that instance, also, the testimony elicited by the question tended to modify or explain what the witness had stated on his direct-examination.

The analysis of water made by Prof. Lattimore in -the Chapman case, was properly received in evidence. The water was taken from the stream in question, at a point from one-half to three-fourths of a mile above the plaintiff’s premises, and its condition tended in some degree, though somewhat remotely, to throw light upon the condition of the water of the same stream at the point at which the plaintiff’s premises were situated.

The testimony of Mr. Holley, given on his direct-examination by the plaintiff, consisting of computations as to the amount of excrement discharged daily into the stream, or the sewers emptying into it, so far as such testimony was based upon tables or statements taken from the witness referred to by him, we are inclined to think, was not strictly admissible. The reported cases seem to be to the effect that the books themselves, if offered, could not have been received to prove the matters which the witness stated on their authority. Harris v. The Panama R. R. Co., 3 Bosw., 7, and cases cited by Bosworth, J., 72, 18. If so, the testimony itself was inadmissible. But in the view we take of the case, the reception of this item of evidence, also, was harmless. It merely rendered more specific what had been shown, in a. general way, by other testimony. Aside from the figures and details thus given, there is abundant evidence, and competent evidence, in the case to support the judgment, not only as to the right to an injunction, but also in respect to the amount of damages. The fact of the discharge of polluting substances from the city sewers into the stream, for more than six years, their effect, in general, upon the waters of the stream and upon the plaintiff’s premises, and the value of the use of the premises, were shown by the testimony of several witnesses, and the testimony last referred to, independently of the portion of the testimony above pointed out as incompetent, warrants the conclusions of the referee.

Those witnesses testified that they were acquainted with the stream, and they gave a description of its polluted condition and injurious effects which warranted the decree for an injunction, and they also gave estimates of the value of the use of the plaintiff’s premises before and since they were affected by the nuisance complained of, which amply support the finding as to the amount of damages. If, therefore, the rulings above condemned were in fact erroneous, the errors may be properly disregarded on review, as no injunction has resultecl from them. Code Civ. Pro., § 1003; Post v. Mason, 91 N. Y., 539.

The remaining exceptions argued by the appellant’s counsel are so plainly devoid of merit as to require no special comment.

The judgment should be affirmed, with costs, with leave, however, to the appellant to apply at special term for a renewal of the stay of the issuing of the injunction, if it shall he advised so to do.

Haight and Bradley, JJ., concur.


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    John C. Wick and Henry Wick, as Executors, etc., of H. B. Wick, deceased, and Paul Wick, Resp’ts, v. Edward M. Jewett, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Pleading—Designation op parties—When descriptive.
    Where two of the plaintiffs in the title to a certain action were represented as suing in the capacity of executors, but there was no allegation in the complaint that they were such or that the cause of action accrued to them in a representative capacity. The complaint alleged that the plaintiffs were partners and that the cause of action accrued to them as such-And the facts appearing on the trial were in conformity with such allegations. Held, that they were not concluded by the form given to the title of the action, but that their rights rested upon the cause of action as alleged in the complaint and proved. That the words ‘,‘as executors," etc., could be treated as descriptive of the persons. Austin v. Munro, 47 N Y., 360, distinguished.
    S. Same—When error normal—When disregarded.

      Held, that at most it was a mere formal error which could be disregarded after issue upon the trial and on review.
    Appeal from judgment entered on report of a referee.

      T. O. White, for app’lt; William L. Marey, for resp’ts.
   Bradley, J.

The action is brought upon two promissory notes made by the defendant Jewett payable to the order of A. J. Packard and by the latter indorsed “Pay Wicks Bros. & Co., or order,” with his signature subscribed. The referee found that the plaintiffs were partners, doing business at Youngstown, Ohio, in the firm name of Wicks Brothers & Co., that the notes were made by Jewett, and were by the payee indorsed and delivered to the plaintiffs, who became the owners of them, and directed judgment against the defendant for the amount due on the notes. The objections taken upon the trial and urged here, are founded mainly upon the fact that two of the plaintiffs in the title of the action in the complaint are represented as suing in the capacity of executors, and it is contended that although there is no allegation in the complaint that they are such, or that the cause of action accrued to them in a representative capacity, they can have no relation to the action other than such, because they appear to have become plaintiffs as such only. And no cause of action in their behalf as executors being alleged in the complaint it should have been dismissed upon the defendant’s motion.

The complaint alleges that the plaintiffs are partners and that the cause of action accrued to them as such. And the facts appearing upon the trial and found by the referee are in conformity with such allegations. If the mere title of' executors, etc., had been added to the names of the plaintiffs it would necessarily be treated as descriptive merely of the persons, but it is urged that such effect cannot be given to those words in this case, because the use of the word. “ as ” distinctly qualifies and fixes their relation to the action as that of representatives, and as such only they must be treated for the purposes of this action.

, We think they are not concluded by the form given to the title of the action, but their rights may rest upon the cause' of action as alleged in the complaint, which as there presented and as proved is none other than in behalf of the plaintiffs as individuals. And the words used expressing their situation as executors, in view of the allegations of the complaint, may be treated as descriptive of the persons-rather than restrictive in their effect upon the relation of those plaintiffs to the action and their right of recovery. Anri this has the support of authority. Murray v. Church, 1 Hun, 49; affirmed. 58 N Y., 621; Worden v. Worthington, 2 Barb., 368.

By the title of the action, the two plaintiffs appear to' have come into court as the personal representatives of a. deceased person, and by the allegations of the complaint they clearly appear not to be prosecuting the action in such representative capacity, but in their individual right only. They allege a cause that accrued to the plaintiffs as the firm of Wicks Brothers & Co. This situation appearing upon the face of the complaint,.the question may properly have been raised without answer, and if deemed necessary an amendment would have been directed. At most it was a mere formal error and may be disregarded after issue upon the trial and on review. Bank of Havana v. Magee, 20 N. Y., 355.

In the cited case of Austin v. Munro (47 N. Y., 360), it not only appeared in the title that the defendants were sued as executors, but the complaint alleged that they were such, and the cause of action was set forth as one that arose.' against their testator, and no cause of action was alleged other than against them in their representative character. And for that reason it was properly held that recovery could be had against them only as such. That case does not support the defendant’s contention here. The evidence offered and received of a will purporting to have been made by H. B. Wick, and probated in Ohio, had no importance and could not have prejudiced the defendant. For the purposes-of this action it could not establish, defeat or diminish any rights of the plaintiffs. There seems to have been no error to the prejudice of the defendant. None of the exceptions are well taken.

The judgment should be affirmed.

Smith, P. J., and Haight, J,, concur.


text:
    In the Matter of the Final Settlement of the Accounts of Franklin M. Hall, as Executor, etc., of Sally Hall, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    Executors and administrators—Accounting.
    Franklin Hall was, by the power of attorney of the testatrix, on a date-more than a year before her death, appointed her attorney to manage or work her farm and transact all her business He assumed that relation, and thereafter until her death had the management of all her business-affairs, and on her death became the executor of her will. She was quite feeble and physically almost helpless, and her daughter was substantially dependent upon her for support. Hall, by the direction of the testatrix, supplied said daughter with some means of support, and paid some expenses incurred by her for that purpose. The testatrix had a farm of sixty acres, which Hall managed and received the proceeds of. He also-collected moneys due to her, and had control and use of that in her behalf. There was evidence tending to show that as executor he did not include in his account all the money that came into his hands as her agent during the life of the testatrix, and that the payments made on her account and in her behalf during that time were made from funds in his hands as such attorney and agent. The surrogate refused to allow credits for amounts paid out during the life of testatrix. Held, that the surrogate’s decree should not be reversed; that it was reasonable to presume under the circumstances that he used funds not included in his account for the support of testatrix and her daughter.
    Appeal by the executor from portions of the decree of the surrogate’s court of Seneca county making a judicial settlement of his accounts. The testatrix died November 2, 1875, leaving her will, which was admitted to probate and record, by which she devised and bequeathed her property to her daughter, Maria Burrall, for her support and maintenance during her life, and directed the use of the income of it and so much of the principal as might be deemed necessary for her support. And after her death the residue to the grandchildren of the testatrix, and nominated Franklin M. Hall executor to whom letters testamentary were issued.
    Maria Burrall died in January, 1878. The residuary legatees filed objections to the executor’s accounts. His accounts, as made out by him and filed, produced a balance of $101.12 for distribution, subject to deduction of the amount of his commissions and the expenses of the accounting. The decree of the surrogate made the balance against the executor $669.56, reduced by commissions and the costs and expenses of the proceeding to $533.32, for distribution.
    The executor appeals.

      William Austin, for app’lt; Wm. C. Hazleton, for resp’t.
   Bradley, J.

On Hay 6, 1874, Franklin M. Hall was, by the power of attorney of the testatrix of that date, appointed her attorney to manage or work her farm and to transact all her business. He assumed that relation and thereafter, until her death, had the management of all her business affairs; and, on her death, became the executor of her will. She was quite feeble and physically almost helpless during the latter part of her life. And her daughter, .Maria Burrall, during that time, was substantially dependent upon her for support.

And Hall, by the direction of the testatrix, supplied Maria with some means of support and paid some expenses incurred by her for that purpose. The items in his account for moneys paid during the life of the testatrix, on account of Maria’s support, ana some others, for sums paid by him during the same time were not allowed by the surrogate. This furnishes the alleged cause of complaint on his part, and mainly the controversy involved in this review. The executor was charged with the amount of the inventory, $2,539.21, was credited with debts uncollected, $275.50, with property unsold, six dollars, and with funeral and other expenses paid on account of the estate after the death of the testatrix, $176.23. This included the amount of that schedule (C), except $17.75, made up of items for the personal services of the executor which were disallowed. There was also credited to him, for boarding the testatrix eighty-three weeks, $583, for which he charged in his account $674. The evidence on the question of value of this was somewhat conflicting, and the conclusion of the surrogate was fairly supported by the evidence.

The account of the executor for supplies furnished to and for Maria Burrall and expenses incurred in her behalf, after the death of the testatrix, amounting to $673.33, was allowed, except $47.13, consisting of charges for his per7 sonal services and some not proved. He put into his summary of credits, as loss on sales, $281.50, as per his schedule B. This, evidently, was a mistake, and is a repetition of the credit for debts uncollected and property unsold, combined, as appears by reference to that schedule. In his schedule A of proceeds of property sold and receipts of money from all sources he produced the sum of $2,018.47 as the entire fund in his hands. But he has omitted to account for his note of $228, appearing in the inventory. The correction of the mistake before mentioned, and the supply of those omissions with credits for debts uncollected and property sold above referred to added, will make an amount nearly equal to that of the inventory. His schedule of items charged in his account, for expenses incurred and moneys paid before the death of the testatrix, amounted to $626.28, of which $121.28 was allowed, and the rest disallowed. The items not allowed embraced some for moneys paid by him for the support of Maria Burrall, amounting to $207.50, a small amount to or for the testatrix, a small school tax and many other items, some of which were not proved. The payments made for the support of Maria were made within his authority, received from the testatrix, and some of them were conceded to have been made by him. The reason for the disallowance of those charges was probably in the fact that the executor had in his hands the moneys of his principal and was presumed to have used her money for these current expenses. She had a farm of sixty acres, of which he had the management, and received the proceeds as her agent. He also collected money due to her and had the control and use. of that in her behalf.

The surrogate was permitted to find upon the evidence that the executor did not include in his account all the money that came into his hands as her agent during the life of the testatrix, and to conclude that the payments made on her account and in her behalf or by her direction during that time were made from funds in his hands as such attorney or agent. Ordinarily under such circumstances, and in view of such relation, that would be the presumption, unless it in some manner appeared to the contrary. While he accounts for moneys collected and for proceeds of farm produce, the evidence does not require the conclusion that his account, as filed, contained a statement of all he received. And we are inclined to think that in this respect the conclusion of the surrogate was justified. It appears that the executor received from one source $1,883.50, in money, due her; and although some of this was collected by him before the power of attorney was made, it tends to prove that he or the testatrix had the money. And none appears by his account to have been in her possession at the time of her death. If, therefore, she had any at the time he received his powers from that instrument, it through him or otherwise was disposed of. And in view of the relation he then assumed to her and her business, and of her physical condition, it would not be unreasonable to suppose that she surrendered to him the control of whatever means she had, and that he used funds not included in his accounts.-for the support of her and Maria and for other current expenses. It is unnecessary to refer specifically to the items of the account allowed and disallowed by the surrogate. They indicate something of the view taken by him. And we cannot say that he has not properly disposed of the account in view of afi the circumstances.

The executor was called as a witness in his own behalf,, and asked: “Did you furnish groceries, meats, butter and. provisions and articles of dry goods to Maria Burrall charged in schedule D of account, from May 9, 1874, to October 27, 1875 ? The objection taken and sustained was. that the witness was not competent to testify on the subject, and exception followed. This inquiry did not call for personal transactions between the witness and his testatrix.. And the objection as made was not a good one. Lerche v. Brasher, 4 N. Y. St. Rep., 335. But that does not require-a reversal, of the decree if it is seen that no prejudice resulted or could result to the appellant from the exclusion of the evidence so offered. Code Civ. Pro., § 2545; In re Will of Smith, 95 N. Y., 517.

In the view taken of the evidence upon the subject of moneys paid for and goods, furnished to Maria during the life of the testatrix, the introduction of the evidence could not to any extent have changed the result.

The unquestioned payments of moneys for the care and board furnished her during that time were disallowed for the reasons before mentioned, and those charges could not-require or permit the application of any different rule or reason for their disallowance than those which the executor was asked to testify about. And the reason applied to -the disallowance of the former was no less applicable to the-latter, and must, in the view of the surrogate, be deemed to apply to both. And therefore the appellant was not-prejudiced by the exclusion of the evidence offered. Horn v. Pullman, 72 N. Y., 270.

There are a few other items m tne account disallowed, of which complaint is made; but the surrogate having heard the proofs, was able to judge of the force of the evidence, and we are not prepared to say that he was in error in making the disallowance.

The case contains no formal findings of fact or conclusions of law by the surrogate, and no exception to his con elusions in either respect. Code Civ. Pro., § 2739; Angevine Jackson, 103 N. Y., 470 ; 3 N. Y. St. Rep., 643.

The decree should be affirmed.

Smith, P. J., and Haight, J., concur