text:
    The People, Resp’t, v. Michael J. O’Connell, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Evidence—Homicide.
    On the trial of an indictment for manslaughter, conversation between the defendant and the deceased as to the cause of her death is admissible.
    2. Homicide—Proof of cause of death.
    In the absence of any other cause, proof of a cause sufficient to produce death will sustain a finding that death resulted therefrom.
    Appeal from a judgment of conviction for manslaughter in the second degree.

      Chas. W. Broohe, for app’lt; John B. Lindsay, for the People.
   Van Brunt, P. J.

The defendant in this action was convicted upon indictment charging him with manslaughter, in having, on the 11th of Mayj 1890, willfully and maliciously caused the death of one Julia Ward, otherwise known as Julia O’Connell. The testimony was that the defendant and the deceased were apparently living together as man and wife at Mo. 301 East Thirty-third ■street, in the city of Mew York, occupying a bedroom in apartments rented by James King and wife, from some time in April, 1890, until May of the same year, when he killed her.

In considering the points which have been raised upon this appeal, it is not necessary to recite in detail the testimony which was offered. It will be sufficient to say that evidence was introduced showing that a scuffle had taken place between the defendant and a brother in-law of James King, to which attention was directed by the calling of the deceased for help, which scuffle was ended by the intervention of James King, who took his brother-in-law out of the room. The defendant remained in his bedroom, and the deceased and some other persons were sitting in the kitchen, which was a room near the bedroom, and the deceased was telling the others what had occurred. The defendant, during the recital, came in, and made a grab for the hair of the deceased, caught her by the back of the neck, and dragged her into her room, where he gave her a kick on the left side in the region of the stomach, she falling between the bedstead and a dressing case. The deceased was helped from the floor, and shortly after went to bed, and subsequently died from a miscarriage on the Thursday following the assault, which occurred on a Sunday.

It is urged that the court erred in permitting a witness to testify to what she beard the deceased say to the defendant upon the Tuesday preceding her death. The evidence is as follows: “ Q. Did you hear Mrs. O’Connell say anything to him on that Tuesday' ? A. I heard her say he was the cause of her death; that she knew she would never get over it. That was in his presence. Q. What were the exact words? (This was objected to. Objecjection overruled, and exception taken, and the question substantially repeated.) A. I heard her say he was the cause of her death. Q. Use her exact language. A. ‘ Mike, you are the cause of my death.’ Q. Anything else? A. Mo, sir; not that I remember.”

She further stated that this was all she heard her say. When asked, “ What did he say to that ? ” she answered, “ He said lie was sorry for what he done. If he had not been intoxicated, he would not have done it.” This evidence seems to have been, clearly competent. The charging' of a defendant with a crime, and his manner, demeanor, and speech, have always been received as competent evidence on the question of his guilt or innocence.

It is further urged that the court erred in permitting the witness Ellen Eiordan to testify to a conversation which occurred six months prior to the death of the deceased, and which did not in any manner relate to any threat upon the part of the deceased, or to any matter which could be the subject of the charge contained in the indictment, or have any relation thereto.

The evidence was admitted entirely without objection; and in any event we do not see but that it was competent, as it showed the circumstances under which the parties were living together, and the disposition which this defendant had exhibited towards the deceased upon previous occasions by his own confession. One of the ingredients of the crime depended upon is the willfullness of the assault, and the condition of mind of the defendant towards the deceased was certainly an element which the jury had a right to consider, and their previous intercourse necessarily threw light upon such questions.

It is further urged that the court erred in permitting the witness to testify to the occurrence on the Tuesday preceding the death of the deceased, and to statements alleged to have been made by the witness to the defendant at that time. The question which was objected to was entirely competent. The witness and the defendant met on this Tuesday after the assault, and she was asked : “Wlmt talk did you have there? ” An objection to this question was overruled, and the witness went on and answered ; another question was put and answered; and then a motion was made to strike it all out, which motion was granted. Tlius, if any of the testimony was incompetent (which that which was answered to the question first objected to does not appear to be), it was cured by the granting of the motion to strike it out.

It is further urged that the court erred in overruling the motion to advise the acquittal of the defendant at the close of the people’s case, upon the ground that there was no evidence tending to show that the kicks or blows administered to the deceased by the defendant occasioned the miscarriage which was the immediate cause of her death. And attention is called to the provisions of § 181 of the Penal Code, which provides that “no person can be convicted of murder or of manslaughter, unless the person alleged to have been killed and the facts of the killing by the defendant as alleged are each established as independent facts, the former by direct proof and the latter beyond a reasonable doubt.” It ajapears that the deceased was examined by two physicians prior to her death, and that one physician found bruises on the abdomen and some on her limbs, and that another physician, who saw the body immediately after death, observed marks on some parts of the abdomen. The physician who performed the autopsy testified to having found bruises on the right leg and thigh, but found no evidence of any blow on the stomach. He further testified that a light blow would probably have disappeared in a day or two, and he did not think a severe blow on the abdomen would be as apt to leave a mark as upon the limbs, because the tissues would be so soft that they would not show any marks. He further testified that the violence testified to by the witness would have been sufficient to cause the miscarriage, in the absence of any other attributable cause. Another physician concurred as to the probable effect of the violence used by the defendant in bringing about the miscarriage. This evidence was uncontradicted, except as to the possibility suggested by the counsel for the defendant on cross-examination, of the miscarriage being brought on by some cause-other than that shown by the evidence. It is clear that a cause sufficient to produce a result being proven, and no other cause being shown to have existed, is a sufficient basis for the conclusion that the result arose from the known cause, rather than from some cause the existence of which there is not the slightest evidence to establish. If, when a sufficient cause to produce a given result is proven, it is necessary to negative every other possible contingency which might produce the same result, conviction for crimes of violence would certainly be a rarity. There was not only evidence which justified the jury in finding that this assault was the cause of the miscarriage, but the evidence absolutely compelled such a conclusion; and no man could arrive at any different result who was guided by ordinary experience.

It is further urged that the learned judge who presided at the trial erred in charging the jury as follows : How, gentlemen, to convict a person of homicide, two things must be shown. There must be direct evidence that there was a person killed. That evidence has been introduced here. This woman is dead.

The use of the language in the paragraph, “ There must be direct evidence that there was a person killed,” undoubtedly was a lapsus linguae upon the part of the learned judge, to which his attention was in no manner called. If it had been, it would undoubtedly have been corrected, and is nothing like as formidable a mistake as that which is contained in the citation of the section to which the learned judge had reference, in the points of the counsel for the appellant. The provision of the section is: “ Ho person can be convicted of murder or manslaughter, unless the person alleged to have been killed and the facts of the killing by the defendant as alleged are each established as independent facts, the former by direct proof and the latter beyond a reasonable doubt.” Pen. Code, § 181.

The evident intention of the court was to quote the language of the section, namely, that there must be direct evidence of the death of the person alleged to have been killed, and not that there must be direct evidence that there was a person killed, because he goes on and quotes the second subdivision, which is to the effect that the jury must be satisfied, beyond a reasonable doubt, that the defendant was guilty of causing the death. As has been observed, all that the court had intended to charge the jury was that the first proposition had been established, namely, that the person alleged to have been killed was dead; and that is all tiiat his language imported.

Upon an examination of the whole case, it appears that this defendant was guilty of a most brutal and unprovoked assault; that such had been his conduct towards this woman on previous occasions; and that the penalty which he received for his brutality not only did not exceed that which it merited, but by no means equaled it.

The conviction should be affirmed.

All concur.


source: Caselaw Access Project

author: Yan Brunt,

license: Public Domain

text:
    Louise Meise, Resp’t, v. Harry Newman, Impleaded, etc., Appl’t.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894).

    Bills and notes—Notice on presentment, etc.
    Notice of presentment and non-payment sent by a notary public who had no personal knowledge of the presentment of the note is sufficient.
    Reargument.

      J. 0. Rosenbaum, for app’lt; J. G. Flammer, for resp’t.
   Yan Brunt,

Upon a previous argument of this case the court reserved for consideration the question as to whether there had been any sufficient proof of presentment and notice of nonpayment to entitle the plaintiff to recover. Upon the record as it then stood, the court was of opinion that there was not sufficient evidence of presentment and nonpayment to charge the indorser. The case has now been resettled, and the confusion which previously existed in reference to the testimony has been eliminated. A re-argument has been had, and it would seem that the objections suggested upon the previous argument have now been met. It appears that the note in question was presented upon its due day by the plaintiff and her husband to the defendant, and payment demanded, which was not made, and that the notice of such demand and nonpayment was duly mailed to, and received by, the indorser.

It is urged upon the part of the appellant that there is no authority shown upon the part of the notary to sign the notice of nonpayment, and that, he not having made the demand, and not having personal knowledge of the making of the demand, such notice was of no avail, and the indorser was not charged. It appears that the notary had his place of business in the office of the plaintiff’s attorney, and that the husband of the plaintiff came in with the note, and told the notary of the presentment, and that subsequently the attorney came in and he and the notary talked the matter over, and it was then decided to send the notice of nonpayment. This, it seems to us, was sufficient, and the authority to act complete. It is to be observed that the notary did not pretend to act in his official capacity, and did not certify to the protest of the note, but simply gave notice to the indorser that the note had been presented for payment, and that payment had been refused. We think, therefore, that the judgment should be affirmed, with costs. All concur.


author: Follett, J.

text:
    Isabella Tucker Newell et al., Resp’ts, v. Manhattan Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Pleading—Answer—Adequate remedy at law.
    Defense of adequate remedy at law must be pleaded.
    3, Parties—Elevated railway company—Grantor and grantee.
    In an action against an elevated railway company for damages to abutting premises and'for an injunction, the company, after judgment, cannot object that the grantor of the premises was joined as plaintiff with the infant grantee.

      3. Railroads—Elevated—Infant—Conveyance.
    The court cannot appoint a special guardian for an infant plaintiff, in an action against an elevated railway, and authorize him to convey the infant’s interest, where no such relief is demanded in the complaint.
    Appeal from a judgment awarding damages and enjoining the operation of the road, unless the company pays a specified sum for a conveyance of the easements taken and impaired.

      Ezra A. Tuttle, for app’lts; Elijohalet W. Tyler, for resp’ts.
   Follett, J.

On the trial a joint equitable cause of action in favor of Sarah B. Tucker and Isabella Tucker Newell, two of the plaintiffs, and a joint legal cause of action in favor of all three plaintiffs, were established. Both causes of action arose out of injuries to real property. The defendants, not having objected, by demurrer or by answer, that there was a misjoinder or defect of parties plaintiff, or that causes of action were improperly united, have waived these objections. Code Civ. Pro., § 499. A defendant in an equitable action cannot avail himself of the defense that a plaintiff has an adequate remedy at law, unless it is pleaded in the answer. Truscott v. King, 6 N. Y. 147; Cox v. James, 45 id. 557, 562; Town of Mentz v. Cook, 108 id. 504; 18 St. Rep. 845 ; Ostrander v. Weber, 114 N. Y. 95; 22 St. Rep. 979; Hyatt v. Ingalls, 124 N. Y. 93, 105; 35 St. Rep. 114; Buffalo Stone & Cement Co. v. Delaware, L. & W. R. Co., 130 N. Y. 152; 41 St. Rep. 259; Watts v. Adler, 130 N. Y. 646; 41 St. Rep. 325; De Bussierre v. Holladay, 4 Abb. N. C. 111; 55 How. Pr. 210, so far as it conflicts in the causes cited, is overruled. Sarah B. Tucker and Isabella Tucker Newell, being the owners of the fee, had the right to maintain this action in‘equity to restrain the defendants from maintaining their road, and, incidentally, to recover such damages as they had sustained by the past trespasses; and it is the usual rule that in equitable actions all persons- having interests in the controversy should be made plaintiffs or defendants, and their interests determined. The presence of Mrs. Dayton as a plaintiff in this action does not harm the defendants, but prevents the necessity of another action; and the defendants should not, now or hereafter, be permitted to raise this defense.

The appellants urge that the conveyance by Mrs. Dayton of her one-third interest in the premises to her sisters, having been made while the grantees were infants, they may evade the grant when they reach their majority, and thus expose the defendants to an action in behalf of Mrs. Dayton. Isabella Tucker Newell became twenty-one years of age October 15, 1892, since which date she has prosecuted this action to judgment, and it is now too late for her to repudiate the conveyance. Should Sarah R. Tucker, on becoming of full age, repudiate the grant to her, a one-sixth interest would revert to Mrs. Dayton, who is a party plaintiff in this action; and she would be estopped by the judgment herein, which she has aided to secure, from prosecuting another action on the claim enforced by her in this suit. The presence of Mrs. Dayton as party plaintiff is a protection to the defendants’ present and future-interests.

The part of the judgment awarding an injunction unless the defendants pay $7,500 upon receiving a conveyance of the easements rests on the theory that the court had power to appoint in this action a special guardian for the infant plaintiff, and authorize the guardian to convey the ward’s interest to the defendants. This is not a proceeding to sell an infant’s real estate, nor is it an action of partition, nor was it brought for the purpose of divesting "the infant’s title. No such relief is asked for in the complaint, nor are the allegations therein sufficient to warrant such relief. And the special term erred in appointing a special guardian, and directing her to convey the infant’s title. Under such a conveyance the defendants would not acquire a legal title to the interest of the infant in the easements, and for this error the judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event.

All concur.


author: Van Brunt, P. J.

text:
    In the Matter of the Opening of One Hundred and Seventy-Third Street.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Eminent domain—Compensation.
    The owner is entitled to substantial damages, where the fee is taken in opening a street, though the portion taken was subject to a right of way in favor of the adjacent owners.
    Appeal from an order confirming the report of the commissioners of estimate and assessment.

      Carroll Berry, for app’lt; Geo. G. Hunger, for resp’t.
   Van Brunt, P. J.

This proceeding was duly commenced by the city authorities for the purpose of acquiring title to certain premises required for the opening of One Hundred and Seventy-third street from Tenth avenue to the Kingsbridge road, in the Twelfth ward of the city of New York; such street being one of those laid out upon the official plan of said city. The title of the various parties to the land in question was derived, either directly or through certain mesne conveyances, from Philo T. Buggies; referee in the partition suit between W. I. Chase and others, plaintiffs, and Nelson Chase and others, defendants; the property partitioned being known as the “ Jumel Tract,” extending generally from One Hundred and Fifty-ninth street to One Hundred and Seventy-fourth street, and between Edgecomb avenue and Kingsbridge road. The judgment or decree in partition was filed ou the 6th of June, 1881, whereby it was adjudged that the premises were so circumstanced that an actual partition could not be made without great prejudice to the owners thereof; and a referee was appointed for the purpose of selling the same. The referee, by the judgment, was directed to procure to be made such surveys and diagrams of all the lands and premises as he might think necessary for the purpose of said sale; and also might lay down and designate, upon said maps or diagrams, roads, streets, avenues, or places to be used for streets; and it was further provided that the title o£ the purchasers of such parts of said land as .should be laid down upon the said maps or diagrams fronting upon such roads, streets, avenues, or places should extend to the ■center line of such roads, streets, avenues, or places, subject only to the easement and right of way of all the purchasers of any part ■of sard land and premises; and such roads, avenues, or places should not be considered as dedicated thereby to public use. In pursuance of this authority conferred by the decree, the referee filed in the office of the register of the city and county of New' York a map entitled “Map of Property Belonging to the Jumel Estate, in the City of New York, North of One-Hundred and Fifty-Ninth Street.” All the conveyances made by the referee weie with reference to this map, and conveyed the land by certain numbers and bounded the property conveyed by the streets and avenues shown upon said map, among which are One Hundred ■and Seventy-third street, Tenth avenue, and Edgecomb road, and run thence along the side of the street or avenue upon which the property is bounded. The deeds further contained the provision that such lands were conveyed, together with such part of any street,, avenue, or road or place laid down on said map as lies in front of ot adjoining the premises conveyed, and between the same and the center of every such street, avenue, road, or place, subject only to the easement and right of way of all the purchasers o. any pari ot the said land and premises, and such roads, avenues, ot places were not to be considered as thereby dedicated to public use The official map of the city laying out the streets and avenues north of One Hundred and Fifty-fifth street, among which ate One Hundred and Seventy-third street, Audubon avenue, and Tenth avenue, was filed on the 25th of May, 1869, and the streets and avenues on the Jumel map corresponded with the city map, the lines being coincident with the lines of the corresponding street or avenue on the city map. Subsequently these proceeding were taken for the purpose of acquiring title to the land situated within the limits of One Hundred and Seventy-third street, as above stated. Thereafter such proceedings were had that commissioners of estimate and assessment were appointed, who, in December, 1889, made their report, by which it appears that they had made nominal awards, only, to the adjoining owners for the lands embraced within the limits of the street. When this report was presented to the court, confirmation was opposed by the adjacent lot owners, and it was held that there had been no dedication of the land embraced within the street to public use by the conveyances from the referee in the Jumel action, and the matter was referred back to the commissioners for reconsideration. Hpon such reconsideration the commissioners made up a new abstract of estimate and assessment, making the same awards and assessments as in their first report. This second report was presented to the court, and its confirmation was objected to and refused by the court upon the ground that there was sufficient evidence to warrant and require a substantial award to the objectors, in accordance with the previous instructions of. the court, and new commissioners were ■appointed by the court. The new commissioners subsequently filed their abstract and made their report, by which they awarded to the abutting owners substantial amounts for the lands situated within the limits of the street. A motion having been made for confirmatio/i, this report was objected to by the appellants; but, notwithstanding such objections, the report was confirmed, and from the order thereupon entered this appeal is taken.

The single question presented on this appeal is whether the abutting or adjoining landowners were entitled to substantial awards for the lands taken. It is urged upon the part of the city that as each purchaser of land at this partition sale intended to, and did, devote the land to use as a street, at least as between himself and those who purchased other lands bounded upon this street, each acquired an easement in the strip of land for use as a highway, in order to have access to and from the lots purchased, which they were entitled to have kept open as a street for their benefit; and that thereafter the owner held the title incumbered by the easement for the benefit of the grantees of the lots which had been sold, and it was subject to that easement when this application was made; and that the rights which the several grantees of lots on both sides of this strip of land thus acquired., impressed upon it all the characteristics of a public street, thought it may not have been completely dedicated by the owners to that, purpose, or accepted by the city authorities as a highway; and that the servitude thus impressed upon the land could not be extinguished except by the concurrence and by the united act of every person who owned a lot bounded by the street; and that, therefore, the commissioners could only award to the owner the value of the public easement proposed to be taken, deducting therefrom the value of the private easement which already incumbered the property, which would leave nothing but a nominal value in the owner. It is claimed that this principle is enunciated in Re Adams, 141 N. Y. 297; 57 St. Rep. 408, and. it is urged that it is decisive of the question before this court. It. may be that the principles enunciated in Re Adams seemed to be-somewhat in hostility to those which prevailed in the disposition of the appeal in Re Eleventh Ave., 81 N. Y. 446, but the latter-adjudication must necessarily control. We think, however, that, the facts in Be Adams differ so materially from those in the case at bar that it has no. application. ' It is not necessary to discuss-the question of dedication, because it is apparent that, under the-circumstances disclosed in this case, there was no such dedication as gave the public absolute rights, independent of, and distinguishable from, those of the owners of the lots fronting upon the street in question. -It is conceded in the case cited that there was no dedication, and the facts in the case at bar are no stronger in their tendency to establish such dedication. In the-Case of Adams the owners of the fee of the street wore not the-owners of the land abutting upon the street; but the grantors of' such land abutting upon the street had reserved to themselves-the title to the land covered by the street, and it was held that they, having nothing but this mere title, which was subject to a perpetual easement, had sustained no damage when the land was-taken for the purpose of a public street. It was also held, in .the case of Matter of Village of Olean v. Steyner, 135 N. Y. 341; 48 St. Rep. 66, that, when an easement for a highway is taken where a private easement previously existed, nominal damages, merely, should be awarded, because the easement taken is simply the equivalent of the private easement displaced; the change alters the control, but does not increase the burden. In that case the distinction is pointed out between cases arising in cities, where, under the statute, the fee is taken, and in villages, where only an easement for a highway is required. In the case of City of Buffalo v. Pratt, 131 N. Y. 293; 43 St. Rep. 278, it was distinctly held that, where the ownership of the fee of land in the street is taken from the adojining owner by legislative authority, the owner is entitled, not merely to nominal damages, but to such substantial damages as may be ascertained by measuring the effect upon the value of his remaining property by the loss of the fee of the. street; and this rule was based upon the fact that the ownership of the fee of the land in the street by an adjoining owner vests in him certain rights of which he is deprived by the taking of the fee of the land, even for street uses. This principle seems to cover the case at bar. It is claimed, however, by the appellant that it does not, in that, by the proceeding in the case cited, there is vested in the city an absolute fee, whereas, in the proceedings taken in the city of New York for acquirement of property for street purposes, there- is vested in the city simply a qualified fee, the city taking it for street purposes only. An examination, however, of the section of the charter which is referred to in the opinion in the case cited, indicates that the fee taken in the two proceedings is substantially the same; in the one there being an express declaration, in the statute authorizing the condemnation, that the property shall be held for street uses, and in the other the authority to "take being only for public streets, etc., and hence impressed with the same implied trust as is expressly impressed upon the land taken in the city of New York. We do not think, therefore, that the question is open for discussion, in view of the principles laid down in the case of City of Buffalo v. Pratt. The order should be affirmed, with costs.


author: Hardest, P. J.

text:
    Francenia Lanphere, Resp’t, v. Jackson Clark, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1 Pleading—Slander—Justification .
    The justification must be as broad as the charge.
    2. Evidence—Slander.
    Where, in an action for slander, the complaint alleges that the words were spoken “ in and about” July, a conversation, occurring in May and June, may be given in evidence.
    3. Pleading—Amendment.
    A motion to amend during trial is addressed to the discretion of the court.

      4. Same—Motion to make definite and certain.
    The plaintiff need not move to make the answer more definite and certain, but may object to the admission of evidence not authorized by the answer.
    5. Damages—Excessive.
    A verdict, upon conflicting evidence as to damages, will not be disturbed as excessive, unless so large as to indicate passion, prejudice or corruption.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      /Sayles, Searle & Sayles, for app’lt; Olney & Wiggins, for resp’t.
   Hardest, P. J.

In 1892 the plaintiff was residing at Delta, and was the owner and proprietor of an hotel known as the “Hotel Lanphere.” Her complaint alleges that the defendant uttered defamatory statements with intent to injure the plaintiff in her reputation and her business. Evidence was given tending to establish the allegations of the complaint, and evidence was given in behalf of the defendant, contradicting the evidence offered by the plaintiff in many respects, and a sharp question of fact was presented for the jury to determine what words were uttered by the defendant. Plaintiff’s evidence indicated that on sundry occasions he charged the plaintiff with keeping an hotel which was the resort of thieves and murderers; also, that the hotel'was “a den of thieves and murderers.” And that on one occasion the defendant said, pointing to the plaintiff, who was standing in the door of the hotel: “I will rout that bitch out of her den before Saturday night They are a nest of bitches." And on another occasion he said “.there was a pack of thieves down to that hotel,—a den of thieves. Mrs. Lanphere would murder but that she would carry her point. That she belonged to a desperate gang called the *Ku Klux,’—the hotel gang of thieves,-—that damned bitch of a Mrs. Lanphere.” And that on another occasion the defendant said “ he guessed it was the damned thieving gang at the hotel that had thrown him and hurt his arm. They were a pack of thieves. That the kind of boarders kept at the plaintiff’s hotel were those having the bad disease.” The defendant’s answer denied the allegations of the complaint, and alleged “ that the house known as the 1 Lanphere House ’ at Delta is and was kept and run as a disorderly house; that it was a place whérein immoral persons for immoral purposes congregated, and where conspiracies were formed to injure this defendant, and it was from said hotel that they started to carry out said conspiracies so formed; that said house, hotel, and place, as defendant alleges upon information and belief to be; was a place where lewd and immoral people congregated, and that the plaintiff herself is a lewd, unchaste, boisterous, immoral woman, and has conducted and run the hotel in an improper and disorderly manner; that upon the trial of this cause the defendant will give evidence of the facts and circumstances, as alleged in the second count of this answer, by way of mitigation or justification of the things, allegations, and charges made in said plaintiff’s complaint." The answer fails to comply with the’ rules requiring the justification to be as broad as the charge made, and the court committed no error in holding that the answer did not contain allegations sufficient to amount to a justification of the charges contained in the complaint. Hathorn v. Congress Spring Co., 44 Hun, 608, 8 St. Rep. 511; Steffen v. Schaefer, 39 St. Rep. 796, 15 N. Y. Supp. 493; McKane v. Brooklyn Citizen, 53 Hun, 132 , 24 St. Rep. 695. It was not incumbent upon the plaintiff to move to make the answer more definite and certain, but she had a right to object, at the trial, to the reception of any evidence not authorized by the answer. Orvis v. Dana, 1 Abb. N. C. 286.

2. Whether the defendant should, in the midst of the trial, be permitted to amend his answer in the manner, and-to the extent, preposed, was a question addressed to the discretion of the court. The case fails to indicate that the discretion was abused. Morrison v. Agate, 20 Hun, 25; Rosenwald v. Hammerstein, 12 Daly, 377; Avery v. Starbuck, 25 St. Rep. 354; 5 N. Y. Supp. 779 ; affirmed, 38 St. Rep. 900; Oregon Steamship Co. v. Otis, 27 Hun, 454. It may be observed that, among other things, the defendant proposed to amend his answer by inserting “ various things which the plaintiff did at the place from which she came,” and by alleging specific facts occurring subsequent to the publication of the slander. It was well settled that only such matters are competent in mitigation as were known to the defendant before and at the time of uttering the slanderous words. Hatfield v. Lasher, 81 N. Y. 246; Willover v. Hill, 72 N. Y. 36.

3. In the complaint it' was alleged that the slanderous words were uttered “in and about the month of July, 1892; the exact dates the plaintiff cannot now more particularly state.” Evidence was allowed, stating conversations that occurred in May and June, against the defendant’s objection and exception. We think the ruling made by the trial judge did not transcend the rule of law applicable to such cases. Inman v. Foster, 8 Wend. 602 ; Titus v. Sumner, 44 N. Y. 266; Distin v. Rose, 69 N. Y. 122.

4. It is claimed in behalf of the defendant that the damages awarded by the jury are excessive. Doubtless, this court has power to reduce the damages if it entertains the opinion that the award by the jury was excessive. Holmes v. Jones, 121 N. Y. 461; 31 St. Rep. 379. In that case it is said in the opinion that, where the justification is not made out, it is for the jury to determine the amount of damages to be awarded-; and it is said: “ If they come to the conclusion, from the circumstances and the nature of the charge made, that the publication was malicious, in bad faith, or recklessly, carelessly, and. wantonly made, they could go beyond compensation, and award punitive damages.”

In the case before us, if the jury had believed the testimony of tne defendant, it would have found a verdict of no cause of action. If it had believed the testimony of the defendant’s witnesses who spoke as to the character of the plaintiff while she was a resident of Exeter and elsewhere, and also had believed that the utterances made by the defendant were not malicious, doubtless a smaller verdict would have been given, if any. It was for the jury, however, to consider the evidence which impeached the chareter of the plaintiff for truth and veracity, for sobriety and chastity, in connection with the other evidence tending to sustain her character offered in her behalf, and, in the light of all the circumstances disclosed, to determine the question of damages. With such a great conflict in the evidence upon the essential questions which entered into the question of damages,'both "compensatory and" punitive, before the jury, and a verdict rendered thereon which is not so large as to indicate passion, prejudice, or corruption, it is not in accordance with well-established rules of this court to interfere with such a verdict. Webber v. Vincent, 29 St. Rep. 603 ; 9 N. Y. Supp. 101. In that case it was said: “ The case was a peculiar one. The degree of aggravation depended on the view taken by the jury of the evidence as given before them. No sufficient ground is made apparent for us to interfere.”

Graves v. Gilchrist, 29 St. Rep. 638; 9 N. Y. Supp. 88 ; Holmes v. Jones, supra; Hartman v. Morning J. Association, 46 St. Rep. 181; 19 N. Y. Supp. 398; Scott v. Sun P. & P. Association, 74 Hun, 287; 56 St. Rep. 419.

Numerous rulings as to admission and rejection of evidence were made upon the trial, and the defendant took several exceptions which have been pressed upon our attention, and consideration has been given to them, and after a careful view of the course of the trial and the rulings made by the trial judge it is not believed that the exceptions present prejudicial error. In Richardson v. Northrup, 56 Barb. 105, the answer contained suitable allegations in mitigation of damages, and an attempt was made to show provocation for the utterance of the words; and it was said that to justify the admission of such evidence it must appear “ that the provocation was continued down to and at the time the words were spoken.” The foregoing views lead us to the conclusion that the verdict should remain.

Judgment and order affirmed, with costs.

All concur.


author: Lewis, J.

text:
    Uriah Cleveland, App’lt, v. Joseph Wilder, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Costs—Title in question.
    A mere general denial by an answer of the allegations of the complaint does not raise a claim of title to real property upon the pleadings, within the meaning of the statute, where it does not appear by the complaint that such title will necessarily arise upon the trial.
    Appeal from an order denying plaintiff’s motion to vacate a judgment in favor of defendant for costs, and for retaxation of costs.

      M. H. & H. M. Bartlett, for app’lt; Johnson & Charles, for resp’t.
   Lewis, J.

It was alleged in the complaint that the plaintiff was on the 11th day of April, 1890, the owner in fee simple of a farm in the county of Wyoming, and that on said day he and the defendant entered into an instrument in writing under their hands and seals, being a lease of said farm by the plaintiff to the defendant, The lease is set out in full in the complaint. It provides that in consideration of the rents, covenants, and agreements mentioned and reserved therein, the plaintiff leases the farm to the defendant for the term of one year from the first day of April 1890, 'for the annual rent of $100 with the privilege to the tenant of a renewal thereof for one year upon the same terms and conditions. The lease contained, among others, the following conditions : “And the said party of the second part [the defendant] * * * will feed out one-third of all hay made on said premises, two-thirds of all straw raised upon the farm; repair the fences on the farm.”

The tenant covenanted not to plow more than two acres of the meadow land, and to leave the premises, at the termination of the lease, in as good condition as they were at the date of the lease, ordinary wear, and damages by the elements, excepted. The woodland was reserved to the landlord, except the right to the tenant to pasture the same. The complaint further alleged that the defendant went into possession of the premises, and that, in violation of the provisions and covenants of said lease, he plowed some 15 or 20 acres of meadow land on the farm, and cut down timber growing thereon, and converted it to his own use, and took from the buildings, doors, windows, boards, and committed great waste on the farm ; that he carried off all hay and straw raised thereon, and did not feed any of it out on the farm, and removed therefrom a large quantity of manure, the property of the plaintiff, of the value of $100, and converted the same to his own use. Judgment was demanded against the defendant for the sum of $600. The defendant, by his answer, denied each and every .allegation in the complaint contained, and alleged that the timber cut by him was with the knowledge and consent of the plaintiff, and that he had paid therefore in full, and set up a counterclaim. The issues came on for trial, and the plaintiff recovered a verdict against the defendant for $21.97. The defendant was allowed costs of the action by the taxing officer. The plaintiff’s damages of $21.97, were deducted from the amount of the defendant’s •costs, and a'judgment was entered in defendant’s favor, against the plaintiff, for $85.90. The plaintiff applied to the justice presiding at the trial for the certificate provided for by § 3248 of the Code,—that the title to the real property came in question upon the trial. His application was refused, for reasons stated in a memorandum printed in the case as follows : That—•

“ Upon the trial two questions only were litigated : First, whether the defendant was in possession of plaintiff’s farm under the lease of April 11, 1890, or under an agreement alleged to have been made subsequently, by which said lease was modified in important particulars; and, second, whether the timber cut by the defendant, and the manure removed by him, was so cut and moved in pursuance of a license from or consent of the plaintiff to so cut -said timber, and remove said manure. The fact that the plaintiff was the owner of the farm, and therefore the owner of the timber and manure, and that the defendant was in possession of the farm as plaintiff’s tenant, and liable in this action for any damage sustained by the plaintiff by reason of the cutting of such timber and the removal of such manure, unless protected by his license under the agreement alleged to have been made with the plaintiff, was not in dispute. It is therefore clear that the title to real estate did not come in question on the trial, and the plaintiff’s application must be denied."

The plaintiff thereupon made a motion for an order that the judgment entered in favor of the defendant be vacated, and the taxation of costs set aside, and the plaintiff be allowed costs against the defendant. The motion was denied, and from the order denying the motion this appeal was taken.

It is the plaintiff’s contention that the title to real property was put in issue by the pleadings, and that he was therefore entitled to costs under the provisions of § 3228 of the Code of Civil Procedure. He bases this contention on the allegation in the complaint that the plaintiff was the owner in fee simple of the premises leased, and the general denial in the answer of each and every allegation in the complaint. This allegation in the complaint was entirely unnecessary and superfluous. The defendant, having taken a lease of the plaintiff, was estopped from questioning plaintiff’s title. There was no allegation in the answer that he was in possession under any other title than that of the plaintiff. There was no affirmative allegation in the answer putting in issue the plaintiff’s title. The plaintiff was not required at the trial, under the pleadings, to prove his title. Ho such issue was, or could be, litigated under the pleadings. The plaintiff could not, by the insertion in his complaint of such an entirely ¡«•unnecessary and superfluous allegation,— an allegation that he knew the defendant would not be at liberty to put in issue, — entitle himself to costs. In Bailey v. Daigler, 50 Hun, 541; 20 St. Rep. 549, it is stated by Bradley, J., that a mere general denial by an. answer of the allegations of the complaint does not raise a claim of title to real property upon the pleadings, within the meaning of the statute, where it does not appear by the complaint that such title will necessarily arise upon the trial. He refers to Rathbone v. McConnell, 21 N. Y. 466, as sustaining that doctrine. The plaintiff suggests, and apparently for the first time in his submitted brief, that the cause of action was for waste, and that therefore, under the statute, he was entitled to treble damages, making the amount of the recovery to which he was entitled more than $50. Ho claim for treble damages is made in the complaint, and be made no such claim before the taxing officer, nor in his moving papers at special term. The judgment was entered for single damages only, and the plaintiff did not ask to have it set aside for the reason that he had not been awarded treble damages. It is too late, we think, to raise the question upon appeal. We do not think the cause of action stated in the complaint was for waste, and, if not, that is a complete answer to the plaintiff’s contention. The order appealed from should be affirmed, with $10 costs, and disbursements of the appeal.

All concur.


text:
    The People ex rel. John O’Brien, App’lt, v. Melvin J. Woodworth, as Sheriff, etc., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Habeas cobpds—Sentence invalid in past.
    Where the relator is imprisoned under sentence of fine and imprisonment, habeas corpus will not lie though the court exceeded its powers in imposing the fine, where the court had power to imprison hut the term of imprisonment has not expired.
    Appeal from an order refusing to discharge the petitioner from imprisonment, and remanding him to the custody of the sheriff.

      Charles D. Newton, for app’lt; George W. Botsford, for resp’t.
   Lewis, J.

The relator was indicted at the court of oyer and terminer of Wyoming county on the 8th day of December, 1898, for violation of the excise law.' By an order duly made, the case was sent to the Wyoming court of sessions. On the 8th day of January, 1894, the relator pleaded guilty to the indictment; and on the 15th of the same month he was sentenced by said court to be imprisoned in the county jail for a period of 60 days, and pay a fine of $100, and stand committed to the Wyoming county jail until said fine was paid, not exceeding 100 days. On the 26th of February, 1894, the relator procured a writ of habeas corpus returnable before one of the justices of the supreme court on the 5th day of March, 1894. After hearing the parties, the application to discharge the relator was denied, and he was remanded to the custody of the sheriff of the county of Wyoming, and from that order the relator appeals to this court.

It is the contention of the relator that, in sentencing him, the court of general sessions exceeded its jurisdiction in so far as it imposed the money penalty, and that the judgment was therefore erroneous and void. Our attention is called to § 56 of the Code of Criminal Procedure, which provides that: “ Subject to the power of removal provided for in this chapter, courts of special sessions * * * have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties as follows • * * * (32) When a complaint is made to or warrant issued by a committing magistrate for a violation of the laws relating to excise and the regulation of taverns, inns and hotels, or for unlawfully selling or giving away to any Indian, spirituous liquors or intoxicating drinks.”

Section 717 of the same Code provides, “ J udgment on conviction. When the defendant pleads guilty or is convicted either by the court or by a jury, the court must render judgment thereon of fine or imprisonment or both as the case may require, but the fine cannot exceed $50 nor the imprisonment six months.”

The latter section is included in the title relating to proceedings in courts of special sessions. Had the defendant been tried in a court of special sessions, concededly that court would not have had jurisdiction to impose a money penalty exceeding $50; but whether § 717 has any application to a case tried in a court of general sessions may well be doubted. It does not necessarily follow, we think, because the jurisdiction of a court of special sessions is limited to the punishment mentioned, that the court of general sessions had not jurisdiction to impose the penalty for misdemeanors provided by § 15 of the Penal Code, to-wit, inprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both. The defendant pleaded guilty of a misdemeanor; but, from the view we have taken of this appeal, it is not necessary that we should decide the question.

At the time the relator applied for the writ, he was in the custody of the sheriff, by virtue of a final judgment of a competent court, which, concededly, had the power to impose a sentence of imprisonment for a misdemeanor for the term of six months. The relator was sentenced to imprisonment for 60 days, and to pay a fine of $100. He had not at the time he applied for the writ, nor on the return day thereof, served the 60-days sentence. The sentence in that regard was lawful, and, until he had paid that part of the sentence, he was not in a position to raise the question as to the legality of the $100 penalty. Had his application been made after the expiration of the 60 days, he would then have been in a situation to raise the question as to the legality of the balance of the sentence; and, if it had been held that the court exceeded its authority in' including in the sentence the fine of $100, he would have been entitled to his liberty, for to hold otherwise would deprive him of the option of paying the $50 had that been the money penalty, and thereby escaping further imprisonment; but that rule has no application to the 60 dayp part of the sentence, for, that being within the power of the court to impose, he was, in any event, obliged to serve that much of the sentence. The order appealed from should be affirmed. All concur.


text:
    Vincent M. Allen, App’lt, v. Edward C. Lardner et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Infant—Necessaries—Dwelling house.
    A dwelling house is not within the meaning of the term “Necessaries,” so as to render an infant liable for its erection.
    Appeal from a judgment dismissing the complaint.

      Charles M. Southworth, for app’lt; Washington H. Ransom, for resp’ts.
   Lewis, J.

This action was to foreclose a mortgage upon real estate in the county of Niagara, and was tried before the county judge, and he found, as facts: That the defendant Edward 0. Lardner was the owner of a lot in the city of Locltport. That he was engaged to be married to the defendant Ida M., and in contemplation of such marriage, and for a home for his wife and himself after such marriage, he entered into a contract with James A. Williams and John 0. Fogle to build a house on said lot for the consideration of $887. That the contractors built such house, and completed the same about April 13, 1891. That a part of the labor and materials for the construction of the house was furnished by Edward 0. Lardner. The house was worth the contract price, and was a suitable one for the home of the defendants. The bond and mortgage in suit were given by Lardner and wife to the contractors to secure them for the building of the house. The defendants Lardner were married December 7, 1891, and moved into and occupied the house from the time of its completion until the month of April, 1893, when they moved out of the house, and leased the same to another occupant. The bond and mortgage were duly assigned to the plaintiff January 4, 1892. No part of the debt has been paid, except $50. The defendants were infants at the time of the making of the contract, and of the execution and delivery of the mortgage. The defendant Ida became 21 years of age April 28, 1892, and Edward became 21 years of age November 8th of the same year. The contractors did not know that the defendants were minors at the time they executed the bond and mortgage. The contractors guaranteed the payment of the bond and mortgage when they assigned it. Neither of the defendants in any way ratified the bond and mortgage after they arrived at the age of 21 years. The bond and mortgage were given solely.to secure the debt of Edward. That no part thereof was for any indebtedness of Ida. Edward, after becoming of full age, and immediately, after demand was made upon him for payment of said bond and mortgage, disaffirmed the same upon the ground of his infancy when the same was given. The court found, as conclusion of law, that the defendants were not liable upon the bond and mortgage,—that they had sufficiently disaffirmed the same,—and dismissed the complaint.

The findings of fact are sustained by the evidence. It cannot be successfully maintained that the house was a necessary for the infant. We are not aware of any decision giving so broad a construction to the word “necessaries.” They refer to supplies which are personal, either for the body, as food, clothing, lodging, or those necessary for the proper cultivation of the mind, as suitable instruction, etc. Tupper v. Caldwell, 12 Metc. (Mass.) 559; Freeman v. Bridger, 4 Jones (N. C.) 1; McCarthy v. Carter, 49 Ill. 53 ; West v. Gregg's Adm’r, 1 Grant, Cas. 53; Hassard v. Rowe, 11 Barb. 22 ; Putnam v. Ritchie, 6 Paige, 390. To hold that a dwelling house comes within the definition of “necessaries" would make an infant liable for the purchase price of any property necessary for the cultivation of his land, or for the carrying on of any business in which he might be engaged.

It is the contention of the appellant that the defendants, in order to avail themselves of the plea of infancy, should have restored the consideration. The house was built upon a lot belonging to the defendant Edward, and a portion of the materials, and some of the work upon the building, were furnished by him. Manifestly, he could not restore the house without surrendering the .possession of the land upon which it stood, and also the materials furnislied by him, and the labor he had bestowed upon the house, which would have amounted to his surrendering that which he did not receive from the contractors. Such a rule, instead of protecting the acts of infants, would work to their disadvantage, and would extend their liability beyond that which would be required of them if they were adults. See Hassard v. Rowe and Putnam v. Ritchie, supra. We find no reason for disturbing the judgment. It should be affirmed, with cost of the appeal. All concur.


text:
    George W. Luce, as Administrator, etc., Resp’t, v. Oscar A. Burchard et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Life' tenant—Bight of, to gboss sum.
    A life tenant of a fund cannot be compelled to take, but may elect to accept, a gross sum in lieu thereof.
    Appeal from a final order directing the distribution of surplus moneys arising on a foreclosure sale.

      M B. Fenner, for app’lts; H. B. Halloclc, for resp’t P. J. Costello; Howard H. IIhdener, for resp’t Mary A. Burchard.
   Lewis, J.

This is a controversy over surplus moneys arising from the sale under foreclosure of a mortgage. Carrie J. Decker Burchard was the wife of the defendant, Oscar A. Burchard, and died at the city of Rochester, leaving a last will and testament, which was made and executed in the year 1885, after her marriage, and prior to the birth of her only heir, at law, Jane A. Burchard, one of the appellants. It is provided by the will: “First. After all my.lawful debts are paid and discharged, I give and devise my house and lot, situate upon Champlain street, in the city of Rochester, Monroe county, N. Y., to my mother, Sarah Jane Decker, to use, occupy, and enjoy the same for and during the term of her natural life. Secondly. I hereby give and devise to my husband, Oscar A. Burchard, my said house and lot upon the termination of such life estate, in case he shall survive my said mother; but, if my said mother shall survive him, I give and devise the said house and lot to her and her heirs, absolutely. The foregoing devise of my said house is upon the express condition that he shall furnish to my said mother during her life such reasonable support, maintenance, and care as she may require."

She appointed her husband executor of the will. No mention was made in her will of the child about to be born to the testatrix. After making the will, and on the 14th day of February, 1885, the testatrix gave birth to the appellant, Jane A. Burchard, and died, leaving, her surviving, such issue. The will was duly admitted to probate, and thereafter, upon a sale on the foreclosure of a mortgage, which was a lien upon the property at the time of the making of the will, there arose a surplus of $504.22, and proceedings were instituted to determine -the priority of claims to said surplus. The respondents, who were judgment creditors of the husband of the testatrix, made claim to a portion of the fund under their judgments; and the proceeding was duly referred, and the referee, after hearing the proofs, reported, among other facts, that the husband of the testatrix had, although often requested, failed and neglected to furnish any support, maintenance, and care for the mother or child of the testatrix, and that he had totally abandoned them ; and he reported, as his conclusion of law, that the husband had forfeited all claim as tenant by the curtesy, because of his neglect to provide for the mother, as was provided by the will; that Sarah J. Decker, after the payment of the expenses of the proceeding, would be entitled to the interest on said sum during the period of her natural, life, unless she should survive the death of the husband, Oscar A. Burchard; that, if Oscar A. Burchard should die before the death of Sarah J. Decker, the fund would belong to Jane A. Burchard. Upon motion to the county court of Monroe county for a confirmation of the referee’s report, it was confirmed, but with the following modification: It was adjudged that the defendant Oscar A. Burchard was entitled as tenant by the curtesy to the use and income of said fund after the death of the life tenant, Sarah J. Decker; that the husband’s interest was suspended during the life of the mother; that the judgment creditors of the husband were entitled to an immediate appropriation of his present interests in the fund, which computed according to the life tables, was adjudged to be, after deducting costs and disbursements, $103.56, and that the respondent Costello was entitled to have applied therefrom, in payment of his judgment, the sum of $91.48, and that the judgment creditor, Mary A. Burchard, was entitled to $12 08, to be applied upon her judgment; that there should be paid to the appellant, Sarah J. Decker, for her life estate in said fund, the sum of $194.79; and that the balance, amounting to $165.87, be paid to the appellant, Sarah J. Decker, as general guardian for the infant. These amounts, with the expenses of the proceedings and the fees of the county treasurer, comprised the amount of the fund.

The statute provides that when a testator shall have a child born after the making oí a will, and shall die leaving the child unprovided for by any settlement, and not mentioned in the will, every such child shall succeed to the same portion he would have taken in a case of intestacy of the parent. 3 Rev. St. (Birdseye’s Ed.) p. 3344, § 17. In all respects, except the failure to provide for the child, the will is valid. Smith v. Robertson, 89 N. Y. 555. We are inclined to agree with the conclusion of the county court that, by the terms of the will, Mrs. Decker is entitled to a life estate in the surplus moneys, and that the husband is entitled to the use of the fund as tenant by the curtesy, subject to the life estate of Mrs. Decker. But we are not aware of any rule of law or of court by which Mrs. Decker can be compelled to take a gross sum in lieu of the use of the fund during her life. The Code of Civil Procedure permits a widow, in partition actions, to elect to take a gross sum in satisfaction of her dower right, but such election is optional with her It is provided by rule 71 of the general rales of practice that, where a tenant for life, by curtesy or in dower, is entitled to the annual interest or income of a sum paid into court or invested in permanent securities, he may consent to accept a gross sum in lieu of such annual interest or income for life. The interest shall be estimated according to the then value of the annuity according to the tables. The tenant is not entitled as of right to such election under this rule. In re Zahrt, 94 N. Y. 605. The consent is optional.

The testatrix in her will, contemplated that the fund should be kept intact, and the mother be entitled to its use during her life By the judgment of the county court, she is deprived of this, the fund is to be at once divided, and the creditors of the husband are permitted to appropriate to the payment of their judgment the present value of the husband’s interest as tenant by the curtesy. The fund, we think, must be kept together, if Mrs. Decker so desires, during her lifetime. In case the husband survives the mother, his right to the use of the fund will then attach, and his creditors may then be entitled to apply the income therefrom, as it shall accrue, to the liquidation of their claims; the principal sum, however, to remain undisturbed, to be delivered to the child upon the death of its father, if he shall survive Mrs. Decker, or, if not, upon the death of Mrs. Decker.

The judgment of the county court should be modified in the manner indicated, and, as so modified, affirmed.

All concur.


text:
    Employers’ Liability Assurance Corporation, Limited, App’lt, v. Employers’ Liability Insurance Company of the United States et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Injunction—Special damages.
    An unlicensed foreign insurance company will not be enjoined from doing business in this state at the suit of a duly authorized company, unless the latter shows special damage by reason of the former’s illegal conduct.
    Appeal from a judgment dismissing the complaint on the merits.

      William Allen Butler, for app’lt; William G. Wilson, for resp’ts.
   Follett, J.

Upon the appeal from the first judgment entered in this action it was held that the plaintiff is not entitled to the exclusive use of the term ‘‘ Employers’ Liability ” as part of its corporate name, and that its use by the defendant could not be restrained, though such use might mislead or deceive persons intending to insure with the plaintiff. 61 Hun, 522; 41 St. Rep. 890. But it was held that, if the defendant was doing business in this state without permission of the insurance deparment, the plaintiff might be entitled to a judgment restraining the defendant from doing business in this state if it could show that it had sustained special damages by reason of defendants’ illegal action. Upon the present trial it appeared that the defendant corporation did not issue a policy until .nearly a month after this action was begun, and the plaintiff failed to show that it had sustained any special damage before this suit was brought. This seems to be a perfect defense to this action. The defendant having the right to use the words “ Employers’ Liability ” as part of its corporate name and in its business, the similarity of names ceases to be a factor or ground for recovery, and the rights of the litigants are the same as though their corporate names were dissimilar. The plaintiff has not made out a cause of action based on the fact that the defendants have issued policies without having been authorized by the insurance department. The learned counsel for the plaintiff, in his seventh point, admits that the illegal acts of the defendant in talcing insurance risks in this state contrary to law do not of themselves give any right to the injunction sought by this action, but argues that the change of defendants’ corporate name at the suggestion of the insurance department is an admission that its name was so similar to the plaintiff’s as to produce confusion and uncertainty, and that on this admission the plaintiff is entitled to the relief sought. The defendants have made no such admission. The defendant corporation has not abandoned the use of the words Employers’ Liability,” but has simply prefixed the word “American ” to its title, and omitted the words “ of the United States.” The insurance department has not denied the right of the defendant corporation to use these words in its corporate name, but, on the contrary, expressly asserted in its letter of April 22, 1890, that it had a right to use these words. Before the plaintiff can recover under the rule laid down in 61 Hun, 552; 41 St. Rep. 390, it will have to show that the defendants were issuing policies in violation of the law of this state, and that their acts had actually caused some special injury, or would necessarily cause such injury, to the plaintiff’s business. This it has failed to do, except it is shown that the defendant corporation has used, and asserts its right to use, the words “Employers’ Liability ” as part of its corporate name, which this court has held it has a right to do. The mere fact that an unlicensed person should begin the practice of medicine would not authorize a licensed practitioner to maintain an action to restrain the unlicensed person from practicing.

The conclusion reached—that no cause of action is stated in the complaint, and that none was proved on the trial-—renders it unnecessary to consider the third conclusion of law contained in the decision of the special term. The statute referred to (chapter 211, Laws 1877) does not relate to foreign insurance corporations, but to companies to be thereafter organized under the laws of this state; and it does not seem to vest the insurance department with the right to prescribe what name or title foreign corporations shall take. Under the statutes existing at the time this controversy arose the superintendent, however, had the right to refuse to permit any foreign corporation to transact business in this state “ whenever, in his judgment, such refusal to admit shall best promote the interests of the people of this state.” Laws 1873, chap. 593, § 2. Such a similarity of name as would likely lead to confusion would seem to be, under this act, a sufficient ground for refusal.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Christopher and Tenth Street Railroad Company et al., App’lts, v. Twenty-Third Street Railway Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Contract—Reformation.
    A written contract will not be reformed on the- ground, of mistake, unless there is ’a plain mistake, clearly made out by satisfactory proofs.
    3. Pleading—Amendment.
    Where the complaint alleges a mutual mistake in the contract sought to to be reformed, a proposed amendment, which avers mistake of plaintiff and fraud of defendant, does not state a new cause of action.
    3. Same—Harmless.
    A refusal to allow such amendment, in order to conform the pleading to the proof, is harmless error, where the court finds that the contract, sought to be reformed, correctly states the agreement between the parties.
    Appeal from a judgment dismissing the complaint on the merits.

      Frederic R. Ooudert, Thomas 0. Shearman and Fverett P. Wheeler, for app’lts; Edmund Randolph Robinson, for resp’t,
   Parker, J.

The issues involved in this suit were so fully discussed in the opinion of the trial court as to render it unnecessary for this court to do more than briefly call attention to the several propositions involved in the decision now to be made. The plaintiffs, as lessee and sublessee from the defendant the Twenty-third Street Railway Company of certain of its street-rail road property situated on Fourteenth street, in the city of New York, seek to restrain the defendants from running any cars on the tracks thus leased to plaintiffs. If the writing between the lessor and lessee to wdiich the agreement of the parties was finally reduced and formally executed about May 20, 1884, provided that the lessee should have the exclusive right to use the property leased, the plaintiff’s demand for injunctive relief could not be questioned. But while the agreement gave to the Christopher & Tenth Street Railroad Company the right to run and operate its pars upon and over a portion of the railroad property and routes owned by the Twenty-third Street Railway Company, including its Fourteenth street property, it expressly reserved to the lessor the same right as to the last-named route. The plaintiffs insisting that, notwithstanding the lease purported to reserve to the lessor' the right to run its cars over so much of the property described in the agreement to lease as was situated on Fourteenth street, such was not the intention of the parties, and its insertion in the written contract was owing to a mutual mistake of the par-tics, and the relief prayed for in their complaint was in part that the court so reform the writing that it should conform to the agreement upon which the minds of the authorized representatives of the parties originally met. The defendants, by their answer, denied this contention of the plaintiffs, and nearly all the evidence presented on the trial bore upon that issue. When the controversy was submitted to the trial court for decision, the plaintiffs contended, as they do now, that the language of the reservation, in the light of the evidence given upon the trial, was ambiguous, and therefore, in its construction, regard should be had to the situation of the parties and the surrounding circumstances. That, if so construed, it would necessarily and properly follow that the reservation of rights to the lessor would be limited to such part of its Fourteenth street property as lay between Ninth and Eleventh avenues.

At the time the lease was executed, there were two independent routes on Fourteenth street, one extending from Eleventh to Ninth avenue and the other from Ninth to Fourth avenue. Evidence was introduced tending to show that, at and prior to the making of the lease, it was regarded by some of those interested in the corporations which were parties to it that the route between Ninth and Eleventh avenues might become important to the lessor at some future period in the operation of such of its surface railroads as it did not lease to the Christopher Street Railroad Company. Other evidence was presented for the purpose of causing it to appear to the court that what the lessor intended to do was to reserve the right to run its cars over that portion of Fourteenth street extending iron Ninth to Eleventh avenue. Reading the reservation in the light of such evidence, the appellants urge that it is not only within the province of the court, but its duty as well, to so read it as to limit its operation to that portion of Fourteen street. Turning to the agreement, we find that it demises and leases the right to “ operate a railroad upon and through the following routes in the city .of New York, that is to say: Commencing at the intersection of Fourteenth street and Fourth avenue, thence through and along Fourteenth street, with double tracks, to Eleventh avenue, and from Fourteenth street, through and along Tenth avenue, with double tracks, to Little Twelfth street; thence through and along Little Twelfth street, with single track, to Washington street; thence through and along Washington street, with single tracks, to Christopher street, to connect with the present tracks of the party of the second part; also, from the aforesaid tracks at Little Twelfth street and Tenth avenue, through and along Tenth avenue to West street, with single tracks ; thence through and along West street to Christopher Street ferry, and thence through and along Christopher street, with double tracks, to Washington street. It being understood and agreed that the party of the first part shall also have the right to run and operate its cars upon and over the above-mentioned railroad and route in and along Fourteenth street.” It will be observed that the description thus given of the property leased does not designate a route from Fourth to Ninth avenue, and another from Ninth to Tenth avenue, but, instead, a property situated on Fourteenth street, extending from Fourth to Eleventh avenue. The reservation in terms refers to and includes the railroad property thus described. It provides distinctly and positively that the lessor “shall also have the right to run and operate its cars upon and over the above-mentioned railroad and route in and along Fourteenth street.” Clearly there is no ambiguity here; no room to question what the draughtsman intended. And, in case an instrument is plain and unambiguous, the court has not the right to read into it other words and phrases in order to make a new and different agreement for the parties, notwithstanding the facts and circumstances surrounding them, or connected with the, execution of the contract, may have been of such a character as to induce a conclusion that the imported language would make the agreement more in accordance with exact justice, or more nearly what to the court may seem to have been the probable intention of the parties. While nothing is needed beyond a reading of the description of the property leased, and the reservation which is contained in the sentence next following it, to support a determination that the reservation is not ambiguous, and therefore not to be cut down by the court because it may perhaps be of the opinion that the provision ought to have been otherwise, still it may not be out of place to observe that if the contention of the appellants touching the authority of the court in the premises be sound, and its construction could be adopted, there would result, not only a different contract than that executed by the parties, but one differing from that which the trial court, in passing upon another question, has found the parties intended to make. After hearing and weighing all of the evidence bearing upon the principal issue presented, and which the plaintiff insisted should lead to a reformation of the lease, the court found that “ the parties to said lease never at any time mutually agreed, in terms or in substance, upon a provision that the use of the route in Fourteenth street by the Twenty-Third Street Eailway Company should be restricted to that portion of the route west of Ninth avenue ; but, on the contrary, the said parties did mutually agree upon the said lease of May 20, 1884, sought to be reformed in this action.”

While the plaintiffs have made the point, with some appearance of seriousness, that the contract should be treated as something entirely different from that which its language expresses, their efforts on the trial were principally directed to the introduction of testimony tending to show that another and different agreement, than that which is expressed in the lease was contemplated by the parties. The main purpose of its introduction was of course tO' show such a situation as should entitle plaintiffs to invoke the aid of a court of equity, to the end that the contract should be so reformed as to make it represent the real intent of the parties to it. The power of the court in such case is undoubted, and its exercise has in many instances promoted the ends of justice. Many cases have been considered under this head of equity, and they have resulted in the establishment of a rule that a contract shall not be reformed on loose, contradictory or unsatisfactory evidence. Upon the plaintiff in s.uch cases rests the burden of establishing his position by a greater preponderance of evidence than is ordinarily required in civil actions. Some of the authorities have gone so far in that direction as to hold that the burden resting upon the plaintiff is precisely like that rule of the criminal law which requires that the guilt of the accused must be fully proved; that neither the preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose unless it generates full belief of the fact, to the exclusion of all reasonable doubt. In Southard v. Curley, 134 N. Y. 148; 45 St. Rep. 778, a divided court held that the authorities which received some examination at its hands did not require it to hold that this strong rule of criminal procedure had become a part of the practice in civil actions. But thoroughly well established is it that reformation of written instruments will be granted only when there is a plain mistake, clearly made out by satisfactory proofs. The purpose, in part, of inferring to the doctrine of the cases on this subject is that it may be appreciated that the rule which ordinarily governs this court in reviewing the evidence upon which a trial court has predicated its findings should certainly be not less rigorously enforced than is required in actions generally,—a rule which denies the right of this court to reverse a judgment, simply because it concludes that it would have found the facts otherwise than the jury, referee, or trial court found them, allowance being properly made for the more advantageous position occupied by him who listens to the testimony of the witnesses, observes their conduct on the stand, hears their voices, and notes the accentuation accompanying their testimony, the trial judge has found that there never was any such agreement between the parties as would have resulted had the court reformed the contract as requested by the plaintiffs. Yet the very first step which the plaintiffs were bound to take, in order to entitle them to the relief sought, was to establish that the actual agreement of all the parties to the instrument was as alleged in the complaint. The trial court, not content with finding that the plaintiffs failed to establish that the common agreement did not become a part of the written instrument, proceeded still further, and found as a fact that the lease correctly expressed the real agreement between the parties. That finding reads as follows : “The said lease of May 20, 1884, between the Christopher & Tenth Street Railroad Company and the Twenty-Third Street Railway Company and the Bleecker Street & Fulton Ferry Railroad Company, set forth in the complaint as Exhibit No. 3, fully embodies and correctly expresses the real agreement made between the said parties to the lease in question.

The findings alluded to not only justify, but require the judgment dismissing the complaint, and they have such support in the evidence as denies to this court the right to reverse them. A discussion of the evidence, which after examination we regard as amply sufficient to support the findings of fact made, will not be profitable, especially in view of the fact that they were considered at considerable length and with much care in the opinion of the court at special term.

The first exception to the admission of evidence to which our attention is called by the appellants’ brief, it is urged, presents the question whether the court properly received in evidence a complaint in a prior action between these parties, in which these defendants were the plaintiffs, and the plaintiffs in the pending action were the defendants. It was offered by the plaintiffs for the purpose, among others, of bringing to the attention of the court the fact that such complaint alleged, among other things, that the lease of May 20, 1884, reserved to the Twenty-Third Street Company the right to operate cars on Fourteenth street from Fourth to Eleventh avenue, and that such allegation was not traversed. The merits of the proposition suggested wc are preprevented from considering, because, while there was an exception taken, there was no objection made to the admission of the evidence. The record shows that, when the defendants offered the complaint in evidence, the court inquired the purpose of it, to which the plaintiffs’ counsel replied, and then it was admitted, the plaintiffs thereafter excepting. But plaintiffs had not objected in any form whatever to its admission. Their counsel was silent from the moment when the complaint was offered in evidence until after its admission. Nor did they afterwards move to strike it out. George H. Curtiss, who was elected a director of the Christopher & Tenth Street Railroad Company in June 1884, testified that he was present at a meeting in October following, when the minutes were read of the previous meeting, which contained a resolution ratifying the lease. lie was permitted to testify to the discussion which took place on the motion to adopt the minutes as read. He said that one of the directors objected that the lease did not explicitly define the rights of the companies as to Fourteenth street, and that the president replied that he had a great deal of trouble to get the lease, that it was the best he could get, but it was not intended that the Twenty-Third Street Railway Company should run east of Ninth avenue. He was then asked the following question: “ State whether or not it was your understanding, in voting for that resolution, that the lease would give to the Twenty-Third Street Railway Company the right to run cars in Fourteenth street east of Fourth avenue.”

The question was excluded on defendants’ objection, plaintiffs excepting. Had the question been a proper one, its refusal would not call for a reversal of the judgment because of the finding of fact, which the answer could not have affected, that the written lease fairly stated the common agreement arrived at by the parties before any attempt was made to reduce it to writing. But it was .properly excluded for the reason that it had already been made to appear from the testimony of the witness that the reservation was considered and discussed, the fact being commented on that it did not define the rights of the respective companies in Fourteenth street. The president gave his personal assurance, merely, that it was not intended that the Twenty-Third Street Railway Company should run east of Ninth avenue. He did not pretend to say that the lease so restricted it; and, the witness having full knowledge of the fact of the existence of the reservation clause in the lease, and its failure to define the rights of the lessor and lessee in Fourteenth street, whether he had capacity to comprehend or understand it was not material to any question before the court

The exception taken to the ruling of the court that it was without power to amend the complaint as requested presents a more interesting question. The complaint alleged that the written lease did not truly express the common agreement upon which the minds of all the persons representing the parties to it met, and that its failure to do so was owing to their mutual mistake. When reformation of a written instrument is sought, it must of course be made to appear that the error was due either to the mutual mistake of the parties, or mistake by the one and fraud on the part of the other. The complaint did not mention the second ground, and it was not the plaintiffs’ theory that the representatives of the dessor had been guilty of fraud. After plaintiffs had rested their case, and during the examination of defendants’ witnesses, evidence was elicited tending to show that the officers of the lessor had intended precisely such a lease as had been executed. Before being confronted with such testimony, plaintiff’s counsel moved the court that the complaint be amended by adding on page 11, folio 33, after the words “ by accident and mistake which was- mutual,” the following: “Or by mistake on the part of the Christopher and Tenth Street Bailroad Company, and by fraud on the part of the Twenty-Third Street Bail way Company.” The court denied the motion, on the ground that it had no power on the trial to make the amendment proposed, and the plaintiffs excepted.

Whether the court was mistaken in the position taken by it we are not agreed. One view is that by the proposed amendment it was sought to bring in a new cause of action ; while the other is that;, although at first blush it may have that appearance, such would not have been its effect. The purpose of the suit was to reform a written instrument. Belief could only be granted in case the plaintiffs should prove (1) a common agreement of all the parties, other than that expressed in the instrument; (2) the executed agreement; (3) that the insertion of the provision not agreed to was without the knowledge of any of the parties to it, or without the knowledge of one of the parties, the other having the knowledge, but concealing it. It was long ago determined that these allegations might be stated by the pleader in the alternative, and the practice thus established has been steadily followed. So, if the plaintiffs had stated in their complaint in the first instance that the insertion of a different provision than that upon which the minds of the parties met was owing to the mutual mistake of the parties, or to the mistake of the one party and the fraud of the other, the point could not have been successfully made that the complaint, while pretending to allege one cause of action, in fact joined together two inconsistent causes of action. As they may stand together when ^pleaded in the alternative, because forming a part of the appropriate allegations of a complaint setting up a cause of action to reform a contract, it necessarily follows that an amendment which states them in the alternative, where one is already expressed, cannot operate to change the cause of action. Again, if we apply the rule adopted by the court of appeals in Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; 17 St. Rep. 172, it will be at once apparent that the proposed amendment would not have resulted in alleging a new cause of action. The court said : “ It is a fair test, to determine whether a new cause of action is alleged in the amended complaint, that a recovery had upon the original complaint would have been a bar to any recovery under the amended complaint.”

It is obvious that a recovery had upon the complaint in this action would have been a bar to any recovery on a complaint as it would have been if amended as requested. As I view it, therefore, whether the court should have granted the motion, and upon what terms, at that stage of the trial, rested in its discretion, and, had it denied the motion on that ground, its decision would not have been called in question. Now, the discretion of the court was not exercised, because of the erroneous conclusion that it was without power to grant it. Is this mistake of such a character as calls for a reversal of the judgment? Clearly, it is, useless it appears beyond controversy that the result could not have been affected by it, for we cannot possibly know how the court would have decided the question had it passed upon the merits of the application. The motion, not in terms, but in effect, was one to conform the complaint to the facts proved. Its purpose was not to secure the admission of evidence which otherwise would have been excluded. Plaintiff’s testimony was all in. Thereafter they could only rebut that offered by the defendants. For that purpose no amendment was needed. Indeed, the fact appears that none of the evidence offered was excluded on the ground that it was not within the issues presented by the pleadings.

The evidence which plaintiffs’ counsel regarded as indicating fraud on the part of the officers of the lessor was introduced by the defendants. Plaintiffs’ counsel quickly attempted to so change this complaint as should enable their clients to reap.,the advantage, if any, which should accrue from such testimony. It seems to be clear that the motion made was in effect, and should be treated as, one to amend the complaint to conform to what the plaintiffs may have regarded as the facts proved. The denial of the motion, although upon untenable ground, should not bring about a reversal, if it be certain that the same judgment -would have followed. And how would it have been possible for the proposed amendment to have occasioned the working out of a different result? Before reaching the question whether the reservation clause was inserted in the lease through mutual mistake, or mistake by one. party and fraud by the other, the court had to determine whether the common agreement of all the parties was as alleged in the complaint. This question lay at the very foundation of the plaintiffs’ alleged cause of action. With that fact established, it would be entitled to have the court find how it came that the lease stated differently. But, without it, there could be no favorable finding on that subject. Now, the trial court found: (1) That there never was such an agreement between the parties as the complaint alleged; and, (2) that the lease truly expressed the common agreement of all the parties. Necessarily, then, the court could not have found that the reservation clause was inserted through the mistake of one party and the fraud of the other; and the right to have the court refuse’ to make such a finding measures all the advantage that could have accrued to the plaintiffs had the motion been granted. It follows that no harm resulted from the mistake, and therefore it does not justify a reversal of the judgment.

The judgment should be affirmed, with costs

All concur in result.


text:
    Manhattan Railway Company, Resp’t, v. Henry M. Taber et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Eminent domain—Costs.
    Where, in condemnation proceedings, the award exceeds the oiler, or no offer is made, though the company may be entitled to costs of trial of an issue, the owner is entitled to other taxable costs of the proceedings.
    2. Same—Restraining actions. '
    Section 3379 of the Code does not authorize the court, after the order of confirmation has been entered, to restrain the owner forever from maintaining action in respect to the property.
    Appeal from so much of the final order, confirming the report of commissioners appointed to appraise the damages as denied the light to costs to the landowners.

      John E. Parsons, for app’lts; Edward 0. James, for resp’t.
   Follett, J.

The order confirming the report of the commissioners awarding $30,250 damages for taking the street easements appurtenant to the abutting lands contains no provision in respect to costs, and after it was entered the defendants moved that it be modified so as to grant them taxable costs and an additional allowance, which was denied. The defendants have appealed from the final order, of confirmation “in so far only as the same fails to direct that the defendant recover of the plaintiff the costs of the proceeding, less the costs of the trial of the issues raised by the answer hereinand they have also appealed from the order of the sjiecial term denying their motion to have the order of confirmation modified so as to allow them costs, and an additional allowance.

Section 3372 of the Code of Civil Procedure provides: “If the compensation awarded shall exceed the amount of the offer with interest from the time it was made, or if no offer was made, the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding, to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the supreme court, in-eluding the allowances for proceedings before and after notice of trial; and the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded. * * * If a trial has been had, and all the issues determined in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering the costs of such trial caused by the interposition of the unsuccessful defense, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the 'supreme court.”

Under this section the plaintiff became entitled to, and has been awarded, the costs of the trial of the issue joined by the pleadings; but the fact that it became entitled to the costs of the trial does not deprive the defendants of their right to the other taxable costs of tiie proceeding. The last clause of the section quoted is not intended to deprive the defendants of their costs of the proceeding in case an unsuccessful defense is interposed to the right of the plaintiff to condemn the land, but to charge them with the costs of that issue. The question as to what costs the defendants may be entitled to recover, or whether disbursements may be taxed under the section, is not a question now before the court; but the statute gives to defendants, in case the award is greater than the offer, an absolute right to taxable costs, of which they cannot, be deprived by the court. We think the final order should have provided that the landowners recover their taxable costs, which would have enabled them to have presented to the clerk a bill of the items claimed for taxation. The record not disclosing whether the special term denied the motion for an additional allowance on the ground that the defendants, not being entitled to taxable costs, were therefore not entitled to an allowance, or on the ground that on the merits they were not entitled to such an allowance, this question must be remitted to the special term to be determined.

Section 3379 provides: “At any stage of the proceedings the court may authorize the plaintiff, if in possession of the property sought to be condemned, to continue in possession, and may stay all actions or proceedings against him on account thereof, upon giving security, or depositing such sum of money as the court may direct to be held as security for the payment of the compensation which may be finally awarded to the owner therefor and the cost of the proceeding, and in every such case the owner may conduct the proceeding to a conclusion, if the plaintiff delays or neglects to prosecute the same."

The purpose of this section is to provide a remedy for the protection of the plaintiff’s possession of the property sought to be condemned during the pendencj' of the proceedings; but it is not designed to authorize the court to grant, after the order of confirmation has been entered, an order forever restraining the defendants from maintaining actions in respect to the property. When the final order has been entered, and the award has been paid or deposited, the plaintiff is entitled to the possession of the property condemned; and the defendants, in case they appeal, are required to stipulate not to disturb the plaintiff’s possessions during the pendency of the appeal. This restraining order is not authorized by § 3379, and it should be reversed.

The order denying defendant’s motion for an amendment of the final order is reversed, which final order should be amended so as to award the defendants their taxable costs, less the costs taxed against them upon the trial of the issue formed by the pleadings; and they should be given leave to apply at special term for an additional allowance, and the restraining order should be reversed. The appellants are entitled to $10 costs, and their disbursements on this appeal.

All concur.