author:
JBeadley, J:
      Haight, J.,

text:
    ROCHESTER PRINTING COMPANY, Appellant, v. LESLIE C. LOOMIS and Others, Respondents.

      Banker — liability of, for receiving drafts when he knows himself to be hopelessly ' insolvent — right of the owner of the draft to recover it — admissibility of the inventory made by a general assignee to show the financial condition of the assignor.

    At about a quarter before four o’clock in the afternoon of December 19, 1882, the defendants delivered to one Moore, who had for some twelve years cairied on business as a private banker at Victor, N. Y., and with whom the defendants had transacted their business, a draft drawn by the defendants to Moore’s order. Moore placed the amount of the draft to the defendants’ credit, paid to them the amount of a check then drawn by them, which overdrew their account as it stood before being increased by the amount of the draft then credited to them, and on the same evening mailed the draft to the City Bank of Rochester, which failed, however, before the letter reached it. The draft was, however, placed to Moore’s credit on the books of the bank as of December nineteenth, his account being then overdrawn to the amount of $4,000. On the day after the City Bank failed a balance due from it to the plaintiff was paid by transferring to the plaintiff this draft with other securities. At the time Moore received the draft he was, and had been for a considerable time, utterly insolvent, and on the next day he made a general assignment for the benefit of his creditors.
    In this action, brought upon the draft,, the defense was interposed that the draft was obtained by Moore by means of false and fraudulent representations and concealment. Upon the trial the court submitted to the jury the single question of fact, whether or not Moore acted in good faith in the transaction in receiving the draft from the defendants, and held that if he did not the plaintiff ould not recover.
    The court was requested by the plaintiff’s counsel to charge that the defendants must show that Moore made false representations to them with intent to deceive them, and by that means procured the draft; that the defense could not be sustained unless the jury should find that the defendants were in fact deceived; that representations made to the world were not sufficient, that they must be made to the defendants.

      Held, that the court properly refused-to so charge.
    Moore had testified that he did not hear of the failure of the City Bank until between seven and eight o’clock in the evening, and that up to that time he had no intention of making an assignment.

      Held, that the court properly refused to charge that if Moore’s failure was caused by the failure of the City Bank, and he did not know until 7.30 P.M of December nineteenth that he would be obliged to fail, and had no intention of failing up to that time, the defense could not be sustained.
    Mooie had testified that the president of the City Bank, one Upton, was carrying him, and had agreed to carry and help him through.

      Held, that the court properly refused to charge that although Moore was insolvent, and knew himself to be so, yet if he honestly believed that Upton was able to and would carry him through, and relied upon that belief, he was guilty of no fraud in taking the draft.
    That it properly charged that a man cannot honestly carry on a banking business upon a mere promise of another to carry him without some security for the performance of the promise. (Haight, J., dissenting.)
    The court was requested to charge that if Moore paid on the defendants’ check, on the strength of the draft, any sum of money at the time of its discount by him, the defense could not be sustained, because it did not appear that the money was returned or its return offered; and, also, that Moore was the owner of the draft to the extent of the money he paid the defendants, and that it was good at least for that amount in the hands of any person to whom it passed.

      Held, that the court properly refused to charge as requested.
    That the right to restoration was that of Moore only, and passed to his assignee in the event that the delivery of the draft and the credit given for its amount were repudiated, and that it did not pass to the plaintiff by the transfer made by Moore of the draft. -
    It was claimed by the plaintiff that because the defendants called Moore as a witness they could not assert the incredibility of his testimony, and that, so far as it was uncontradicted by other evidence, it must be taken as true.

      Held, that this position could not be maintained; that Moore’s relation to the transaction involved was such as to make his credibility a proper question to be considered by the jury.

      Becker Y.Koch (104 N. Y., 894) followed.
    Upon the trial an inventory or schedule made by the first assignee, and another inventory or schedule made by a second assignee, appointed upon the resignation of the first, were admitted in evidence, against the plaintiff’s objection and exception, as bearing upon the financial condition of Moore. Moore testified that the books from which it appeared that the schedules were taken and made were his, and were accurately kept by him in his banking business, and that they correctly showed the accounts and the state of them up to one o’clock of December 19, 1883.

      Held, that the evidence was admissible. (Haight, J., dissenting.)

      People v. Moore (37 Hun, 84) distinguished.
    Appeal from a judgment entered upon a verdict for the defendants, at the Monroe Circuit, and from an order denying a motion for a new trial made on a case and exceptions.

      John Van Voorhis, for the appellant.
    W. H. Adams, for the respondents.
   JBeadley, J:

The action is upon a draft drawn by the defendants, in their firm name of Loomis & Woodworth, upon E. S. Tatem, of Philadelphia, of date December 19, 1882, for $983.63 wbicb it is alleged was at its date by them delivered to William C. Moore, by him indorsed and delivered to Barnard, cashier, or order, and by the latter indorsed and transferred to the plaintiff, and that it was protested for non-acceptance. The defense alleged is, that the draft was obtained by Moore from the defendants by means of false and fraudulent representations and concealment by him respecting his financial condition, and that the plaintiff is not a bona fide owner or holder for value; and the allegations of transfer to and title of the plaintiff are put in isstie.

Moore had been doing business as a private banker at Yictor, N. Y., for about twelve years. The defendants did business with him as such — they made deposits and drew checks upon his bank. This draft was delivered to him about three and three-fourths o’clock, p. m., of December 19, 1882, and at four o’clock the same day his banking office was closed, and Moore’s banking ceased. He left Yictor, and on the next day made a general assignment for the benefit of his creditors, and the drawee of the draft was by the defendants advised not to accept or pay it. The amount of the draft, less charges for exchange, etc., was by Moore placed to the credit of the defendants in their account with the banker, and it was the same evening mailed by him to the City Bank of Rochester, and before it reached there the latter bank had finally closed its doors and ceased to do business. The draft, however, was placed to the credit of Moore on its books as of date December nineteenth, against whom there in his account remained a balance of $4,000, after such credit.

At the time Moore received this draft he was and had been for considerable time utterly insolvent, and, as the jury were permitted to find, hopelessly so to his knowledge. His liabilities to depositors were $30,000, and all together his liabilities amounted to about $100,000, while his assets, as they finally turned out, were- about ten per cent of that sum. He was authorized to suppose his condition was better than that, but not that he was solvent. He had been dependent largely upon the City Bank of Rochester for currency to support his banking business, with the president of which bank he had an understanding for aid in that respect, and when that bank failed he was unable to proceed longer with his banking business. The plaintiff having a balance to its credit of $3,000 in the City Rank, was paid by it, the morning after its failure, such balance in securities, amongst which was this draft. The City Bank parted with nothing in consideration of the draft, but' merely credited it in Moore’s account. It was not nor was the plaintiff a bona fide holder of the draft. By each it was received on account of a precedent debt, and it was subject to any defense which the defendants could have made to it in the hands of Moore. It appears that a receiver was appointed of the property of the City Bank; and it is contended by the defendants’ counsel that as the transfer of the draft by the bank to the plaintiff was in violation of the statute (1 R. S., 591, §§ 8, 9), the latter took no title. But whatever may be the right to it and its proceeds, as between the receiver and the plaintiff, that question is not available to the defendants. (National Bank v. Whitney, 103 U. S., 99.)

The trial court submitted to the jury the single question of fact whether or not Moore acted in good faith in the transaction of receiving the draft from the defendants, and held that if he did not the plaintiff was not entitled to recover. In other words, whether it was an honest transaction on the part of Moore, in view of his financial condition and his understanding of it, for him to take the draft from the defendants and assume the responsibility to them which he did by placing its amount to their credit on the books kept by him as a banker. The plaintiff’s counsel took exception to the charge as so made, and to the refusal of the court to submit several propositions to the jury as requested, amongst which were the request to charge, that to establish the defense the defendants must show, that Moore made false representations to them with intent to deceive the defendants and by that means procured the draft; also, that the answer of the defendants could not be sustained unless the jury should find that they were in fact deceived; also, that representations made to the world were not sufficient that they must be made so to the defendants. The court had charged on that subject, substantially, that a banker by proclaiming himself as such, and ready to receive deposits of his customers, holds himself out as a man of sufficient means to meet the obligations he in that manner assumes; and if his condition was such, and he knew it, when he received a deposit in the course of business with his customer, that he was likely to be incapable of meeting the demand for it, he was bound to disclose that situation before he received the deposit; that men assuming that relation cannot be permitted to take the money of their customers when they know that they are unable to repay and likely to be compelled to suspend; that mere insolvency does not necessarily render the receipt of money by a banker fraudulent; but insolvency which is hopeless and irremediable and renders him liable to shut his doors at any moment makes it improper for him to continue the business of taking deposits, without notice of his situation to customers; that the fact to be found is whether this deposit was received by Moore in good faith under circumstances which rendered it honest on his part to receive it, or whether it was dishonest and fraudulent towards his customers, the defendants, to receive it; that if a man is doing banking business fraudulently all the time it is not necessary that he should entertain a particular fraudulent intent in each particular instance in which he receives deposits; that if this transaction was fraudulent on the part of Moore, the defense is established, and that if it was honest on his part the plaintiff is entitled to recover. The charge as made covered the ground and stated fairly, we think, the proposition of fact which was for the consideration of the jury and to be determined by them to reach a result. The relation between a banker and his customers is in some degree confidential, and he, it must be assumed, understands that they make with him deposits upon the faith and reliance that he is financially able to pay their drafts upon him for an amount equal to their deposits. And the relation that he assumes in view of the nature of his business as such banker is, in practical effect, a representation on his part that he is able to do so. And if he is in an irretrievable condition of insolvency, so that he knows or has reason to suppose that he cannot meet the engagements he assumes when he takes the funds of his customers deposited to be placed to their credit, the transaction may involve an implied representation or concealment .which characterizes it as fraudulent on the part of the banker. (Anonymous, 67 N. Y., 598; Cragie v. Hadley, 99 N. Y., 131.) The defendants had been customers of Moore in his relation of banker for several months. And their defense did not necessarily depend upon representations expressly made by him to them in respect to his financial condition and ability, but might be implied from the relation he assumed as a banker, by means of which invitation was extended alike to them and others to open an account and deposit their moneys with him. It is true that deception was necessary to fraud, and unless the defendants were deceived they had no defense, but there is no evidence that they had any knowledge Oi information when they made this deposit that Moore was insolvent or was not responsible for all the obligations he assumed. And, therefore, in view of the charge as made the court was not required to further charge specifically that they must have been in fact deceived to constitute a defense. It may have been otherwise if the jury had been permitted to find that the defendants had any notice of the financial embarrasment of Moore at the time the deposit in question was made with him. There seems to have been no error in the refusal to charge those propositions as requested.

The court was also requested to charge the jury that if they believed the testimony of Moore that he intended and expected to go on in the business at the time he took the draft, no matter how poor grounds he had for that expectation, if he did so intend honT estly, the defense could not be maintained; also, that if his failure was caused by the failure of the City Bank and he did not know until 7.30 o’clock p m. of December nineteen, that he would be obliged to fail, and had no intention of failing up to that time, the defense cannot be sustained, also, that if he honestly believed that Upton was able to and would cany him. although Moore was insolvent and knew it, if he relied upon that belief, he was guilty of no fraud in taking the draft. And to the refusal to charge those propositions, respectively,, exceptions were taken. Moore had testified that he heard of the failure of the City Bank between seven and eight o’clock in the evening, and up to that time he had no intention of making an assignment; that Upton (who was president of the City Bank) was carrying him, and had agreed to carry and help him through. The expectation and intention of Moore, founded wholly upon the promise of Upton, resting in no legal obligation to perform it, may have been 8 matter properly for the consideration of the jury on the question submitted to them, but it was not necessarily sufficient to relieve Moore from the impu tation of inexcusable deception of his customers. It may be that if the City Bank had not failed he would have obtained from it a supply to carry him along, and its failure may, in that view, have caused him to suspend business, and that he believed that he would, through Upton, be thus relieved.

These circumstances were not wholly excluded from the consideration of the jury. But the court did charge in that respect that a man cannot honestly carry on banking business upon a mere promise of another to carry him without some security for the performance of the promise. It will be observed that no legal duty had been assumed by Upton to provide Moore with currency to do his business. Good faith toward his customers required something more for its support than mere expectation that funds would be supplied to enable him to meet his obligations to his depositors. The expectation must be founded upon some right of property, or in some legal duty furnishing in a reasonable degree the right to suppose that his wants would be supplied, or that his demand for that purpose eould be in some manner enforced. If A. should without capital open a banking office, and announce to the public by appearances that he is a banker, and proceed to receive the people’s money on deposit, which he cannot and does not repay, it can hardly, in the legal sense, or necessarily be regarded as an honest enterprise cn his part, merely because B. had given him assurance unsupported by liability, that he would furnish him money as he should Norn time to time need it. The situation represented by the banker is that of ability founded upon capital under his control to meet his engagements, and if he has it not, his customers are deceived and misled by the appearance he gives to his invitation for patronage. And this deception he has no right to produce whatever may be his hopes founded, neither on capital of his own, or upon any personal obligation of another which- he has any power to command or enforce. At all events, whatever may be his hope or expectation under such circumstances, he would not necessarily be relieved from the charge of fraud in obtaining moneys which he has failed and is unable to repay. The request to charge called for more instruction to the jury than the court was required to give them.

It appeared that at the time of the delivery of the draft to Moore, the cheek of the defendants’ for $365, was also presented for payment,-and paid by him, and that the defendants’ balance in their account there, exclusive of tbe draft, was then $180.56 less than the amount of the check.

The court was requested to charge that if Moore paid on the defendants’ check, on the strength of the draft, any sum of money at the time of its discount by him, the defense could not be sustained, because it does not appear that the money was returned or its return offered. Also, that Moore was the owner of the draft to the extent of the money he paid the defendants, and that it was good at least for that amount in the hands of any person to whom it passed. And to the refusal to charge those propositions, respectively, the defendants’ counsel excepted. If the action had been brought by Moore, it may be seen that the defendants should have refunded to him or offered to pay the excess received from him of the amount of their balance, because the defense is founded upon a rescission of the transaction in respect to the draft for fraud. (Baird v. Mayor, 96 N. Y., 567); Gould v. Cayuga Co. N. Bank, 99 id., 333.) But the right to restoration was that of Moore only, and passed to his assignee in the event that the delivery of the draft and credit given for its amount are repudiated and did not pass by the transfer made by Moore of the draft. The defense, if effectual, goes to the draft entire; and as the plaintiff is not entitled, in any event, to the amount advanced by Moore, it is not in a position to assert the failure to return or offer to restore that amount as essential to the defense. So far as appears by the record, the right to that is in Moore’s assignee, if recovery upon the draft is defeated. The defense can be supported upon the ground only, that the transfer of it to Moore was rendered wholly void by fraud. And, therefore, no right of action for any amount exists upon it. If this view is correct, those exceptions were not well taken.

The contention that because the defendants called Moore as a witness they cannot assert the incredibility of his testimony, and that so far as it is uncontradicted by other evidence it must be taken as true, and the exceptions founded upon those propositions are not supported. His relation to the transaction involved is such that his credibility was properly a question for the jury, notwithstanding the fact that he became a witness at the instance of the defendants. (Becker v. Koch, 104 N. Y., 394.) There was no evidence to permit the conclusion that the City Bank was a bona fide holder of the draft, and there was no error in the refusal to submit that question to the jury. It was aent by Moore to apply upon his account there, and was credited to him accordingly by way of application upon an existing balance against him at the bank. There is no opportunity furnished by the evidence to say that the City Bank parted with any money or assumed any obligation upon the faith of this draft. Nor would the jury have been justified in finding that the plaintiff was a bona fide holder of it. As did the bank, the plaintiff received it on account of a precedent debt and parted with no security it then had. (Phœnix Ins. Co. v. Church, 81 N. Y., 218; Noel v. Murray, 13 id., 167.)

The assignee of Moore made an inventory or schedule, because the assignor failed to do so. (Laws 1877, chap. 466, § 3, sub. 5, as amended Laws 1878, chap. 318.) And having resigned another person was substituted as such assignee, who also made a schedule of the assigned property. Objections and exceptions were taken to the reception of these schedules in evidence. At the time they were offered and received their admissibility was somewhat questionable, but we think with what then appeared the evidence subsequently introduced sufficiently tended to verify the schedules as correct, and in that view the question presented at the time they were introduced, was one of order of proof. When the question of the competency of these schedules was before us in People v. Moore (37 Hun, 84), some of the evidence here, quite material, as bearing upon the correctness of those schedules was wanting, and the remarks there made upon the question are not necessarily applicable here. This evidence was introduced as bearing upon the financial condition of Moore. And he testified that the books, from which it appears the schedules were taken and made were his and were accurately kept by him in his banking business, and that they correctly showed the accounts and the state of them up to one o’clock of December 19, 1882. The objection, as made, did not require the production of the books of Moore. We have examined all the numerous exceptions, not specifically referred to, and think there was no error upon the trial to the prejudice of the plaintiff, and that the verdict is fairly supported by the evidence.

The judgment and order should be affirmed.

Smith, P. J., concurred.

Haight, J.,

dissented upon the grounds that it was error to charge as a matter of law that “a man cannot honestly carry on the business of banking upon a mere promise of another to carry him.” [Schufeldt v. Schnitzler, 21 Hun, 462, 465), and that the schedules were improperly admitted as evidence against the plaintiff. (Tyler v. Brock, 68 N. Y., 418; Turner v. See, 57 id., 667; People v. Moore, 37 Hun, 84, 95.)

Judgment and order affirmed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LINSLEY M. GOULD, Appellant, v. THE CITY OF ROCHESTER, Respondent.

      City ordinances — power of the city of Rochester to appoint an inspector of weights and measures — when an ordinance is not unreasonable because conferring upon the inspector discretionary powers as to the time) of inspection.

      Certiorari to review the proceedings and judgment of the Police Court of the city of Eochester, convicting the relator of violating an ordinance of that city, providing that “it shall be the duty of the city sealer, and he is hereby authorized, to inspect and examine, at least once in every six months hereafter, and as much oftener. as he thinks proper, all weights and measures used by any corporation, merchant, retailer, trader or dealer for weighing or measuring. Such weights and measures shall be inspected at the place or places where the same are kept for use, but if such weights and measures shall be found not conformable to the standard, they shall be sent by the owner or owners thereof to such place in said city as the sealer shall direct for the purpose of being sealed, within three days after such owner or owners shall be required to do so by said sealer.”

      Held, that the common council was authorized by the provisions of its charter to make the ordinance.
    That the provision authorizing the sealer to inspect and examine the weights and measures “as much oftener” as he thought proper was not an unseasonable one.
    That the common council had power to insert the provision giving to the sealer authority to require the merchant to send his weights and measures to such places in the city as he might direct.
    That the relator was not in a position to attack these provisions, as it did not appear that the time at which he was requested to exhibit his weights for inspection, was within the period of six months of any previous examination by the officer, nor was his conviction founded upon a refusal to send the weights to any place for correction and sealing, but for a refusal to exhibit them.

      Ceetioeaei to the police justice of tbe city of Rochester to review the proceedings and judgment of the Police Court convicting the relator of a violation of an ordinance of the city and imposing upon him the payment of the penalty prescribed by it for such violation.

      Thomas & Desmond, for the relator.

      Henry J. Sullivan, for the defendant.
   Bradley, J.:

The relator was arrested upon a warrant issued against him and taken before the Police Court of the city of Rochester upon the charge that he had violated a city ordinance which provided that (sec. 3) “ it shall be the duty of the city sealer, and he is hereby authorized, to inspect and examine, at least once in every six months hereafter, and as much oftener as he thinks proper, all weights and measures used by any corporation, merchant, retailer, trader or dealer, for weighing or measuring. Such weights and measures shall be inspected at the place or places where the same are kept for use, but if such weights and measures shall be found not conformable to the standard they shall be sent by the owner or owners thereof to such place in said city as the sealer shall direct, for the purpose of being sealed, within three days after such owner or owners shall be required to do so by said sealer. If any such corporation, merchant, retailer, trader or dealer shall refuse to exhibit any such weights and measures to the said sealer when required to do so by him, or in any manner obstruct such sealer in the performance of the duties hereby enjoined upon him., or shall refuse or neglect to send any such weights or measures for the purpose of being sealed/as aforesaid, within the time and to the place aforesaid, he shall forfeit and pay a penalty of ten dollars for each offense.”

The relator was a retail grocer in the city, and the particular violation charged against him, and which the evidence tended to prove, was that on July 20, 1886, the sealer went to his store for the purpose of examining and sealing his weights, and that the relator by force prevented him from doing so, and refused to exhibit to the sealer his weights after he was requested by him to do so. This ordinance purports to have been passed November 30, 1880, and the power to pass ordinances upon the subject is given by the statute, which provides: “ The common council may make such orders and by-laws as it shall deem proper and necessary, and, further, it shall have power to make such ordinances, by-laws and regulations as it may deem desirable within the said city for the following purposes : To require every merchant, retailer, trader and dealer in merchandise or property of any description which is sold by measure or weight to cause their weights and measures to be sealed by the city sealer, and to subject to his inspection, and may impose penalties for any violation of any such such ordinance.” (Laws of 1880, chap. 14, § 40, sub. 28.) And may for violation of its ordinances prescribe a penalty not exceeding $150, etc. (Id., § 43.) The statute also provides for the appointment of a sealer for the city (Id., §§ 6, 8), and that he shall possess the like powers, be subject to like obligations, and receive the same fees as the sealers of weights and measures of the several towns of the State. (Id,, § 78.) The subject of regulation of the standard of weights and measures and of requiring dealers and traders to conform to it, and the appointment and election of officers for that purpose, have been matters of legislation in this State from an early day (Laws of 1784, chap. 25; Laws of 1813 [1 R. L.], 376; 1 R. S., 606), and is recognized by the Constitution (art. 5, § 8).

It is done for the benefit and protection of the public, and is in the nature of police regulations, and clearly within the legislative power which may also be conferred upon municipal corporations to provide by ordinances a system, and for its execution to require within their respective limits conformity to the established standard of weights and measures by dealers who have occasion to use them in their business. (Buffalo v. Webster, 10 Wend., 99; Stokes v. New York, 14 id., 87.) The ordinances must be reasonable in their provisions. It is contended that the one in question is unreasonable because it provides not only that the sealer may every six months, but “ as much oftener ” as he thinks proper, inspect and examine the weights and measures. The objection made is to this discretionary power sought to be given to the officer to inspect and examine as often as he may think proper to do so. The purpose of the statute, the ordinance, and of the creation of the office, and fur-irishing the officer, is the protection of the public by seeing that the measure in weight and bulk by which sales and purchases are made corresponds with the standard, and, therefore, this matter is placed under the supervision of this officer, and powér is necessarily vested in him to accomplish the object in view. To render the system and its purpose effectual it may be quite necessary that he should have this power given to him in that respect. And the time and circumstances which may require inspection and examination of the weights and measures of a dealer is very properly, to some extent, left to his judgment. His duty requires it every six months. Attention may be required at intermediate times to a greater or less extent, and when he deems it necessary his authority enables him to see that the law is not violated intentionally or by mistake. It cannot be assumed that in the exercise of the power devolved upon him, the officer will be governed by any motive other than such as in his judgment the discharge of his duty requires. It is also urged that it was not in the power of the common council to embrace, within the powers given the sealer, authority to require the merchant to send his weights and measures to such place in the city as the officer may direct. It will be observed that this provision becomes applicable only in the event that they are not in conformity with the standard, and then they are to be sent to such place to be brought into such conformity and sealed. This may properly require something done which cannot conveniently be performed at the store,' and to do which the officer may have a suitable place.

Section 18, before referred to of the statute, applies the powers and obligations of the town sealers to the officer in question. By reference to the powers and duties possessed by them it will be observed that it is contemplated that when weights and measures in use do hot conform to the standard, the sealer will or may make them so correspond and seal them. (1 R. S., 610, § 28.) It is evidently with that view that the sealer may deem it advisable to provide a place for that service, and we see in such provision no impropriety, assuming, as we do, that the officer at all times when engaged in official duty will act in good faith. It is quite certain that when the implements for measure and weight do hot correspond with the requirement, the owner has no lawful use for them in his mercantile business. But these criticised provisions of the ordinance furnish no cause of complaint for the relator. It does not appear that the time he was requested to exhibit his weights for inspection was within the period of six months of any previous examination of them by the officer, or that his alleged violation of the ordinance was founded upon refusal to send the weights to any place for correction and sealing. And whatever view may be taken of those it does not affect the validity of the other provisions of the ordinance, as they are not dependent upon each other for practical application and effect. (Rogers v. Jones, 1 Wend., 237; People ex rel. City of Rochester v. Briggs, 50 N. Y., 553, 566.)

It is also contended that this alleged ordinance never became effectual as such, because not passed by the common council, or not in the manner requisite for such purpose. A copy of this, with other sections, all of which, numbered 1, 2, 3, 4 and 5, purporting to have been passed November 30, 1880, certified by the clerk of the city with the seal of the corporation annexed was offered and received in evidence in the Police Court This was competent and prima faoie evidence of the ordinance and its proper passage. (Laws, 1880, chap. 14, § 44.) The several sections related to the one subject of the regulation of weights and measures. The city clerk was called as a witness, and testified “ that the ordinance produced and offered in evidence was a true copy of a penal ordinance of the city of Rochester relating to weights and measures enacted and adopted by the common council on November 30, 1880.” And on his cross-examination he said he had the original minutes of the council of its meeting of Nevember 30, 1880, and that he found an entry which he read in these words, the penal ordinances were adopted by the following vote,” to which is added “yeas,” followed by the names of sixteen persons with none in the negative. The witness further says, this is the only entry which I find relating to penal ordinances.” Upon this the relator’s counsel objected to the reception of the certified copy in evidence upon the ground that it appeared from the clerk’s minutes of the proceedings of the common council, on November 30, 1880, that no such ordinance was passed.

It is difficult to see the force claimed by the counsel for the relator for this evidence of the clerk, and of the objections taken. The entry of the vote of the common council and of its effect, as declared, was that penal ordinances were adopted on that day, and It will be assumed that it was properly done in support of the performance of official duty until the contrary appears. The book itself was not put in evidence, and it is not before us to show what it did contain, and we have no proof in that respect except that given by the clerk. The fact that the entry read was the only one he found there relating to penal ordinances does not necessarily overcome the evidence that such ordinances were in fact passed that day. The court found against the relator on the fact. And the party alleging error must clearly establish the foundation for its support, as all reasonable intendments go to sustain the conclusion and judgment of the court which is in review. There seems to be no other question requiring consideration.

The judgment shoirid be affirmed.

Smith, P. J., and Haight, J., concurred.

Judgment affirmed, with ten dollars costs and disbursements.


author: BRADLEY, J. J

text:
    In the Matter of the Probate of the Last Will of MANDAME MARSH, Deceased.

      Lost or destroyed will — admissibility, in an aciion to establish it, of deela/rations of the testator that he had a will.

    In tljjs proceeding, instituted in a Surrogate’s Court to establish and prove a will which it was claimed had been made by the testatrix, but could not be found after her death, it appeared that a will had been duly executed and published by the testatrix, and that she had taken the same into her own custody, and it did not appear that it was thereafter seen by any other person prior to her death. TJpon the trial evidence of the declarations of the testatrix, made from time to time and up to a short time prior to her death, to the effect- that she had a will, and that by it she had given her property to her granddaughter Kuth, were received against the objection and exception of the contestant.

      Held, that the evidence was competent.
    The cases bearing upon the admissibility of such declarations in this and other States, collated and examined by Bradley. J., and the opinion expressed that so far as the existence of a will shown to have been duly executed may depend upon the intent of the testator without the aid of any act, his declarations may be competent as some evidence of his intent as of the time they are made, but that such evidence should be carefully scrutinized and cautiously weighed.

      Appeal from a decree of the Surrogate's Court of Chautauqua county, declaring established and admitting to probate the last will of Mándame Marsh, deceased.

      John B, Wielcs, for the contestant, appellant.

      A. G. Wade, for the proponent, respondent.
   BRADLEY, J. J

The testatrix made her will in the fall of 1873, by which she devised and bequeathed all her property to Ruth Marsh, her granddaughter, and died November 26, 1881, at her house in Jamestown, where she had for many years resided. After her death, search was made for her will and it was not found. This proceeding was instituted in the Surrogate's Court upon the petition of Ruth, the legatee, to establish and prove the will pursuant to the statute. (Code Civil Pro., § 2621.) The will was duly executed and published, and the testatrix took it into her custody; and it .does not appear that thereafter, prior to her death, it was seen by any other person. The fact that no will was found after her death raises the presunxption that it was destroyed by her animo revoecmdi, and it could not be proved as a lost or destroyed will unless shown to have been in existence at the death of the testatrix, or to have been fraudulently destroyed in her lifetime. (2 R. S., 68, § 67; Code, § 1865; Betts v. Jackson, 6 Wend., 173; Idley v. Bowen, 11 id., 236; Knapp v. Knapp, 10 N. Y., 276.) There is evidence tending to prove that the relations between her and her son, Albert Mai’sh, who is the father of Ruth, had not been agreeable for some years dating back of the execution of the will, and that he was not in the habit of visiting her, although they resided in the same town, and that his relations with his daughter Ruth were not pleasant, and they had not spoken together for two or three years prior to the death of the testatrix; that a close friendly relation had existed between her and Ruth, who, at the time of such death, was seventeen years of age and had been married about two years, and during that time the testatrix had been residing in her house alone; that the day before her death she was found insensible, and remained so until she died, and communicated with no one during that time; that immediately after her death her son gathered up tbe papers and some other things about the house, and carried them away, and for that purpose the evidence permits the conclusion that he diligently searched for her papers in the drawers, boxes and other places where she did or was likely to keep them. And there is evidence to the effect that he inquired and ascertained that his mother had made a will, and that he said that if he found it he should destroy it, and if he did not find it should contest it. He denies that he made this last statement. But the evidence authorized the conclusion of the trial court that he did express such purpose, and, to consummate it, made a search for the will, and if the evidence permitted the court to find that the testatrix did leave a will at the time of her death, the further inference was 2ustified that it was taken by the son from the house and by him suppressed or destroyed. The son Albert filed objections to the proof of the will, and alleged that the testatrix died intestate, and appeared as contestant in the proceedings, and took this appeal from the decree of the Surrogate’s Court. But it does not appear by the record before us that any findings of fact or conclusions of law were made by the surrogate, or that any exceptions were taken to any such findings either of fact or law. So that no question upon the merits seems to be presented here for consideration, in the manner required to permit any review in that respect. (Code Civil Pro., § 2545; Angevine v. Jackson, 103 N. Y., 470.) It is, therefore, unnecessary to further consider the evidence and its sufficiency in reference to the facts requisite to the establishment and probate of a will in such cases. But a question arises upon exceptions taken to the admission of evidence of the declarations of the testatrix made from time to time and up to a short time prior to her death, to the effect that she had a will and by it had given her property to Ruth. This evidence was evidently given as bearing upon her intention as of the time they were made and to repel the presumption that she had during her life revoked the will (which it appeared she had made) and as tending to prove that it was in her possession up to the time of her death. The eases in this State and elsewhere are not entirely in harmony on this question. In Dan v. Brown (4 Cow., 483), which was a proceeding for the partition of land, evidence of this character was received without objection, but on review ’Woodworth, J., remarked that he did not lay any stress upon the declarations of the testator. They were made long after the execution of tbe will and shortly before bis death. They are not evidence unless they relate to the res gestee or to an act done.” In Jackson v. Betts (6 Cow., 377), which was an action of ejectment involving the consideration of the same will, the declarations referred to of the testator were rejected and the plaintiff nonsuited, and although a new trial was granted on review, on the gi’ound that the evidence was sufficient to go to the jury, Sutherland, J., said : “ The declarations of the testator during his last sickness as to the existence of his will and the place where it would be found were incompetent evidence and were properly rejected by the judge. This point was decided in Dan v. Brown (4 Cow., 490), in relation to this very will.” The case of Jackson v Betts, after another trial, came up for review again (9 C w., 208), in which the question now under consideration was not presented, but the case went off on the ground that no presumption of revocation by the testator of a will which he had made, arose from the mere fact that it was not found after his death. The Court of Errors on review (6 Wendell, 173), held to the contrary and reversed the court below. The chancellor, however, in referring to the decision of the court (reported in 6 Cow. R.), that evidence of the declarations of the testator was not admissible, remarked that there was sufficient doubt as to the correctness of the decision of the Supreme Court on that point to authorize them to direct a reargument of the question if it should again come there.

In Knapp v. Knapp (10 N. Y., 276) evidence of the declarations of the testator, made awhile before his death, that he had made a will and it was in his desk, was received without objection. The views of the court in the cases cited, so far as they express any determination, are against the admissibility of evidence of such declarations. But it may be observed that in the case where that decision was announced, the determination of the question was not necessary to the result given, as the view of the trial court was in that respect approved on review, and a. new trial was granted for the reason before mentioned. (6 Cow., 377.) But in Waterman v. Whitney (11 N. Y., 157) after referring to the cases of Dan v. Brown and Jackson v. Betts, Selden, J., in delivering the opinion, adds: “ I consider these cases as establishing the doctrine that upon a question of revocation no declarations of tbe testator are admissible except such as accompany tbe act by wbieb tbe will is revoked, such declarations being received as a part of tbe res gestae, and for tbe purpose of showing tbe intent of tbe act.”- That case bas since been treated in tbis State as declaring tbe correct and governing rule on tbis subject. (Sisson v. Conger, 1 T. & C., 564; Cudney v. Cudney, 68 N. Y., 148; Eighmy v. People, 79 id., 546, 558; Mark v. McGlynn, 88 id., 374; Sanford v. Ellithorp, 95 N. Y., 54.) Tbe doctrine of tbe Waterman case is that tbe declarations of tbe testator are not competent evidence in support of revocation of a will unless they accompany some act in that respect, but are competent as bearing upon bis mental condition as of the time of making bis will, when pertinent for that purpose. And such was tbe view of tbe court in Jackson v. Kniffen (2 Johns., 31).

There is no question in this case about the sound and disposing condition of tbe mind of tbe testatrix at .the time she made her will, and no circumstances appearing to give competency to her declarations for any other purpose than as tending to repel tbe presumption of revocation of her will. And tbe Waterman case is distinguished from tbis one in tbe fact only, that such evidence there was sought to be used to prove tbe act of revocation, while in tbe case at bar such declarations were given in evidence to prove no act by way or revocation or otherwise, but to show that she then had no intention to revoke her will. Tbe question whether tbe distinction is substantial and may be observed. in support of tbe ruling of tbe court below may be one of some doubt and difficulty Our attention is called to cases decided in England and in this country in support of tbe admissibility of evidence of such character. In Whiteley v. King (17 C. B. [N. S.], 756), it was held that declarations like those in question of a testator were competent and cogent evidence on tbe question of bis intention in that respect, when his will was not found or produced after bis death, and against tbe presumption of revocation arising from its non-production. And in Sugden v. Lord St. Leonards (1 L. R. P. D., 154; S. C., 17 Moak, 453) it was held that the declarations of- a testator, made both before and after tbe execution of bis will, are, in the event of its loss/ admissible as secondary evidence of its contents; and there tbe proposition is repeated that tbe declarations of a testator, are admitted “ to show the continuing existence of tbe will at the time they were made, and so rebut the presumption of the will having been destroyed animo revoccmdi.”

In the Matter of Johnson’s Will (40 Conn., 587) it was held that the declarations of the testator, to the effect that he was leaving a will, were admissible for the purpose of showing that he had not revoked his will, which was not found after his death. In Foster’s Appeal (87 Penn. St., 67) evidence of like character was received and considered upon the question, and to repel the presumption of revocation. And see, to the same effect, Steele v. Price (5 B. Monroe, 58). The evidence of this character involves no act other than that of continued possession by the testator of his will. And it may be somewhat difficult to so apply the principles upon which the general rules of evidence are established as to demonstrate the admissibility of the declarations in question, unless the custody of the will by him, from the time of its execution may be treated as included within the res gestee, and such evidence admissible as characterizing the possession and competent on the question of intent, and not as bearing upon any act, testamentary or otherwise, of the testator (Keen v. Keen, L. R., 3 P. & D., 105; S. C., 7 Moak, 341; Collagan v. Burns, 57 Me., 449; Patterson v. Hickey, 32 Geo., 156; Schouler on Wills, § 403.)

In this fact is found the distinction between the evidence of declarations like those in question, and of declarations to the effect that the testator had revoked his will, because in the latter the act creates and constitutes the res gestee, and intent is ineffectual to produce that result, while in the former intent is sufficient to preserve the will, and if valid render it effectual after his death. The proof of lost wills rests in secondary evidence, and we are inclined to think that so far as the existence of a will, shown to have been duly executed, may depend upon the intent of the testator without the aid of any act, his declarations may be competent as some evidence of his intent as of the time they are made, but that such evidence should be carefully scrutinized and cautiously weighed. (Grant v. Grant, 1 Sandf. Ch., 237.) While this proposition does not, so far as we have been able to discover, have the support of any adjudication in this State, we find no case where the contrary of it has necessarily been decided upon review. With some hesitation the conclusion is reached that the evidence referred to was competent.

As appears by the record, the objection was not that the declarations, as such, of the testatrix were necessarily incompetent, but that those which the evidence was offered to prove were too remote from the time of her death to render them competent. We think that was not a tenable ground for their exclusion, although it went to the effect of the evidence. There were some objections and exceptions taken to evidence of minor importance which are not entitled to consideration, in view of the rule in such cases that the decree “shall not be reversed for an error in admitting or rejecting evidence unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.” (Code of Civil Pro., § 2545.) There seems to have been no errors in the rulings of the court below to the prejudice of the appellant.

The decree should be affirmed.

Smith, P. J., and Haight, J., concurred

Decree affirmed, with costs to be paid by the appellant.


author: Bradley, J. :

text:
    JOHN Y. MONAGHAN, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Liability of a railroad company for injuries sustained by its employes — when it is not liable f 'or the negligence of a telegra/ph operator employed by it — an engineer running a locomotive with knowledge of its defective condition, cannot recover for injuries resulting from such defeats.

    The plaintiff, a locomotive engineer in the service of the defendant, after having returned from a trip, made with an engine and a train of cars from Rochester to Lyons, detached his engine from the train, ran to a Y, in the western part of the city of Rochester, to turn the engine around, and having done so was proceeding east with the engine when it was run into hy another engine and the plaintiff received the injuries to recover damages for which this action was brought. Owing to the fact that the defendant was, at the time of the accident, engaged in elevating its tracks through the city, all trains going east through the city, west of York street, ran upon a single track; all the trains from Buffalo, Niagara Falls and Charlotte, which ran west of Childs street (the street next west of Y ork street and distant 300 feet from, it), having usually six tracks to run upon, being compelled to run upon one track, the continuation of the track known as No. 3. When the plaintiff was returning on the Niagara Falls track a freight train, heading east standing on track No. 3, cut off his view of track No. 1, on which stood an engine and caboose, also headed east.
    The defendant had a telegraph station at Childs street from which signals were to be given to regulate the movement of trains going east, and its rules required that east-bound trains, from the Niagara Falls line and Charlotte, should stop at Childs street, before entering upon the four tracks, until the operators gave them the signal to go ahead.. As the plaintiff came in on the Niagara Falls track a person from the station gave a signal to proceed, which was taken by the three engineers as applicable to them, respectively, but the engineer of the freight train, on being advised that it was not meant for him, stopped while the engine on track No. 1 proceeded and met and collided with the plaintiff’s engine at the point of junction.

      Held, that the plaintiff could not recover upon the ground that he was placed in the position which caused the collision by the fault and negligence of the defendant’s telegraph operator and that his negligence was that of the defendant, as the telegraph operator was a co-employe of the plaintiff, and neither his competency nor the sufficiency of the rules and their reasonable application to the sitution were questioned.
    It was claimed by the plaintiff that the injury was occasioned by the defective condition of his locomotive, evidence being given which tended to prove that the flues and throttle, and the valves in the cylinder or steam chest, leaked, and that the brake was out of repair and useless.

      Held, that as the evidence showed that the plaintiff was an engineer of some years’ experience, and that he proceeded to run the engine with full knowledge and appreciation of the condition of the engine, the defendant was not liable to him for the consequences resulting therefrom.
    MotioN by the plaintiff for a new trial on exceptions taken at Monroe Circuit, and ordered beard at General Term in tbe first instance.
    The action was brought to recover damages for personal injuries of the plaintiff alleged to have been occasioned by the negligence of the defendant. At the close of the evidence on the part of the plaintiff a nonsuit was directed. He moved for a new trial.

      William S. Oliver, for the plaintiff.

      A. H. Harris, for the defendant.
   Bradley, J. :

The plaintiff, a locomotive engineer in the service of the defendant, made a trip on the defendant’s road from Rochester to Lyons and return on the morning of May 21, 1882, with an engine and train of cars. After bis return the engine was detached from the train and run to a Y in the western part of the city of Rochester to turn it around, and haying done so, he was proceeding east with the engine when it was run into by another engine and the plaintiff received severe personal injury. The defendant was then engaged in elevating its tracks through the city, in consequence of which its then provision was such that all trains going east through the city west of York street were run upon a single track. This situation brought there on to the single track the trains from Buffalo, Niagara Falls and Charlotte. The next street west of York street, and 300 feet therefrom, is Childs street, west from which were six tracks of the defendant’s road numbered, from the south, one to six. The Buffalo track was No. 1 and the Niagara Falls track came in from the northerly side. And the single track, to which the convergence was made at or near York street to proceed east therefrom, was No. 2.

When the plaintiff was returning from the Y on the Niagara Falls track there was a freight train headed east standing on track No 3, and from 100 to 200 feet west of Childs street, which the evidence tends to prove cut off his view from an engine and caboose on the Buffalo track No. 1, also headed east. The defendant had a telegraph station at Childs street from which signals were to be given to regulate the movement of trains going east, and its rules required that east bound trains from the Falls line and Charlotte should stop at Childs street before entering upon the four tracks until the operator gave them signal to go ahead, and that no east bound freight trains on main line pass Childs street until told by the operator .that all was clear. As the plaintiff with his engine came in on the Falls track, and some distance west of Childs street, he, by the use of the steam whistle of his engine, sought to call the attention of the operator to his situation, and a person from the station gave a signal to proceed, which war taken by the three engineers, whose engines were situated as before mentioned, as applicable to them respectively, but the engineer of the freight train was advised that it was not intended for him, and his train remained, while the engine on track IS o. 1, and that in charge of the plaintiff proceeded forward. They passed tbe freight train about the same time, the plaintiffs a little in advanee of the other. Immediately after passing the freight train, the plaintiff commenced to diagonally cross the main tracks to reach No. 2, and the engine which came in on track No. 1 was proceeding to the same point, the junction of which was near York street. It seems that the signal from the operator to go forward was intended only for the engine and caboose on the Buffalo track, and when the plaintiff’s engine came on to Childs street, signal was given to him to stop, which he undertook to do by shutting off steam and reversal of the motive power of his engine, and seeing that it did not stop the engine, and that it was too far ahead to stop in time to avoid collision, he concluded to restore the power to give it forward motion, and in his attempt to change the reverse lever for that purpose the throttle or handle blew out and he could not operate the lever, and the pressure of the steam remained reversed and tended to stay its forward motion, although the pressure was so low that the engine continued to move ahead; and the approaching engine struck the tender of the plaintiff’s engine producing the collision and injury complained of. The plaintiff charges that the injury was occasioned by the defective condition of the engine, also that the plaintiff was placed in the position which caused the collision by the fault and negligence of the defendant’s telegraph operator at Childs street station, and that his negligence was that of the defendant. The relation of representative, in the sense requisite to render the performance of an act of the servant that of the principal, does not necessarily depend upon his rank in the service, but upon the character of the act he is called upon to perform. (Crispin v. Babbitt, 81 N. Y., 516.) In view of the situation at the location in question the defendant had organized a system with a view to the operation with reasonable dispatch and safety of this portion of its road. It had made rules for that purpose, of which the plaintiff was advised, and had employed men to conduct that system, direct its execution, and to aid in the observance of the rules so provided. There is no question about the sufficiency of these rules and their reasonable application to the situation. The telegraph operator was charged with important duties at that point, as upon him was imposed the duty of controlling and directing the movement of trains there. This was within the system which the rules provided for at that particular locality, and did not make him the alter ego of the defendant. (Slater v. Jewett, 85 N. Y., 61.) The service required of him was within and subordinate to a department of the business of the company, in the performance of which he necessarily had to exercise some discretion and judgment in giving preference by means of signals in the movement of trains on to the single track, with view to the safety and protection of persons and property, and for the orderly operation of the road, but that did not make his judgment that of the company as between it and its employes. It was only a grade in relation of co-employe, and it is sufficient that he was competent for the place, which is not questioned. (Brick v. R. N. Y. and P. R. R. Co., 98 N. Y., 211; Hofnagle v. N. Y. C. and H. R. R. R. Co., 55 id., 608; McCosker v. L. I. R. R. Co., 84 id., 77; Loughlin v. The State, 7 Cent. Rep., 70.) He was a co-employe of the plaintiff.

It was the duty of the defendant to use reasonable care in supplying its employes with suitable machinery, tools and appliances, so that they might not unnecessarily be exposed to danger from their use in the service. This, it is contended on the part of the plaintiff, the defendant failed to do, and that the injury of the plaintiff was the consequence of such negligence, and caused wholly by it. The difficulty was in the engine and its apparatus. The alleged defective conditions were that the flues leaked, that the valves in the cylinder or steam chest leaked, that the throttle leaked, and that the brake was out of repair and useless. There is evidence tending to prove that the condition of the engine and its machinery was impaired in the respects mentioned. The flues had leaked quite badly for some time, the consequence of which was that it was difficult to keep up the fire so as to maintain the requisite quantity of steam to give the engine suitable operative power, This had been so for some time and the attention of the train dispatcher had been called to it, but the engine had, nevertheless, been used upon a coal train between Rochester and Lyons, with reasonable success, although such leakage had required increased labor to keep up fire to generate steam sufficiently to supply suitable motive power to run the train. The only danger to be apprehended from such cause in the use of an engine is the liability of the reduction of steam pressure to such extent as to render it difficult by means of the levers operating the valves to control the motion of the engine.

The evidence tends to prove that this was one difficulty at and preceding the time of the accident. The engine was returning with only forty-five pounds of steam, and had not the power to stop on reversal of its force from a forward to a backward motion by the use of the lever. But although this day was the first time the plaintiff had run this engine, he was advised of this leakage of the flues before he left Rochester in the morning, and observed it on his trip to Lyons; and on his return with a train of loaded coal cars, the train was stopped on approaching an up grade, when the steam had got quite low, and, with the application of a blower,was i’aised from sixty or seventy pounds to 125 or 130, a fair standard for the operation of an engine in drawing a loaded train, and the tram was then, without difficulty, taken up the grade. It is evident that, without continued care to keep up the fire so as to overcome the leakage of water from the flues into the fire-box, the leakage was liable to reduce the heat and diminished the steam and motive power of the engine; and to this may be attributed the reduction to forty-five pounds of steam at the time the engine was returning from the T to its place of destination. That quantity was sufficient for such purpose, although inadequate to the speedy control of its movement. This defect in the engine related to its operative power, and it was not dangerous in its use to those employed to operate it; but the supply and maintenance of the requisite motive power for its operation, and to overcome emergencies that might arise, required more than usual case and labor of the fireman. This was the apparent situation presented by this defective condition of the flues, which could as well be appreciated by an engineer running it as by any other person engaged in the business of the company. The plaintiff was a locomotive engineer of some years’ experience. This difficulty was known to him when he took charge of the engine in the morning, and its extent and effect were observed by him on the trip and before his return with it to Rochester ; and, so far as this particular defect contributed to the accident and injury, it was within the hazards assumed by him. And the same may be said in relation to the leakage of the steam chest and throttle. (Burke v. Witherbee, 98 N. Y., 562; Marsh v. Chickering, 101 id., 312; Bajus v. S. B. and N. Y. R. R. Co., 103 id., 312.) If it had not appeared by the evidence that the plaintiff knew of tbe useless condition of tbe brake on tbe engine before it was detached from tbe train, and be undertook to take it to the Y after tbe return from Lyons, we should be inclined to think there was a question for tbe jury to say whether tbe use of it in order might not have been effectually made to prevent tbe accident and injury to the plaintiff. But it appears that tbe plaintiff also knew tbe condition of tbe brake. The witness Sullivan says that tbe plaintiff went to tbe brake that morning, tried to turn it and asked what was tbe matter with it, and was informed that it was useless. He, therefore, knew that after it was detached from tbe train, there was no means to be applied to retard tbe movement of tbe engine, or to stop it, other than tbe levers under his control; and in view of bis profession and experience, it cannot be said that be did not appreciate tbe situation or condition and the inconveniences that might arise from them.

Tbe liability of this engine to be subjected to loss of motive power, so as not to enable tbe engineer to effectually use bis levers to retard tbe motion of it as occasion might require, gave a greater necessity for a brake than otherwise might be supposed to exist for it. But tbe plaintiff having proceeded to run tbe engine with full knowledge and appreciation of tbe situation, tbe defendant is not chargeable to him for tbe consequences resulting from it. (Powers v N. Y , L. E. and W. R. R. Co., 98 N. Y., 274, Marsh v. Chickering, supra.) Reference is made by counsel to Hawley v. N. C. Railway Company (82 N. Y., 370) as asserting a contrary rule, but there it did not appear that tbe plaintiff knew bow badly tbe road upon which be ran an engine and was injured, was out of repair, and it was held that under tbe circumstances he was at liberty to rely upon tbe judgment of the officers, under whose direction be ran, that tbe road was in a condition of safety We do not see bow that reason can be applied to tbe case at bar in support of tbe action.

Tbe conclusion seems'to follow that tbe motion for a new trial should be denied, and judgment directed on tbe nonsuit.

Smith, P.. J,, and Haight, J., concurred.

Motion for a new trial denied, and judgment ordered for tbe defendant on the nonsuit.


text:
    IDA E. SALISBURY, Plaintiff, v. THE UNION AND ADVERTISER COMPANY, Defendant.

      Libel — publication of judicial proceedings — when privileged under section 1907 of the Gode of Civil Procedv/re.

    To entitle a publication, alleged to be libelous, to tbe privilege accorded by section 1907 of tbe Code of Civil Procedure, as being a fair and true report of a judicial proceeding, tbe publication must be fair and not garbled so as to produce misrepresentations, nor by suppression of some portion of tbe evidence, or proceedings to bave tbe effect of giving a false or unjust impression, to tbe prejudice cf some of tbe parties concerned.
    It need not, however, be reported verbatim, or embrace tbe entire proceedings, but may consist of an abridged or condensed statement thereof.
    The publication of an indictment, and tbe proceedings upon it in a Court of Sessions, by tbe defendant in this action, in bis newspaper, held to be privileged as a substantially, fair account thereof.
    Motion by tbe plaintiff for a new trial on exceptions taken at the Monroe Circuit and ordered heard at General Term in the first instance. The action was brought to recover damages for an alleged libel. The charge is founded upon the publication by the defendant in its newspapers of what purports to be an indictment and proceedings upon it in the Court of Sessions of Monroe county, with the heading and what precedes the indictment. The publication commences and proceeds as follows: “ Was it a disgrace for Rev. James A. Fellows to clandestinely meet Ida Salisbury in the Methodist Church at East Henrietta? The tongues of scandal lovers were set going sometime ago by the report that Rev. James A. Follows had been seen in the First Methodist Church at East Henrietta for the purpose of meeting there clandestinely a young woman named Ida Salisbury. The persons who saw him there were Irwin Smith and Herbert C. Dikeman. At the last grand jury these young men were indicted, and the following is a copy of the indictment presented to the court against them.” Then follows the indictment, and after it is added: “ This morning Nathaniel Foote appeared before the Court of Sessions and demurred to the indictment on the ground that it does not state sufficient specific facts to constitute a crime ; that no averment is made that the accused did anything that would bring disgrace upon tbe Rev. James A. Fellows. He claimed that if tbe indictment meant anything it meant blackmail, but as it stands it does not charge any sinister or unlawful motive against Mr. Fellows. Mr. Foote cited many authorities to support his points.”
    . The indictment was found as set forth and proceedings were had in the court. The article was written by the reporter of the defendant and for its newspapers. He was present in the court at the. proceedings on the demurrer and its argument by counsel, and he testified that “ the article, as reported, contained a fair statement of what occurred; that it contained the substance of what took place; ” that on the argument the defendant’s counsel “ asked the question of the court Whether it was a disgrace for the statement to be made as charged in the indictment.” The district attorney testified that the defendant’s counsel in his argument stated in substance that the question seemed to be, “ Was it a disgrace for Mr. Fellows to have gone to the church and met Miss Salisbury just as it was stated in the indictment.” And that the judge presiding stated that “ the crucial question of the case was whether it was a disgrace for Mr. Fellows to have done what the boys threatened to charge him with having done.” The evidence as to what occurred on the argument was not questioned. The trial court directed a nonsuit.

      Daniel L. Salisbury, for the plaintiff.

      Nathaniel Foote, for the defendant.
   Bradley, J.:

The publication of a fair ano true report of any judicial proceeding without malice is privileged. (Code of Civil Pro., § 1907.) This was substantially the rule at common law, and was founded on the principle that the advantage to the community from publicity of proceedings in courts of justice was deemed so great that the occasional inconvenience resulting from it to individuals should yield to the public good. The publication of such proceedings is treated as made without reference to the individuals concerned, and solely for the information and benefit of society, until the contrary appears. And, therefore, the presumption of malice does not arise and such publication is privileged. (The King v. Wright, 8 Durn. & E., 293, 298; Wason v. Walter, 4 L. R., Q. B. Cases, 73, 87.) The ground upon which the liability for libel rests, is malice on the part of the author or publisher. And when the published matter tends , .to disgrace or degrade the party concerned, and is false, the presumption of malice arises in support of an action for damages, unless it come within the classes of privileged communications or publications, when malice must be proved to permit a recovery. (King v. Root, 4 Wend., 113; O'Donaghue v. McGovern, 23 id. 26; Decker v. Gaylord, 35 Hun, 584.)

In the ease at bar there was no evidence of malice on the part .of the defendant other than that furnished by the publication itself, and it was dependent upon the fact that the article was not a fair and true report of the judicial proceedings referred to Whether it appeared so clearly by the evidence that it was a fair and true report of the proceedings as to justify the conclusion to that effect as matter of law, or the evidence such that it should have been submitted to the jury for their determination in that respect, is the main question for consideration here. The latter course is required if construction can be plac ed on any portion of the article which does not bring it within the proceedings had, provided such portion contain defamatory matter or charge against the party seeking relief.

The contention on the part of the plaintiff is that the heading of this publication does not necessarily import that it is part of the judicial proceedings, nor does it necessarily appear that it was sucb. in fact. The article is set out in the complaint entire, and it is, in view of the evidence, to be construed as a whole to ascertain its necessary import and that of its several parts. The heading states a question which, standing alone, might be construed as libelous. But connected with what follows it appears to be a question presented by a judicial proceeding. , Such a proceeding appears to have been had, founded upon an indictment, which is embraced within the article as published; and when reference is had to the evidence it further appears that the question represented by this heading was substantially the proposition submitted by counsel to the court, and by the court declared to be the question raised by the demurrer to the indictment. The indictment alleges that the defendants in it threatened to accuse Mr. Fellows of having gone into the Methodist church, at East Henrietta, for the purpose of clandestinely meeting Ida Salisbury,” wbicb accusation .“they threatened to mate public against Mr. Fellows, and the disgrace of such intended meeting as aforesaid, and to expose and impute to him such disgrace,” etc. While the indictment alleged a. purpose only on the part of Mr. Fellows, the question whether its consummation would have been a disgrace was perhaps legitimately the subject for discussion upon the question whether the indictment charged a criminal offense. That, however, is not important. It is sufficient to constitute the privilege of its publication that such proposition was embraced in and part of the judicial proceedings, and that as published it was a fair report in that respect. Some cases are cited which the plaintiff’s counsel claims qualify that proposition. (Flint v. Pike, 4 Barn. & Cress., 473; S. C., 6 D. & R., 528; Delegal v Highley, 3 Bing. N. C., 950; S. C., 5 Scott, 154.) This would place upon the publisher of judicial proceedings the responsibility of discriminating between those of them which are and those of them which are not legitimately pertinent to the matters involved in the proceeding. If the courts ever attempted to establish any such doctrines, we think it was not accomplished, and that the common law rule does not now impose any such burden and hazard on the publisher of judicial proceedings. (Wason v. Walter, L. R., 4 Q. B. Cases, 73, 92.) And the doctrine of the early cases in England, which denied the privilege to the publication of ex parte judicial proceedings, have been overruled and it is extended to them as well as to those inter parries. (Usill v. Hales, 3 C. P. Div., 319; S. C., 30 Moak, 188.)

In Stanley v Webb (4 Sandf., 21) the early and then current English cases were adopted as the rule of the decision, that the privilege did not embrace ex pa/rte judicial proceedings. That question is not here and it is unnecessary to consider the policy of che rulo which embraces the publication of ex parte judicial proceedings within the privilege or excludes them from it. The statute before referred to makes, in its terms as expressed, no qualification obhef than that the proceedings be public, which is requisite at common law. The publication must be fair, not garbled so as to pioduce misrepresentation, nor by suppression of some portion of the evidence or proceedings have the effect to give a false or unjust impression to the prejudice of some parties concerned. But the report need not be verbatim, or embrace the entire proceedings,. It may be an abridged or condensed statement, and if it is a substantially fair account it is sufficient. (Odgers on Lib. and Sl., 251; Andrews v. Chapman, 3 C. & K., 289; Hoare v. Silverlock, 9 M. & S., 20; Turner v. Sullivan, 6 L. T. 130; Blake v. Stevens, 4. & F., 232; S. C., 11 L. T., 543.) The difficulty in the defense of cases of this character may arise from what appears in the caption of a report or comments of a reporter, if any such is given to or made in the article published, which may unduly characterize the nature and effect of the proceeding in its relation to the parties to it or to others in a manner not fully justified, or so as to produce an impression derogatory in character, which the proceedings themselves might not furnish. In such case the publication will not, as matter of law, be deemed within the protection of the privilege. It is not the reporter’s judgment of the correctness of his comments and their import, but then.’ accuracy and fairness alone which give immunity. The statute does not give any protection to the publisher in that respect, but leaves him subject to the responsibility which the common law imposes by expressly excluding from the operation of its provisions the heading of the publication, or any other matter not part of the proceeding, added to tho report of it. (Code of Civil Pro., § 1908.)

In referring to this the counsel has cited several cases which it is coniended go in suppot of the plaintiff’s right of action. They were well decided upon the situation and facts presented by them, but m the view taken of this case they have no application to it. Taking together the caption, statement and indictment, constituting the entire article, with the evidence of the proceedings, there seems to be no opportunity to give the former any interpretation other than as importing reference to the proceedings and the question appearing to have been presented in it, which the evidence clearly shows was part of it, and that such was the proposition there urged by counsel and announced by the court as the one to be determined, and the statement of the report in other respects seems to have been confined to the matters within those alleged in the indictment and embraced in the proceedings. A new trial will not be granted to a party nonsuited, or against whom a verdict is directed when the court is satisfied that a verdict for such party would be set aside as against the evidence. We think that such would have beeu the result fairly required in this case, and for that reason the ruling of the trial court on the defendant’s motion for nonsuit was not error.

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

Smith, P. J., and Haight, J., concurred.

Motion for new trial denied, and judgment ordered for the defendant on the nonsuit.


author: Haight, J.;

text:
    In the Matter of the Application of the ROCHESTER, HORNELLSVILLE AND LACKAWANNA RAILWAY COMPANY, Respondent, to Acquire Lands of FRANCIS G. BABCOCK and Others, and the NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellants.

      Application, to acquire land for railroad purposes —power of the court to a/mend the petition — presumption as to the power of a construction company to subscribe to the stock of a railroad company.

    Appeal from an order of the Monroe Special Term, confirming the report of a referee and appointing commissioners of appraisal.
    The petitioner is a railroad corporation, organized under the laws of the State, and seeks to acquire the land in question for the purpose of constructing its road. For that purpose it presented its petition to the court praying for the appointment of commissioners. The petition stated the names of the persons who own or have, or claim to own or have, estates or interests in the real estate sought to be acquired, but neglected to state the residence of such persons. When the matter was brought on for hearing at the Special Term, an order was made permitting the petitioner to amend its petition in this regard so as to state their places of residence.
    The court at General Term said: “ The persons so interested had appeared by attorneys upon the hearing, and this was doubtless sufficient to give the court jurisdiction, notwithstanding the defect in the petition, without an amendment; but the amendment was one which the court had the power to make, in its discretion, and the making of it did not tend to prejudice the rights of the appellants. (In the Matter of the Prospe'ct Parle and Goney Island Pail/road Company, ete., 67 N. Y., 371-378.)

      “ It is next claimed that tbe petitioner bas not complied with all the prerequisites required by the statute in order to confer jurisdiction upon the court to appoint commissioners. The petitioner was duly incorporated as appears by the certified copy of the articles of association produced in evidence, signed by twenty-six persons who subscribed for the capital stock of the company to an amount aggregating thirty-two thousand three hundred dollars. The length of the petitioner’s proposed road is fifteen miles four hundred feet.
    “The Central Construction Company of New Jersey subscribed for seventeen hundred and seventy-six shares, aggregating one hundred and seventy-seven thousand and six hundred dollars, which, added to the sum subscribed by the incorporators, amounts to two hundred and nine thousand and nine hundred dollars. The statute requires that ten thousand dollars for each mile of the proposed road to be constructed shall be in good faith subscribed to the capital stock, and ten per cent thereof paid in. The road being but fifteen miles, four hundred feet in length, it will be observed that the capital stock subscribed for far exceeds the sum required, and that there has been a compliance with the statute in this regard; but it is contended that the Central Construction Company of New Jersey had no power to subscribe for the stock; that its subscription is ultra vires- and void; but a careful reading of the appeal book fails to disclose any evidence tending to support this contention. It does not clearly appear whether the Central Construction Company is a corporation or a copartnership, or what it is. It does appear that it is a company organized under the laws of New Jei’sey for the purpose of constructing railroads, and the treasurer testified that he was authorized to subscribe for the stock in question; this, doubtless, made out a prima facie case, for in the absence of evidence to the contrary we cannot assume that it;was not authorized to subscribe for, take and hold stock in a railroad company. (The Union Hotel Oompcmy v. Hersee, 79 N. Y., 454.)
    “ The case of Milbmk v. The New York, Lake Erie and Western Railroad Company (64 How., 20), is not in conflict with this view, for in that case it was a competing railroad company organized under the railroad laws of this State that had purchased and acquired the stock in another railroad. In this cáse it was held that a railroad company was not authorized by its charter to purchase stock in another company unless it acquire it in the payment of some debt or claim. But this has no application to a construction company, for, in many cases, these companies are paid in part for the work performed in constructing the railroad out of the capital stock. For aught that appears, this company may have been specially authorized and empowered to subscribe for stock in railroad corporations. At least we are of the opinion that the burthen of showing that it was not, was thrown upon the appellants.” (In re N. Y, L. E. and W. B. B. Oo., 99 N. Y., 12.)

      James H. Stevens, Jr., for the New York, Lake Erie and Western Railroad Company, appellant.

      E. F. Babcock, for the appellant, land owners.

      Frank S. Smith, for the respondent.
   Opinion by

Haight, J.;

Smith, P. J., and Beadley, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Bradley, J.;

text:
    JOHN GARWOOD, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Bddence — admissibility of the opinions of experts — effect of the acquiescence of millwrights in the me of certain talles showing the nwmber of horse power obtained from a specified quantity of water, as establishing the accuracy and competency as evidence of such tables.

    Appeal from a judgment entered on a verdict at the Genesee Circuit, and from an order denying a motion made on case and exceptions for a new trial.
    This action was commenced in April, 1883, to recover damages alleged to have been sustained by the plaintiff by reason of the diversion by the defendant of water from Tonawanda creek at Batavia, in the county of Genesee, subsequently to March 10, 1879. The plaintiff had a grist and flour mill, supplied and operated by water from the creek, about three miles below the location of the defendant’s pumps by which it raises water from the creek into its reservoir or tank to supply its railroad engines with water. It appeared that during the dry season of the year, which is said to occupy four months or more annually, the creek is not capable of furnishing water sufficiently to operate the plaintiff’s mill but a short time daily. And it is claimed by him that this deficiency is increased, and the use of his mill essentially impaired by this diversion made by the defendant for the supply of its engines with water. In that respect the evidence of the respective parties presented a diversity of fact. While that on the part of the plaintiff tended to prove that the water so diverted and taken from the creek by the defendant would furnish head in the plaintiff’s mill pond and supply power sufficient to enable him to grind at his mill six to eight bushels of wheat daily, the evidence on the part of the defense is to the effect that the water so taken from the creek would not add any perceptible difference to the head in the pond or to the efficiency of the power to propel the machinery at the mill or to its results. This action is between the same parties and for a like cause (embracing a later period) as that of Garwood v. JFew York Central and Hudson River Railroad Company (17 Hun, 356 ; affirmed, 83 N. Y., 400).
    The court at General Term, after examining and affirming the order of the court below in overruling exceptions taken to evidence admitted, said: “ One witness, who was a millwright acquainted with the mill, its wheels and efficiency, and with the defendant’s pumps, having stated •ftdiat quantity of water the two pumps, continuously occupied, would take from the creek, was asked to state the grindnig capacity of that quantity of water at the mill, which he was permitted to answer, under the objection and exception taken by the defendant’s counsel, on the ground that there was no foundation laid for the evidence. It is true that it had not appeared that the two pumps were constantly in operation, but it was not error, for that reason, to receive the evidence. It then appeared that the pumps were operated to supply the defendant’s reservoir for the purposes before mentioned, and it was not incompetent to show as one fact what the means provided enabled the defendant to accomplish, although the question simply was, what quantity of water was actually taken from the creek, the effect of such abstraction upon the working capacity of the plaintiff’s mill and its consequences. The inquiry to which this objection was taken, so far as the requisite facts were wanting to give it effect, presented a, question of order of proof which came within the discretion of the trial court. 'While it appeared by the evidence of this witness that he had experience which enabled him to state the quantity of grain ground by a specified power, he got the number of horse-power from Leffel’s Tables, who is the manufacturer of the turbine wheel. This appeared on the cross-examination; and when further examined by the plaintiff’s counsel he answered that Leffel’s Tables were ordinarily used by millwrights, and by all of them considered accurate. To this objection and exception were taken. We think the united acquiescence of millwrights in the accuracy of these tables, and in the results of computation founded upon them, may be treated as the common knowledge of the men of that profession, and their computations so made as competent evidence. (Schell v. Plumb, 55 N. Y., 592; People v. Insuram.ee Go., 18 id., 114,128.) There was no error in the reception of the evidence of such recognized accuracy and the general use made of the tables.”

      Greene, McMillcanm & Gluck, for the appellant.

      James Brecke Perkins, for the respondent.
   Opinion by

Bradley, J.;

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

Judgment and order affirmed.


author: Smith, P. J.;

text:
    GEORGE ADOLPH, Respondent, v. COURTLANDT De CEU and Others, Appellants.

      Costs — allowance of, on appeals from judgments of a Justice’s Court.

    Appeal from an order made at a Special Term of the Superior Court of the city of Buffalo setting aside the clerk’s taxation of costs in this action in favor of the defendants, and allowing to the plaintiff the sum specified as costs and disbursements in a judgment entered by him herein,. 19th May, 1886. The appeal has been duly ^ certified to this court.

      Tbe following facts appeared by tbe stipulation of tbe parties 2 J ndgment was rendered in a Justice’s Court in tbe city of Buffalo, 16th November, 1878, in favor of tbe plaintiff against tbe defendants for $200 damages and five dollars and twenty-eight cents costs. Tbe complaint in tbe J ustice’s Court alleged that defendants were indebted to plaintiff for whisky barrels sold to, and cash paid for, defendants, and demanded judgment for $200. Tbe answer was a denial only. Tbe defendants appealed from tbe judgment to tbe Superior Court for a new trial, alleging certain grounds of appeal, and stating that the judgment should have been more favorable to defendants, in that it should have been in favor of plaintiff for thirty dollars instead of $200. On 10th December, 1878, an offer to modify tbe judgment so as to reduce tbe recovery to $150 was made by tbe plaintiff, but it was not accepted. February 11, 1879, tbe appellants obtained an order in the Superior Court giving them leave to amend their answer, and they accordingly served an amended answer which set up (in addition to tbe answer in tbe Justice’s Court), payment of $100 and upwards, and counter-claims amounting to $380.93, and demanded judgment against plaintiff for $450, besides costs, A reply was served to tbe counter-claims, and tbe cause was referred for trial. Tbe referee reported that defendants were indebted to plaintiff in tbe sum of $562, and that under their amended answer they established counter-claims amounting to $459.69, which, deducted from plaintiff’s claim, left a balance due plaintiff of. $102.31, which, with interest upon it to date of report, amounted to $105.20. By tbe judgment in tbe Superior Court the counter-claims of the defendants, set up in their amended answer to tbe amount of $459.69, were satisfied and canceled, and a recovery for $105.20 in addition was bad by tbe plaintiff. Judgment was entered 19th May, 1886, on tbe report for $105.20, with interest from date of report, forty-four dollars and eighty-five cents, making $150.05, besides costs.
    The court at General Term said : “ Upon these facts we think tbe plaintiff is entitled to costs, for tbe reason that tbe counter-claims extinguished and tbe sum reported in bis favor exceed in amount, not only the sum which he offered to accept in satisfaction of tbe judgment, but also his recovery in the Justice’s Court. (Code, § 3070; Tomphms .v. Ives, 36 N. Y., 75, and cases there cited by Porter, J<) The appellant’s counsel contends that the counterclaims should not be taken into the account, they having been extinguished, as he claims, by the justice’s judgment. In that he is mistaken. Section 2947 of the Code, cited by him, does not apply, for the reason that the amount of the counter-claims is $200 ■ more than the judgment rendered before the justice, (Code, §2948, sub. 1.) It follows that so far as the order appealed from denies costs to the defendants and holds that the plaintiff is entitled to costs, it is right.

      “ But, in allowing to the. plaintiff as his costs and disbursements the sum of seventy dollars and twenty-five cents, at which they were taxed by the clerk, ex parte, the order is erroneous. Instead of doing that it should have set aside the taxation of the clerk and sent the matter.back to him with a direction to retax the plaintiff’s costs on notice. The defendants have not been heard before the taxing officer upon the items of the bill. The costs were first taxed ex parte, entered in the judgment, and notice o± retaxation was then served. Defendants appeared and insisted that the plaintiff was not entitled to costs, but that the clerk should tax costs m favor of the defendants, and they presented their bill for that purpose. The clerk ruled accordingly and taxed defendants’ costs, and consequently there was no hearing upon the items of the plaintiff’s bill and no occasion to call them in question.
    “ The order appealed from should be modified in accordance with these views, and as so modified affirmed, without costs of this appeal to either party.”

      Frank F. Perkins, for the appellant.

      Geo. M. Osgood, for the respondent.
   Opinion by

Smith, P. J.;

Haight and Bradley, JJ., concurred.

Order appealed from modified as indicated in the opinion, and as so modified affirmed, without costs of this appeal to either party.