text:
    George Madden v. Clarence G. Brown.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Trespass—Defenses—Recaption of goods.
    A person has the right to retake his goods from the dwelling of another who has wrongfully taken possession of them, provided he enters peaceably, and does not commit a breach of the peace, or use unnecessary force.
    Appeal from trial term, Onondaga county.

      Action by George Madden against Clarence G. Brown. From a judgment entered on a verdict in favor of plaintiff and from on order denying a motion for a new trial, made on the minutes, defendant appeals.
    This action was begun March 19, 1895, to recover damages for an alleged trespass in entering, December 19, 1894, the plaintiff’s dwelling, injuring the furniture, pictures, and ornaments therein, and wrongfully carrying awáy a drafting board and supports thereof and two squares. It is alleged that this trespass was comitted by the defendant personally aided by the several men acting under this direction; that he moved the furniture and the contents of the <of the house about, leaving it in great confusion; and that the conduct of the defendant and his assistants was violent and disorderly. The defendant, in his answer, set up two defenses: (1) A general denial. (2) That December 19, 1894, a search warrant was issued by the court of special sessions of the city of Syracuse, directed to an officer of said city, commanding him to search for certain property of the defendant which had boon taken and carried away from his pr mises; that on that date an officer, accompanied by the defendant, searched the plaintiff’s dwelling, pursuant to the command of the warrant and carried away certain articles of the defendant’s property found in the dwelling that the defendant did nothing except to identify his property; and that the, search was conducted in a proper manner" The jury rendered a verdict for $1,000. The defendant moved on the minutes for a new trial, On all the grounds specified in section 999 of the Code of Civil Procedui e, which motion was granted, unless the plaintiff stipulated to reduce the damages to $500 and, in case the stipulation was given, the motion was denied. The stipulation was given, and the judgment entered for $500 damages and $91.41 costs.
    Frank Hopkins, for appellant.
    Ceylon H. Lewis, for respondent.
   FOLLETT, J.

The defendant testified that he owned all the articles taken, and the plaintiff, who was sworn in his own behalf, did not testify that he had any title or right of possession to any of the articles. The learned trial judge instructed the jury that the defendant had no right to enter the house and remove his property without the consent of the plaintiff or of his Avife, to AAdiich instruction the defend- and excepted. The case Avas tried and submitted to the jury on the theory that, in case it Avas found that the defendant entered the house and remoAred his own property Avith out the consent of the person in charge thereof, he committed a trespass, and was liable in damages therefor. It is well settled that the owner of the personal property which has been wrongfully taken from him, does no t commit a trespass by entering upon the realty of the wrongdoer, and taking his own personal property, unless he commits a breach of the peace, or uses unnecessary force. Webb v. Beavan, 6 Man. & G. 1055; Patrick v. Colerick, 3 Mees & W. 483; Blades v. Higgs, 10 C. B. (N. S.) 713; McLeod v. Jones 105 Mass. 405. An examination of the text-books, under the title “Recaption,” will disclose many authorities supporting this rule.

In Addison on Torts (3d Ed., p. 347) the rule is stated as follows;

“If A. has actual possession of a chattel, and B. takes it from him against his will, A. may use as much force as is necessary to defend his right, and enable him to retake the the chattel; and if a chattel has been seized and carried away by a person who has no color of title to it, and the OAvner comes and demands it, and the trespasser refuses to give it up, the owner may use force sufficient to enable him to retake his property. A person, therefore, who has been robbed, is entitled to retake stolen property whereArer he can find it, provided the person in possession of it has not acquired a title to it by purchase in market overit, without notice of the robbery. He is not justified in committing an assault or a breach of the peace in order to possess-himself of the property, unless he finds it in the hands of the thief or the felonious receiver.”

Many cases to the same effect are cited in Moak, Underh. Torts, 359 et seq.; 19 Am. & Eng. Enc. Law, 1093; and in Pol. Torts, 313, tit. “Recaption.”

The rule rests on the theory that, Avhen a person places the goods of another upon his oaaui premises, he gives to the owner of them an implied license to enter for the purpose of taking them. In McLeod v. Jones, supra, it Avas held that this rule extended to and covered cases Avhere the goods had been taken in the first instance by permission. It Aras said

“In other cases a right or license to enter upon land results, or may be inferred from contracts of the parties in relation to personalty. Permission to keep or the right to-hare one’s personal property upon land of another involves the right to enter for its removal.”

In the case at bar it was conceded that all of the property, excepting the drafting board and its supports and one mirror plate, Avas taken by this plaintiif AA'rongfully, if not feloniously, and that, as to the drafting board and the mirror, he held them as the defendant’s agent and for his use; and that the relation of master and servant, out of Avliich, the right of this use arose, which had once existed between, them, had been terminated. It follows that, as to the property which had been feloniously or wrongfully taken, from the defendant’s possession, he had the right to use sufficient force to retake it from the dwelling of the wrongdoer, provided he entered peaceably, did not commit a breach of the peace, or use unnecessary force. As to the property which had been placed in the plaintiff’s possession by the defendant’s consent, the latter had the right to take it from the dwelling, and was not a trespasser in so doing, provided he entered peaceably, did not use force or commit a breach of the peace. The defendant entered the dwelling peaceably, and the evidence falls far short of showing that he committed a breach of the peace, or that he used any violence towards the wrife of the plaintiff, who was in control of the house. It is testified that the defendant removed books, pictures, and articles of furniture from his own property, in order that he might retake it. This was justifiable, and the fact that the articles were left standing on the floors of the house, and the rooms necessarily left in some confusion, did not render him liable in damages. If it be said that the defendant unnecessarily opened a trunk, and scattered about the rooms some of the correspondence of the plaintiff, it should be answered that the case was not sent to the jury upon the theory that he had a right to enter the house, and was liable only in case he committed unnecessary acts. The jury should have been asked to find whether the defendant committed any acts while in the-house which were unnecessary and in excess of the authority conferred upon him by law. If he committed such acts, he was liable in trespass, and became a trespasser from th e beginning, but he was not liable in damages for taking his own property, and the jury should have been so instructed. The jury found a verdict for $1,000 damages, which shows that they were influenced by passion or prejudice, or by the erroneous theory upon which the case was submitted. The damages were reduced to $500 by the learned trial judge, but we think that sum was excessive for the amount of damages sustained. The plaintiff gave no evidence tending to show that the damages inflicted amounted to $1; and how the plaintiff can be held to be entitled to recover $500 in such a case, in which he expressly disclaimed any right to recover punitive damages, and in a case in which it was conceded that the defendant did not act maliciously, is difficult to understand.

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


source: Caselaw Access Project

author: RUMSEY, J.

license: Public Domain

text:
    Alice M. Mullen v. Joseph Martin et al.

    (Supreme Court, Appellate Division, First Department,
    May, 1896.)
    Injunction—Against transfer of property held as security.
    Where the holder of the legal title to property lias no other, interest than that of mortgagee to secure loans made and liabilities incurred by her, she will be enjoined, pending adjustment of her claim, from transferring or mortgaging the property.
    Appeal from special term, New York county.
    Action by Alice M. Mullen against Joseph Martin and Sarah Martin. From an order denying a motion to continue pendente lite an injunction granted in the action, and setting aside the same, plaintiff appeals.
    Truman H, Baldwin, for appellant.
    Ezkiel Fixman, for respondents.
   RUMSEY, J.

The allegations of the complaint, substantially, are that Joseph Martin, one of the defendants, was the attorney and legal adviser of the plaintiff, and that Sarah Martin, the other defendant, was his wife, that the plaintiff’s husband, Frank Mullen, was considerably in debt; that in June, 1893, the plaintiff and her husband jointly took a lease of certain premises in the city of New York, upon which the plaintiff erected a hotel, restaurant, saloon, and cigar store; and that she paid the entire cost of the lease and the buildings, and fittings and furniture of them. Plaintiff says that the taking of said lease in the joint names of herself and her husband was a mistake, of which she did not become aware until November or December, 1893, and when did so she employed the defendant Joseph Martin to draw an assignment from her husband to her of his interest in the lease; that said assignment was drawn and executed by the liusband, and left with Martin to be recorded, but was never recorded. The allegations with regard to the assignment from Mullen to the plaintiff of the lease, and the recording of it, are all denied by the defendants except the fact the assignment was never recorded, which is admitted. It is further alleged by the plaintiff that proceedings had been instituted on behalf of the city of New York for the widening of 138th street, upon which her leasehold promises are situated, and for condemning those premises, with others, and that commissioners-had been appointed for the appraisal of the amounts due to the owners for the taking of the property. She says that Joseph Martin requested her to authorize Mm, as lier attorney, to represent her interest before the commissioners, which she refused to do, and employed another counsel to make lier claim. Martin denies that he requested her employ him •, "but it appears, as matter of fact, that he (Martin) did appear in her behalf, and represented to the commissioners that he was authorized to do so, and that an other attorney also appeared for the plaintiff at the same time, and that, after some dispute and delay, Martin withdrew his appearance. The plaintiff then alleges that Mrs. Martin claims to be the owner of the interest of Frank Mullen in the lease, by virtue of an assignment by him to her, and that as such owner she caused an appearance to be made before the commissioners, and claimed that she was entitled to whatever should be awarded to Frank Mullen by reason of his interest in the premises. It is conceded that Mrs. Martin did cause such an appearane to be had, and made such claim. It further appears that, upon an execution against Frank Mullen, all his interest in the furniture, good will, and fixtures of the saloon at 138th street was sold by the sheriff, and bid in by Mrs. Martin. The plaintiff alleges that Mrs. Martin never had "any assignment from Frank Mullen of his interest in the leasehold premises, but that the assignment which is produced was not executed by him, or, if it was, it was acquired by the fraud of Martin. This is denied by the defendants. In addition, plaintiff alleges that, being the owner of certain premises in the Twenty-Fourth ward, upon which there was a mortgage, she retained Martin as her attorney to obtain a loan for her to pay up the mortgage, and that Martin procured her to convey the premises to his wife, who agreed to pay off the mortgage and raise a new loan on the premises and reconvey them to the plaintiff; that the premises were conveyed to Mrs. Martin, and the mortgage paid off, and a smaller mortgage negotiated and put upon the premises; and that Mrs. Martin refuses to reconvey the promisees to her. A portion of the truth of transaction is denied, but upon the whole it seems that it is substautially trug. It appears further from the complaint that in May, 1895, one Louchran recovered a judgment against the plaintiff in the city court, for $193, which was paid by notes of the plaintiff indorsed by Sarah Martin; that, when matured, those notes were paid by Mrs. Martin, who procured an assignment of the judgment to be made to her; and that she insists that she will issue an execution upon it against the plaintiff’s property unless it is paid. The plaintiff says that Mrs. Martin agreed to pay those notes at maturity, and cause the judgment to be satisfied, and to charge the amount thereof in an account which was due between the plaintiff and Mrs. Martin, Mrs. Martin denies that, but it appears that she did pay the notes, and that she has charged the amount of the notes, and the expenses of procuring the judgment, to be satisfied, in the account which she presents of moneys due to her from plaintiff. The plaintiff demands, as relief, that there shall be an accounting between herself and the defendants, and that in the meantime, pending this accounting, the defendant Sarah Martin shall be restrained from transferring or incumbering any of the property which has been put in her hands by the plaintiff or her husband, and that the defendant Sarah Martin shall be required to reassign to the plaintiff, upon such terms as shall be just, all the property which she has received from her. Upon the complaint and affidavits which accompanied it, the plaintiff, on the 14th day of October, 1895, procured an injunction restraining the defendants, or either of them, from selling, assigning, mortgaging, pledging, or otherwise disposing of or incumbering, the interests which they had acquired in the property of the plaintiff mentioned in the first complaint, and more particularly set out in the injunction. At the same time she was granted an order to show cause why the injunction should not be made permanent, and upon the return of that order affidavits were read by both parties; and the result was that the court denied the order to-make the injunction permanent, and vacated and set it. aside. From that order this appeal is taken.

The nature of the claim of the plaintiff seems to be that these different pieces of property were assigned by her husband and herself to Mrs. Martin for the purpose of securing her for such moneys as she should advance to the-plaintiff and her husband, and for such liabilities as she-should undertake in their behalf. While there is some-denial of the complaint, and of such allegations as impugn the motives of the defendants, yet it may be fairly inferred from the opposing allegations of the different parties that that was substantially the nature of the transaction between them and that all this property which was transferred to Mrs. Martin, from time to time, by the plaintiff and her husband was so turned over to her as security for advances made and liabilities incurred and that she holds it now practically to secure such things. The plaintiff alleges that she in fact was the owner of all the leasehold estate, and is the absolute and sole owner of the business carried on there. This is denied by Mrs. Martin. Whether or not this is true is not absolutely essential to be decided. It is of no importance to Mrs. Martin, who has the equity of redemption in this property so long as she holds it only as mortagee, and so long as she is indemnified for advances made and liabilities incurred by her, and is repaid whatever is due to her on that account. She presents a claim which shows a balance due to her of several thousand dollars. Upon an examination of that claim, it is quite clear that it is considerably too large; and, if the affidavit of Frank Mullen be taken to represent the truth, it is very doubtful whether any such amount is due to her as she claims, if, indeed, anything is due whatever. But upon that it is not necessary to pass. It is sufficient for us to say that we are satisfied, from all the facts, that the extent of the claim of Mrs. Martin to this property, which was : transferred to her from time to time, is that of mortgagee to secure loans and advances and liabilities which she has incurred, and that the plaintiff will be entitled to a recon- , veyance of the property when those liabilitities shall be paid Pending the adjustment of these accounts, we do not see that any harm can come to the defendants if they are restrained from interfering with this property, while great inconven- ’ ience may result to the plaintiff if the defendants should dispose of or mortgage or incumber their interest in any way. At the same time, the property being to a very considerable extent personal property, and the result of an injunction being to leave the property subject to be lost, wasted, or destroyed by the plaintiff, and to prevent defendants from taking charge plaintiff, and to prevent defendants from taking charge of it to protect it, she should, as a condition of having the injunction continued, give a bond, in Some reasonable amount, that she will pay to Mrs. Martin whatever sum shall be found due upon the accounting which she asks. Upon the allegations of the parties, it seems to us that the amount of such a bond should be $1,500; and upon giving a bond in that amount, conditioned for the payment to Sarah Martin of any sum that shall be found due to her upon the accounting to be taken in this action, the injunction may be restored. The order appealed from is reversed, and the injunction .granted on the 14 th day of October, 1895, is restored, and shall be continued until the hearing and decision of this action, upon the execution and delivery by the plaintiff of a bond, in the sum of $1,500, conditioned for the payment by her to the defendant Sarah Martin of any sum of money which shall be found to be due to her upon the accounting to be taken in this action; such bond to be approved by a justice of the supreme court. Neither party to have the costs of the appeal.

Order reversed, and injunction restored and continued until the hearing and decision of this action, upon execution and delivery by the plaintiff of the bond directed in the opinion. Neither party to have costs of appeal. All concur.


author: LANDON, I.

text:
    William R. Woodbridge v. William D. Marks.
    (Supreme Court, Appellate Division, Third Department,
    May 21, 1896.)
    Vicious dogs—Action against owner—Pleading.
    A complaint for injuries caused by the bite of a vicious dog owned by defendant need not expressly charge defendant with negligence in keeping the-dog, since it is a nuisance to allow a vicious dog to run at large, and the fact that it bites a person raises a presumption that it was not securely kept.
    Appeal from special term, Essex county.
    y Action by William R. Woodbridge against William D. Marks for injuries to plaintiff caused by the bite of dog® which plaintiff alleged were wrongfully kept by defendant, “well knowing them to be of ferocious, vicious, and mischievous dispositions, and accustomed to attack and bite mankind.” From a interlocutory judgment entered on an order overruling a demurrer to the complaint, interposed on the ground that the complaint did not state facts sufficient to> constitute a cause of action, defendant appeals. The notice of appeal also stated that defendant intended to bring up for review the order and decision directing the the entry of the judgment. Affirmed.
    Richard L. Hand, for appellant.
    F. A. Rowe, for respondent.
   LANDON, I.

The complaint does not expressly charge that the defendant was guilty of negligence in the care or keeping of his vicious dogs, and this omission is the ground of the demurrer to it. The plaintiff claims that the keeping of a dog known to his owner to be vicious and accustomed to attack and bite mankind is a nuisance, and that it is unnecessary to charge negligence. A vicious dog running at large is a nuisance, because dangerous to mankind. It follows that whoever keeps such a dog, and allows him to be at large maintains the nuisance. Stated as above, it would seem to follow that, in order to charge the master of the vicious dog with liability the complaint should state that he allowed the dog to run at large. But the authorities authorize the proposition to be stated in such way as to put the burden upon the master of showing that he securely kept his vicious dog- Thus, a vicious dog is a nuisance, except when securely kept from biting mankind. If a vicious dog bites a person, the presumption is that he ivas not securely kept. Brice v. Bauer, 108 N. Y. 328, 13 St. Rep. 765. If these propositions are ooréctly stated, then the complaint need not negative the exception, but it must be alleged in the answer.. We think the clear weight of authority in this state is in favor of the sufficiency of this complaint. Kelly v. Tilton, *42 N. Y. 263; Muller v. McKesson, 73 N. Y. 195; Lynch v. McNally, Id. 347. It is true that in none of these cases did the question arise upon the sufficiency of the pleadings, and in each one of them it affirmatively appeared that the owner of the vi.-ious dog failed to securely keep him. But in these cases, and in cases therein cited, the grounds of the liability of the owner for injuries done by his vicious dog are fully examined, and from them we deduce the above propositions. There is usually an element of negligence in such cases. Thus, the master of a vicious dog is ordinarily not liable to the person bitten, the dog not trespassing upon the latter’s premises, unless the master had notice of the vicious propensity of his dog. Of course the knowledge of the master is not an essential of the nusiauce, but of his liability for it. It is not the usual habit of dogs to be vicious, especially in the presence of their masters; and notice is necessary in order to charge the master with the duty of suppressing or abating the nuisance, i, e. the dog. The burden of showing this notice is upon the plaintiff, and hence he must plead it» The plaintiff has done so in the case before us. In May v. Burdett, 9 Adol. & El. (N. S.) 101, cited in Earl v. Van Alstine, 8 Barb. 630, the declaration alleged that the defendant wrongfully kept a monkey well knowing that it was of a mischievous and ferocious nature and accustomed to bite mankind, and that the said monkey did bite the plaintilFs wife, but the declaration did not aver that the defendant was guilty of negligence. The plaintiff had a verdict and a motion to set it aside was denied, partly because made after verdict, but the court also held that negligence was proved by proving the facts alleged. Under our system of pleading, the complaint is a statement of the facts constituting the cause of action. If proof of the facts alleged is proof of negligence, then the facts alleged constitute a sufficient charge of negligence. We think the complaint sufficiently charges that the defendant knowingly maintained a nuisance, by which the plaintiff was damnified; that, so far as negligence of the defendant is an essential to his liability, it is implied in the statement of the complaint; and that it remains with the defendant to answer the charge. Interlocutory judgment affirmed, with costs, with the usual leave to the defendant to answer upon payment of costs in this court and as awarded below.

Interlocutory judgment affirmed, with costs, with leave to defendant to answer within 20 days, upon payment of costs of this appeal, and of the costs as awarded in the court below. All concur.


author: ARNOLD, S.

text:
    Matter of accounting trustee of estate of Joseph P. Quinn.
    (Surrogates Court, New York County.
    October, 1895.)
    Trusts—Accounting by trustee—Counsel ebbs.
    A trustee will not be credited with payments alleged to have been made for legal services, where no bill for the alleged services was rendered, and there is no evidence of any of the details of work done, and no vouchers for the payments.
    Accounting by the testamentary trustee under the will of Joseph P. Quinn, deceased.
    Burr & Coombs, for plaintiff.
    R. & E. J. O’Gorman, for testamentary trustee.
   ARNOLD, S.

This is an accounting by a testamentary trustee. Upon objections filed, a reference was ordered. Upon the hearing, proof was made as to one item which had been objected to, and the objection was withdrawn; and, as to another contested item, it was admitted that it should be allowed. As to all the other items excepted to, it was conceded by the accountant that the objections should be sustained, with the exception of certain payments claimed to have been made to counsel for legal services. As to" these the contest proceeded, and the referee has allowed and credited them to the accountant. Exceptions to such allowances were duly filed, and are now insisted on. No bills -for the alleged services were ever rendered to the trustee, nor is there any competent evidence of any of the details of the work done; and there are no vouchers for the payments produced, except certain checks, which are drawn to the order of, and indorsed, and appear to have been collected, by these attorneys, or one of them. Their aggregate is much larger than the amount which the accountant asks to be allowed to her here, but this is sought to be explained "by her statement that the services were in respect to three trust estates, and that she charged to this one only one-third of the whole. The attorney who seems to have collected this money died before the petition was filed herein, and there is evidence produced showing that he died insolvent. An executor, trustee, or other accounting party may be allowed, upon such accounting, “for his actual necessary expenses as appears just and reasonable.” Code, sec. 2730. Under the sanction of this provision, allowance is made for payments to counsel for their services by the accountant; but that class of “expenses” is entitled to no immunity from the inflexible rule that all disbursements which reduce the amount to be distributed to those interested in an estate must be shown to have been necessary to the proper administration of such estate, must be shown to have been actually rendered, and it must be further shown that the amount paid for them was reasonable, according to their character and importance, and, it may now be said, with reference to the results obtained. Randall v. Packard, 142 N. Y. 47, 58 St. Rep. 415. As above stated, no details of the services for which the contested payment were here made are furnished. It is shown that the trust estate embraced certain houses in this city; that the trustee did not live here; that she was inexperienced in business matters; that she did not, and, she claims under the circumstances, could not be expected to, . personally take charge of these buildings; that she employed an agent to look after them, collect rents, etc.;.that orders were made by the board of health which required this agent to see her attorney frequently; that she made payments to the trust beneficiaries through the latter; and that she sought his professional advice repeatedly. But all this is mere generalization ,—no proof of the value of the services given, no dates furnished, no particulars of the time spent, of the labor performed; nothing from which any court-can put a value upon the work, and say it is just and reasonable, or. in fact, upon which any professional witness could fairly predicate any opinion as to the actual work done, its necessity, its results, or its value. The trustee is, no doubt, situated unfortunately. Her attorney is dead, and she can produce no bill or vouchers, except these checks, which do not give any information upon their face as to what they were given for. But this state of affairs does not relieve her from the usual burdens of an accounting. Again, much of the work which she claims was performed by counsel, such as payments to beneficiaries, looking after the agent of the property, etc., was just such work as it was her duty personally to perform, and for which she is allowed commissions. If unable or unwilling to perform these duties, she should have resigned her office. The exceptions to the referee’s report are sustained. In view of the fact that objections were taken which had to be withdrawn, as well as in consideration of the apparent good faith of the trustee in her conduct of the administration, even in respect to her dealings with counsel which have been here criticised, she” should not be charged personally with costs.

Exceptions sustained.


author: GLASS, S.

text:
    Matter of Stockwell’s Will.
    (Surrogates Court, Onondaga County.
    May, 1896.)
    Wills—Execution—Subscribing avitness.
    A subscribing witness, who did not see testatrix sign her name and to whom testatrix did not expressly acknowledge her signature, testified that, she did not see the signature when she signed as a Avitness. It appeared, howe\-er, that the witness and her husband, who was also subscribing Avitness, Avere in the room Avhen testatrix had signed the will, that the husband iirst'signed the Avill as a Avitness after testatrix had signed the will, and then his Avife signed; and at the time of such signing the paper had not been folded, and the signature of testatrix was in full víbav. Held, that the GA'idence showed that the signature of testatrix Avas seen, by the witness at the time she subscribed her name.
    Proceeding for the-probate of the will of Martha H. Stock-well, deceased.
    Frank L. Young, for proponent.
    Edward J. Shanahan, for contestant.
   GLASS, S.

The only question in this proceeding is whether or not there Avas a sufficient acknowledgment by the testatrix of her subscription to the instrument offered for probate as her Avill. The statute requires either that the subscription shall be made by the testator in the presence of each of the subscribing Avitnesses, or that it shall be acknoAvledged by him to have been so made, to each of the attesting Aidtnesses. Neither of the subscribing Avitnesses saw the testatrix subscribe her name to the paper, nor did the testatrix, by any spoken Avord, aclcnoAvledge to either of the Avitnesses that she had subscribed it. It is claimed, however, in behalf of the proponent, that, although there Avas no verbal acknoAvledgment by the testatrix of her subscription, her acts in connection Avith the execution of the Avill amounted to an acknoAvledgment of subscription, and that, there fore, the statute was complied with. The will was drawn by the testatrix herself, and Avas executed on the 23d day of March, 1895, at the house of Mr. Abernethy, her cousin, in Syracuse, N. Y. She had been a member of his family for about three years, and Mr. and Mrs. Abernethy and Isabella Q. Patón, a servant in the family, were the attesting witnesses. Miss Patón Avas not called as a Avitness in this proceeding, and it does not appear when or where, or under Avhat circumstances, she signed the Avill as a Avitness. The circumstances attending the execution of the instrument before Mr. and Mrs. Abernethy as attesting Avitnesses were as-follows: The testatrix and Mrs. Abernethy were both sitting in the library of the Abernethy home on the day in question. The testatrix was Avriting upon a pad in her lap, at one-side of the room, and Mrs. Abernethy was writing at her desk, at the other side of the room. Mr. Abernethy came into the room, and the testatrix said, “Arthur, I want you and Hatty to witness my will.” He said, “All right,” went over to where the testatrix was sitting, and attempted to write his name, as an attesting witness, upon the paper while it was yet in her lap, but found that it Avas so Ioav down he could not conveniently do so. He then took the paper over to a table, and wrote his name about three-fourths of an inch beloAV the signature of the testatrix, but on the left side of the paper, the signature of the testatrix being on the right side. He also Avrote the word “Avitness” before his oavii name and before the space where his Avife Avas to sign her name. Mrs. Abernethy then took her place at the table, and wrote her name immediately under her husband’s signature, opposite the second Avord “Avitness” written by her husband. At the time Mr. Abernethy subscribed bis name as an attesting witness, he saAV the signature of the testatrix already signed at the end of the will. The rules of law applicable to the foregoing facts are laid doAvn in the folloAA'ing leading cases:

In Re Will of Phillips, 98 N. Y. 267, Rapallo, J., says:

“The exhibition of the aa'111, and of the testator’s signature attached thereto, and his declaration to the Avitness that it was his last aau.11 and testament, and his request to the Avitness to attest the same, were, we think, a sufficient acknowledgment of the signature and publication of the will. * * $”

In Baskin v. Baskin, 36 N. Y. 416, Porter, J.,said:

“When, hoAveArer, the testator produces a paper, to which he has personally affixed his signature, requests the witnesses to attest it, and declares it to be his last aaúII and testament, he does all that the law requires. It is enough that he verifies the subscription as authentic, Avithout reference to the form in which the acknowledgment is made; and there could he no more unequiA'ocal acknoAvledgment of a signature thus affixed than presenting it to the AAÚtness for attestation, and publishing the paper so subscribed as his will.”

In Re Lang’s Will, 9 Misc. Rep. 521, 30 N. Y. Supp. 388 (Fitzgerald, B.), it was held that the presentation of the will to the Avitnesses, Avith the signature in plain sight, is a substantial acknowledgment of the signature. It Avas necessary, however, that the subscribing Avitnesses should have seen the signature of the testatrix at the time of the publication of the aaúII, and of its subscription by them as Avitnesses. Lewis v. Lewit, 11 N. Y. 221; Mitchell v. Mitchell, 16 Hun, 7 affirmed 77 N. Y. 596; In re Will of Mackay, 110 N. Y. 611, 1 N. E. 433. In Re Will of Mackay, supra, Earl, J., says:

“Subscribing AA'itnesses to a Avill are required by laAV, for the purpose of attesting and identifying the signature of the testator; and that they cannot do unless, at the time of- attestation, they see it. * * * The formalities prescribed by the statute are safeguards thrown around the testator to prevent fraud and imposition. To this end, the witnesses should either see the testator subscribe his name, or he should, the signature being visible to him and to them, acknowledge it to to be his signature. Otherwise imposition might be possible, and sometimes the purpose of the statute might be frustrated.”

So far as the attesting witness Mr. Abernethy is concerned therefore, there was clearly a sufficient acknowledgment by the testatrix of her subscription to the will.

Sirs. Abernethy, the other attesting witness, however, on being asked by counsel whether she saw the signature of the testatrix when she herself signed the will as a witness, answered: “No, I don’t think I did. I don’t remember.” She further testified that she could not tell positively whether the name of the testatrix was subscribed to the will when she signed as a witness or not; that she did not remember. If it is true, as Mrs. Abernethy seems to think was the case, that she did not see the signature of the testatrix at the time it was presented to the witness for attestation, there was no acknowledgement of subscription by the testatrix, as to Mrs. Abernethy, within the meaning of the cases above cited, although there are some cases tending to support the proposition that the acknowledgment of subscription by the testator is made if he presents his will, already signed by himself, to the attesting witnesses, publishing the same as his will, and requesting the witnesses to sign as such, provided the signature to the testator could be seen by the witnesses, no matter whether they did see it in fact or not. In re Will of Higgins, 94 N. Y. 554; In re Look (Sup.) 7 N. Y. Supp. 298. But I am satisfied that Mrs. Abernethy is mistaken in her present impression, and that she did in fact see the signature of the testatrix when she herself signed as a witness, but has forgotten the fact, although there was only the short interval of six months between the making of the will, and the occasion of her being called as a witness. The paper itself, upon inspection, shows that she must have seen Miss Stoclcwell’s signature when she wrote her own name as a witness, because it would have been a physical impossibility for her to have signed her name Avhere she did without seeing Miss Stoclc-Avell’s signature. The whole Avill is written on the upper half of a sheet of ordinary letter paper, 8 by 10 inches in size. Mrs. Abernethy signed her name immediately below that of her husband, and not more than an inch below the signature of the testatrix, but on the left side of the page, while the signature of the testatrix was on the right side. The latter portion of Mrs. Abernethy’s signature is directly beneath the first portion of Miss Stockwell’s signature. There is no attestation clause to the will, and there is nothing between the signature of Miss Stockwell and that of Mrs. Abernethy except Mr. Abernethy’s signature. Miss Stockwell’s signature was "written in a plain, distinct hand. The paper was not folded when it was presented to the witnesses for signature and was signed by them. Mrs. Abernethy so testifies, and the paper itself corroborates her statement; for, while there is now a fold crosswise of the sheet, between the signature of the testatrix and that of Mrs. Abernethy, it could not have been there when Mr. Abernethy signed his name because the crease made in the paper by the fold passes through the upper portion of Mr. Abernethy’s signature, and there are no breaks in the vertical lines of Mr, Abernethy’s signature, which would have resulted if the writing had been done after the fold was made. The paper not having been folded, and there being no suggestion of any other way by which there could have been any concealment of Miss Stock well’s signature, I am obliged to find that Mrs, Abernethy did in fact see the signature of the -testatrix when the will was presented to her for attestation, and that she saw it, not merely in the sense of seeing something written on that particular part of the paper, but in "the sense of recognizing it as the signature of the testatrix, or, at least, of appreciating that it purported to be her signature. Quite similar facts existed in the case of In re McDougall’s Will, 87 Hun, 349, 34 N. Y. Supp. 302. In that case the general term of the supreme court, first department, held that, even if the testimony of the attesting witness were to be interpreted as denying that he saw the signature of the testatrix at the time when the will was presented to him for attestation, an inspection of the will showed that he must have seen her signature when he signed his own name, because the contrary was physically impossible, and that there was consequently an acknowledgment by the testatrix of her subscription. My conclusion is that there was an acknowledgment by Miss Stockwell of her subscription at the end of the will, to both of the attesting witnesses, and that the statute was fully complied with in the execution of the ydlL

A decree may be entered admitting the will to probate* Ordered accordingly.


author: FOLLETT, J.

text:
    Ferdinand Griebel v. Rochester Printing Co.
    (Supreme Court, Appellate Division, Fourth Department.
    July 30, 1896.)
    1. Libel and Slander—Evidence—Identity of plaintiff.
    It is error to submit the case to the jury on the theory that, because plaintiff’s surname was not correctly spelled in the alleged libelous article, the jury might find that the article did not refor to plaintiff, where plaintiff and another person named in the article were the only persons concerned in the transaction therein described, and there was no other person in the vicinity of the same name as plaintiff.
    3. Appeal—Review—Failure to take exception.
    "Where a case is submitted to the jury on a wholly erroneous theory, the appellate division may grant a new trial, though no exception was taken.
    Appeal from circuit court, Monroe county.
    Action for libel. From a judgment dismissing the complaint on the merits, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.
    Walter S. Hubbell, for appellant.
    Eugene Van Voorhis, for respondent.
   FOLLETT, J.

This action was begun May 22, 1888, to recover damages for the publication by the defendant in its newspaper (The Rochester Democrat and Chronicle) of an article alleged to be libelous. April 21, 1888, the plaintiff made a complaint before the police justice of the city of Rochester, charging that one Bartholomew Connors had obtained a watch from him by fraudulent representations and false pretenses. On this complaint, a warrant was issued for the arrest of Bartholomew Connors, and he was arrested. On the 22d of April, 1888, the following article was published in defendant’s daily paper:

“Under False Pretenses.
“Detectives Furtherer and ICavanagh yesterday arrested Ferdinand Grueble on the charge of obtaining goods under false pretenses. Bartholomew Connors, of Faber street, who swore out a warrant, claims that Grueble went to his house while he was away one day last week, and represented to his wife that he had been sent for her husband’s watch. On these representations, she handed over the time-piece, and this is what leads to the difficulty.”

On the next day, the defendant, learning that it had committed an error, and that Ferdinand Griebel was the complainant, and not the person charged with the crime, published this retraction;

“It was Bartholomew Connors who was arrested on Saturday for obtaining a watch on false pretenses, instead of Ferdinand Grueble. Grueble was the man who swore out the warrant.”

It will be observed that the plaintiff’s surname, as printed in these two articles, is not correctly spelled, and because of this circumstance the case was sent to the jury, upon the theory that they were at liberty to find that the first article was not published of and concerning the plaintiff, which, under the evidence, seems to me utterly untenable. It is conceded that this plaintiff was the person who made the ■complaint against Connors, and was a participant in the judicial proceeding referred to. There was no other man having the same name as the plaintiff in the city of Rochester, and the article very clearly referred to the person who had a controversy with Bartholomew Connors in the police court. The Christian name is correctly given in the article complained of, and also in the retraction. The name of the person arrested is correctly given, and the article clearly referred to the person who was interested in this prosecution; and by no construction of the evidence can a question ■of fact as to Airho Avas referred to by the article be raised, and the court erred in submitting the case to the jury on . that theory.

. It is urged, and it is true, that the plaintiff did not except to the submission of this issue to the jury; but, when a case is submitted by a trial judge to the jury upon a wholly erroneous theory, this court has poAver, and it is its duty, to grant a new trial because of such submission, though an exception has not taken. Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Whittaker v. Canal Co., 49 Hun, 400, and cases cited.

This action was first tried in March, 1890, and the same question of fact was submitted to the jury, and found for the defendant. Upon the review of the case by the general term (60 Hun, 319, 38 St. Rep. 788), the late Mr. Justice Macomber, in speaking for the court, said:

“Upon the trial, a point was made that the plaintiff Avas not the same person as the one mentioned in the neAvspaper ■article. But it seems to me that there Avas no merit in that ■claim, because, under the evidence, all' of the plaintiff’s acquaintances Avould necessarily understand from the article that he was the person referred to. If it be true, as is claimed by the learned counsel for the defendant, that the A'erdict of the jury Avas based upon the proposition that the-“Ferdinand Griebel” mentioned in the title of this action and the “Ferdinand Gruebel” mentioned in the article as published were not the same persons, that conclusion was wholly unsupported by the evidence, and should not be permitted to stand.”

A motion for a new trial was made, upon the ground that the verdict was contrary to the evidence, and the order denying the motion is appealed from, which brings to this court the question that the verdict, in so far as it finds that the plaintiff was not the person referred to in the article, is unsupported by the evidence. The learned judge presiding at the trial under review fell into an error in not following the rule laid down by the general term. The article complained of purported to be a report of a judicial proceeding, and, if the report had been fair and true, it was privileged, unless published maliciously (Code Civ. Proc. sec. 1907); and it was competent for the plaintiff to prove that the report" was not fail- and time, and that he did not go to the house of Connors, and get his watch, as stated in the article; and the refusal of the court to permit the plaintiff to prove this fact was error. It is alleged in the complaint that the article was maliciously published, but there is no evidence that there was any malice in fact,—personal ill will—as distinguished from malice in law. It was simply a negligent publication, which was promptly retracted the next day, but a newspapernegligentiy publishing a libel is liable for the damages sustained by the person libeled, though the publication was not, made from malicious motives,—malice in fact.

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

All concur.


text:
    James R. Cox v. Job Davis.
    (Supreme Court, Appellate Division, Fourth Department.
    July 30, 1896.)
    Appeal—Review—Weight op evidence.
    Where no exceptions were taken t.o the admission or exclusion ,of evidence, the appellate division cannot consider the weight of the evidence.
    Appeal from Cayuga county court.
    Action by James R. Cox against Job Davis. From a judgment dismissing the complaint, with costs, entered on a verdict in favor of defendant, plaintiff appeals.
    This action was begun December 16, 1895, in the city court of the city of Auburn. Two causes of action are set forth in the complaint: (1) To recover $125, rent for the use of certain premises from November-1, T891, to April 2, 1892, less $24, received from another tenant, leaving $101, with interest from April 1, 1892, claimed to be due. (2) To recover $6, damages alleged to have been sustained by the failure of the defendant to leave the premises in as good condition as when he took possession of them. The defendant set up three defenses in his answer: (1) He denied that he was the tenant of the plaintiff from November 1, 1891, to April 1, 1892. (2) He alleged that about April 1, 1888, the litigants entered into an oral agreement by which the defendant was to occupy the premises after April 1, 1888; for such a term as he might desire, for the yearly rent of $300, payable quarterly during the period of his occupancy. (3) That in October, 1891, the defendant surrendered possession of the premises to the plaintiff, paid the rent in full to November 1, 1891, and that the plaintiff then received possession of the premises from the defendant, and thereafter leased them to other persons. The case was tried before a jury in the city court, and a verdict for no cause of action rendered, on which a judgment was entered, and from which the plaintiff appealed to the county court of the county of Cayuga, and demanded a retrial, which he had, and a verdict of no cause of action was rendered, on which the judgment appealed from was entered.
    James R. Cox, in pro. per.
    Clarence E. Aiken, for respondent,
   FOLLETT, J.

A motion for a new trial was not made in the county court, and the record on which we are to review the judgment consists of a bill of exceptions which is annexed to the judgment roll, and upon such a record (all the evidence not being before us) we can review only the exceptions taken at the trial. No evidence was given tending to establish the second cause of action alleged in the complaint, January 4, 1886, the litigants executed a written lease, under their hands and seals, by which the plaintiff leased to the defendant six acres of land, with the buildings and tools thereon, for two years from April 1,' 1886, at the annual rental $300, payable quarterly, $75 on the 1st day of July, October, January, and April of each year, which the defendant covenanted to pay. The defendant entered into possession of the premises under the lease, and occupied them until some time in October, 1891, paying the stipulated rent until the 1st day of November, 1891. September 30, 1891, a settlement was had between the litigants, and the following receipt was given by the plaintiff to the defendants

“Eeceived, Auburn, September 30, 1891, from Job Davis, seventy-five dollars, for rent of my place on Van Anden street, up to October 1st. Plums and potatoes, $3; cash, $72—, $75. James E. Cox.
“J. D. is to leave me (for the rent of October, which is $25) his improvements on the place, extra green house, and sash, etc., on south side of main greenhouse, also, the roller and harrow, and is to have one of my plows. “J. E. C.”

The plaintiff testified that April 6, 1888, after the expiration of the written lease, he had a conversation with the defendant in which it was agreed between them that the defendant was to occupy the property, pursuant to the written lease, until the plaintiff should sell the premises. The defendant testified that this conversation occurred in March, 1888, just before the expiration of the written lease, and that the plaintiff said: “You keep on as long as you want to, at the same rental, but, if I sell it, you will have to go off from it, and I will give you the same privilege.” Mr. Williams, the defendant’s son-in-law, testified that the defendant said on this occasion to the plaintiff: “Well, I suppose there is no use of our having a renewal of the lease. How about it? If you sell, will I have to get off?’ He said, ‘yes.’ Then they wanted to know, if he kept on, why, Mr. Davis could have the place as long as he wished, at the same rental, with the privilege of moving off when he liked.” The learned county judge correctly instructed the jury that this evidence presented a question of fact as to whether the occupation was from year to year under the terms of the written lease, or whether its terms were modified, as testified to by the defendant and his witness. In respect to the second defense the plaintiff testified that September 30, 1891, the defendant called at his office, told him that he had bought a place, and that they had a settlement; the defendant paying the rent to the 1st of October, as expressed in the foregoing receipt, and agreeing to leave certain articles in payment of the next month’s rent, as also expressed in the receipt. The defendant testified that at this interview he told the plaintiff it would be impossible for him to leave the premises by October 1st, that he wanted to remain until the middle of that month, and would pay him the rent for the month; and that the plaintiff agreed to this; and' that thereupon a settlement was made, and the foregoing receipt given. The defendant’s son-in-law testified that the defendant told the plaintiff that he came to have a full settlement and pay the rent, as he wanted to get off, for he had bought a place, and that the plaintiff replied, “All right,” and wrote the receipt; that it was agreed that the plaintiff was to take certain articles in payment for the October rent; and that the defendant agreed to help the plaintiff get another tenant. The court submitted the question of fact presented by this evidence to the jury, and instructed them that, if they found that the version of the defendant weis correct, there Avas a termination of the relation of landlord and tenant, and the plaintiff could not recover. The jury found for the defendant.

As before stated, upon this record this court has no power to determine Avhether the verdict is contrary to the weight of evidence. No exceptions were taken to the admission or exclusion of evidence. The plaintiff, at the close of the evidence, asked the court to direct a verdict in his favor for $101, Avith interest from April 1, 1892. The court refused, and the plaintiff excepted. Under the evidence, it is clear that this ruling was not erroneous, and that a question of fact was presented for the determination of the jury. The payment by the defendant of the October rent in advance of the time when it became due waS' a sufficient consideration to support the agreement terminating the relation of landlord and tenant, Avhich had theretofore existed between the parties.

The questions presented by the evidence Avere fairly submitted to the jury by the learned county judge, and Ave are unable to find any exception Avhich is sufficient to justify a reversal of the judgment, Avhich should be affirmed, with costs. All concur.


text:
    John Dinnihan et al. Lake Ontario Beach Improvement Company.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Negligence—Dangerous premises—Bathing beach.
    One who maintains a public bathing beach must be vigilant in keeping the premises safe for his customers, and he cannot escape liability merely by showing that he did nothing to render the premises unsafe.
    3. Death by wrongful act—Excessive damages.
    A verdict in favor of a father, a laboring man, for $4,000 for the death of a daughter sixteen years of age, who since her mother’s death, two or three years before, had taken care of her father’s house, is excessi.ve, where there is no evidence as to the relations which existed between plaintiff and decedent, or of his or her character or capabilities,
    3. Same—Possibility of discontinuance of services.
    That an infant daughter might have married, died, or left her father’s service, on coming of age, are possibilities which should be considered in determining the father’s pecuniary loss in an action for the death of the daughter.

      Appeal from circuit court.
    Action by John Dinnihan and James L. Hotchkiss, as administrators of Katherine Dinnihan, against the Lake Ontario Beach Improvement Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    Edward Harris, for appellant.
    Thomas Raines, for respondents.
   FOLLETT, J.

This action was begun July 6, 1892, to recover damages, under section 1902, Code Civ. Proc., for the alleged negligent killing of the plaintiff’s intestate. The defendant is a domestic corporation, and oavus realty on the beach of the south shore of Lake Ontario, in the village of Charlotte, Avhich is lcnoAvn as “Ontario Beach.” For several years past it has conducted an hotel on the beach, and has several bath houses or rooms in which persons desiring to bathe prepare for the bath, and dress alter returning there from. The defendant charges 25 cents for each person using a bath house and its bathing facilities. In 1885 the defendant sank in the lake, about 150 feet north of the shore, a crib 12 feet wide, 20 feet long, and about 10 feet high. Four or five feet of the lower end of this crib was sunk into the sand underneath the water, was loaded with stone, and so held in place. Usually the top of the crib is about one foot above the surface of the lake, and the Avater about it is usually four or five feet deep. This crib or platform was erected so that bathers could stand on it and jump into the water. For some time there was a spring board attached to the crib from which the bathers jumped into the Avater, but a year or two before the accident complained of this board was removed. This crib Avas used by men only. In 1887 or in 1888 the defendant erected in the lake, about 150 feet north of the (íhore, and substantially parallel therewith, a toboggan slide for the use of the bathers. This slide is about 12 feet wide and 80 feet long, and slopes from the west to the east, theAvest end being several feet above the water, and the east end being a foot or two above it. On the south side of the slide, and near the Avest end, there is a stairway, by Avhich the platform or starting place of the toboggans is reached This slide is supported by two rows of piles driven into the ground under the Avater, the piles being about 12 feet apart. The west end of the slide is two or three feet south of the crib. The northwest corner pile of the slide is two or three feet from the southwest corner of the crib. From the shore an inch rope extends to the west end of the crib, and is fastened to the northwest or the southwest corner pile of the toboggan slide. Between this end of the rope and the shore end are attached to it several Avooden buoys, by AAThieh it is supported. From the east end of the slide a like rope is extended to the shore, and supported by buoys. These ropes are not parallel, their shore ends being several feet further apart than their ends at the slide. There was a sharp controversy betAveen the witnesses whether a rope extended from the north ends of these two ropes, and so formed a defined bathing ground for bathers. It is conceded that the water at this beach deepens very gradually, and that the ground underneath it is smooth, and slopes gradually, so that for four or five hundred feet north of the toboggan slide the water, except when it is high, is only about five feet deep. It was also proved, and not contradicted that the bathers patronizing the defendant were accustomed to go east and west of these exterior lines and north of the toboggan slide. About noon of August 14, 1890, the decedent held a ticket, issued by the defendant, which entitled her to &e use of bath house and to bathe in the waters of the lake adjacent to the beach. Another lady held a like ticket, and both entered the water together. No other persons were bathing at this time. They were seen to walk along by the west rope, holding on to it, jumping up and doAvn, and going towards the toboggan slide. Shortly an alarm was heard, and persons on entering the water found the two ladies at the west end of the toboggan slide, which, as before stated, is just south of the crib, struggling in the water beyond their depth. The decedent’s companion was rescued, but the decedent was found droAvtied in a deep hole near the northwest pile of the toboggan slide. There is substantially no dispute about the size of this hole. It was the deepest in the center, and sloped in all directions. It was, as described by the witnesses, shaped like a basket. One Avitness, who measured it, said it was eight feet and four inches deep at the deepest point. Another witness, called by the defendant who measured it, said it was seven feet and six inches at the deepest point, but all agreed that the water at this place Avas so deep that it would come considerably over the head of any person. The plaintiffs founded their right to recover on the neglect of the defendant to prevent the dangerous hole from existing under the waters Avhich its customers were known to frequent. One witness testified that in August 1888, he rescued a young man from droAvning who got into this hole Avhile bathing. It Avas not shown that the defendant nr any of its employes knew of this circumstance, but it shows that the hole had existed for at least two years. The formation of this hole was sought to be accounted for by the plaintiff on the theory that the water drawing through between the end of the crib and the pile created a current which washed away the sand around and near the pile. Considerable evidence was given to support this theory, and none given to contradict it. It was also testified, and not contradicted, that this hole could be seen by looking from the surface of the water down into it. There was little controversy about the facts. There was, as before stated, a sharp controversy whether a rope extended from the north ends of the side ropes along the toboggan slide, so as to keep bathers from going beyond or north of the slide. This question, however, -was left to the jury under a charge not excepted to in this respect, and Was found for the plaintiffs. The evidence warranted different inferences, and the jury were instructed that if they found from all the facts and circumstances the defendant had set apart and fenced in with ropes a definite space wherein its customers were to bathe, and it was so understood or ought to have been so understood by the decedent, the plaintiffs could not recover because she was found drowned in a deep hole about eight or ten feet outside of these lines. The learned trial judge correctly instructed the jury that the defendant was bound to be active and exercise vigilance to keep the grounds whereon it invited its customers to bathe from becoming dangerous; that this duty was an active one, and that the defendant could not escape liability by showing simply that it did nothing to produce this hole. These instructions laid down the rule of law applicable to the liabilities of keepers of bathing beaches. There Avas no evidence that the decedent, by her OAA'n neglect, contributed to'the accident, except the'fact that these íavo, ladies were found outside the ropes, and, as before stated, the court instructed the jury that if the ropes Avere intended by the defendant and understood by the decedent as the exterior bounds of the bathing grounds, she was- negligent in going outside, and the plaintiffs oould not recover. The íavo ladies Avere seen to do nothing while in the AArater except to AArallt along the east side of this Avest rope, holding on to it, and jumping up and doAvn. We.think there AAT-as evidence from which the jury Avere justified in finding that the defendant Avas guilty of negligence in not knowing of and guarding against this dangerous place, and there AAras also-evidence from which the jury Avere at liberty to find that the decedent did not, by her own negligence, contribute to the accident.

Several exceptions to rulings upon the admission and exclusion of evidence Avere taken in behalf of the defendant,. but none of them are argued in the brief, nor Avere they discussed orally, and the same is true in respect to two or three unimportant exceptions to the charge.

The jury rendered a verdict for $4,000 damages, which the trial court Avas asked to set aside as excessive, and this court is also asked to set it aside on that ground. The father Avas not sworn, and Ave knoAV nothing of the relations which- existed between him and the decedent, or of his or her character, capabilities, or employments, except as disclosed by the testimony of a sister of the decedent, Avho testified that the-father is a laboring man, about 55 years of age, having no steady employment, and working wherever he could find employment. His Avife died August 12, 1887, leaving three daughters. The eldest is married, and lives away from home. The second (the Avitness) was 21 years of age at the time of the trial, and had lived aAvay from home, at service, for 6 years. The decedent was the youngest, and was 16 years of age October 14 1889, and since the death of her mother had taken care of her father’s house. There is no ev dence in respect to her habits, capabilities, intelligence, or education. The statute (section 1904, Code Civ. Proc.) provides that “the damages aAvarded to the plaintiff may be ® * * a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought.” This action AV'as brought for the sole benefit of the father. The interest on the verdict Avould exceed the sum which the decedent could have probably earned, and, besides, the principal Avill be left to the father. The fact that she might have married, or-died, or left her father’s service on becoming of age, are possibilities which should be taken into account in determining his pecuniary loss. Considering these possibilities, and taking into account the probable duration of her life, and the meagre evidence of damages, we think the verdict, excessive, and that a judgment for $2,500 will cover the pecuniary loss of the father.

The judgment and order should be reversed, and a neAV trial granted, with costs to abide the event, unless the plain, tiffs.stipulate to reduce the damages to $2,500, in which case the judgment and order, as so modified, should be affirmedAvithout costs.

All concur.


author: PARKER, P. J.

text:
    Nancy M. Clark et al. v. Daniel S. Douglass et al.

    (Supreme Court, Appellate Division, Third Department,
    May, 1896.)
    Evibence—Proof of handwriting—Comparison with other writings.
    A writing will not be admitted in evidence for the purpose of com" parison with another writing, the genuineness of which is in issue, unlcss the genuineness of the writing offered is so clear that, if it were one of the issues in the case a verdict would be directed in favor of its genuineness.
    Appeal from circuit court, Rensselaer county.
    Action by Nancy M. Clark, as executrix of the will of John B. Clark, deceased, against Daniel S. Douglass and another, as executors of the will of Silas G. Smith, deceased and others, on a promissory note. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, Defendants Douglass and his co-executor and defendant Joel Hubbs appeal.
    R. A. Parmenter, for appellants Douglass and Smith.
    Matthew Hale, for appellant Joel Hubbs.
    Charles E. Patterson, for respondent.
   PARKER, P. J.

This action was brought to recover on a note for $520 made by the defendant Darwin J. Hubbs, and purporting to be indorsed by Silas G. Smith and Joel Hubbs Darwin J. Hubbs, the maker, negotiated it to the plaintiff, with the indorsements upon it as genuine, and received full value for the same. The action is against the maker and both indorsers. The maker made default, and Joel Hubbs and the executors of Silas G. Smith, who has died since the making of the alleged note, defend on the ground that the indorsements upon the note are forgeries. Upon the trial two papers were introduced in evidence by the plaintiff,—one purporting to be signed by Silas G. Smith, Joel Hubbs, and Darwin J. Hubbs, bearing date June 7, 1889, and being a statement that they had that day indorsed for Darwin J. Hubbs notes to the amount of $2,340, and a guaranty to pay them at maturity; the other, dated January 25, 1889, purporting to be signed by Silas G. Smith, and being a certificate that he had indorsed, with D. J. Hubbs, certain notes therein specified, for one Wallace L. Hubbs. These papers were received as containing the genuine signatures of Silas G. Smith and Joel Plubbs, and were used as such, and the expert witness, Dr. Hagan, was allowed to compare with them the indorsements upon the note in suit; and, assuming them to be genuine, he testified that the indorsements were also genuine. The jury were also allowed to take such papers as containing the genuine signatures of the indorsers, and to compare with the indorsements in question. The use of such specimens as genuine was strenuously objected to by the appellants’ counsel, at all stages of the case, on the ground that they were also forgeries; that their genuineness was not sufficiently proven to allow them to be used as standards with which to compare the signatures in question. These objections were overruled, and exceptions duly taken.

We are of the opinion that such ruling by the trial judge was error. The proof on the part of the plaintiff that such signatures were genuine was substantially as follows: Darwin J. Hubbs testified that he saw each paper signed,—the one by Smith alone, and the other by himself, Smith, and his father, Joel Hubbs. Darwin J. Hubbs, however, is the one who was charged with having forged the indorsements to the note in question, and who, if they are forgeries, must have known that they were such when he negotiated the note. He was also impeached by several witnesses as not being worthy of credit under oath, and the claim of the appellants was that he also forged the indorsements. Upon the lower left, hand corner of the paper first above mentioned is written as follows: “Charles E. Gorsline, Commissioner of Deeds.” And upon the lower left-hand corner of the other paper is written: “Witness: Chas. E. Gorsline.” Gorsline was called as a witness by the plaintiff, and examined at considerable length as to what he knew about those signatures. The substance of his evidence is that his own signatures were genuine, but that he had no recollection whatever of the papers, or whether they were ever. signed before him. He testified that he made it a rule to never sign a paper as witness, or take an acknowledgment, unless the party either signed or acknowledged in his presence; but, beyond that, he gave no information whatever as to the genuineness of either signature. It seems to be conceded that there was originally an acknowledgment at the foot of the paper first above mentioned, which has been cut off; but before whom it was taken or how many made it,—whether one or three,—no one seems able to tell. Now, as to the first paper, it is quite evident that one name may have been subscribed to it when Gorsline subscribed his name, and the other two may have been written above it afterwards. As to the second paper; if Gorsline never varied from his rule, we must suppose that Smith either signed or acknowledged it. On the part of the appellants, however, Joel Hubbs denies that he ever signed the first paper, or ever acknowledged any, before Gorsline. Several witnesses, also, whom the evidence discloses Averereputable, and aa7Iio had unusual opportunities to become acquainted with the handAvriting of both Smith and Joel Hubbs testified that the signatures to such papers Avere not their signatures. Smith was dead, and hence his evidence was not before the court. Here, eAridently, is a serious contest over Avhether the signatures to the proposed standards are genuine, and the question presented is whether they were sufficiently proven to alloAV them to be used as such.

Under chapter 36 of the Lravs of 1880, any Avriting, whether material to the issue or not, may be introduced as evidence for the sole purpose of being used as a standard with which to compare the Avriting in dispute, and the genuineness of such writings must be proven to the satisfaction of. the trial court. Under this statute it is settled that the mode of proof is to be regulated by the general rules of evidence applicable to the proof of any handAvriting. McKay v. Lasher,. 121 N. Y. 482, 31 St. Rep. 690. But Avhat shall be deemed a sufficiency of proof in such cases does not seem to have been definitely decided. At least, no case has been called to our attention that lays doAvn any settled rule upon that subject. In many of the states the rule has long prevailed that irrelevant Avritings might be used as standards with which to compare a disputed Avriting, and different degrees of certainty as to the genuineness of the standard have been required in different states. In some states that degree of certainty which arises only from direct evidence of the signature, or evidence equivalent to "that, has been required. In. others, a less degree of certainty has been deemed sufficient.. See cases collected in Abb. Sel. Cas. Ev. 492. All, however, seem to agree that great care should be taken that the standard be genuine. And in 1 Greenl. Ev. sec. 581, the rule is stated to this effect: That such standards only should be admitted concerning which no collateral issue can be raised. The absurdity of alloAving a signature claimed to be a forgery to be compared with another, Avhich is also claimed to be a forgery, and concerning the genuineness of which there-is considerable doubt, is apparent. And it seems clear that, AvliateArer may be the character of the proof used, it should be such as fairly establishes the genuineness of the standard offered. Without intending to lay down any inflexible rule, we are of the opinion that unless the evidence of the genuineness of the standard is so clear that, if it Avere one of the issues in the case for the jury to determine, a verdict should be directed in favor of its genuineness by the court, it may not properly be alloAved in evidence. Tested by'this rule,, the standards in question Avere not admissible. Darwin 3. Hubbs had testified that he saAv both indorsers Avrite their names upon the note; hence his testimany as to the standards gives no more verity to them than it did to the indorsements in question. To conclude that the standards were genuine because he said so was practically to decide the whole question. As to Gorsline, he could not be induced to say that he believed he either saw them signed or acknowledged, or that the alleged signers were ever before him. To the first paper above mentioned he does not assume to be a witness, and, from the fact that there was an acknowledgment to the paper Avhich is lost, Ave cannot infer that he intended to sign as a witness. In fact, the paper does not purport to be Avitnessed. The signature of Smith to the other paper purports to be witnessed by Gorsline. and the presumption arising therefrom is the only evidence whatever, aside from Darxvin J. Hubbs’ .. testimony, that it is his genuine signature. Such a presump- ■ tion is certainly very slight as to the signature being Smith’s handwriting, for it could be properly Avitnessed, had it been signed by some one else, and adopted and acknowledged by him. But, assume that both papers were Avitnessed by Gorsline, in the face of the positive denials of Joel Hubbs, ard the testimony of those Avho SAvear that the signatures on tho; e , papers are not genuine, such a presumption vanishes. Here, then, is a case where there is as much doubt about the genuineness of the standards as there is about the genuineness of indorsements; yet, notAV-ithstanding the earnest claim on tl e part of the appellants that they were forgeries by the san e person Avho forged the indorsements, they are received ly the court as genuine, and the jury are practically told that, if the indorsements were written by the same hand that Avrote the standards, they are the genuine indorsements of the appellants. We think that the standards Athich are sent to the jury as the genuine writing of the appellants should be better proven than these weré. It is suggested in Hall a'. Van Vranken,. 28 Hun, 403, that, as the question of the suffi ciency of the evidence is addressed to the court, “error can not be alleged in respect thereto.” But the decision is not placed on that ground, and Ave are of the opinion that it. is within the province of this court to re>'ieAV the evidence upon AAdiich the genuineness of the standard is claimed to be established; and when, in our judgment, such evidence is plainly insufficient, and it appears that injustice has been done, Ave should give the injured party a neAV trial. In the case before us the trial court, against the weight of evidence adopted the standards as genuine. The question for the jury was, therefore, practically narroAved doAVn to whether the same hand wrote both the signature on the standards and the indorsements; and if, from the testimony of the expert, or from their oavia inspection and comparison, they conclude that it did, a verdict was forced against the appellants upon very insufficient evidence. It is true that there was another standard used by the expert and the jury that was conceded to be the genuine signature of Smith, but this does not cure the error, or relieve the case from the effect which the use of the other standard must necessarily have had upon the verdict. It seems clear that from such an error great prejudice was likely to result to the appellants, and for that reason we conclude that a new trial should be granted. The judgment and order appealed from must be reversed, and a new trial granted; costs to abide the event.

Judgment and order reversed, and a new trial granted; costs to abide the event.

All concur.


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    Mary Lynch v. New York Central and Hudson River Railroad Company et al.

    (Supreme Court Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Negligence—Liability for acts of licensee.
    A railroad company which permits the construction of an inclined track from a stone quarry down to, and partly on the railroad line, is liable for the negligence of the quarryman operating cars on such inclined track, by which a passenger on the railroad is injured; and the fact that the negligent act which caused the injury was performed on the land of the quarryman is immaterial.
    2. Carriers—Injuries to passengers—Acts of third persons.
    A railroad company permitted the construction of an inclined track from a stone quarry down to and partly on the railroad line. A car descending the inclined track escaped and collided with a passing train on the railroad. There was no barrier between the end of the inclined track and the railroad track. On two previous occasions a car descending the inclined track had escaped, and run on the railroad. One of the railroad company’s trackmen knew of both previous accidents and notified his foreman who was charged with the duty of keeping the tracks in order. Held, that the collisioSFehould have been apprehended by the railroad company,
    Appeal from circuit court, Erie county.
    This action was begun October 17, 1894, to recover damages| for personal injuries caused, it is alleged, by the negligence of the defendant. The respondent owns and operates a steam railroad along the east bank of Niagara river, between Lewiston and Suspension Bridge. June 27, 1894, the plaintiff held a ticket entitling her to ride on the respondent’s road from Suspension Bridge to Lewiston and return. She made the trip from Suspension Bridge to Lewiston in safety, and later in the day took passage on one of defendant’s trains to return to Suspension Bridge. While on her return, a car loaded with stone was precipitated through the side of the passenger car in which she was riding, by means of which her skull was fractured, and other serious injuries inflicted. At the time of the accident, Earl Buttery ivas, and for about two years had been, the owner of and engaged in working a stone quarry on the east side of and abutting on the respondent’s railroad. This quarry is located on the side of a hill about 80 feet above the main tracks of the respondent’s railroad. To facilitate the shipment of stone by the respondent’s cars, it constructed a side track about 25 feet east of its main track, on which side track the cars on which the stone was loaded were placed. Immediately east of the east rail of this side track, and on the respondent’s land, a platform was constructed, 9 feet wide, and higher than the side track. From this platform Earl Buttery constructed a double-track gravity road to his quarry, which is 188 feet in length, 158 feet of it being on his own land, and 30 feet of it on the land of the railroad. This gravity road intersects the railroad at right angles. Its gauge is about 3 feet, arid the-two' independent tracks are about 2 feet 2 inches from each other. The highest point of the gravity road is in the quarry and 73 feet higher than the platform. From this point, descending to the west towards the platform, there is a grade or fall of 10 feet in the first 75 feet. The grade then changes,' and from the point where it changes to the platform the distance is 113 feet. This point at which the grade changes is 63 feet above the platform, so that there is a fall or grade of 63 feet in 113 feet. This gravity road was operated by two cars, each being about 8 feet long, and 4 1-2 feet wide, mounted on four wheels. The cars were so constructed that, when one loaded with stone was let down to the platform, an empty car was drawn back from the platform to the quarry, ivas there loaded, and let down to the platform. These cars were lowered and raised by a wire cable attached to a drum in a building at the quarry, called the “drum house.” A brake was applied to the drum around which the cable wound by means of a lever operated by a man stationed at the drum house. By the application of the brake, the velocity of the descending car loaded with stone was sought to bé, and generally was, controlled. But on two occasions, and within a year before this accident, a loaded car escaped, and ivas precipitated onto, and on one occasion over, the main tracks of the respondent’s road. The sectionmen employed by the respondent knew of these accidents, helped clear the main tracks of the stone which fell from the car, and the respondent’s foreman on this section of the railroad knew of both accidents. On the occasion in question a car was loaded with stone at the quarry, and pushed by the employes of Buttery along the level portion of the track lying id the quarry, until the car reached a point on this'road where it would run by the force of gravity down to the platform on the respondent’s railroad. The men who pushed the car into place supposed that the employe whose duty it was to operate the drum and brake was at his station, and they shouted to him that the car was ready to go down, and that a train was approaching on the railroad; but for some reason the brake was not applied, or, if applied, failed to control the movement of the loaded car. The evidence tends to show that the man whose duty it was to operate the brake was not at his station in the drum house, and that the velocity of the descending car was in no wise controlled. At the moment when this descending car reached the respondent’s , track, the train on which the plaintiff was riding passed, and the stone car dashed over the platform,, and through the side, of the passenger car, injuring the plaintiff, as hereinbefore stated. There was some evidence that the drum and the appliances for controlling the movement of the stone car were crude, and not well constructed. On the trial a nonsuit was granted in favor of the railroad company, and a verdict was recov ered' against Earl Buttery for $2,750.
    P. F. King, for appellant.
    Charles A. Pooley, for respondent.
   FOLLETT, J.

It is not asserted by the respondent that the plaintiff contributed in any way to the accident, nor, is it asserted by her that the employes on the respondent’s passenger train were negligent in its management. The evidence in this case presented two questions of fact, which ought, to have been submitted to the jury.; and, in case either had been found in favor of the plaintiff, she would have been entitled to recover: (l) Did the' negligence of Earl Buttery, the quarryman, or of his. employes, cause the accident? (2) Was the respondent negligent,in permitting the gravity road to be constructed and operated, partly on its own land, in the manner described by the evidence?

It <was conceded on the trial that the respondent built the side track, and built, or permitted the quarryman to build the platform, which were wholly on the respondent’s laud, end permitted the quarryman to build the gravity road, partly on its land and partly on his land, for the benefit of both. The gravity road being -built and operated partly on the land of the respondent by the quarryman, he was a licensee of the respondent, which became liable for the -negligence of the quarryman and of his employes. Railroad Co. v. Barron, 5 Wall. 90; McElroy v. Railroad Co., 4 Cush. 400, Sher. & R. Neg. (4th Ed.) sec. 413; Busw. Pers. Inj. sec. 48; Thomp. Corp. sec. 6293. The respondent knew how the gravity road was constructed and operated, and the fact that the negligent act which caused the injury Avas performed on the land of the quarryman does not relieve the respondent from liability, as the situation Avas such that a negligent act on the part of the quarryman or of his employes would necessarily endanger the passengers on the road of the respondent. The gravity road Avas in plain sight of the respondent’s officers .and employes, and it Avas bound to take notice of the dangers incident to its operation.

2. A railroad is bound to exercise the greatest vigilance •and care to keep its tracks clear from obstructions, animate ■or inanimate; and if it fails in its duty, and a passenger is injured by reason of its failure, it is liable for the injuries sustained. Donnegan v. Erhardt, 119 1ST. Y. 468. The fact that external causes over which the corporation has no control set in motion an object Avhich is cast upon its tracks or into its cars, causing an injury to a passenger, does not exempt the railroad from liability, provided the accident might have been prevented by the exercise of foresight and due care. In case rocks on land not belonging to the corporation are set in motion by the action of the elements, and are cast upon the track, causing an injury to a passenger, the railroad is liable, provided the accident ought to have Been apprehended, and might have been prevented by the exercise of due care. When a passenger is injured, the question always is, Avas the accident one which should have been apprehended by the carrier? It seems to me that the accident which caused the injury to the plaintiff should have been apprehended by the managers of this corporation. These loaded cars of stone were let down this precipitous incline at right angles with the respondent’s road, without anything to control or arrest their movement except the wire cable. There was no barrier between the platform and the respondent’s main tracks. On two previous occasions a ■similar accident had occurred, though at a time Avhen no train was passing, and no damage Avas done. A trackman who had been employed by the respondent testified that on íavo occasions after the cars had dashed down upon the respondent’s road he cleared the stone from the tracks. H. further testified: “After I cleared the stone from the tracks, I told the foreman of the central track, John Carr, about it. •Carr testified: “I do not know of any time when those stone cars Avere down on the track before that day [referring to the day Avhen the plaintiff was injured].” But he fails to ■deny that he was informed by the sectionman that cars had escaped and scattered stone on the respondent’s tracks. Am employe of the quarryman testified that, two years before the accident in question, a similar accident occurred. It is urged in behalf of the respondent that its officers had no notice of the previous accidents. The sectionmen and foreman were charged with the duty of keeping the respondent’s tracks in order, and free from obstructions, and notice to them while engaged in the discharge of their duty Avas notice to the corporation. Notice to an agent while engaged in the discharge of his duties in respect to the matters intrusted to him is notice to his principal. A railroad is charged Avith a positive and an affirmative duty to keep its tracks clear, and it cannot excuse itself from the performance of this duty by shoAving that the obstructions' were caused by the negligence of its licensee. This gravity road having been constructed Avith the assent of the railroad, partly on its land and partly on the land of the quarryman, it was bound to exercise dué care to see that the gravity road Avas so constructed and operated that the tracks of the railroad should not be obstructed and passengers injured. In case a railroad corpora • tion permits another to make a negligent use of its right of Avay, and thereby a passenger is injured, the corporation is liable. It seems to me that the existence and use of this gravity road, constructed and operated in the manner described, was evidence from AArhich the jury might have found that the respondent was negligent in uniting in its construction, and in permitting it to be operated in the way that it Avas.

Daniel v. Railway Co., L. R. 3 C. P. 216, 591, L. R. 5 H. L„ 45, is cited to sustain the contention of the respondent that a question of fact was not presented by the evidence for the jury. In that case, the city of London, pursuant to an act of Parliament, was engaged in constructing Avorks over the line of the railway company, over Avhich Avorks the railway had no control. The city of London was not the licensee of the railway, AArhieh had no poAver to prevent or to control the construction of the Avorks, as the respondent had in the case at bar, and it was held that the railway was not liable for damages occasioned to a passenger by the negligent dropping; of a girder upon its passing train. It was said that the railAAwy Avas not bound to employ persons to Avatch and see that no accident occurred from the negligence of persons whom it did not employ and could not control. In the case last cited, the lord chancellor said:

“I apprehend that all that is to be done by those who carry passengers for hire is that they are bound to see that eAreryfhing under their OAvn control is in full and complete and proper order. They are bound to see, also, if there be a. certain and definite risk as to which they have any knowledge, or can reasonably be supposed to have any knowledge, that it is sufficiently guarded against. For instance, a trench may be dug across a road through no fault of theirs, and in such a case they oould not be held to be liable; but, if there is any reasonable ground for apprehending that extraordinary precaution is wanted, they would be liable.” ¡

In the case at bar, the respondent had no control over the employes of the quarryman, but it authorized the construction and operation of the gravity road, partly on its land; and, under such circumstances, it was bound either to prevent its operation, or to exercise due care that its operation should not injure its passengers. In such a case a railroad cannot exonerate itself by showing that the business had been delegated to others, for its duty is in such cases a positive one, to take care, as opposed to the negative duty of not being guilty of heedlessness or rashness. Whether the respondent exercised such affirmative care in this case was a question of fact for the jury.

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


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    The People ex rel. Board of Police and Excise Commissioners of Town and City of Dunkirk v. Elias Shulman.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Bastardy proceedinss—Right of-mother to appeal.
    Code Criminal Procedure, section 840 et seq., providing for proceedings against' the father of a bastard for its support, confers no power on the-mother to prosecute the proceeding and therefore she cannot appeal from an order made therein.
    Appeal from Chautauqua county court.
    Since May 24, 1895, the poor of the town and city of Dunkirk have been supported by that municipality, and all the powers and duties of overseers of the poor of towns have been imposed on and vested in “The Board of Police and Excise Commissioners” of the town and city of- Dunkirk. Laws 1895, c. 748, sec. 13. January 24, 1896, the board applied, pursuant to section 840, Code Cr. Broe., to a police justice of the city of Dunkirk to-inquire into the facts in respect to a complaint that Katherine Maier was then pregnant with child likely to be born-a bastard, and chargeable to said town and city. The police justice on the same day issued a warrant directing the arrest of Elias Shulman, who was charged with being the father of the child. He was arrested on the same day, and thereupon the police justice associated with himself a justice of the peace of the town of Dunkirk, and by the consent of the board and of the defendant the proceeding was adjourned until January 31, 1896. .January 29, 1896, the board and the defendant entered into a written agreement, by which the latter paid $75 for the support of the child and the sustenance of the mother during-her confinement, and agreed to pay the costs of the proceeding. The agreement provided that, in consideration of the payment of said sums, the defendant should be discharged f,rom further liability for the support of the child and the mother. January 31, 1896, this agreement was presented to the superintendent of the poor of the county of Chautauqua, who ratified and confirmed the contract of January 29, 1896 and released and discharged the defendant from all liability to the board and to the superintendent of the poor-of the county for the support of ICatherine Maier or the child likely to be born a bastard. On the same day the board, the defendant, and ICatherine Maier appeared before the magistrates, and the defendant pleaded guilty to the charge, and acknowledged that he was the father of the child likely to be born a bastard. Thereupon the magistrates made an order of filiation, adjudging him to be the father of said child, and that he pay $50 for the support thereof, and $25 for the support of ICatherine Maier during her confinement and recovery, together with $34.50, the costs of the proceeding. The defendant paid these sums, and thereupon the magistrates entered an order discontinuing the proceeding, and discharging the defendant. Katherine Maier, by her attorney, objected to the discharge of the defendant, and asked to be sworn for the purpose of proving that the defendant was the father of the child; that she was in indigent circumstances, and would be unable to support herself during her pregnancy and confinement, and unable to support‘the child after its birth;-.-which request was denied, and the defendant discharged. February 1, 1896, Katherine Maier served on the Magistrates, on the defendant, and on the board a notice that she appealed from the order discharging the defendant from custody. The magistrates making no return, Katherine Maier, on the 14th of February, 1896, procured an order that the magistrates show cause why an order should not be granted requiring them to return their proceedings. Upon the return of’the order the magistrates showed cause, stating the foregoing recited facts, and thereupon the motion was denied.

      Thomas H. Larkins, for appellant Katherine Maier.
    Stearns & Warner, for respondents.
   FOLLETT, J.

At common law the father was under no legal liability to support his bastard child, and the liability which he is now under was created and exists solely by virtue of the statutes. Moncrief v. Ely, 19 Wend. 406; Birdsall v. Edgerton, 25 Wend. 619; Todd v. Weber, 95 N. Y. 181, 189; 1 Burns, J. P. (13th Ed.) 407. The mother has no power at common law or under the statutes of this state to compel the father to support her during confinement, or to support the child after its birth. 2 Kent, Comm. (13th Ed.) 215. The proceedings authorized by our statutes are solely for the indemnification of the civil divisions of the state from liability to support bastards. By title 5 of the Code of Criminal Procedure two independent proceedings are authorized, one against the father (section 840 et seq.), and the other against the mother, if she possesses property in her own right (section 857 et seq.), to compel either to support their bastard child. The mother cannot institute a proceeding against the father nor the father against the mother, and in case a proceeding is instituted against either by and one other than the officials authorized by the statutes, the magistrates acquire no jurisdiction. Wallsworth v. McCullough, 10 Johns. 93; Sprague v. Eccleston, 1 Lans. 74; Rivenburgh v. Henness, 4 Lans. 208; Peoble v. Davis, 15 Hun. 209. In Rivenburgh v. Henness, supra, it was held that the officer who instituted the proceeding was a party to it, and in Stowel v. Overseers, 5 Denio, 98, it was held that the officers instituting such a proceeding might discontinue it, in which case it was done in consideration of $11 paid by the defendant. In case the officers, after instituting proceeding against the father, fail to prosecute it by reason of a settlement, legal or illegal, made with the defendant, or for any cause, the mother cannot prosecute the proceeding, because the statute confers no power on her to do so and for the same reason the father would have no power to carry on a prosecution legal ly instituted by the officers against the mother in case they should discontinue it for any cause. The father has no pecuniary claim on the mother, nor the mother on the father, in respect to a child born, or likely to be born, a bastard. Neither is a party to a proceeding instituted against the other, and neither has any right to conduct, control, or prosecute a proceeding instituted against the other. In case a proceeding is instituted against the father, and an adjudication is made against him, or if a proceeding is instituted against the mother, and an adjudication is made against her, he or she may appeal from the adjudication made against him or her, as the case may be. Code Cr. Proc. sec. 851, et seq. But the mother cannot appeal from any order or adjudication made in a proceeding against the father, nor can the father appeal from any adjudication or order made in a proceeding instituted against the mother. We reach this conclusion without determining whether the board had power to make the settlement which was made in this case.

The learned county .judge correctly decided the motion, and the order of the county court should be affirmed. All concur.