text:
    The Homestead B’k, Resp’t, v. Frederick Wood, Impl’d, Appl’t.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Bills and notes—Evidence.
    As between the endorser and his immediate endorsee, it is always com* tent to show by paroi evidence what the consideration for the endorsement was, and that it has failed.
    3. Same.
    In an action upon a promissory note, the defendant’s evidence tended to show that the note was transferred for a sum advanced to construct buildings on joint account, and to be repaid out of a permanent loan when the buildings were completed, and that such loan had not been procured. Held, that a direction for a verdict for plaintiff was erroneous
    3. Coepoeatiobs—Ultea vibes—Estoppel.
    A corporation is estopped from claiming that an agreement made by it was ultra mres, to the extent that it has been acted on by the other party in good faith.
    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff which was entered on a verdict directed by the trial court, and an order denying defendant’s motion on the minutes for a new trial. Action to recover against defendant, as endorser of a promissory note.

      Charles F. MacLean, for resp’t; Artemas B. Smith, for app’lt.

       Reversing 43 St. Rep., 675.

   Bischoff, J.

J.Plaintiff sued to .recover from defendant Wood, as endorser, the amount of a promissory note made by one Edward E. Teller to the order of Wood, and alleged to have been endorsed, negotiated and delivered before maturity, and for value, by him to plaintiff. Wood did not dispute the facts of the endorsement and delivery of the note, but asserted, as a defense to any liability on his part, that the note was endorsed and delivered to plaintiff to secure it for the re-payment of an equivalent sum advanced to Wood to enable him to complete certain buildings, then in the course of construction, for their joint account; that it was agreed between them that the sum so advanced should be repaid out of the proceeds of a permanent loan upon, or the sale of the buildings, when completed, and not otherwise; and that the buildings were neither completed nor sold, and that the loan had not been procured. Defendant Wood also interposed as a counterclaim to plaintiff’s demand damages which he alleged had accrued to him from plaintiff’s refusal to make the agreed advances of money required to complete the buildings.

On the trial defendant Wood sought to establish an oral underderstanding substantially in accord with the agreements above mentioned. Some of his testimony was excluded, while in other respects it was admitted, but when both sides concluded the introduction of evidence' the fact of the agreements by plaintiff’s officers, with the sanction of the board of directors, sufficiently appeared from defendant’s testimony. Thereupon plaintiff’s counsel requested the court to direct a verdict for plaintiff, which was-opposed by defendant’s counsel, who asked to he permitted to go to the jury on the question of the agreements. The court granted the motion, and directed a verdict as requested, assigning as the ground therefor that the paroi agreements were incompetent to vary or contradict the terms of the endorsement, and defendant’s counsel duly excepted.

The exclusion of the evidence offered, and the direction of a verdict, were errors for which the judgment hnd order appealed from must be reversed. As between the endorser and his immediate endorsee it is always competent to show by paroi evidence what the consideration for the endorsement was, and that it has failed. Rice on Evidence, vol. 1, p. 274; vol. 2, p. 1137, and cases cited ; Randolph on Negotiable Instruments, § 565; Bookstaver v. Jayne, 60 N. Y., 146; Isaacs v. Jacobs, 15 Daly, 490; 29 St. Rep., 145.

So, also, it is a familiar rule in equity that paroi evidence is admissible and competent to show that a written instrument which is absolute on its face was given and accepted as security only, Horn v. Keteltas, 46 N. Y., 606; and though equitable relief was not demanded by answer to the complaint, and the court below was without jurisdiction to grant affirmative equitable relief, defendant could, pursuaut to the provisions of the Code of Civil Procedure, § 507, avail himself of a defense purely equitable. Cushman v. Family Fund Society, 36 St. Rep., 856.

It is a sufficient answer to the proposition of respondent’s counsel that the verdict was properly directed, though the ground assigned therefor may have been erroneous, because the agreement to build was in violation of plaintiff’s corporate authority, and therefore ultra vires, that plaintiff is estopped from so asserting to the extent to which the defendant has performed that agreement on his part. Whitney Arms Co. v. Barlow, 63 N. Y., 62; Lawson’s Bights, Remedies and Practice, vol. 1, p. 630, and cases cited.

The judgment of the general and trial terms of the court below, and the order denying defendant’s motion for a new trial, should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Daly, Ch. J., concurs.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    The Western National Bank, Resp’t, v. Frederick Wood, Impl’d, App’lt.

      (New York Common Pleas General Term,

      Filed November 7, 1892.)

    Bills and notes—-Failube oe consideration.
    In an action by the endorsee of a note against the maker, the evidence showed that the note was given to a bank to secure repayment of moneys advanced to complete buildings being constructed on joint account; that it was agreed that said moneys should be repaid out of a permanent loan upon or sale of the buildings when completed; that the buildings were not completed nor the loan procured, and that plaintiff's cashier had knowledge of such agreement before the transfer of the note. Held, that these facts constituted a complete defense, and that it was error to direct a verdict for the plaintiff.
    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff which was entered on a verdict directed by the trial court, and an order denying defendant’s motion on the minutes" for a new trial. Action to recover by plaintiff, as endorsee, against defendant, as maker, upon a promissory note.

      Charles F. MacLean, for resp’t; Artemas B. Smith and Henry H. Bowman, for app’lt.

       Reversing 42 St. Rep., 675.

   Bischoff, J.

Plaintiff, as endorsee, sued defendant Wood, to recover upon a promissory note made by him to the order of J. Wesley Smith, by whom it was endorsed, and thereupon delivered by Wood to the Homestead Bank, before maturity. Wood did not dispute the making of the note, nor its delivery to the Homestead Bank, but asserted, as a defense to any liability on his part, that the note was made and delivered to the Homestead Bank to secure it for the repayment of an equivalent sum advanced to Wood to enable him to complete certain buildings, then in course-of construction, for their joint account; that it was agreed that the sum so advanced should be repaid out of the proceeds of a. permanent loan upon, or the sale of the buildings, when completed, and not otherwise, that the buildings were neither completed, nor sold, and that the loan had not been procured ; and that plaintiff received the note from the Homestead Bank with knowledge of the facts.

On the trial defendant Wood testified to the fact of an oral understanding between himself and the officers of the Homestead Bank, with the sanction of its board of directors, substantially in accord with the agreement above mentioned, and that plaintiff's-cashier had knowledge thereof before the note was endorsed and transferred by the Homestead Bank to plaintiff. When both sides rested plaintiff’s counsel moved for the direction of a verdict for plaintiff, which was opposed by counsel for defendant, -who asked, that the fact of the agreement be submitted to the jury for determination. The court granted plaintiff’s motion and defendant, duly excepted.

The facts appearing in evidence from defendant Wood’s testimony constituted a complete defense to his liability on the note, and it was, therefore, error to direct a verdict for the plaintiff, for which the judgment and order appealed from must be reversed. Precisely the same question has been determined by us in The Homestead Bank v. Frederick Wood, impleaded, etc., the opinion wherein is herewith handed down, the two cases differing only in that in The Homestead Bank v. Wood, impleaded, etc., the action was between endorsee and endorser, while here it is between an endorsee, with notice, and maker, but what has been said with reference to the one applies with equal force to the other.

The judgment of the general and trial terms of the court below, and the order denying defendant’s motion for a new trial, should be reversed and a new trial ordered, with costs to the appellant to abide the event

Daly, Ch. J., and Pryor, J., concur.


text:
    Samuel H. Randall, Resp’t, v. George W. Packard, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Attorneys—Vawte of services.
    Although the fact that at the time of defendant’s promise to pay a specifled sum for services the relation of attorney and client had already been established between the parties will preclude the plaintiff from availing himself thereof, except to the extent that the compensation promised is fair and reasonable; yet the fact of the amount promised may properly be taken into consideration in determining the value of the plaintiff's services, as tending to show defendant’s own estimate thereof.
    2. Same—Expert evidence.
    The jury are not bound to accept the opinions of experts called by either side as conclusive on the question of the value of the plaintiff’s services; but may consider their testimony in connection with other evidence.
    3. Same—Charge.
    The court, after charging that the professional standing and ability of the attorney, the time employed and the quality of the services performed should be severally considered, added: “ But the main element, after all, in determining the value of a lawyer’s services, is the result of his labor.” Held, no error.
    Appeal from a judgment for plaintiff entered upon the verdict of a jury, and from an order denying defendant’s motion, made on the minutes of the trial judge, for a new trial. Action by an attorney to recover for his services as such performed upon defendant’s retainer.

      Samuel H. Randall respondent in person ; Wheeler H. Peckham, for app’lt.
   Bischoff, J.

Plaintiff, an attorney, sued to recover a balance amounting to $23,000, alleged to be due him for professional services rendered upon defendant’s retainer to secure a compromise, or rescission, of defendant’s subscription of $125,000 towards the capital stock of the Perry Stove Company, which services plaintiff asserted were reasonably worth $25,000. The jury awarded him $10,000, and from an order denying defendant’s motion to set the verdict aside as excessive, and against the evidence, and the weight of the evidence, defendant appeals.

Upon the trial it was not disputed that the services for which plaintiff sought to recover in this action were actually rendered by him upon defendant’s retainer, and the only issue litigated was that touching the value of the services ; and assuming that the estimate of value given by plaintiff and the expert witnesses summoned on his behalf was unduly enhanced by the hypothesis of the belief of an impending loss of the entire sum subscribed by defendant toward the capital stock of the Perry Stove Company, there still remained the fact, testified to by the plaintiff, that both before and after the institution of suit to secure rescission of defendant’s subscription, defendant, without solicitation or importunity by plaintiff, repeatedly declared his readiness to allow plaintiff $25,000 for his services in the event that his efforts to secure such rescission and the return of the property and money already applied and paid should prove successful.

The fact that at the time of defendant’s promises the relation of attorney and client had already been established between the parties precluded plaintiff from availing himself thereof, except to the extent that the compensation promised was fair and reasonable, Weeks on Attorneys at Law, 2d ed., § 364, p. 735, but the fact of the amount promised was, notwithstanding this rule, properly taken into consideration in determining the value of plaintiff’s services, as tending to show defendant’s own estimate thereof. Fells v. Vestvali, 2 Keyes, 152; Ludlow v. Dole, 62 N. Y., 617. True, defendant denied that he ever made such promises, and plaintiff’s testimony was that of a party in interest, which the jury were at liberty to reject, although it was not otherwise impeached. But defendant’s credibility was open to the same attack, and we are not prepared to say that he has enhanced its degree above that which should be attributed to plaintiff’s statements by the confession, in his efforts to impugn plaintiff’s professional rectitude, that-the accusations of alleged fraud against the promoters of the Perry Stove Company, made in his verified complaint in the action brought to secure the rescission of his subscription towards its capital stock, were never entertained by him as worthy of credit, while he did not scruple to avail himself of their effect, and the success thereby secured.

The jury were not bound to accept the opinions of the experts summoned on either side as conclusive on the question of the value of plaintiff’s services, and it was within the province of the jury to consider the testimony of the exportará connection with other evidence, Weeks on Attorneys at Law, § 343, p. 697, 2d ed., and their own experience. Head v. Hargrave, 105 U. S., 1029 ; 15 Otto, 45. In view of the fact, therefore, that defendant himself considered the services worth $25,000, as for the purposes of this appeal we must assume the jury found, we cannot say that a verdict of $10,000, over and above the $2,000 admitted by plaintiff to have been paid him, is .excessive, or without evidence, or against the evidence, or the weight of the evidence, although defendant’s experts-fixed the value of the services at from $2,500 or $3,000, and we regard the estimate of $20,000 to $30,000, testified to by plaintiff and the experts summoned on his behalf, as unduly enhanced by the element of a belief that the sum subscribed by defendant towards the capital stock mentioned was irretrievably jeopardized.

It has, in several instances at least, been held, seemingly from prudential motives only, lest a contrary course might occasion imputations of the possibility of even unconscious partiality to the prejudice of the party resisting an attorney’s demand for professional services as exorbitant, that their value should be determined by a jury, Martin v. Windsor Hotel Co., 10 Hun, 304; Felt v. Tiffany, 11 Hun, 62; Randall v. Kingsland, 53 How. Pr., 512;. and as the fact of value is to be determined mainly from opinion-evidence and the jury’s own knowledge and experience, we should hesitate to interfere with the verdict.

So eminently acceptable to the defendant were the rulings and the charge of the learned trial judge that a single exception only, one to the charge, is urged for reversal. After commenting upon other elements to be considered by the jury in arriving at a conclusion concerning the value of plaintiff’s services, the judge said: “But the main element, after all, in determining the value of a lawyer’s services, is the result of his labor,” and this it is contended was erroneous, because the jury were thereby led to infer that the value of plaintiff’s services was to be determined more from the benefits derived by the defendant than from the professional standing and the-ability of the attorney, the time employed, and the quality of the services performed by him. The trial judge had, however, previously instructed the jury that these elements must be severally considered by them, and it is apparent from the language which immediately follows the part of the charge excepted to that reference thereby was made, not to the measure, but to the fact of the successful termination of the business committed to the attorney’s care, and that it was the usual practice of attorneys in fixing the charge for services to take the fact of success into consideration, and in such an event to charge above the sum which they would have charged if their labors had proved unsuccessful.

This was according to the evidence of the expert witnesses summoned, and we perceive therein no error. Taken as a whole, the charge of the learned trial judge fairly and under proper and sufficient instructions submitted the question of the value of plaintiff’s services to the jury, and abstract consideration of fragmentary parts of the charge cannot under such circumstances be permitted to prevail as presenting error requiring reversal. Hickenbottom v. D., L. & W. R. R. Co., 122 N. Y., 91; 38 St. Rep., 312.

The judgment and order appealed from should be affirmed, with costs.

Daly, Ch. J., and Bookstaver, J., concur.


text:
    John G. Crotty, Pl’ff, v. Robert S. Jarvis, Def’t.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Receiver—Referee’s fees nr partnership dissolution.
    In an action for dissolution of a partnership, an order was made directing the receiver to pay to the referee the amount of his claim for fees within ten days, with interest. Held, that this amounted to a mere audit of the claim as one proper to he paid out of the fund; that the receiver was not aggrieved thereby; that the fact that the receiver had incurred liabilities, with the previous sanction of the court, to the full extent of the available assets was, at most, ground for withholding enforcement of the order against him personally, and his objection thereto was premature.
    Reargument of an appeal from an order made at special term, directing the receiver appointed in an action brought for the dissolution of a co-partnership and an accounting between the parties, to pay to the petitioner, as assignee of Nathaniel Jarvis, Jr., the referee appointed pursuant to an interlocutory judgment in the-same action, the amount of the referee’s fees incurred.

      Frederick Smyth, for receiver, app’lt; John Brooks Leavitt, for petitioner, resp’t.

       See 42 St. Rep., 956.

   Bischoff, J.

The order appealed from directs the receiver to-pay within ten days, out of the assets in his hands, the amount of respondent’s claim, with interest, and our interpretation of it is that it purports to do no more than to audit respondent’s claim as one proper to be paid out of the fund in court.

Bearing in mind that this is an action brought for the dissolution of a co-partnership and an accounting between the parties, that the co-partnership assets are in custodia curice, the receiver being but the officer of the court, that respondent’s claim is for referee’s fees incurred in this very action,and so part of the expenses necessarily to be incurred in its prosecution and entitled to preference in payment over any amount which may be adjudged due to the parties, or either of them, that its justice was fully determined by judgment recovered in an action against the parties to this action, and that no personal claim is made against the receiver, it is inconceivable to us how the latter is aggrieved by the order appealed from or how he can have any tenable objection thereto.

We observe that the receiver urges that he has incurred liabilities, with the previous sanction of the court, in excess, or to the full extent at least, of the assets in his hands which are available for the purposes of payment, and that in justice to him, so that he may be thereby relieved from personal obligation, payment of respondent’s claim should be postponed until after the liabilities already incurred have been discharged. If the facts be as represented, they furnish at most ground for withholding enforcement ■of the order appealed from against the receiver personally and may be properly considered in proceedings hereafter to be instituted upon the footing of that order; but to deny the validity of the ■order would in effect be to deprive respondent of his right at any time to resort for payment of his claim to available funds in the receiver’s hands.

Our conclusion is that appellant’s objection is premature and that the order appealed from should be affirmed, with costs.

Pryor, J., concurs.


text:
    John Van Tassel, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. New trial—Newly discovered evidence.
    The subsequent discovery of the importance of documents which were in the possession of the party at and prior to the trial does not make such documents newly discovered evidence upon which a new trial should be granted.
    3. Same—Surprise.
    Nor will a new trial be granted on the ground of surprise because of the failure of witnesses to testify as they were expected to, where the party was not misled in relation thereto, and made no motion for a postponement of the trial on that ground.
    Appeal from an order denying defendant’s motion for a new trial on the grounds of surprise and newly discovered evidence.
    Action to recover damages for alleged injuries sustained by plaintiff, a braheman in defendant’s employ, because of the defective condition of a brakestep, the use of which he claimed to be essential to the operation oí the brake attached to one of defendant’s cars.

      Artemas B. Smith, for resp’t; Charles Steele, for app’lt.
   Bischoff, J.

The motion for a new trial on the ground of newly discovered evidence and surprise was properly denied, and for tile facts transpiring on the trial reference may be had to the opinion on the appeal from the judgment in this action, which is herewith handed down.

The alleged newly discovered evidence is not such in fact. It consists of the train-book kept by the conductor of the train running from Greycourt to Newburgh on August 22, 1888, the day of the accident of which plaintiff complained; the train-book kept by the conductor of the train leaving Newburgh on the day after the accident with the car, the identity of which with the. car upon which plaintiff claimed to have been injured defendant sought to establish on the trial; the way-bill, and the receipt of the person to whom the carload of sheep was consigned; and it. conclusively appears that these train-books were kept and the other instruments taken by the defendant in the regular course of its business as forwarder of freight and retained in its custody and subject to its control. It appears, therefore, that defendant must of necessity have been aware of the existence of the alleged newly discovered evidence long before the trial, and that it was not introduced on the trial was manifestly due to an impression or belief that it was unnecessary for the purposes of the defense. The subsequent discovery of their importance does not make the train-books and documents newly discovered evidence. Hartman v. The Morning Journal Association, 46 St. Rep., 403 ; Baylies on New Trials and Appeals, 524, and cases cited.

Neither does it appear that the defendant was “ surprised ” entire trial by the failure of the witnesses King and William H.Van Tassel to testify to the identity of the car upon which plaintiff claimed to have been injured with the car “N. Y., P. & 0., 8007,” mentioned in their train report, by any claim or statement on the part of either of the witnesses named that he would be able to swear to such identity. If defendant was “ surprised ” in any sense in respect to the testimony of these two witnesses, it was not because defendant, or its counsel, were misled by any person, but because they assumed that the witnesses knew more than it transpired that they did know.

Besides, it appears, without contradiction, that no application for postponement of the trial was made either on the ground of the inability to produce the documentary evidence, now alleged to be newly discovered, or because of the lack of sufficient preparation by counsel for .the purposes of the defense, or disappointment at the refusal of defendant’s witnesses, King and Wm. H. YanTassel, to testify to the facts necessary to establish the identity of the cars. Hence, defendant must be assumed to have voluntarily proceeded with the trial, and to have consented to the submission of the facts in dispute to the jury on the evidence presented.

Motions of this kind are addressed to the sound discretion of the court, Williams v. Montgomery, 60 N. Y., 648; Lawrence v. Ely, 38 id., 42; Selden v. D. H. Canal Co., 29 id., 634, aud the judge who determined this motion having also presided on the trial, we must assume that he denied the motion upon his knowledge of the facts appearing by the affidavits as well as those transpiring on the trial and are unable to say that the discretion •of the court was not properly exercised.

Order appealed from affirmed, with costs.

Daly, Ch. J., concurs.


text:
    Garrett V. Van Doren, Resp’t, v. Taylor Jelliffe, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Brokers—Competency of plaintiff to testify to customary commissions.
    In an action for commissions as real estate broker, the plaintiff, after testifying that he had been engaged in that business for twenty-six years, all but four in New York, was permitted to state the customary commissions on sales of real estate. Wo preliminary examination was demanded by defendant. Held, no error.
    3. Same—Evidence.
    On cross-examination plaintiff was asked concerning certain payments made to him by the purchaser, and stated that some of them were for advertisements. Neld, that this was strictly responsive, and that a motion to strike it out was properly denied.
    :3. Same—Assignment of claim.
    Defendant having proved, under his defense that plaintiff was not the real party in interest, that he had assigned the qlaim, plaintiff was entitled to prove a re-assignment to himself, although not pleaded in the complaint.
    ■4. Same.
    Evidence that defendant and the purchaser, before the contract was executed in the city of Wew York, contemplated its execution elsewhere is immaterial.
    5. Trial—Evidence.
    The allowance of further direct evidence after the plaintiff has closed, is discretionary with the trial judge.
    6. Same—Leading questions.
    The allowance of a leading question does not present ground for reversal unless it appears that the appellant was prejudiced thereby.
    7. Appeal—Common pleas.
    The court of common pleas, upon appeal from the city court, can only reverse when the error complained of is presented by proper exceptions.
    Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff entered upon the verdict of a jury, and affirming, also, an order denying defendant’s motion for a new trial. Action to recover for services as a real estate broker, in effecting the sale of defendant’s farm in Hew Jersey, the defenses being a denial that the services were performed, an averr ment that plaintiff was not the real party in interest, and that the contract of employment was void because oral, under a provision of the laws of the state of New Jersey requiring such contracts to be in writing.

      E. M. Wight, for resp’t; Benjamin Estes, for app’lt.

       Affirming 41 St. Rep., 96.

   Bischoff, J.

Having omitted to move for a non-suit, or for the direction of a verdict in his favor, defendant has conceded that there was evidence sufficient to warrant the jury in finding a verdict for plaintiff. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628, 632 ; Rowe v. Stevens, 44 How. Pr., 10; St. John v. Skinner, id., 198; Caspar v. O'Brien, 47 id., 80; and without an exception to a refusal of either of such motions, we are without power on an appeal from a judgment of the city court to inquire into the suffi•ciency of the evidence. Schwinger v. Raymond, 105 N. Y., 648; 7 St. Rep., 544; Walsh v. Schulz, 67 How. Pr. 186; McEteere v. Little, 8 Daly, 167; Rowe v. Comley., 11 id., 318; Smith v. Pryor, 16 id., 169; 30 St. Rep., 553.

For such reason we must assume the existence of every fact essential to the validity of the verdict and judgment, and may search only among the exceptions taken to the trial justice’s rulings in the admission and exclusion of evidence, and the charge .and refusals to charge, for error requiring reversal.

The first exception appears to the overruling of defendant’s objection to the competency of plaintiff as an expert to testify to the customary commissions of real estate brokers. Plaintiff had previously testified that he had been engaged in business as a real estate broker for twenty-six years, and during all but four in the •city of New York, and that he was acquainted with the customary commissions of brokers on the sale of real estate. No preliminary examination of the witness was demanded by defendant’s •counsel, and the witness was allowed to state the customary commissions. We perceive no error in this. Whether, or not, a witness is competent to give expert testimony is a preliminary question of fact, which must be determined by the trial justice, and his decision will not be reversed unless it appears to be against the evidence or wholly or mainly without any evidence to support it. Slocovich v. Orient Mut. Ins. Co., 108 N. Y., 62; 12 St. Rep., 806. We think that in the present case the trial justice was justified in assuming from the witness’ twenty-six years of experience that he knew the customary charges of real estate brokers.

On cross-examination, plaintiff was asked whether the claim in suit had ever been ^assigned. This was to substantiate the defense that plaintiff was not the real party in interest, and it was conceded that the alleged assignment was in writing. Plaintiff’s counsel objected on the ground that the paper itself was the best evidence of the fact, and this objection was sustained. The question was improper, since no foundation for the introduction of secondary evidence had been laid, Berg v. Carroll, 40 St. Rep., 811; but, assuming that the question should have been answered, the exception taken to its exclusion was waived by defendant’s subsequent introduction of plaintiff’s testimony to the fact of the assignment. Neil v. Thorn, 88 N. Y., 270, 277 ; Crosby v. Day, 81 id., 242.

On further cross-examination, plaintiff was asked concerning certain payments made to him by Winchester, the purchaser of defendant’s farm, in reply to- which he stated that some of the payments were made for advertisements. The court properly denied defendant’s motion to strike that testimony out, as it was clearly responsive, and the same may be said of the witness’ testimony to the effect that he did not think that he told defendant that. Winchester had accused him of not “ working true for him.”

The next exception was taken to the admission in evidence of "a reassignment of the claim in suit to the plaintiff before the commencement of - this action. The ruling was a proper one. Plaintiff was not obliged to anticipate the defense that he was not the real party in interest by alleging in his complaint the fact of the assignment by and the reassignment of the claim to him, and it was competent for him to meet the issue raised by the defense by showing the fact of the reassignment. Johnston v. The American Writing Machine Co., 22 St. Rep., 429, cited by appellant’s counsel, holds that it is error to allow evidence of a fact not in issue and so has no application, since under the provisions of the Code of Civil Procedure, § 522, the allegations of the answer respecting the defense that plaintiff was not the real party in interest must be taken as controverted.

The objections of plaintiff’s counsel to the admission of evidence tending to show that defendant and Winchester, before the contract for the sale of the farm was executed in the city of New York, contemplated the execution of it elsewhere, were proper, and the evidence excluded was so clearly immaterial as not to merit discussion.

Several exceptions were taken to the allowance of questions < n defendant’s cross-examination, but in each instance the question related to matters previously testified to by defendant and were, therefore, properly allowed.

Of the two exceptions taken on defendant’s re-cross-examination one is invalid because the question at which defendant’s objection was aimed had been answered, and no motion was made to have the answer stricken out; and the other because the motion to strike out was properly granted, the answer not being responsive to the question of plaintiff’s counsel.

The exception taken on the further direct examination of plaintiff and based on the objection that the questions, if allowed, would re-open the case, does not require reversal, since the allowance of further direct evidence was discretionary with the trial judge; and of the two remaining exceptions on plaintiff’s further direct examination, one is without force because the ground of the objection is not stated, Cruikshank v. Gordon, 118 N. Y., 178, 180; 28 St. Rep., 784, and the other because the allowance of a leading question does not present ground for reversal, unless it appears that the appellant was prejudiced thereby. Walker v. Dunspaugh, 20 N. Y., 170.

There remain only the exceptions to the charge and refusals to charge, but these also prove upon examination to be delusive to any hope of reversal. The first exception to the alleged refusal to charge is without any force, as the court charged precisely as requested. The second is equally invalid because tjie request assumed that the contract of employment was made in Mew Jersey, while it appeared in evidence from plaintiff’s testimony that the employment occurred in Mew York; and furthermore because the matter included in the request had been previously correctly charged. The third request was properly refused, because it appeared from plaintiff’s testimony that he was employed to sell in Mew York and the jury were not bound to believe defendant’s testimony to the contrary as it was that of a party in interest. Elwood,v. Western Union Tel. Co., 45 N. Y., 549; Gildersleeve v. Landon, 73 id., 609 ; Honegger v. Wettstein, 94 id., 252; Ganjoharie Natl. Bank v. Diefendorf, 123 id., 191; 33 St. Rep., 389.

The first exception to the charge as made was taken to the instruction that the contract for the sale of defendant’s farm to Winchester was executed in Mew York, and as this was conceded on the trial no error can be predicated on the charge in this respect. The second exception is founded on the erroneous assumption that the court charged that plaintiff was employed to sell defendant’s farm for $30,000. What the court did charge was that the plaintiff had so testified. This was true, and the ' exception was therefore without force. The next exception to the charge was to the alleged,instruction that the negotiations were had entirely in Mew Jersey, and that, if the arrangement was completed in Mew York, plaintiff was entitled to recover. The court did not so charge. The fourth and only remaining exception to the charge was taken to the instruction that “ if the plaintiff introduced Winchester and the negotiations had been suspended and afterward they were resumed- and the sale was made, the plaintiff would be entitled to recover.” This proposition of law is unassailable, Levy v. Coogan, 16 Daly, 137; 30 St. Rep., 553, and the exception thereto without avail.

We observe that coupsel for appellant urges on this appeal that the charge was erroneous in that the court assumed that the commissions to which plaintiff would be entitled, if the jury found that he was employed to sell and that the sale was effected through his procurement, should be at the rate of two and one-half per centum. Upon examination, however, we observe that the charge in this respect was not excepted to, and we are for that reason without authority to review the alleged error complained of. The general term of the court below could have -granted a new trial for any error in the charge which was prejudicial to the appellant though exception was not taken thereto, but with respect to the city court our authority is no greater than that of the court of appeals with respect to this court, and we may only reverse when the error complained of is presented by proper exceptions. Schwinger v. Raymond, 105 N. Y., 648; 7 St. Rep., 544; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553.

The judgment of the general term of the court below should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


text:
    George B. F. Hannay, Resp’t, v. Andrew Zerban, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Contract—Services—Discharge.
    In an action for wrongful discharge under a contract of employment, the court, on a former appeal, held that the contract was incapable of a construction which would allow defendant to discharge plaintiff before the expiration of the time limited for its endurance. Held, that exceptions based upon a contrary construction of the contract and upon the exclusion of evidence then held inadmissible were not available on appeal from a judgment for plaintiff.

      2. Same.
    Where the plaintiff was entitled on the facts to a recovery and to a direction to that effect, leaving nothing to the jury but the amount of damages, the defendant is not prejudiced by the submission of the question of the construction of the contract.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff entered upon the verdict of a jury, and affirming also an order denying defendant’s motion for a new trial.
    Action to recover damages for defendant’s breach of a written contract for the employment of plaintiff’s services as teacher in defendant’s school for the period of one year, the defense being that the employment was terminated by one month’s previous notice to that effect as provided for in the contract qf employment.

      John M. Scribner, for resp’t; Ernest Hall, for app’lt.
   Bischoff, J.

In reversing a judgment for defendant upon a former appeal herein, the general term of this court, applying the rule that a written contract is to be construed by the court, not by the jury, and that paroi evidence of the intention of the parties is inadmissible to cure a patent ambiguity arising from the omission of language expressly or by implication indicating such intention, pronounced the contract, for defendant’s alleged breach of which plaintiff sought to recover, incapable of any construction which would secure to the defendant the right to terminate plaintiff’s employment before the expiration of the time limited for its endurance upon giving plaintiff one month’s previous notice of his intention to that effect. Hannay v. Zerban, 16 Daly, 372; 33 St. Rep., 653 ; see, also, Blossburg, etc., R. R. Co. v. Tioga R. R. Co., 1 Keyes, 486.

No subsequent change occurred in the pleadings, the facts proved were substantially the same, and nothing remained, therefore, on the second trial but to ascertain the extent of plaintiff’s damage. It appeared in evidence from plaintiff’s unchallenged testimony that the salary which would have accrued to him under the contract subsequent to his wrongful discharge, after deducting therefrom his earnings from other sources during the same period, was $586.33, and this is the extent of his recovery.

The several exceptions which were taken to the trial justice’s refusals to dismiss the complaint are predicated upon a construetian of' the contract which was repudiated on the former appeal and is contrary to what thereby became the law of this case. Neither of the exceptions can, therefore, be effectual for the purposes of reversal.

Other exceptions urged for reversal relate to the exclusion of paroi evidence of the intention of the parties at the time of executing the contract. That such evidence was not admissible was determined on the former appeal, and the cases cited by appellant’s counsel to the contrary severally relate to latent ambiguities and so have no application to- the question here involved.

As upon the facts plaintiff was entitled to a recovery and to a direction to the jury to that effect, leaving nothing but the amount of damages to be determined by them, no harm can be said to have accrued to the defendant from the submission of the question of the true construction of the contract to the jury, as one of fact.

The judgment and order appealed from should be affirmed, with - costs.

Daly, Ch. J., and Pryor, J., concur.


author: Daly, Ch. J.

text:
    Samuel H. Randall, Resp’t, v. George W. Packard, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. New trial—Newly discovered evidence,
    On the trial of an action for professional services, plaintiff was asked on cross-examination if he had ever been disbarred, and replied that he had not. Defendant’s counsel had previously heard rumors to that effect, on which he based his question. Held, that as the counsel might have had time to procure proof of the fact before submitting his proofs, a new trial could not be granted on a record of such disbarment as newly disóovered evidence.

      2. Same—False testimony.
    Nor, under such circumstances, could a new trial be granted on the ground that plaintiff had testified falsely, especially as the question asked was one which involved a question of law as well as of fact, and perjury could not be absolutely predicated of his answer.
    Appeal from an order of the special term of this court denying a motion for a new trial made after judgment upon affidavit and other proofs.

      T. R. Shear (W. H. Peckham, of counsel), for app’It; S. H. Randall, resp’t in person.
   Daly, Ch. J.

The plaintiff is a lawyer, and the action was brought for professional services. The value of the services was disputed, and. the professional standing of plaintiff was material upon that issue. Upon cross-examination he was asked: “Were-you a member of the bar in Boston? ” He answered that he was. He was then asked: “Are you now?” He answered “I am.” He was then asked: “Never disbarred in Boston? ” to which he replied “ Never ; I brought a certificate when I left Boston from the clerk, from the chief justice, which I have in my hat; I was a member of all the courts.” No further inquiry was madp nn this point, and the defense=did not offer any evidence to contradict the plaintiff. A verdict was rendered in his favor for a part of the sum claimed, and judgment entered thereon.

This motion for a new trial is based upon the record of a decision of the superior court of Suffolk county, Massachusetts, at the October term, 1864, finding that the plaintiff had violated his oath of office as an attorney at law, and was guilty of malpractice and gross misconduct in his said office, and adjudging and ordering that for these causes he is removed from the office of an attorney ,at law within that commonwealth; and the ground of motion is that the plaintiff testified falsély in denying that he had ever been disbarred.

It appears from an affidavit of defendant’s attorney that before the trial he had heard various rumors about the plaintiff having been disbarred, at some time, in Boston, but was unable to procure evidence of the fact. It also appeared that no application was made by defendant at the trial, on the ground of surprise, for a postponement to procure evidence contradicting the plaintiff; but, on the contrary, that defendant pressed the trial of the cause: It;would seem, therefore, that defendant having taken the chances of a verdict without the important evidence of the existence of which he had heard, should not be permitted a second trial, and that this motion was properly denied.

As the plaintiff’s professional standing was of moment in the case, the defendant should have been prepared with evidence upon that point, and the only competent evidence' of a judicial proceeding for disbarment was the production of an authenticated copy of the record, if in existence. He had no right to go to trial relying upon the chance of extracting from the plaintiff upon cross-examination admissions which would dispiense with the production of the proper proofs, and if he did so and bis adversary, instead of admitting, denied the fact sought to be proved, it would not afford ground for a hew trial. The fact that the adversary’s evidence is. different from what it was supposed it would be is not sufficient. 16 Am. & Eng. Enc. of Law, 544, and cases cited.

But if a party were justified in relying upon the candor of his adversary and met with disappointment, then his only proper course would be to plead surprise and ask for a postponement in order to procure his evidence. Messenger v. Fourth Nat. Bank, 6 Daly, 190. This motion is in effect a motion for a new trial for surprise and newly discovered evidence; and as the evidence now produced was not unknown to the defendant and he might have had, if he had chosen to ask for it, all the time needed to procure it Before finally submitting his proofs, the current of decisions requires a denial of the motion. The date upon which to seek for the record might easily have been ascertained by following up the cross-examination of the plaintiff with more precise and particular questions as to his career at the Boston bar.

It is true that a defendant may have a new trial when he discovers after verdict that the plaintiff has testified falsely in his own behalf upon a material point. Wehrkamp v. Willet, 1 Daly, 4. But this is only when the defendant could not be prepared with evidence to contradict such testimony. Here, the defendant was prompted to ask the questions which elicited the alleged, false denials of plaintiff by knowledge and belief as to the very fact inquired of, and which it was his duty to come prepared to-establish.

In this particular case there is - a further consideration; the alleged false testimony, or denial, is not as to a matter purely of fact, but involves the opinion of the witness upon the effect of a. legal proceeding. He was not asked whether a decision of the’ character above referred to had been rendered by the superior court, of Suffolk county, or by any judge thereof, but whether he had ever-been disbarred in' Boston, which question implicated a legal construction of the effect of that decision as an order, or judgment, as well as the regularity of the proceeding in which it was rendered. Upon all the points the witness claims to have an opinion adverse to the effect claimed by the defendant for the record in question and argues the point upon his brief. It is not necessary to examine it here. It is sufficient to say that the question put to him and which he answered in the negative involved a question of law as well as of fact, and perjury could not be absolutely predicated of his answer.

Order affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


author: Herrick, J.

text:
    The People ex rel. George H. Bush v. Henry E. McKenzie et al. The People ex rel. George H Bush v. The Board of County Canvassers of Ulster County.

      (Supreme Court, Special Term, Albany County,

      Filed November 21, 1892.)

    1. Elections—Marked ballots—Mandamus.
    The court will only compel election inspectors by mandamus to do what it was their duty to have done.
    8. Same—Weight oe proof.
    Where the relator alone makes affidavit on information and belief that the proper officer declared his belief during the' canvass that certain ballots were marked for identification, while an inspector, poll clerks, ballot clerks and watchers make affidavit that they were present and that no.officer declared such belief, the weight of proof compels a. determination that no such objection was made.
    3. Same—Retention of ballots.
    Ballots alleged to have been marked for identification can only be marked by the inspectors during the canvass, and it is improper for them or a single one of them to afterwards so mark and attach such ballots to ' the statement of canvass.
    4. Same.
    Where ballots not objected to at the time of being canvassed are preserved in violation of law, out of possession of the officers, the court will not direct them to be attached to the statement of canvass.
    Motions for writs of peremptory mandamus to compel the inspectors of election in the first and second election districts of the town of Esopns, Ulster county, to reconvene and attach to their statements of canvass certain ballots alleged to have been illegally ■-"marked, with the statement required by law ; and also to compel the board of county canvassers to allow such ballots to be so attached to the statements of canvass, and to forbid them from canvassing the statements from such districts in the meantime.

      Linson & Van Buren (J. N. Fiero, of counsel), for relator; John J. Cloonan, for board of canvassers; G. D. B. Hasbrouck and C. F. Cantine, for some of the inspectors of election and for James Lounsberry, intervening.
   Herrick, J.

These are motions for writs of peremptory mandamus to the above named defendants.

The applications are made upon the affidavit of the relator, who was a candidate for member of assembly at the recent general election; he states that at such election there were in the first election district of the town of Esopus, in Ulster county, fifteen paster ballots pasted upon the official ballots furnished for use at said district at said election; each and every one of which paster ballots was marked either by the person who cast the said ballot or by some other person, for the purpose of having the same identified. That said paster ballots contained the names of the candidates of the republican party for the several offices to be voted for at said election; that upon each of such paster ballots there was pasted a paster ticket upon which was printed the name of William Luby, a candidate for coroner. In one of the above cases he is described in the moving affidavits as the democratic and in the other as the republican candidate for coroner. It is further alleged that some of the paster tickets • containing the name of said William Luby were pasted upon the paster ballots upside down, and the corner of each was cut off at a sharp angle. The same state of facts is alleged as to district number two, except the posters were eleven in number and each one is alleged to have been pasted upside down upon the paster ballots.

The relator further states, upon information and belief, that during the canvass, or immediately after its completion, some of the election officers or authorized watchers declared his or their belief that such paster ballots had been marked for the purpose of identification. He also alleges that the inspectors of election or some of them knew and believed that such ballots had been marked for identification; but that notwithstanding such knowledge and declarations the said inspectors did not write on the back of such ballots the words “ objected to because marked for identification ” or any mark in substance to that effect, and did not in any way designate said ballots or sign their or any of their names thereto ; that they did not attach any of said ballots to their statement of canvass, or to the certified copies thereof, but that they kept said ballots and now have them in their possession.

Upon that statement of facts he asks that the inspectors of election be directed to “ reconvene and attach to their statement of canvass, or to the certified copies thereof, the said marked ballots, now. in the possession of them or any one of them, with the statement as required by law, that the counting of said ballots was objected to.” And in the proceedings against the board of county canvassers, it is asked that such board allow the inspectors of election to attach to their statement of canvass the marked ballots referred to, and that in the meantime such board be forbidden from canvassing the statements from such election districts. It will thus be seen that the question for the court to determine upon this motion is not whether the ballots' were in fact marked for identification, but whether the inspectors of election should correct their statements of canvass by attaching to. them the ballots that the relator claims were marked for identification. The court will only compel the inspectors to do what it was their duty to have done.

The law provides as follows : “ When an inspector of election or other election officer or duly authorized watcher shall, during a canvass of the votes, or immediately after the cojnpletion thereof, declare his belief that any particular ballot, paster or paster ballot affixed thereto has been written upon or marked in anyvway for the purpose of identification, the inspectors or canvassers shall write on the back of such ballot the words objected to because marked for identification,’ or words in substance to that effect, and sign their names thereto, and attach each such ballot to their written statement of the result of the canvass.” Section 114, chap. 680, Laws of 1892.

The first thing to be done then to authorize the inspectors to attach the ballots to the statement of result is that some election officer or watcher should declare his belief that the ballot has been marked for identification; unless that is done they are neither authorized or required to attach such ballots to the statement.

It was held in People v. Shaw et al., 133 N. Y., 493 ; 45 St. Rep., 866, that where the objection was not taken before the board of town canvassers that the ballots were marked for identification, the court could not consider that objection afterwards. That was a case where upon a paster ballot for town officers there was also printed the name of the office of excise commissioner and of the candidate therefor. The objection was made that they were defective “ in that they contained the name of an office and a candidate therefor that was not upon the official ballots, and could not be properly on the same ticket with the other town officers.” Subsequently it was claimed that they were marked ballots, but the court held that that question was not before it.

The relator says he is informed and believes that such objection, or rather expression of belief, was made ; and his allegation upon information and belief is all that appears before me to show that such necessary objection was made.

On the part of the defendants there is presented as to district number one the affidavits of one of the inspectors, two watchers, a poll clerk and a ballot clerk, and as to district number two, the affidavits of one inspector, two poll clerks, one ballot clerk and a watcher, all swearing positively that they were present during the canvass of the votes polled in their respective districts, and thano inspector of election, election officer or watcher declared, his belief that any ballot or paster or paster ballot had been written .upon or marked for identification. And they also swear that no ballots were marked with the words “.objected to because marked for identification,” or words in substance to that effect.

Under such circumstances, where there is on the one side but a single affidavit, and that upon information and belief, and opposed to it that of so many persons who were in a position to have personal knowledge, and who swear positively to the contrary, I am compelled to hold that as a matter of fact no objections were made at the time of the canvass of the votes, or immediately thereafter, that such ballots were marked for identification. But counsel for the relator says that the object of the statute was to have the ballots preserved for the court to act upon, and that as the ballots have been in fact preserved, its object has been accomplished, although in an irregular manner; that the law should be liberally construed. The law should be liberally construed to effect its purposes; among other things, to promote honest elections and an honest declaration of the result. To sanction a practice such as is contended for here would, it seems to me, open the door to fraud and sharp practice, instead of promoting an honest declaration of the result.

The ballots, it appears, have been preserved. They have been preserved in violation of law. Having been voted, and no objection having been made to them as marked for identification, they should have been destroyed. Section 115, chap. 680, Laws of 1892.

. I n providing for the preservation of ballots challenged as marked for identification, the law has provided certain safeguards to identify the ballots and prevent imposition and fraud. In addition to having written upon them'the words heretofore mentioned, it also requires that each inspector shall sign his name thereto; the. purpose of this is obvious. None of these safeguards appear in this case.

The ballots were preserved, but how. They were, as appears from the affidavits, left in public places, apparently in the buildings where the elections were held in the respective districts; the inspectors did not keep them in their personal possession.' The ■danger of such action is obvious. Strangers could obtain possession of them, tamper with them, mutilate or mark them. Ballots not objected to at the time of being canvassed ; preserved in violation of law; out of the possession of the officers; exposed to the •dangers I have suggested, I do not think should now be attached to the statement of the canvass. A construction of the law that would permit it would be lax, not liberal. It would invite sharp practice. I do not mean to intimate that there has been any in this case, but if the procedure contended for is sanctioned now, it invites sharp practice and tampering with the ballots hereafter. In fact the only inspector sworn from district number two swears that no such ballots as above described were voted in his district.

It appears that since the proceedings were commenced, the chairman of the board of inspectors in each of said districts, by permission of the board of canvassers, attached to tire statement of canvass theretofore filed with the board ballots of the kind in question, alleged to have been marked for identification ; and endorsed thereon in substance that they “ were returned as objected to because marked for identification.” There had been no meeting of the several boards of inspectors authorizing any such action to be taken; and it appears to have been the individual action of the chairman. As we.have seen, the affidavits show that the ballots were not marked during the canvass, or immediately thereafter, as objected to because marked for identification, or with that in substance. That was the only time when such action could be legally taken.

The proceeding was wrong. There is no authority in law for it; a single inspector cannot act for the whole board, and under the facts as they now appear the board itself would have no right to do what a single member of it has assumed to do. The alleged marked ballots so attached to the statements of result since they were originally filed must be removed from such statements before being canvassed by the board of canvassers.

The several motions must be denied, with ten dollars costs in each proceeding. Let the orders be entered accordingly.


author: Brown, J.

text:
    In the Matter of the Application for an Order Cancelling Names on the Registry of the Board of Inspectors for Registry for the Third Election District of the Town of Highlands.

      (Supreme Court, Chambers, Orange County,

      Filed November 5, 1892.)

    Election—Registby—Residents of West Point.
    A resident of West Point who has no other qualification as a resident of the state except such as he gains from such residence there, is not a resident of the state and is not qualified to vole; hut the mere fact of being in ■the employment of the government does not destroy his right to vote, and he may do so in the place of his original residence which existed when he went into such employment, or at his place of residence, if any, within the state since acquired.
    Application-for an order striking from the registry list of the third election district of the town of Highlands the names of several persons who are claimed not to be qualified voters by reason of their being employed in the service of the United States and engaged in such service at West Point, and also the names of certain persons alleged to be minors and non-residents.

      Benjamin McClung, for motion; Michael H. Hirschberg, opposed.
   Brown, J.

In this case the situation is somewhat familiar to me, because upon two other occasions I have had litigated questions before me which involved the political character of West Point. The first was in reference to the assessment of the railroad ; the assessors of the town of Highlands included that part of the railroad which passes over the West Point reservation in the tax roll of the town, and an application was made by the West Shore railroad to strike it out on the ground that they had no jurisdiction.

The second case was an action brought to foreclose a mortgage which covered the right of way of the West Shore road through the West Point property, and the jurisdiction of the state court to entertain such a suit was challenged.

I decided in the first case that thé assessors of the town of Highlands had no jurisdiction over property at West Point and that the property must be stricken from the tax roll. I decided in the second case that the state court had no jurisdiction to entertain a suit to foreclose a mortgage upon property upon West Point, on the ground that the West Point reservation was not a part of the territory of the state of Hew York.

The question of the political character of that property was examined and very carefully argued in the latter case by able counsel and no appeal was ever taken from either one of these decisions ; although nearly a million dollars was involved in the foreclosure suit it was conceded that the territory was outside the state and outside the jurisdiction of the state courts.

The political character of property situated as this is was recently examined in the United States supreme court in a case reported in 114 United States Reports, and all the law that anybody wants on the subject will be found in the report of that case. It is the case of the Fort Leavenworth Railroad Company v. Lowe, and involved the character of government property at Fort Leavenworth, and the supreme court, after referring to a great many authorities, laid down this rule: That where the general government acquired the title to property without the consent of the state in which it is located they held it as mere proprietors, with a title the same as any other individual owner, and the jurisdiction of'the state over it remained subject only to the limitation’ that they could not legislate in such a way as to impair or destroy the purposes for which the property was, acquired; but where the general government obtained the property with consent of the state, there the political power of the state was transferred absolutely to the general government, except so far as was reserved in the act óf cession; and Judge Field, speaking for a unanimous, court, there being no dissent on the subject, after referring to a great many authorities, and discussing them very fully, said, “ When the title is acquired by purchase by consent of the legislatures of the state the federal jurisdiction is exclusive of all state authority. This follows from the declaration of the constitution that congress shall have like authority over such places as it has over the district which is the seat of government; that is, of exclusive,legislation in all cases whatsoever.’ Broader or clearer language could not be used to exclude all other authority than that of congress; and that no other authority can be exercised over them has been the uniform opinion of federal and state tribunals, and of the attorneys-general.”

He further says, after citing numerous decisions: “ These autholities are sufficient to support the proposition which follows naturally from the language of the constitution, that no other legislative power than that of congress can be exercised over land Within a state purchased by the United States with her consent for one of the purposes designated; and that such consent under the constitution operated to exclude all other legislative authority.”

In this case we all know that there are several acts of cession from the state of Hew York to the general government, reserving nothing except the right to serve process, civil and criminal, within the ceded territory, and under these authorities the territory of West Point ceased to be a part of the state of Hew York; the state legislature has no authority to legislate in reference to it.

Prior to the decision referred to the authorities were uniform on the subject. In this state, in addition to the two cases which were before me, there is a case reported in one of Howard’s Reports, Dibble v. Clapp, which held the same thing. In Massachusetts, in an early case before Judge Story, in the United States circuit court, reported in 2 Mason’s Reports, a criminal case, he held that the state had no authority to punish a man for murder committed at Fort Adams; and in another Massachusetts case, at Springfield, it was held that the state courts had no jurisdiction over crimes committed on government property; and in the opinion of the attorneys-general, which Judge Field refers to, the question arose as to whether parties residing at Harper’s Ferry, within the limits of the armory, the lands composing which had been purchased by consent of the state, were subject to taxation by the state, and the question having been submitted to the attorney-general, he replied “that the sole object,and effect of the reservation as to the service of criminal process was to prevent the place from becoming a sanctuary for fugitives from justice for acts done-within the acknowledged jurisdiction of the state. . That in all other respects the exterritoriality of the armory at Harper’s Ferry was complete, in so far as regards the state; but the persons in the. employment of the United States, actually residing within the limits of the armory, did not possess the civil and political rights of citizens of the state; nor were they subject to taxation and other obligations of citizens."

It is unfortunate that this question comes up on the eve of an exciting election, because it attracts attention and people get more or less excited about it, but in all cases where the questions have arisen in respect to rights other than voting the decisions are uniform and pass without challenge.

We turn to the question of the right of these people to vote. That has been decided in numerous cases. In the case of Commonwealth v. Clary, 8 Mass., 72, the supreme court of Massachusetts held that the people on the government property at Springfield had no light to vote, and the question also arose and was decided in a case reported in 1 Metcalf. That was not a litigation, but a case where the house of representatives of Massachusetts requested the opinion of the judges of the supreme court of Massachusetts, and they held “that persons residing within the territory ceded to the government do not acquire the civil and political privileges, nor do they become subject to the civil duties and obligations of inhabitants of the towns within which such territory is si tun ted.”

And there is a case of Sinks v. Reese, in 19 Ohio State reports, which was an election case in the nature of a quo warranta, where the election turned on the question whether the people residing in the national asylum for disabled volunteers had the right to vote. That was a national institution upon property purchased by the general government and ceded to the United States ; and it was held in that case and it is cited by Judge Field in the Leavenworth case with approval, “ that upon the purchase of the territory by the United States, with the consent of the legislature of the state, the general government became invested with exclusive jurisdiction over it and its appurtenances in all cases whatsoever; and that the inmates of such asylum resident within the territory, being within such exclusive jurisdiction, were not residents of the state so as to entitle them to vote.”

So, as Judge Field says, there is a uniform current of authority from the beginning of the government down to tlie decision of this case in 1884; all to the effect that this territory is not part of the state.

When you apply this rule to this case it excludes all state authority whatever. These inspectors act under a state law as the assessors do, and' the judges do, under the constitution of the state.

They have no right to put any person upon the registry list except qualified voters, and those qualifications are prescribed in the constitution, and they are, among others, that a man must be a resident of the sthte. In the argument of counsel the District of Columbia is spoken of. There is no distinction and can be none between the resident of the District of Columbia and West Point. You will see in the constitution of the United States the provision as to jurisdiction is all in the same section. The constitution of the United States provides that “ Congress shall have power to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards and other needful buildings.” We all know that the District of Columbia was ceded by the state of Maryland to the United cStates and no resident of the district votes anywhere, and of course a resident on the West Point property occupies the same relation to the government and the state of Hew York as a resident of the District of Columbia does to the state of Maryland ; he has no right to vote.

The effect of this is to exclude from the right to vote persons who have no other qualifications as residents, except a residence on the West Point property. I very readily see that there may be people there who have the right’ to vote in the town of Highlands, as there may be persons who have a right to vote in other parts of the state, or in other states. The constitution • of this state provides that nobody gains or loses a residence by employment in the United States government, and while I mean to hold that a person resident upon West Point, and having no other qualification as a resident of the state except such as he gains from a residence on West Point is not a resident of the state and not qualified to vote, yet I mean to hold that the mere fact of being in the employment of the government does not destroy his right to vote and he may vote in the place of his original residence which existed at the time he went into employment of the government, or at his place of residence (if any) within the state since acquired. If it was, at Highland Falls, he has a right to vote there, provided he is registered in the proper district; and if in another part of the state he has a right to vote there. There is no escape from these authorities, and while I mean to follow the order of Judge Barnard, made in the individual cases referred to by counsel, I think his decision is in conflict with the universal line of authority in the United States supreme court and the courts of this and other states.

You can apply this rule to the individuals and sift out those who are entitled to vote.


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    Frank McQuirk et al., Resp’ts, v. The Mutual Benefit Life Co. of Hartford, Conn., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Evidence—Reg-isteb of baptism.
    In an action upon a policy of life insurance the defense was fraudulent misrepresentation in the application's to the age of the insured. On the trial defendant offered in evidence a record of baptism of an alleged granddaughter of the insured, which was ruled out by the court. Held, no error; that the record was not one required by law to be kept, and could only be received in evidence to prove the fact of baptism and its date, and not for the purpose for which it was offered in this case.
    Appeal from judgment in favor of plaintiffs.

      Cadman & Peek, for app’lt; Cady & Hoysradt (J. Rider Cady, of counsel), for resp’ts.
   Herrick, J.

The plaintiffs bring an action upon a policy of insurance upon the life of one Alice McQuirk. The defendant, among other defenses, asserted that the policy was obtained through misrepresentation and fraud;. that in the written application for the policy the insured was represented as about twelve years younger than she in fact was.

Upon the trial the defendant offered in evidence a record of baptism “as the record of baptism of Alice Boyd, the granddaughter of Alice McQuirk, the insured, on June lltji, 1854.”

It was objected to by the plaintiffs, and ruled out by the court, and that ruling presents the only question argued by the appellant before this court.

Assuming that the record was properly authenticated to be admissible in evidence, of which I have serious doubts, the offer to prove, or purpose for which it was offered, was too broad.

The register was not one required by law to be kept, and it could only'be received in evidence to prove the fact of baptism and its date. Taylors Evidence, 8th ed., § 1778; Kabok v. Phoenix, Mutual Life Ins. Co., 21 St. Rep., 205; Sitler v. Gehr, 51 Am., 207-17; Blackburn v. Crawfords, 70 U. S., 175-89.

I can see no error in the rejection of the baptismal register.

The judgment should be affirmed, with costs.

Mayham, P. J., and Pütham, J., concur.


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    Joseph Cook, Adm’r, Resp’t, v. Elmer S. Shattuck, Applt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Replevin—Lien.
    Plaintiff sold to defendant a mare which was with fSal, under an agreement that he was to have the colt when four months olid. At that time defendant refused to deliver the colt unless plaintiff would pay $85 for the use of the mare, which he testified plaintiff had agreed to pay, and for which he claimed a lien on the colt. Held, that such an agreement to pay, in the absence of a special agreement, would not give defendant a lien on the colt, and that he should have delivered it on demand.
    Appeal from judgment in favor of plaintiff, entered upon a verdict directed by the court, adjudging the possession of a colt and six cents damages.

      Robert Dornburgh for app’lt; Hand, Kellogg & Hale, (Richard L. Hand, of counsel,) for resp’t.
   Herrick, J.

This is an action in replevin brought by the plaintiff to recover from the defendant possession of a colt.

The only facts material to be considered in the case are these.

The plaintiff sold to the defendant a mare; the plaintiff was to have the colt of which the mare should be delivered the following season; he was to have it when it was of the age of four months; the defendant took possession of the mare; subsequently it was delivered of a colt; when the colt was of about the age of four months, the plaintiff sent his agent to the defendant to obtain the colt; the defendant refused to deliver the colt unless the plaintiff paid thirty-five dollars for the use of the mare; subsequently the plaintiff, by his attorney, made a written demand for the delivery of the colt; the defendant, through his attorney, stated that the defendant claimed a lien upon the colt for the sum of thirty-five dollars for the use of the mare and the care and keeping of the colt; these facts are undisputed. The defendant testified that the plaintiff agreed at the time of the sale of the mare that he would pay him thirty-five dollars for the use of the mare; the plaintiff expressly denies it.

In his answer, the defendant claims a lien upon the colt for the use of the mare and the care and keeping of the colt, and if it is not allowed *as a lien, and a delivery be adjudged to the plaintiff, that then he be permitted to recover the same as a counterclaim.

I do not think the defendant’s claim constitutes any defense to the action, and that the court properly directed a verdict for the plaintiff.

Upon the facts as claimed and stated by the defendant he had no lien upon the colt. Grinnell v. Cook, 3 Hill, 485 ; Bissell v. Pearce, 28 N. Y., 252 ; Ingallsbee v. Wood, 33 id., 577.

There is no claim of any agreement with the plaintiff by which the plaintiff agreed to pay him anything for the care or keep of the colt; hence he has no lien under the statute. Chapter 145, Laws 1880.

If, as defendant claims, the plaintiff agreed to pay him thirty-five dollars for the use of the mare, that in the absence of any special agreement would not give him a lien upon the colt, and, he should have delivered the colt to the plaintiff upon demand, and sought his remedy upon the contract. Crammelin v. N. Y. & H. R. R. Co., 4 Keyes, 90, and cases cited.

Of course the charge for the pasturage and care of the colt-after defendant refused to deliver it to the plaintiff constitutes no claim against the plaintiff if the defendant was in error in his refusal $p deliver the colt to the plaintiff.

Judgment should b@ affirmed, with cosfs.

Mayham, P. J., and Putnam, J., concur.


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    William T. Hart et al., Resp’ts, v. The Ogdensburgh & Lake Champlain Railroad Co. et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Injunction—Pendente lite.
    Where it appears that vacating an injunction pendente lite may result in, depriving the plaintiff of the remedy he seeks in his action, the general term should not reverse the action of the court below, unless it plainly appears that he is not entitled to the relief sought by him in his main proceeding.
    2. Same.
    Where it does not appear on the face of the pleadings that the plaintiff" is not entitled to the relief he seeks, nor that the defendant will be seriously in j ured by being restrained until the final determination of the action, the court should not undertake to consider the merits and in effect determine the whole controversy on a motion to vacate an injunction pendente lite, but should leave them to be determined in the principal proceeding.
    Appeal from order denying motion to vacate an ex parte injunction staying the proceedings of the defendants pending the action brought by plaintiffs.
    Action by stockholders of the O. & L. C. R. R. Co. to obtain an accounting by the Central Vermont R. R. Co., the lessee of the road, of alleged earnings, and to restrain the consolidation of the two companies.

      Louis Hasbrouch (Daniel Magone and J. C. Keeler, of counsel), for opp'lts; Theodore H. Swift (William C. Loring and Charles O. Tappan, of counsel), for resp’ts.
   Herrick, J.

This is a motion to dissolve an injunction pendente lite; if the injunction is dissolved the transaction which the plaintiff seeks the aid of the court to prevent may be consummated.

^ The granting of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, such discretion being reviewable by the general term. H. R. T. Co. v. W. T. & R. R. Co., 121 N. Y., 397, 401; 31 St. Rep., 524; Hatch v. The Western Union Tel. Co., 93 N. Y., 640.

In this case that discretion was deliberately and carefully exercised.

The same justice who granted the injunction pendente lite presided at the special term when the motion was made to vacate it, and again carefully considered the subject, as is evident from reasons he gives in his opinion on the motion to vacate the injunction.

Where it appears that vacating the injunction granted pendente lite by the court of original jurisdiction may result in depriving the plaintiff of the remedy he seeks in his action, I do not think the general term should reverse the action taken by such court, unless it appears pretty plainly that the plaintiff is not entitled to the relief sought by him in his main proceeding.

In this case, if the plaintiff cannot have a temporary injunction, the transaction against which" he protests, and which by this action he seeks to prevent, will undoubtedly be completed, and he will be practically remediless.

If this court in the exercise of its discretion reverses the decision of the special term, the plaintiff will be without redress, this «court being as to such matters the court of last resort. Hatch v. W. U. T. Co., 93 N. Y., 640, and cases cited.

Sometimes it may be desirable, because of the great injury or loss that may be occasioned to the party enjoined by the temporary injunction, to have the controversy determined practically by motion such as this, but ordinarily it had better be settled in the principal proceeding where either party may have a final determination by the court of appeals if they so desire.

Now in this case it does not clearly appear to me on the face of the pleadings that the plaintiff is not entitled to the relief he seeks, neither does it appear that the defendants will be seriously injured by being restrained in this proceeding until the final determination of this action.'

Under such circumstances I do not think we should, on a motion such as this, undertake to consider the merits and in effect determine the whole controversy.

Let the order appealed from be affirmed, with ten dollars costs and printing and other disbursements.

Mayham, P. J., and Putnam, J., concur.


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    The People, Resp’ts, v. Philip W. Frederick, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    ^Criminal law—Disqualification of judge.
    A magistrate who has once heen attorney in a matter cannot act as a judge in the same matter.
    Appeal from judgment of the Fulton county court of sessions, affirming judgment of an inferior court convicting defendant as a disorderly person in failing to support his wife.

      Frank I. Anderson, for app’lt; William Green (Andrew J. Nellis, of counsel), for resp’ts.
   Herrick, J.

The defendant, it appears, had been convicted as a disorderly person and that conviction reversed. He was again prosecutéd, as it is claimed, upon the same facts for tin-same charge.

Upon being arraigned before the magistrate he objected to his jurisdiction upon the ground that the magistrate appeared _ as. attorney for the prosecution in this matter before another justice ; it does not appear that the fact then claimed in the presence of the magistrate was denied, but the objection appears_ to have been passed upon as a question of law, and the objection, overruled.

It needs no citation of authorities to show that a magistrate-who has once been attorney in a matter cannot act as a judge in the same matter. Section 46, Code of Civil Procedure, is-but a re-enactment of the common law. And in a matter which, if true, reflects so scandalously upon the administration, of justice, the appellate court will not indulge in any presumptions to sustain a judgment where such an objection is made.

The objection was made in open court; there was no occasion for the defendant to give evidence to satisfy the magistrate of the fact; he knew whether it was true or false; and when the-record is left in such a condition that the appellate court cannot tell whether the magistrate overruled the objection as not true as a matter of fact, or whether he overruled it as not good in law, the court will not assume that it was for the latter reason ; if not true, in fact, it should be indicated on the record.

And if any error is made by the appellate court, it is better to> err on that side which will relieve the administration of the law from the "stain that would be placed upon it by upholding a conviction pronounced by a magistrate who had been the prosecutor of the defendant upon the same charge before another tribunal This conclusion renders it unnecessary to consider the other questions in the case.

Let the judgment be reversed.

Mayham, P. J., and Putnam, J., concur.


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    The People, Resp’ts, v. Albert Spencer, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Cbiminal law—Immunity of "witness befobe gband juby.
    Defendant was subpoenaed before the grand jury and gave testimony as to his ha ving_ given money to the police commissioners to be permitted to keep a gambling house, on which they were indicted. A. few days after the same grand jury indicted defendant for keeping a gambling house. Held, a violation of the immunity granted to a witness by § 79 of the Penal Code.
    _ Appeal from judgment of the Saratoga court of sessions, convicting defendant of the crime of keeping a gambling house, and from order refusing to quash the indictment.

      C. S. & C. C. Lester (C. S. Lester, of counsel), for app’lt; T. F Hamilton, dist. att’y, for resp’ts.
   Herrick, J.

The defendant was subpoenaed before the grand jury to testify as to his having given money to the police commissioners to be permitted to keep a gambling house, and upon his testimony, with that of others, such commissioners were indicted for bribery, his testimony showing that he had paid them money for such purpose.

A few days after the same grand jury indicted the defendant for keeping a gambling house.

Having used the defendant as a witness his testimony could not be used against him. Penal Code, § 79. Here the same grand jury who heard his testimony found the indictment against him. The fact that it was found a few days after he was sworn and after the charge upon which he was sworn was acted upon, it seems to me, makes no difference. If it had been the testimony of another witness, they would have had the right to consider it although he was not resworn, or his testimony read in the second case, and the jury could not very well dismiss from their minds his testimony given in the first case in their consideration of the second one.

When a witness is used under such circumstances, the utmost good faith should be observed in dealing with him, and the spirit ■as well as the letter of the law should be regarded; here it seems to me both were violated. How much the grand jury was influenced by his testimony cannot be told, neither does it make any difference. ,

The case seems to me plainly within the principle enunciated in People v. Singer, 18 Abb. N. C., 96; People v. Briggs, 60 How., 17; People v. Clark, 14 N. Y. Supp., 642; People v. Brickner, 15 id., 528; People v. Clements, 5 N. Y. Crim. Rep., 298; Counselman v. Hitchcock, 142 U. S., 547.

And it was a violation of the immunity granted to a witness by ■§ 79 of the Penal Code.

The judgment of conviction should be reversed, and the indictment dismissed.

Mayham, P. J., and Putnam, J., concur.


author: Van Brunt, P. J.

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    Alfred C. Cheney, App’lt, v. Samuel W. Schuyler et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    Tenue—Action to change.
    An action will not lie to change the venue of another action which has been already brought.
    Appeal from an order denying a motion for an injunction to restrain defendants from prosecuting an action begun in Albany ■county to reform a policy of insurance.

      John J. Adams, for app’lt; A. L: Andrews, for resp’ts.
   Van Brunt, P. J.

This action seems to have been brought for the purpose of changing the venue of an action which the plaintiff in that action had a right to have tried in another jurisdiction ; in which action the plaintiff’s predecessor in title had intervened, been made a party and answered, setting up his rights, and subsequent to which such predecessor had sold all his interest in the subject-matter to the plaintiff herein, who necessarily took his title subject to that which had been done by the owner in respect thereto. We know of no practice which justifies the bringing of an action to change the venue of another action, which has been already brought. The order should- be affirmed, with ton dollars costs and disbursements.

O’Brien and Lawrence, JJ., concur.


author: Patterson, J.

text:
    The Christopher & Tenth Street Railroad Co. et al., Resp’ts, v. The Twenty-third Street Railway Co. et al., App’lts.

      (Supreme Court, General Term,, First Department,

      Filed October 20, 1892.)

    Oosts—Extra allowance—Action to reform contract.
    An action to reform a contract, and incidentally to restrain defendants from running cars on a portion of plaintiffs’ tracks, is one to enforce an alleged right to which no commercial or money value can be attached, and hence does not afford the basis of an extra allowance of costs.
    Appeal from order denying defendant’s motion for an extra allowance for want of power.
    E. R. Robinson, for app’lts; F. R. Coudert and Everett P. Wheeler, for resp’ts.
   Patterson, J.

The order denying the motion for an extra allowance, and from which this appeal is taken, recites that the decision of the court below was based upon the, sole ground of the lack of power to grant such an allowance. In this conclusion we think the learned judge was right. An extra allowance of costs must be based upon a sum recovered or claimed, or the value of the subject-matter involved. Section 3253, Code of Civ. Pro. The inquiry in this action is, what was the subject-matter of the action ? It was a suit in equity, brought to reform a contract, and, as incident thereto, praying for an injunction to restrain the running of cars by the defendants on a portion of the plaintiffs’ railway tracks, but that latter relief could only follow from and as a consequence of the granting of the relief of reforming the contract.

The real purpose of the action was, therefore, the enforcement of an alleged right to which no commercial or money value could be attached, and, as was said in Conaughty v. Bank, 92 N. Y., 401: “ The importance of a litigation in any other than its pecuniary aspects does not afford the basis of an extra allowance, and, although a litigation may seem to come within the spirit .of the provisions, if the subject involved is not capable of a money value, or the value is not shown, an allowance is not authorized." There are cases to be found, and some of them are cited by the appellant, in which such allowances have been granted where the relief sought in equity operated, or would have operated, originally and directly upon property; and hence the value of such property has been deemed to be the proper basis of an extra allowance. Such were Williams v. Telegraph Co., 61 How., 305 ; Burke v. Candee, 63 Barb., 552; Struthers v. Pearce, 51 N. Y., 366, and other cases. But there are numerous authorities indicating fhat property or rights having an ascertainable value in money must be directly involved. People v. Adams, 128 N. Y., 129; 38 St. Rep., 880, and cases there cited. It is urged by the appellant that what was involved in this action was the value of the easement over the plaintiffs’- line of railway; but that is not necessarily so. To be sure, it was indirectly affected to some extent, or in some degree, but that does not make it the real subject-matter of the action, which is the primary right sought to be enforced, and that, in this case, .was the mere claim to reform a contract Our attention has been called again to what was held in Munro v. Smith, 25 St. Rep., 624, respecting property or rights of an intangible nature in connection with this question. That case, is not authority for the general proposition that an extra allowance may be granted in suits for injunctions to prevent infringement of trade-marks, or in cases where equitable rights insusceptible of a money value are merely involved. The decision in that case went upon a conceded fact, viz., that there was an actual value of the trade-mark claimed by Munro, and that it was worth $50,000. No such concession or proof is made here. McLean swears the “ easement ” is worth at least $100,000, but, as the use of that easement is not directly involved, but only collaterally and incidentally, and dependent altogether upon the right being made complete to other relief, its value cannot be said to be involved as the subject-matter.

The order appealed from must be affirmed, with costs.

Van Brunt, P. J., concurs.