author: Per Curiam.

text:
    GEORGE W. BASSETT, Respondent, v. WILLIAM G. DEAN, Appellant.

      Landlord and tenant — right of the tenant to take a reasonable time in removing his property from premises rendered untenantable by fire — 1860, 'chap. 845.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.
    The action was brought to recover two months’ rent, said rent being payable in advance, and being due January 1st and February 1st, 1882, upon a sealed lease of premises in New York •city. A fire occurred upon the premises December 27, 1881, which it was claimed rendered them untenantable. The defendant testified that he notified the plaintiff on December 29,1881, that he could not use the building and that he should cancel his lease; that he removed his goods and machinery from the building as soon as he could after the insurance adjusters had completed their examinations. All his property was removed by February third, and on that day he served upon the plaintiff a formal surrender, under seal, of his interest under the lease. The defendant’s counsel requested the court to submit to the jury the question whether or not after the' damage the defendant removed from the premises with reasonable dispatch. The court refused so to do and directed a verdict in favor of the plaintiff for the two months’ rent.
    The court, at General Term, said : “ We think that, under chapter 845 of the Laws of 1860, when premises become untenantable in consequence of fire, the tenant is entitled to a reasonable time within which to remove his property from the premises occupied by him, and that what is a reasonable time for that purpose is a question of fact which must be submitted to the jury and be by them disposed of. That question should have been submitted to the jury in this case for their determination. It would necessarily involve a consideration of the character of the property on the premises and the ease or difficulty, or both, which may be ■encountered in its removal.
    “ The judgment must be reversed and a new trial ordered, with costs to abide event.”

      PL. D. JBirdsall, for the appellant.

      Joseph A. Shoudy, for the respondent.
   Opinion

Per Curiam.

Present — Davis, P. J., Brady and Daniels, JJ.

Judgment reversed, new trial ordered, costs to abide event.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    JOHN D. GOODWIN, Appellant, v. HUGH YOUNG, Respondent.

      Oml damage act — 1873, chap. 646 — has no extra-territm'ial effect — a foreign law-must be proved to exist.

    One Connolly, a servant of the plaintiff, a resident of Vermont, took a team of horses belonging to his master, drove them into this State and there drank a glass of liquor upon the defendant’s premises and purchased whisky from him. He returned to Vermont in an intoxicated condition and placed one of the ’ horses in a stable, leaving the door open, as a Consequence of which the-wind blew in upon the horse, causing its sickness and death. .
    In an action to recover the damages thereby sustained, brought under the “ civil damage act” of this State:

      Held, that the said act only applied to cases in which the injurious act was done-in this State, and that as it had no extra-territorial effect, and as it was not shown that any similar law existed in the State of Vermont, the action could not he maintained.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit.

      T. A. Lillie, for the appellant.

      J. M. Whitman, for the respondent.
   Learned, P. J.:

This was an action under the so-called “civil damage” act.. There was proof tending to show that the plaintiff lived in Yermont; that the plaintiff’s servant took the plaintiff’s team of horses into his State, in the ordinary course of his care of them; that in this State the servant drank a glass of liquor at the defendant’s store and purchased whisky there; that he returned to Yermont in an intoxicated condition; that he put one of the team, a mare, into the barn ; that he left the barn-door open; that the wind blew in upon the mare and caused her sickness and death. The plaintiff was nonsuited.

During the trial the plaintiff asked leave to amend the complaint by alleging a statute of Yermont similar in character to the “civil damage” act. The defendant objected. The case states that “the court allowed the amendment of the Yermont statute to be read, and the same was not received in evidence.” This is so expressed that we do not know whether there was an intention to amend the complaint or not. But on examining the complaint we find that no amendment was made. And it is said that the Yermont statute was not received in evidence. Foreign laws are facts, and must be proved; and there is no proof 'in the case as to the Yermont statute or its contents. Whatever was said by the learned justice in regard to the Yermont statute is not material, because no proof is before us in the case as to the terms or even as to the existence of that statute.

Several cases cited by counsel are instances where a wrongful act, done in one State, has caused injury to a person there, and that person or his representative has sued to recover damages for such injury in another State. (Leonard v. Col. Steam N. Co., 84 N. Y., 48; Whitford v. Panama R. R. Co., 23 id., 465; Richardson v. N. Y. C. R. R., 98 Mass., 85.)

The present is not quite such a case. The sale of liquor was not a wrongful act, either at common law or by the statute. It might have been an act which the defendant was specially licensed to dos by the authorities of the State. The plaintiff urges that a sale of a glass to be drank on the premises, and of two bottles to be carried away, must have violated some part of the excise law. But under the civil damage act it is of no consequence whether or not the vendor was licensed. We need not, therefore, consider the subject of the excise law. The wrongful act which caused the injury to the plaintiff was the act of Connelly, his servant, and was done in Vermont. The plaintiff undoubtedly had a right of action against Connelly for negligence, on which he could ha-ve sued in Vermont, and probably here also. But our statute gives a cause of action for the injury, and this, as it is a special statutory- provision, must refer to an injury done in this State. It cannot be intended to have an extra-territorial effect. The statute is.p.ccuiiar, in that it makes an innocent man liable for the wrongful act of another. But we are confident that its effect must be limited to the State. This case is similar to that of Le Forest v. Tolman (117 Mass., 109). There the defendant owned a dog in Massachusetts. The dog strayed into New Hampshire, and bit plaintiff. The plaintiff claimed to make the defendant liable on a Massachusetts statute, making every owner of a dog liable in double damages to every person injured. But it was held that the action could not be sustained. (See cases there cited.)

Our statute, as it were, imposes upon certain injuries this quality, viz.: that a person is liable for the injuries who did not cause them. It does not give that quality to an injury caused out of the State.

The judgment should be affirmed, with costs.

Present — Learned, P. J., and Bookes, J.; Landon, J., not acting.

Judgment affirmed, with costs.


text:
    SAMUEL MASSEY and Others, Respondents, v. THE MUTUAL RELIEF SOCIETY OF ROCHESTER, New York, Appellant.

      Mutual relief societies — 1875, chap. 267 — right of, to make the amount of the assessment due upon a member’s death payable to one not a member of his family.

    The certificate of incorporation of a mutual relief, society, organized under chapter 267 of 1875, stated that its object was to render mutual relief to the members during their lifetime, and to their families from time to time, when necessary. The by-laws stated that one of its objects- was to furnish aid to the membeis’ families or assigns, in case of their death, and to issue certificates for sums to be paid to the heirs or beneficiaries of deceased members named therein. The defendant issued a certificate to one of its members by which it agreed to paj' upon death one-fourth of a full assessment to the member’s wife, and the other three-fourths to Samuel Massey, the plaintiff, who did not belong to the member’s family. In an action to recover the amount due upon the certificate the defendant claimed that it had no power, under its constitution and by-laws, to agree to pay the assessment to any person who did not belong to a member’s family, and that its promise to pay a portion of the assessment to Massey was void.

      Seld, that the defense could not be sustained; that the defendant had power to-mate the agreement and must comply with its terms.
    Appeal from a judgment in favor of the plaintiffs, entered upo» a verdict directed at the circuit.

      J. M. Dunning, for the appellant.

      JVathaniel G. Moak, for the respondents.
   Learned, P. J.:

This is an action brought upon wliat is called a certificate of membership, issued by the defendants to one John Hopkinson. It states that in consideration of representations made in the application, and of six dollars paid by him as a membership fee, and of certain sums specified to be paid by him, he is constituted a member. And that on his death, after due notice thereof, etc., the treasurer will pay Elizabeth Hopkinson, wife, one-fourth, and Samuel Massey three-fourths, or his legal representatives one full assessment for each membership in force at such death, not to exceed $2,000. Hopkinson died January 21, 1882, and due notice was-given. At his death one full assessment exceeded $2,000. The-plaintiffs sue to recover their respective shares of that sum. The court directed a verdict for that amount and the defendants appealed.

No question seems to be made that in an action brought by Elizabeth Hopkinson alone the defendants would be liable for $500. The question is, whether they are liable to Massey for $1,500; and if not, then, whether either plaintiff could recover in this action. And the ground of defense is that Massey was never a member of Hopkinson’s family. The defendants claim that by the law under which they are incorporated, and under their own certificate of incorporation and by-laws, the benefits to be derived by members-must be for their respective families and for no others.

In the outset, it is plain that the contract was made with Hopkinson, not witli Massey; and that Hopkinson had a right to insure his own life, and make the amount payable to another. (Olmsted v. Keyes, 85 N. Y., 593; Valton v. National F. L. A. Co., 20 id., 32; Hellenberg v. District No. 1, etc., 94 id., 580.) And again, it is plain that the defendants agreed with Hopkinson to pay Massey. Unless, then, this agreement was one which they had no power to make, they are liable. The question, then, is simply whether an agreement with one of their members to pay the “ benefit ” to a person not in his family is beyond the power of the defendants. This is not a case where Massey has attempted to insure the life of Hopkinson, and where the question might be made whether he had an insurable interest.

The certificate of incorporation states that the object is to combine the efforts of its members with a view to effect mutual relief, etc., during their lifetime, and to" their respective families from time to time, when rendered necessary by sickness or pecuniary distress. Now this evidently does not, with any clearness, express the business which the defendants in fact do. It says nothing expressly about payments to the families or to any one else upon the death of a member. . Yet under this the defendants admit their liability to Elizabeth Hopkinson on the certificate in question.

’The by-laws say that one object shall be “tofurnish aid to their families or assigns in case of a member’s death.” And further, that “ the plan of the society will be to issue certificates for a sum not to exceed $2,000, to be paid to the heirs or beneficiaides of deceased members named in his certificate, from funds arising from assessments for the payment of death claims.” Here we have distinct statements that the payment may be made to the assigns of the member, and is to be made to “ beneficiaries of deceased members named in his certificate.” The word beneficiary implies only that the person is'benefited. It gives no indication that the member may not, by his designation in his certificate, benefit any one whom he chooses. And it ought not to be a matter for the defendants to dispute after the member has made his designation and the society has issued the certificate accordingly. It is nothing to the defendants whether the person benefited is, or is not, a relative of the member. That is a matter for him.

In Hellenberg v. District No. 1, the only difficulty was that the member had failed to designate, or rather that the designation had become inoperative by the death of the person named. Hence there was no person to whom the society could pay. The by-laws of the defendants in the present case seem to provide against such a contingency. For they provide in another place for the payment to the legal representatives of the deceased member, or to such person or persons as he may have directed, or, in a subsequent revision of the by-laws, to such heirs or beneficiaries as are named in the certificate. In the absence, then, of any direction, this evidently ineaus that payment should be made to the representatives of the member. In the case just mentioned the will of the member was held not to be a good designation, because it was not brought to the notice of the society; the agreement requiring a designation to the lodge in a prescribed manner. In the present case the designation was distinctly made in the certificate itself. Unless, then, we disregard the by-laws that the society may pay to the members’ assigns and shall pay to such hews or beneficia/ries as the deceased member may liave named in his certificate, and also the similar language used in the by-law describing the plan of the society; unless we disregard the certificate itself, issued by the defendants, we must hold the defendants to be liable. And no reason for disregarding these by-laws and this certificate is suggested, except that the contract is beyond the powers of the defendants. This argument would go very far. For we cannot see that a certificate of this character, made payable to the widow, is any more within the strict words of the certificate of incorporation than the present. The charter says nothing of benefits ” payable after death.

If we look at the statute under which the defendants were organized (Laws 1875, chap. 267, §§ 1 and 2) we shall find that very little is said as to the powers of the body corporate. The corporation may make and modify its constitution, by-laws, rules and regulations, provided they are not inconsistent with the Constitution of the Statq or the United States. The statute, therefore, permits the corporation to make a constitution as well as to make by-laws. The certificate of incorporation is to express, on this point, simply the particular business and object of the society. Much of the detail of the business must be looked for in the by-laws or in a constitution, if one be formed.

In the case of Story v. Williamsburgh M. M. B. A. (95 N. Y., 474) the objects of the defendants, as described in the constitution, was to provide for the relief of widows, orphans and heirs of dead members. The by-laws declared that after death of a member the money was to be paid to his widow; if none, to his children; if none, to the person therein provided for entitled to receive the same. The defendant issued a certificate to Robert Story, stating that, in accordance with the by-laws, etc., his wife Mary Story was designated as the beneficiary.

It is assumed by the court that Mary Story was not (or at least need not have been) his wife. And the court say that the by-law was not a limitation of the power of the company to prevent it from recognizing as the beneficiary one designated by the members as holding to him the relation of wife. That case applies to this. For if, by having the certificate made payable to a person described as his wife, Story could make a contract binding on the company, although such person was not his wife, and hence would not be his widow, and could hot thus be within the clause named in the constitution, then Ilopkinson might have described Massey as his-son, or his brother, or as member of his family, or even as his wife, and the present defendants would have been liable.

The court do not in that case consider it material that Mary Story was not really the widow of the deceased. It would be absurd to say that there was any force in a false statement that the beneficiary named in a certificate was a wife or member of the family. The-effective part of the certificate is the designation of the beneficiary. And when by the direction of the member the defendants issue a certificate designating the beneficiary, it does not matter, according to that decision, whether such beneficiary is truly or falsely described as wife or the like, and therefore it cannot matter whether the beneficiary is described as being any relation to the-member. There is nothing in the certificate of incorporation or the by-laws which should exclude from membership unmarried men or those having no families. A member might have a person dependent on him for support who was not a member of his family and who had no legal claim upon such member. And the-member might justly desire to provide for such person after his own death. It would be very unjust that the defendants should refuse to pay in such a case.

The cases cited by the defendant from other States do not, as we think, apply to this case. We are of opinion that the defendants had poiver to make the contract contained in the certificate and are bound thereby.

The judgment should be affirmed, with costs

Present — Learned, P. J., and Pookes, J.; Landon, J., not acting.

Judgment affirmed, with costs.


text:
    ANNA M. HARRISON, Appellant, v. GEORGE SWART and MARY E. SWART, Respondents.

      Costs — when to le allowed, as of course, to a successful appellant, on appeal from a judgment of dispossession in summary proceedings — Code of Civil Procedure, secs. 2260, 3066, 3240.
    Where a judgment recovered by a plaintiff in summary proceedings to recover the possession of land, instituted before a justice of the peace, is reversed, upon an appeal to the County Court, the defendant is entitled to costs, as of ■ course, under the provisions of sections 2260 and 3066 of the Code of Civil Procedure.
    Appeal from an order of the Ulster County Court, denying a motion to set aside a judgment for costs.

      William JD. Brinnier, for the appellant.

      George Van Etten, for the respondents.
   Learned, P. J.:

The plaintiff took summary proceedings before a justice of the-peace to recover possession of premises, and recovered. The defendants appealed to the County Court and the matter was reversed. The defendants thereupon entered a judgment against plaintiff for costs. The plaintiff moved to set the judgment for costs aside. The motion was denied and plaintiff appeals. Section 2260 of the-Code says that appeals in such cases may be taken in like manner as from a judgment, etc., and with Mice effect. It is reasonable to apply tbe words “ with Mice effect” to tbe matter of costs on appeal. ■ Section 3066, subdivision 4, gives costs as of course on appeal from a judgment wliere the judgment is reversed. Section 3240, as amended in 1881, puts costs on appeal in special proceedings in tbe discretion of the court, where they are not specially regulated in tbe act.

It seems to us tbat the effect of sections 2260 and 3066 is to specially regulate costs in these summary proceedings, appealed from a justice’s court. the plaintiff in the present case argues tbat section 3240 applies on the ground tbat costs on this appeal are not specially regulated. And therefore insists tbat as the costs in this ■ case were not given by the court they cannot be bad. It should be noticed, however, tbat the judge who reversed the order of dispossession also refused to strike out these costs. At any rate we think the plaintiff overlooks the effect of section 2260, above cited. She urges tbat section 2263 is the only section authorizing costs, and tbat is in case of restitution ordered.

Like many other questions upon tbe construction of several sections of tbe Code, the question may not be free from doubt. But analogy favors tbe construction taken by tbe county judge and we are of tbe opinion tbat he was corrects

Order affirmed, with ten dollars costs and printing disbursements.

Present — Learned, P. J., Bockes and Landon, JJ.

So ordered.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES OSTERHOUT, Appellant.

      Vailu/re to arraign a prisoner and to require Mm to plead — when it does not afford a ground for the reversal of his conviction.

    Upon-an appeal from a judgment of a Court of Sessions, convicting the defendant of an assault in the first degree, it was sought to have the judgment reversed upon the ground that the defendant had not been formally arraigned and that he did not formally plead. It appeared that he was present in court with his counsel at the trial and did not ask to plead,-or object because he had not been arraigned. After the verdict had been rendered and the jury discharged he moved; upon this ground, to have the judgment arrested.

      Held, that the objection could not be raised by a motion to arrest the judgment. That the case was not one in which justice required the court to exercise the power to grant a new trial, although no exception was taken upon the trial, conferred upon it by section 537 of the Code of Criminal Procedure.
    Appeal from a judgment, rendered against the defendant in the Court of Sessions of Rensselaer county, convicting the defendant of an assault in the first degree.

      Orin Gambell, for the appellant.

      La Mott W. Rhodes, for the respondent
   Learned, P. J.:

The prisoner was duly indicted for assault in the first degree. He was tried at the Court of Sessions and convicted. No question is made as to any improper evidence, or error in the charge, or defect in the jury.' The only point made is that the prisoner was not formally arraigned, and did not formally plead. He was present with his counsel throughout the trial; did not object that he had not been arraigned, and did not ask to plead. After the close of the trial, and after the verdict had been rendered and the jury had been discharged, and on the following day this point was first made, and made by a motion in arrest of judgment.

It is manifest that no injury has been done the defendant. No plea has been rejected; no evidence offered by him has been excluded. The defect is merely technical, affecting no rights whatever. If he had refused to plead, the trial would have proceeded just as it has. The trial would not be affected because of an imperfection in the indictment which did not tend to the prejudice of the substantial rights of the defendant upon the merits. (Code Crim. Pro., § 285.) Nor may this court on appeal regard technical errors or defects or exceptions which do not affect substantial rights. (Sec. 5fi2.) If this section is to have any meaning at all it applies exactly to a ease like the present.

No suggestion is made by the able counsel who has presented the defendant’s case, that any substantial rights upon the merits ’ have been affected. Every one who knows anything of a criminal trial must see that the omission did the defendant no harm. The arraignment was certainly a matter which a prisoner could waive. (Pierson v. People, 79 N. Y., 424.) And he need not plead unless he desires to do so. (Sec. 342.) Especially in a case where the prisoner appears with his own counsel, the omission formally to arraign and to ask for a plea is immaterial to his rights and may be deemed to be waived.

Again, the grounds of a motion in arrest of judgment are defects in the indictment. (Sec. 467.) These are stated in sections 331, 333. The omission to arraign or to ask the defendant to plead is not, and could not be, one of the defects in the indictment.

Cause against the judgment may be shown before sentence: First, insanity; second, good cause in arrest of judgment. (Sec. 481.) The prisoner does not show insanity, and for the causes in arrest of judgment we must refer to section 467, as above. The court below could have granted a new trial for the reasons stated in section 465. None of those exist here.

Under section 517 this court on appeal can review any intermediate order forming part of the judgment-roll. By section 485 the roll may contain the bill of exceptions. 'When, then, we examine the bill of exceptions to see if any error was committed, we find that the only alleged error was a refusal to arrest the judgment after trial. No other exception presents the point which the defendant urges. And we have already seen by examination of section 467 that such a motion must be for defects in the indictment. But the defendant urges that the appeal brings up the roll and that this should contain the minutes of the plea (sec. 485); that the judgment-roll does not show that the defendant was arraigned or pleaded. That is true. No arraignment or plea appears in the roll. Section 527 (as amended, chap. 360, Laws 1882) permits the ordering of a new tidal, whether or not an exception has been taken. But that is wh^re justice requires it, which it does not in this case. (People v. D'Argencour, 95 N. Y., 624.) "We come then to this question: must the court reverse a judgment of conviction on a verdict when the judgment-roll fails to show an arraignment or a plea, while the bill of exceptions shows that the prisoner was present with his counsel and had a fair trial ? We think not. We think that the spirit of the Code does not favor and we are sure that courts ought not to favor, technicality.

The learned counsel for the defendant has cited many cases in other States holding that the omission of arraignment and plea is sufficient ground for reversal of the judgment. We do not think it necessary to discuss these cases. Decisions of other States are not precedents for us. They are useful to show do what conclusion the minds of able judges have come, and of coui’se they deserve respect. But we are not bound by them. In the absence of any decisions in our own State, directly applicable, we must be governed by our own judgment of the law as stated in the Code, and as illustz’ated by the broad views given in the opinion in Pierson v. The People. A prisoner should have everything needed to a fair trial. But when he has had such a trial, he should not escape punishment by reason of some omission of some technical pi’oceeding, which, if not omitted, would have, done him no good.

The judgment and conviction should be affii’med.

Present — Learned, P. J., Bookes and Landon, JJ.

Judgment and conviction affirmed.


text:
    GEORGE H. BARTHOLOMEW, Respondent, v. THE MERCANTILE MARINE INSURANCE COMPANY, Appellant.

      Befoi'mation of a written contract — the evidence of a mistake must be clea/r and unquestionable.

    In order to justify the reformation of a policy of insurance issued hy a company, upon the ground that by mistake it does not conform to the agreement made by the parties to it, the evidence establishing the mistake must be unquestionable. It must be so clear and convincing as to leave no room for doubt.
    This rule was applied in this case, and a judgment, entered upon the verdict of a jury, reforming a policy of insurance issued by the defendant to the plaintiff, and allowing him to recover upon the policy as so reformed, was set aside upon the ground that the evidence was insufficient to entitle him to the relief sought.
    Appeal from a judgment in favor of the plaintiff, entered upon the, verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      This action was brought to reform a policy of insurance issued by defendant and when reformed to recover damages for a loss sustained to the property insured. The plaintiff was the owner of the property. On the 8th day of April, 1881, the defendant issued and delivered to him a policy of insurance by which it insured “ John H. Miller against loss or damage by fire” on the stock in trade, etc., “loss, if any, payable to John H. Miller as his -interest in equity may appear.” The plaintiff claims that he made a bargain with one Stowell, agent of the defendant, for insurance, and that by mutual mistake the name of John H.- Miller was written, or rather that this was done by Stowell’s mistake and that he did "Slot notice the error. The issue was submitted to the jury and they found that the agreement was that the policy should be in plaintiff’s name.
    The only witnesses, as to the verbal agreement, were the plaintiff on his behalf, and Stowell for the defendant. Stowell testified positively that the plaintiff said Miller had an interest in the property and that he wanted the policy in the name of the real owners, not in his own name; that he made out .the policy and delivered it to him and they read it together and he took it; that in the afternoon the plaintiff came in and said the policy was wrong in saying his goods and his store; that it should be' the goods and the store. And also that he wanted the clause “ loss if any,” etc., as above mentioned inserted, and that these corrections were made. He testified that after the fire the plaintiff said Miller never owned any of the goods, but that he, the plaintiff, had some debts hanging over him and if he had had the policy in his name the creditors would have levied.
    On the contrary, the plaintiff testified to facts tending to show that the verbal contract was that the policy should be issued to him, loss payable to Miller, to secure him for borrowed money. The plaintiff admits that he was insolvent; that he did business under his own name as agent, meaning agent for himself; that some ten days before this policy was issued he took out another policy in his name as agent. The fire occurred February 6, 1882. In March, Miller forwarded proofs of loss to the company, and they were returned; and in June the plaintiff sent proofs of loss, and upon non-payment commenced this action.

      M. A. Sheldon, for the appellant.

      J. Sanford Potter, for the respondent.
   Learned, P. J.:

Since the union of' law and equity in one court and under one-form of practice, we think it has become more important than ever to understand and maintain true principles as to the reformation of contracts. That remedy in equity, in its nature, necessarily involved an exception to the general' rule that parol evidence of prior negotiations could not be admitted to vary a written agreement. And the soundness of that nile may be seen from the consideration that, after verbal negotiations, it must be deemed that the parties have come to the final conclusion expressed in the written instrument. The equitable doctrine of reformation was adopted where, by mutual mistake, or by mistake on one side and a fraudulent advantage taken on the other, the instrument was dif- - ferent from that which the parties intended it should be. (Bryce v. Lorillard, 55 N. Y., 240.) And a fundamental rule in respect to this doctrine is that the evidence to show that a mistake had been made must be unquestionable (1 Story Eq., § 157); “ irrefragible,” as said by Lord Thurlow, in Lady Shelburne v. Inchiquin (1 Bro. C. C., 338); so clear and convincing as to leave no room for doubt (Mead v. West. Ins. Co., 64 N. Y., 453); proved as much to the satisfaction of the court as if admitted. (Ford v. Joyce, 78 N. Y., 618.) We need cite no further expression to show how strong the evidence must be to sustain a reformation.

In the present case the plaintiff’s evidence utterly'fails to reach that high degree. Iiis case rests solely on his own testimony, and he is an interested witness. He is contradicted on the material point by the testimony of the defendant’s agent, who has no pecuniary interest ; although, doubtless, he sympathizes with the defendant.

Furthermore, the plaintiff is contradicted by the evidence which he himself gives, showing that, for fear of creditors, he did not desire to take out a policy in his own name, thinking that it would lead them to discover the truth, viz.: thakthe business whiph he-was conducting under the name of agent was really his own.

We might further say that there is plainly no evidence of mutual mistake, because it is not pretended that Stowell dkew the policy differently from what he intended. And .there is no evidence that any fraud was committed, or that Stowell took advantage of the plaintiff, as was the case in Albany City Savings Institution v. Burdick (20 Hun., 104; 87 N. Y., 40.) But'without discussing the point whether the plaintiff might not have had a reformation of the policy, if his proof had been sufficiently convincing, we are of the opihion that he failed to make a case which entitled him to that relief.

The judgment should be reversed upon the facts and a new •trial granted, costs to abide the event.

Present — Learned, P. J., and Bookes, J.; Landon, J., not acting.

Judgment reversed on the facts, new trial granted, costs to abide event.


author: By the Court :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN B. GALE and Others, v. THE BOARD OF SUPERVISORS OF RENSSELAER COUNTY.
    ■Certiorafi — audits of a board of supervisors, eannot be reviewed after the roll has been signed and the tax warrants delivered.

    In December, 1883, tbe board of supervisors of Rensselaer county audited and allowed a bill presented to it and thereafter, after signing tbe tax-bools and warrants for tbe collection of the taxes, adjourned sine die. On April seventh, tbe relators, upon an affidavit charging that tbe board bad no jurisdiction to audit tbe claim, and that tbe county treasurer threatened to pay it, obtained a writ of eerUora/ri requiring tbe board to make a return of all their proceedings:
    Held, that the writ should be quashed, as tbe board bad no power over tbe matter after the roll bad been signed and tbe warrant delivered.

      People ex rel. Weekes v. Supervisors of Queens County (83 N. Y., 375) followed.
    Certiorari to review the action of the board of supervisors of the county of Rensselaer, in auditing and allowing the claims of a deputy sheriff for services rendered by him in traveling to execute criminal processes in criminal cases.

      Charles E. Patterson, for the relators.

      B. C. Strait and P. E. Andrews, for the respondent.
   By the Court :

The board met November 13, 1883. On December 12,1883, a report was made upon a certain bill and vouchers of one Ahern, and the report was duly adopted the next day. Tbe supervisors signed the tax book and warrants for the collection of the taxes, and afterwards adjourned' sine fie December 15, 1883.-

On the 7th of April, 1884, the relators, .on an affidavit charging that this bill of Ahern’s was erroneous and illegal, and that the board had no jurisdiction to allow such a claim, and that there was no proof to sustain it, and that the county treasurer threatened to pay the bill, obtained a certiorari, directed to the board, requiring them to return their proceedings and all the evidence. That certiorari •and the return comes on to be heard.

The respondents insist that the writ should be quashed on the ground that prior to its issue the board had issued its warrants; that the money had been collected and was at the time in the hands of the county treasurer. It seems to us that thé case of People ex rel. Weekes v. Supervisors of Queens County (82 N. Y., 275) is conclusive on this point. We see no difference between that case and the present, and it follows that the writ must be quashed.

The writ should be quashed, with fifty dollars costs and disbursements

Present — Learned, P. J., Bockes and Landon, JJ.

Writ quashed, with fifty dollars costs and disbursements.


text:
    In the Matter of the Final Accounting of HENRY MILLER, as Guardian of OWEN L. ELDRIDGE, an Infant.

      ■Guardian — allowance may be made for necessaries furnished by him to the infant, before the issue of letters of guardianship.

    Upon an application by one who bad been named as the guardian of an infant in its mother’s will to have his accounts settled and to be discharged, the surrogate may, in a proper case, allow to the guardian the amounts expended by him in procuring necessaries for the infant prior to the time when letters of guardianship were formally issued to him.
    In making such allowance it must be shown that the amounts so expended were advanced upon the faith and credit of the infant’s estate,, and that they were not intended to he mere gratuities, and the rule that the principal of an infant’s estate should not he encroached upon must he home in mind.
    Appeal from decrees and orders of the surrogate of Sullivan county, entered upon the final accounting of Henry Miller, as guardian of the person and estate of Owen L. Eldridge, an infant.

      Peter E. Palen, for Miller, guardian, appellant.

      FcmeJier cfe Sewell, for special guardian, respondent.
   Learned, P. J.:

Polly M. Eldridge died July, 1869, leaving Owen L. Eldridge, an infant of about four years, surviving. His father had died previously. She made a will which was duly admitted to probate, July, 1870. By this she gave her property to Owen; appointed Henry Miller executor, and expressed her wish that Miller should be guardian of Owen, and have all the care of his property till he became twenty-one, and. that Owen should five with Miller. Letters testamentary were issued to Miller. After paying debts and funeral expenses there remained in his hands $412.36. Miller took the infant Owen into his care and custody about July 15, 1869, and furnished his support and maintenance till March 22, 1883. We may assume these'facts since offer of proof was rejected. On the 22d of June, 1880, Miller was appointed guardian of the infant Owen. On the 2d of April, 1882, Miller, as such guardian, received $1,346.33, pension money of the infant. On the 24th of April, 1883, Miller applied to have his accounts as guardian settled, and to bo discharged.

On the accounting he charged himself with the $412.36 and interest, and with the $1,346.33 and interest, and credited himself for certain expenses. He also credited himself with the expense of the maintenance of the infant for ten years. ' He offered proof of the value of such maintenance over and above what the infant was able to or did earn.

The Surrogate disallowed all of the claim for such maintenance prior to the appointment of Miller as guardian, viz., $1,750, and directed the payment to the infant, by Miller, of $1,855.79.

Inasmuch as the guardian in his account had charged himself with $412.36, being the amount which he had received as executor prior to his appointment as guardian, and as he was not allowed for the maintenance of the infant even 'to the extent of this amount, he applied for leave to amend his account by deducting this amount therefrom. This was refused. The guardian appeals.

It is very plain that the guardian, under the request contained in the will, had acted as if he were legally appointed. lie had taken care of the infant, and in doing so had used moneys which he really held as executor, but in which che infant had the sole beneficiary interest. When, afterwards, he was appointed guardian and received money in that capacity, and then applied for a settlement of his accounts, it was not strange that he made the mistake of charging himself also, as guardian, with the $412.36. If the surro-' gate was correct in holding that a guardian cannot be credited for money expended in the support of the infant, prior to the appointment of the guardian, then, clearly, justice required that this guardian should have been allowed to amend his account. If that had been permitted he could have accounted, as executor, for the $412.36, and could have given proof of the application of that money to the infant’s benefit, if he had so applied it.

But we think the surrogate wrong upon the main question. Miller was under no obligation to support the infant. He was not related to the infant in any way. If one who supplies necessaries to an infant, before a guardian has been appointed, could not be compensated from the infant’s estate, the infant might be allowed to perish.or to be supported by the public authorities, without having the benefit of that support which his own property would rightfully procure for him. It has been held, it is true, that legal services, previously rendered by a guardian, cannot be charged (Clowes v. Van Antwerp, 4 Barb., 416), nor traveling expenses of the guardian. (Ainsworth v. Aldrich, 15 Week. Dig., 199.) But these decisions do not apply to necessaries. (Voessing v. Voessing, 4 Redf., 360; Hyland v. Baxter, 31 Hun, 354.) The matter is discussed, with a reference to authorities, In Matter of Bostwick (4 Johns. Ch., 100). We think that undoubtedly, in a proper case, -a guardian might be allowed for necessaries furnished to the infant before the guardian’s appointment. But it must be distinctly understood that we do not pass upon the merits of the present case. Many circumstances are to be considered which do not sufficiently appear in the papers before us to justify an opinion. For instance* a general rule is that principal should not be encroached upon uiiless necessity requires. Another question which may arise may be whether the support furnished by the guardian was, in any sense, either by understanding or by legal implication, furnished upon the credit of the infant’s estate, or of that part of it received in the pension moneys. The question may be put whether if some other person had been appointed guardian and had received the pension money, Miller would have had a claim against that guardian in respect to the, pension money for necessaries furnished. We do not pass upon any of these questions, nor are we even willing to say that such proof may not be given as will show that Miller has no claim for compensation out of the pension money for support furnished prior to June 22, 1880. The fact that the infant was living in Miller’s family may, on a hearing, be some indication rhat this case came under the ordinary rule as to members of the same household having no claim for compensation for mutual services.

We are then of the opinion that as to the sum of $112.36, and the interest thereon, the guardian should be allowed to amend his account, if he desires to do so, or that this money should be applied, so far as may be needed, to compensate the guardian for the support and maintenance furnished the infant, whatever that may be found to be worth.'

We are of opinion also that the evidence offered by the guardian as to the maintenance and support furnished prior to June 22,1880, should have been admitted, and that the matter should be sent back to the surrogate to determine whether any and what amount should be allowed to compensate the guardian for such support and maintenance out of the aforesaid pension moneys.

The decree of the surrogate must be reversed and the matter sent back to him for a rehearing on the principles indicated; costs of the appeal should be allowed to the guardian.

Present — Learned, P. J., Bocees and Landof, JJ.

•Decree reversed and matter sent back for rehearing on principles indicated in opinion ; costs of appeal allowed to guardian.


author: By the Court

text:
    WILLARD HITCHMAN, as Commissioner of Highways of the TOWN OF SHARON, Appellant, v. ADAM R. BAXTER, Respondent.

      Action for penalties in a Justices’ Court — a proper reference to the statute mustie indorsed upon the summons— Code of Civil Procedure, sec. 1897.
    In this action, brought in a Justice’s Court against a commissioner of highways-to recover a penalty, the indorsement upon the summons read as follows: “For a penalty imposed under and according to the provisions of section 19, chapter 16, title 1, part 1 of the several statutes relating to overseers of highways and highway labor: ”

      Held; that the indorsement was utterly indefinite and was insufficient to give the reasonable notice required by section 1897 of the Code of Civil Procedure.
    Appeal from a judgment of the County Court of Schoharie county, reversing a judgment rendered in a Justice’s Court in favor of the plaintiff.

      W. G. Lamont, for the appellant.

      L. W. Baxter, for the respondent.
   By the Court

We are of the opinion that the indorsement on the summons was fatally defective. The indorsement was “for a penalty imposed under and according to the provisions of section 19, chapter 16, title 1, part 1 of the several statutes relating to overseers of highways and highway labor.” If that was intended to refer to the Revised Statutes, then section 19 has nothing to do with penalties. But the language is not enough to designate the Revised Statutes. The reference to “ the several statutes ” is utterly indefinite. The plaintiff has no right to set a conundrum for the defendant to guess. He must, give reasonable notice, such as would ordinarily be understood, and' such as would enable the defendant to discover on what statute he was sued. It may not have been necessary to specify the section, under Code section 1897, if there was only one penalty. But the plaintiff chose to specify a-section which could not be correct and his notice was practi.cally of no use.

We are satisfied that the indorsement was not sufficiently definite, and without examining the other points we affirm the judgment of the County Court, with costs.

Present — Learned, P. J., Landon and Fish, JJ.

Judgment of County Court affirmed, with costs.


text:
    POLLY MORIARTY, Respondent, v. CAROLINE L. BARTLETT, as Executrix, etc., of VIRGIL C. BARTLETT, Deceased, Appellant.

      Cvoil damage act — when an action by a wife survives against the estate of a deceased defendant — right to recover exempla/ry damages against the estate.

    Hie plaintiff’s husband, having purchased intoxicating liquors from the defendant, became intoxicated and was, while in that condition, drowned. After the commencement of this action, brought by the plaintiff, his widow, under the civil damage act, to recover the damages thereby occasioned to her, tho defendant died:

      Held, that a cause of action survived in favor of the widow against the estate of the deceased, and that his executrix should be substituted in his place.

      It seems, that the estate would not be liable for exemplary damages. (Per Learned, P. J.)

    Appeal from an order made at a Special Term, continuing this action and substituting Caroline L. Bartlett, as executrix of Yirgil C. Bartlett, dee'eased, in place of her testator, the original defendant.

      Leslie W. Russell, for the appellant.

      W. P. Canfrwell, for the respondent.

       As to the right to recover exemplary damages in such actions see Ludwig v. Glaessel, post, p. 312.

   Learned, P. J.:

This is an action brought by Polly Moriarty, widow of Samuel Moriarty, against Yirgil C. Bartlett, under the “civil damage act,” for selling intoxicating liquors to Samuel Moriarty and causing his intoxication, through which he was drowned.

• After the action was commenced the defendant died. On motion of the plaintiff the Special Term substituted his executrix in his place. She appeals. The question is whether the cause of action survived against the estate of Bartlett.

By 2 Revised Statutes (m. p. 447, § 1) an action may be maintained against the executors or administrators of a wrong-doer, for wrongs done to the property, rights or interests of another. By .section 2 this piovision does not extend (among other things) to actions of assault and battery or for injuries to the person of the plaintiff. Where an action may be maintained against executors or administrators, then an action commenced against the wrong-doer does not abate, but may be continued. (Code, §§ 755, 757.) We have then to consider whether the present is an action for wrong done to the property, rights or interests of the plaintiff. The “ civil damage ” act was passed subsequently to the Revised Statutes, and, therefore, such an action as the present was not known to the revisers.

The husband has such an interest in the services of the wife that an action brought by him for injuries to her survives to his executors, because this wrong affected his rights and interests. (Cregin v. Brooklyn C. R. R. Co., 75 N. Y., 192.) Of course, at common law the wife had- no legal right in the services of the husband. But by the civil damage act the person who is injured in means of support ” may recover. And in Volans v. Owen (74 N. Y., 526), the court say that this means that his accustomed means of maintenance have been curtailed. And it was held that a father could not recover for the intoxication of his minor son, without proof that the son’s services were necessary to his, the father’s, support. In Mead v. Stratton (87 N. Y., 493), the widow was held entitled to recover for injury to means of support, where the husband had died, the court saying that the plaintiff could recover where she had been deprived of the usual means of maintenance which she was accustomed to enjoy.

These cases seem to show that by this statute the injured party is considered to have a certain ownership jn the means of support. This is not according to the common law. For, as above remarked, the wife has no ownership in her husband’s services. On the other hand the father has an ownership in the services of the minor child. Yet it is held that under the words “ means of support ” the wife can recover for injuries to the husband unfitting him for work. And the father cannot recover for intoxication to the minor child, unless that intoxication affected services necessary to the father’s support.

When the “ civil damage ” act was first under'discussion in the courts, I was of the opinion that the word injured,” in the phrase “ injured in person, property, or means of support,” implied a wrong done by the intoxicated person — an illegal act — and not merely damage; that is, that it did not include damnum absque , vnjwia, and that the effect of the law was only to make the vendor of the liquor liable for the tort of the intoxicated person. (Hayes v. Phelan, 4 Hun, 733.) But the contrary view is held in Quain v. Russell (8 Hun, 319), and probably in Mead v. Stratton (ut supra.)

It follows, therefore, that the cause of action under this act does not necessarily arise upon any tort. Because the sale of the liquor is a lawful act, or may be so, since the vendor may be licensed. And the act of the intoxicated person need not be a tort according to the decisions above cited. If the injury were to person or property it probably would arise upon a tort of the intoxicated person. If it were to “means of support,” it need not, as above shown. The cause.of action, therefore, is unlike any other, for it clearly does not arise on contract. And it does not necessarily arise upon a tort. If the intoxicated person were to injure the person of the plaintiff it would seem that the action could not survive against the executors of the vendor under the Revised Statute above cited. If the intoxicated person were to injure the property of the plaintiff it would seem that the action would survive against such executors. If the intoxicated person were to injure the means of support, or'if such means of support were to be injured in consequence of such intoxication, should such injury be likened to an injury to the person or to an injury to property ? It seems to us that the spirit of the statute under the interpretation above referred to, given by the courts, is to grant the plaintiff a quasi ownership in these “ means of support; ” whatever those words may mean. Something of pecuniary value has been taken from the plaintiff. And the statute makes the defendant liable therefor although he has been guilty of no tort. So far tben as tbe plaintiff’s means of support have been injured (that is, under the decisions, diminished) the defendant is made liable, and his estate should be liable also.

And here we would say that we need not hold that the estate of the defendant is liable under that statute for exemplary damages. That question is not before us, but we make the remark to guard against auy incorrect inference. Exemplary damages are by way of punishment, and the deceased cannot now be punished. It would not be inconsistent to hold that his estate should pay the actual damages sustained by the plaintiff, and no more.

The question here presented is new, and the circumstances are not like those of other actions. Not much, therefore, is to be gained by citations of authorities.

We think the order should be affirmed, with ten dollars costs and printing disbursements.

Present — Learned,'P. J., Landon and Eish, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    HENRY NEWCOMB, Respondent, v. OSCAR E. VAN ZILE and TOM S. WOTKYNS, Appellants.

      Negligence — accidental stoppage of a wagon on a side Mil — duty of the owyier as to protecting other persons using the street from, injury.

    "While a wagon loaded with coal and weighing about 5,300 pounds was being driven by two of the defendants’ employees up a city street, having a grade of about 10 feet to the 100, one of the horses cast a shoe. The driver thereupon drew up to the right-hand side of the road and his co-employee blocked the wagon by placing, as he testified, a block of wood three or four inehes long under one hind wheel and a large lump of coal under each of the others. The driver then took the team to the nearest blacksmith’s shop, being absent some fifteen minutes. While the wagon was so standing in the street the plaintiff drove up the hill, but stopped behind and below the wagon in order to allow a heavy wagon which was coihing down the hill with one hind wheel chained to pass the coal wagon. As the wagon coming down the hill was passing the coal wagon it slipped, owing to the icy condition of the street, against the coal wagon, causing the latter to slide down the hill and collide with the plaintiff’s team and coach and thereby to cause the injuries, to recover damages for which this action was brought.

      Held, that as the defendants were compelled to stop the wagon upon the streel, by an accident and not by any neglect or default of their own, they were only required to block the wagon so that it should be reasonably secure, and that as the evidence showed that this had been done a verdict in favor of the plaintiff should be set aside.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Seymour Van Scmtvoord, for the appellants.

      James F. Getty and Henry A. King, for the respondent.
   Learned, P. J.:

The defendants are coal dealers. On the morning of the accident, February 19, 1883, they sent out a wagon, loaded with coal; the coal and wagon weighing about 5,200 pounds. On going up Ferry street, in Troy, at a point where the street has a grade of about 10 feet to the 100, one of the two horses cast a shoe. The driver thereupon went a few feet, until he drew up to the south side of the street — the right hand side as he was driving. His co-eihployee there blocked the wagon, and the driver took the team to the nearest blacksmith’s shop, being absent some fifteen minutes. His companion remained with the wagon, as he testifies, although the plaintiff and others say they did not see him.

The hill at the time was very icy. The plaintiff, with his coach and team, was driving up the hill. He saw the coal wagon standing and saw another wagon coming down, which, when he saw it, was higher up than the coal wagon. It belonged to the Malleable Iron Works. "The plaintiff saw that he could not pass the coal wagon before the other team got down, and therefore stopped on the south side of the street, about two feet from the gutter and about forty feet from the coal wagon. When he first noticed the Malleable Iron Works’ wagon it was about 100 feet above the coal wagon. It was very heavy and had one wheel chained. As the Malleable Iron Works’ wagon was passing the coal wagon, it slid sideways and struck it. And this collision was undoubtedly owing to the icy condition of the hill, which caused the former wagon to slide against the latter. For there was room enough between defendant’s wagon and the north gutter for the other wagon to pass. This collision (assuming .that there was a collision) caused the defendants’ wagon to come down the hill. It came rapidly, and struck and injured the plaintiff’s coach and horses. For the injury thus sustained the plaintiff sues. The jury rendered a verdict in his favor, and the defendants appeal.

We must notice, in the outset, that the defendants were overtaken by an accident. It was not their wish to stop their wagon in the street. One horse had lost a shoe. To attempt to go farther up the hill, especially in its icy state, when one of the team had lost a shoe, would probably have been great negligence. It was necessary to stop. And the learned judge very properly held that the ordinance of the city did not apply to a case like this. What, then, was defendant’s duty-'? Clearly, to draw the wagon as far as could reasonably be done to the side of the street, and to secure it there, so that it should not roll down the hill. And the learned judge charged that they were not liable, if they had taken such precautions in securing and blocking their wagon as a reasonable man would have done, under the circumstances.

We have been cited to several cases by the plaintiff’s counsel. ■ One is Powell v. Deveney (3 Cush., 300). In that ease the defendant’s servant left, for the night,.,a truck standing in the street. The driver of another truck struck the defendant’s truck and thus threw the shafts, which had been supported on a plankj against the plaintiff and injured her. She was allowed to recover. In Lane v. Atlantic Works (111 Mass., 136) the defendants left, between six and seven in the evening, a truck, with a bar of iron on it, standing in the street. A boy meddled with it and the iron fell on the plaintiff. He was allowed to recover. In Clark v. Chambers (L. R., 3 Q. B. Div., 327) the defendant had unlawfully placed a dangerous instrument in the carriage-road. Another person removed it to the foot-path and the plaintiff was injured. He recovered. In the opinion in that case many authorities are cited which we need not discuss in detail.

Now in each of these cases the act of the defendants was a matter of choice, not of necessity. The act itself was unlawful or illegal. In the first and second cases the defendant had no right to leave the truck, for the night, in the street; In the second casé no reason or excuse is shown why the truck was left standing, and the hour named indicates that it was left for the night. In the English case the defendant’s act in setting up the spiked barrier was unjustifiable, and the same will be found to be true of the 'cases cited in the opinion therein.

But the present case is different. It was by an unforeseen accident that the defendants were obliged to stop and to leave their wagon in the street. The act of leaving the wagon was not negligent, because it was unavoidable. If the loss of the shoe had happened on level ground there would have been no occasion to block the wheels. But as it happened on a hill it was the defend- ■ ants’ duty to take reasonable precaution that the wagon should not roll down the hill.

. Many other cases are cited by the plaintiff showing that one is liable for the probable consequences of his wrongful act, such as Thomas v. Winchester (6 N. Y., 397); Myers v. Malcolm (6 Hill, 292). But we fail to see that, so far as the mere leaving of the wagon was concerned, the act was wrongful. The question whether there was negligence in guarding it from rolling down hill is a different question.

All that the defendants could be required to do was to block the wagon so that it should be reasonably secure. Probably no blocking would resist every possible force which might be brought against the wagon. Now the plaintiff testifies that the wagon had one little block, six inches long or so, on' the nigh hind wheel. Costello, one, of 'the defendants’ employes, testifies that he put a block of wood three or four inches thick to one hind wheel, and three large lumps of doal to the other wheels. Sullivan, the driver, also testifies to the blocking.

There is no evidence that the defendants’ wagon moved before it was struck by the other wagon. The plaintiff did not see it struck. But both Costello and Hunt testify that the Malleable Iron Company wagon swung sideways across the street and struck and started the defendants’ wagon, and that defendants’ wagon did not move until it was struck.

Thus we have undisputed proof that defendants’ wagon was blocked, and that it was so blocked that it did not move until it was struck. And it is evident that there was no reason why the defendants’ servants should have anticipated such a blow as would be given by a heavily loaded wagon sliding down hill and across the street. Now on the charge of the learned judge, that if the wagon would not have moved from the position in which it was .first placed but for the intervention of other circumstances over which defendants had no control and for which they were not responsible, the verdict must be for the defendants, and upon the evidence above stated it seems to us that the verdict cannot, stand. There was no evidence that the wagon would have moved but for the blow received from the other wagon. And the jury must have disregarded the charge of the learned judge. ,

Exception is taken to a part of the charge which may have misled the jury, although it was qualified by other parts. We refer to the charge as to the stop-bar. It does not seem to us that any inference was to be drawn from the absence of a stop-bar. That appliance is intended to prevent a wagon from going back, at any time when a team stops in going up a hill. It is not provided to be used in such an emergency as happened in this instance. Its advantage is that it comes into instant use without obliging the driver to get off and block the wheels. But blocking the wheels is an effectual way of stopping a wagon, and was effectual in this case. We think the jury may have, inferred that there was some negligence on defendants’part in not using a. stop-bar. And that would have been an incorrect inference.

This, then, is not a case where a defendant has wrongfully and of choice left something in a public place, by ineans of which a plaintiff is injured. It is a case where an unforeseen accident compelled the defendants to leave their wagon on the street for a time. Their duty was to make it reasonably secure. There is no evidence that they did not. It was secured against any of the ordinary causes which might be anticipated to affect it. It did not move until an extraordinary cause impelled it, a cause which probably no ordinary blocking would have withstood.

The judgment and order are reversed and new trial granted, . costs to abide event.

Present — Learned, P. L, Bockes and Landon, JJ.

J udgment and order reversed, new trial granted, costs to abide event.


author: Landon, J.: Learned, P. J.: Bockes, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. ALFRED F. VEDDER, Appellant.

      Evidence — when admissible as tending to corroborate other.testimony — “Accomplice ”— meaning of, as used in section 399 of the Code of Criminal Procedv/re.

    The defendant was tried and convicted upon an indictment charging that he, together with one Patterson, used instruments upon the hody of one Annie Walters to procure her miscarriage. The operation was performed by Patterson, and it was not claimed that the defendant took part in it or was present when it was performed. He offered no testimony to show that it was not performed, his position being that he did not advise the operation, nor did he have anything to do with it. The only direct testimony showing that he had advised it, was that of the woman upon whom it was performed. She had testified also that the operation was performed by Patterson, at his office, by the use of an instrument. A police officer testified that about a month after the time of the alleged operation he found certain instruments in Patterson’s office which were produced upon the trial. The defendant’s counsel requested the court to charge that the finding of the tools-in Patterson’s office was not any evidence in “corroboration of Annie Walters on this question of the committing an abortion, as against Mr. Vedder.”
    Held, that the court properly refused so to charge. (Landon, J., dissenting.) That to justify Vedder’s conviction the prosecution were required to prove two things: First. That an abortion had been committed; and, Second. That the defendant had induced the woman to submit to it.
    That the finding of the instruments tended to corroborate the woman’s testimony as to 'the first, though not as to the second, of those facts, and was therefore admissible.
    The court charged that as the woman could not be indicted with the defendant for the offense charged in the indictment, she was not an “accomplice ” within the meaning of that term, as used in section 399 of the Code of Criminal Pro, cedure, providing that a conviction cannot be had upon the uncorroborated testimony of an accomplice.

      Held, no error.
    Appeal from a judgment of conviction, entered upon the trial of the defendant upon an indictment charging him and one Patterson with using instruments upon the body of one Annie A. "Walters to procure her miscarriage.

      J, H. Olutei for the appellant.

      D. Gady Herfiolc, district attorney, for the respondents.
   Landon, J.:

The trial court instructed the jury that the female upon whom the abortion was performed, and who was the only witness against the defendant as to his commission of the offense, “ cannot be indicted with the defendant for the offense charged in the indictment, and is not under the statute technically an accomplice.” This instruction was authorized by Dunn v. The People (29 N. Y., 527). Tire two hundred and ninety-fourth section of the Penal Code under which the prisoner was indicted, and the two hundred and ninety-fifth section, under which the female who submitted to the operation might have been indicted, are not, in any matters material to the question now presented, different from the second and third sections of chapter 260, Laws of 1845. Then, as now, the person who advised and the female who consented to the abortion were indictable ; each one foy his or her separate statutory offense.

The learned judge in other parts of his charge stated the law accurately and fairly witli respect to the corroboration of the prosecutrix. He said: “ Though she is not technically an accomplice, she is liable to an indictment for an offense growing out of the same transaction. She stands in her relation to the offense very much in the nature of an accomplice, and therefore her evidence should be scrutinized and received with care, and should be corroborated upon material facts relating to tbe guilt of the defendant. Still there is no such inflexible rule” (i. e., that she should be corroborated). Her statement should be received with caution and the defendant should not be convicted, and it would not be safe to convict upon the uncorroborated testimony of a person equally liable to punishment with the defendant. But after all, if her testimony carries conviction to your minds and you are fully convinced of its truth, you should give full effect to it.” Such has long been the language of the courts. (Dunn v. People, supra; People v. Costello, 1 Denio, 83; Frazer v. People, 54 Barb., 306; Commonwealth v. Wood, 11 Gray, 85.)

Corroboration in a case of this kind is not a condition precedent to conviction, but a prudent caution will, seek for greater safety in finding corroboration, and such corroboration will be in matters connecting the defendant with the offense.

We have examined the alleged grounds of error assigned by the defendant’s counsel and find none, unless in the following particular : the defendant was not present when the operation resulting in the abortion was performed. He offered no testimony tending to show that it was not performed. His position was that he had nothing to do with it; neither advised nor caused it. ■ There •was no direct testimony that he had advised it, except that of the female who submitted to the operation. She testified that she submitted to it upon his advice ánd procurement. Discredited as she was by the transaction itself, it became important for the people to satisfy the jury that her testimony was true. Not that such testimony would be necessary to support a conviction, but to procure it. She testified that the operation was performed by one Dr. Patterson, at his office, by the use of an instrument. A police officer testified, under objection by the defendant, that upon search of Dr. Patterson’s office, about a month after the alleged operation, he found certain instruments. These were produced in evidence by the people, the defendant’s objection that the evidence did not tend to connect him with the offense being overruled.

The defendant’s counsel requested the court to charge the jury that the finding of the tools in Patterson’s office was not any evidence in corroboration of Annie Walters on the question of committing an abortion, as against the defendant Tedder. The court declined so to charge, and stated that he would leave that with the jury.

The jury were thus left to infer that they might consider this testimony as tending to connect Tedder with the offense, or what was probably in thé mind of the judge, that the jury were at liberty, if they found she told the truth about Patterson, to find that she also told it about Tedder. That the evidence tended to corroborate her testimony that an operation had been performed upon her by Patterson might have rendered it competent if it had been so restricted. (Commonwealth v. Brown, 121 Mass., 69.) Put it did not tend to connect Tedder with the crime, .and in no respect touched him. To make it touch Tedder it must be assumed that he counseled the operation which these instruments were used to perform — the essential fact sought to be proven. To allow the jury to believe that Tedder advised the use of the instrument, because an instrument is produced, verges upon the whimsical. The court had no such purpose, but it is not clear that the jury did not so reason; and to assume that she told the truth about matters touching Vedder, because she told the truth about matters which did not touch him, is a method so specious and dangerous as to have frequently fallen under the condemnation of the courts. (Frazer v. People, 54 Barb., 306; Commonwealth v. Bosworth, 22 Pick., 397; Rex v. Webb, 6 Carr. & P., 595.) We cannot know in what manner the jury regarded this testimony. It did not affect Vedder, and he was entitled to the charge requested.

The refusal of the court to charge as requested entitles the ■defendant to a new trial.

Learned, P. J.:

The request of the defendant's counsel, refused by the court, was that the court should charge “ that the finding of the tools in Mr. Patterson’s office is not any evidence of corroboration of Annie Walters on this question of the committing an abortion as against Mr. Vedder.”

Two things were to be proved: 1. The commission of the abortion. 2. The connection of Vedder with the act. If the finding of the tools tended to corroborate Annie Walters on the former, the proof was admissible. If admissible, it was admissible against Mr. Vedder. Had the defendant’s counsel asked the court to charge that this evidence did not tend to corroborate Annie Walters in respect to connecting Mr. Vedder with the alleged crime, he would have made a proper request. But suppose the court had charged as requested, what would the charge have been ? That, as against Mr. Vedder, the finding of the instruments was no corroboration on the question of committing an abortion. That would not have been -correct. True, the evidence did not’tend to connect Mr. Vedder with the act of committing an abortion, but it did tend to corroborate Annie Walters in her testimony that an abortion had been 'Committed. It was competent, as against Mr. Vedder, for that purpose; and the judge did not say that it was competent as corToborating her evidence about Mr. Vedder’s connection with the act. A burglary is alleged to have been committed. Burglars’ tools found at the place are competent evidence that a burglary has been ‘Committed. They do not, of themselves, tend to connect the prisoner with the crime, but they are competent as against him. It is not to show that Annie Walters told the truth in one instance, and therefore is to be believed in the other, that the evidence is given. It is to prove the fact of the abortion, so that this shall not be left to her unsupported evidence. As to .conn ecting Mr. Vedder with the act her evidence, under the usual rule, should also be corroborated.

I see no error.

Bockes, J.:

The only point of difficulty in this case, as I think, is that considered by Mr. Justice Landon in his opinion growing out of the refusal of the court to charge the jury that the finding of the tools in Mr. Patterson’s office was not any evidence of corroboration of Annie Walters on the question of the committing of an abortion, as against Mr. Tedder. The court had instructed the jury immediately preceding such refusal, at the instance of the defendant’s counsel, that the witness, Annie Walters, must be in all things corroborated on matters' connected with the commission of the crime. Then followed the request to charge as above stated; which request was refused. The request, as will be observed, went to or bore upon the question whether an abortion had been committed. This was the leading fact to be proved in the case, a fact necessary to be established agaAnst the defendant in order to convict him of the offense for which he was on trial. Now, any proper evidence bearing upon this leading fact was competent as against the defendant. The witness, Annie Walters, testified to facts and circumstances attending the commission of the act by Patterson in his office, the defendant not being present. She testified to his use of an instrument upon her person. Proof was given of the finding of implements, useful for the purpose intended to be accomplished, in Patterson’s office. Now, for the court to-have charged as requested, that the finding of the tools in Patterson’s office was not, as against the defendant, any evidence in 8or-roboration of the witness, on the question of the committing of the abortion, would have been improper — hence the refusal to charge-was not error. Had the request been this: that the evidence did not corroborate this witness in his statement connecting the defendant with the crime of abortion testified to by him, the case would' bave been quite different. Judging from the whole tenor of the trial this instruction would have been given by the court, had a request therefor been made. Indeed, the court did charge as requested by the defendant’s counsel in the next proposition submitted by him, “ that the fact that Annie Walters was corroborated in the situation and the condition, and the things that were found in the room of Dr. Patterson, was no evidence of corroboration, with reference to the offense charged against Yedder.” This instruction was in fact given. In my opinion the conviction and judgment should be affirmed.

Judgment and conviction affirmed.


author: Bockes, J.:

text:
    JOHN E. KRAFT, Respondent, v. SAMUEL D. COYKENDALL and Others, Appellants.

      Action to cha/rge trustees of a manufacturing corporation with its debts — the trustees are not bound by a judgment recovered against the company.

    Upon tlie trial of an action, brought by a creditor oí a manufacturing corporation against certain of the trustees thereof to enforce the liability imposed upon them by the statute for a failure to file a report, the plaintiff proved, among other things, the original indebtedness ot the company to him, and the recovery by him of a judgment therefor against it, and the return unsatisfied of an execution issued thereon. The referee thereupon held that the defendants were entitled to appear in the action brought against the company, and to prove and establish in that action any defense arising subsequent to the accruing of the debt, and that by their failure so to do the judgment recovered therein conclusively estopped them from disputing or further litigating the claim:

      Held, that this was error; that the defendants were not concluded in any respect by the judgment against the corporation, as they were neither parties nor privies to that action.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      8. L. 8tebJ>ins, for the appellants.

      William Lounsbery, for the respondent.
   Bockes, J.:

This is an appeal by the defendants from a judgment, entered on the decision of a referee.

The action was brought to charge the defendants, trustees of a joint-stock company, organized under and pursuant to the act of 1848 (chap. 40, Laws of 1848), with the debt of the company, because of the omission to make and file an annual report, as required by section 12 of that act.

The fact of the organization of the company; that the defendants were its trustees at the time the alleged indebtedness to the plaintiff accrued, and that an annual report had not been made, published and filed, as required by law, are not controverted on this appeal. Nor is it dipsuted —although not necessary to the plaintiff’s case — that judgment had been l’ecovered by the plaintiff against the association prior to the bringing of this action for his claim, and that execution issued thereon had been returned unsatisfied.

The question raised on this appeal relates to the proof put in before the referee, on the part of the plaintiff, to establish his claim against the association. The existence of such debt and demand was, of course, essential to his right of recovery, and he was bound to establish it by other evidence than that afforded by his judgment. This was decided in Miller v. White (50 N. Y., 137). Now, in this case, evidence was given of the original indebtedness of the company to the plaintiff, and following and in addition to such proof, the plaintiff put in evidence his judgment recovered against the association therefor. The referee held that the plaintiff had proved and established his claim by evidence other than that of the judgment, which evidence, if undisputed, was amply sufficient to warrant a report and judgment in his favor. But he further held • — ■ and this presents the question raised on this appeal — that the defendants, by reason of the litigation and adjudication in the plaintiff’s action against the association, and the judgment therein, were estopped from disputing or further litigating the claim ; and this because they had an opportunity to prove and establish, on the trial of that action, payment or other defense arising subsequent to the accruing of the debt. By this ruling the defendants insist that they were foreclosed in the matter of their defense. The holding that the judgment was conclusive against the defendants in any respect was, as we think, directly in conflict with the decision in Miller v. White. It was there held' that the judgment in a case precisely like the present was neither conclusive noi prima facie evidence of the debt. The entire reasoning of the learned judge in his opinion is to the effect thát, as against the-defendants, there had been no adjudication of any question affecting their immediate right; that as against them the “ judgment did not legally exist.” Such is the language of the opinion in the case-cited. The ground of the ruling by the referee was that the defendants had notice of the action against the association and participated in its defense — hence that they should be concluded because of their relation to it, the same as privies to it would be bound and estopped. But such reasoning and conclusion is not sound. Unless parties or privies they could not be bound by the judgment; and it was held directly in Miller v. White that the defendants were neitheh It was 'then said in terms “ the defendants were neither parties nor privies to the judgment against the company. It is clear they were not parties; the judgment was against the company alone. Were they then privies ? There is no privity of blood nor is there of interest. There is a privity of interest, at most, only as to the corporate property.” So they conducted the defense as they might, and as perhaps they were bound to do, as members and officers of the association. Not in their individual capacity. In speaking to this point Judge Rapaleo says, in Stephens v. Fox (83 N. Y., 317), “ it was not in the power of the corporation to admit away his (the trustee’s) case, or suffer a. recovery which should be binding upon him and create, as against him, a liability to which he was not previously subject.” So in Rorke v. Thomas (56 N. Y., 565), Judge Chuegh remarked in speaking to the same point, “ a judgment against the company was neither necessary to the liability of the defendants nor were they bound by it;” and lie adds, “it is said that they wrongfully defeuded the action. It was their right to do so as trustees, and we cannot say it was not their duty.” Here is a clear intimation that although the trustees should participate in and conduct the defense as trustees, they would not be concluded by the judgment rendered in the action in another suit against them personally under the statute. (See, also, Jones v. Barlow, 62 N. Y., 202-205; also dissenting opinion by Daniels J., in Tyng v. Clark, 9 Hun, 274, which is now unquestionably well settled law; also Esmond v. Bullard., 16 id., 67, affirmed in Court of Appeals, 79 N. Y., 404; also Whitney Arms Company v. Barlow, 63 id., 62.) ¥e are cited by the respondent’s counsel to cases where it is held that persons other than parties to the action are concluded by the judgment rendered therein; but those cases are limited in their application to instances „when such persons had a direct interest in the subject matter of the suit, with the right to make defense, control the proceeding, and to appeal if so advised. Such was not the ease here under examination. Here the action against the trustees personally was given by the statute; was an action wholly independent of the action against the company. So Judge AlleN says in Whitney Arms Company v. Barlow, “the naked admissions of the corporation, or judgment against the corporation, are not evidence against the trustees. They are res inter alios acta.” To the same effect is the language of Judge "Rarallo, above cited, that it was not in the power of the corporation to admit away the trustees’ case or to suffer a recovery which should be binding upon them. Now the referee held in •accordance with the decision in Miller v. White, and with all others since made involving the question, to the effect that the judgment against the corporation was not conclusive or binding upon the trustees in the action against them, under „the statute, as to the existence of the original cause or ground of action. But he furthei held, against the logic of those decisions, and indeed, as we think, against their clear expression, that it was conclusive upon them to shut out any defense they might interpose, subsequently arising. The ground of the decision, holding that the judgment in the action against the corporation was not conclusive against the trustees is that they were neither parties nor privies to that action. This is the ground of decision put forward in all the cases. This ground of decision equally applies to all matters litigated in the action, or which might have been there litigated. The trustees were as much privies to the original cause of action as they were to matters of defense. If the adjudication was not final and conclusive as to one ■matter, and that the principal one — the cause of action itself — it was not final and conclusive as to other matters litigated. So if it was open to the trustees to show that there was not originally any indebtedness, it must follow that it was open to them to show that the indebtedness had been paid, or had become for some reason non-obligatory. The judgment was effectual by way of estoppel as to all matters litigated in tbe action, or it was not effectual as to any. But the cases hold that it was neither conclusive nor even prima, facie evidence of the debt as against the trustees; as stated by Judge Peckham in Miller v. White, as against them, the judgment did not legally exist.” If without legal existence, it could not operate as an estoppel in any respect. In that view the case was the same as if there were no judgment. We conclude, therefore, that there must be a new trial, and the judgment should be reversed and new trial granted, costs to abide the event, and referee discharged.

Present — LbaeNed, P. J., Booees and LaNDON, JJ.

Judgment reversed, new trial granted, costs to abide event.


author: Landon, J.

text:
    ALVAH S. STAPLES, Plaintiff, v. WILLIAM GOKEY, MATHEW LARKIN, Jr., and JACOB BEST, Defendants.

      Undertaking upon appeal — a surety thereto is not discharged because an action against a cosurety is barred by the statute of limitations — what defects in the undertaking do not relieve the surety from liability.

    An action against a surety upon an undertaking given upon an appeal to the Court of Appeals, from a judgment recovered against one Best, was defended upon the ground that by the neglect of the plaintiff to enforce the undertaking, the statute of limitations had barred any action against the co-surety, but not against the defendant, who was a non-resident, and that he had thereby lost his right to contribution:

      Held, that this constituted no defense.

      Held, further, that the defendant’s liability was not affected by the fact that the undertaking did not provide that the sureties would pay the amount of the judgment if the appeal was dismissed, as well as in case the judgment should be affirmed.
    MotioN for judgment, upon a verdict for the plaintiff directed at the circuit subject to the opinion of the General Term.
    The action was brought upon an undertaking given March 16,1872, upon an appeal to the Court of Appeals, from a judgment in favor of the present plaintiff against Jacob Best. Jacob Best and Matthew Larkin, Jr., as well as the defendant William Gokey, signed the undertaking. They are also defendants in this action; but because the statute of limitations has run as to them the summons in this action was not served upon either of them. The statute of limitations has not run as to the defendant Gokey because of his non-residence in the State. The amount due upon the undertaking might have been collected from Larkin, and the judgment against Best is a lien upon real estate owned by him.

      Q. R. Adams, for the plaintiff.

      8. L. Stebbms, for defendant- Grokey.
   Landon, J.

The plaintiff is entitled to judgment against Grokey, the only defendant served, and in form against all the defendants, under section 1932, Code Civil Procedure, relative to joint debtors. Grokey, Larkin and Best jointly made the undertaking, whereby they undertook that Best, the appellant, should pay, first, “all costs and damages which may be awarded against him upon said appeal, not exceeding $250 and, second, that “if the said judgment so appealed from, or any part thereof, be affirmed, the said appellant will pay the amount directed to be paid by the said judgment.” The - judgment appealed from was affirmed, with costs, and upon the entry thereof the liability of the sureties became fixed. (Hill v. Burke, 62 N. Y., 111.) The notice required by section 348 of the old, or section 1309 of the new Code, does not apply to undertakings to the Court of Appeals.

The fact that the statute of limitations .has discharged Larkin, one of the joint debtors, does not release the other. (Merritt v. Scott, 3 Hun, 657; Denny v. Smith, 18 N. Y., 567; Davis v. Kinney, 1 Abb. Pr., 440.) The fact that Gokey, if he paid the amount due upon the undertaking, cannot, because of Larkin’sdischarge by the statute of limitations, compel contribution from him, does not operate to discharge Gokey. The right to contribution only exists among sureties when both are under legal obligations to pay. (Tobias v. Rogers, 13 N. Y., 59.) When, by operation of law, one of the sureties becomes released from that obligation, the burden rests upon the remainder. (Comins v. Pottle, 22 Hun, 287; Davis v. Van Buren, 72 N. Y., 587; Risley v. Brown, 67 id., 160; Randall v. Sackett, 77 id., 480; Wood v. Fisk, 63 id., 245.) It is plain that when two persons become surety for a third, ■ the right of contribution may be lost to one by the death or bankruptcy of the other, or by the statute of limitations running as to one and not as to the other, and this contingency must be presumed to be present to the minds of the sureties when they assume their obligation. The creditor has nothing- to do with the right of the sureties to contribution among themselves, except that he must not affirmatively do any act tending to impair it. In other words, he must not, by his action, destroy or impair the rights of the sureties as between themselves. If he does, to the extent that he impairs the right of any one surety, to that extent he diminishes the amount of his recovery against him. (Morgan v. Smith, 70 N. Y., 537; Waggoner v. Walrath, 24 Hun, 443.)

But the mere delay to prosecute both sureties in the absence of any request to do so, does not discharge the surety who may subsequently find himself prejudiced by such delay. (Board of Supervisors v. Otis, 62 N. Y., 88; Schroeppell v. Shaw, 3 id., 446.)

The objection that the undertaking did not provide that the sureties would also pay if the appeal should be dismissed, is without force. The sureties became liable to the extent of their undertaking. The undertaking of the sureties was not in the nature of indemnity against loss or damage, but for absolute payment. Their liability is complete until payment is made. (Kohler v. Matlage, 72 N. Y., 259.) The sureties were liable to pay the judgment appealed from however large that might be, and also the costs and damages awarded upon appeal not exceeding $250. As to the latter items we think the limit of the undertaking cannot be exceeded. The plaintiff, therefore, is entitled to judgment upon the verdict in the sum of $691, with interest from the date thereof, with costs in the court below, and in this court.

LeabNed, P. J., and Booses, J., concurred.

Judgment ordered on verdict for plaintiff, and new trial denied, with costs.