author: Daly, C. J.

text:
    Ignatz Weiss et al., Resp’ts, v. Joseph B. Morrell et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 8, 1894.)

    1. Trial—Notice—Date.
    Where the date in a notice of trial is obviously a clerical error, the defect is waived by the retention of the notice.

      %. Same—Short calendar.
    Courts have power to appoint a short calendar and place causes thereon for trial out of their order upon the general calendar.
    3. Appeal—Appealable.
    Common pleas will not interfere where the appeal involves a mere question of procedure in the city court and does not affect any substantial right on the merits.
    Appeal from the affirmance, by the general term of the city court, of an order advancing a cause to the short cause calendar; and from an order denying a re-settlement thereof; and from an order denying a motion to strike the case both from the special and general calendar of the court.

      Charles Edward Souther, for app’lts; Alfred B. Jaworower and Louis Lowenstien, for resp’ts.
   Daly, C. J.

A notice of trial was served by plaintiff’s attorney upon the defendant’s attorney on the 23rd of December, 1893, ’for the second day of January, 1893. The latter date was obviously a clerical error and the defect might be waived by the party receiving the notice; and in this case it was waived because the notice was retained. If defendants intended to object to the irregularity they should have returned the paper with a notification of their reasons and then a proper notice of trial could have been served. By retaining the paper they must be deemed to have regarded it as a sufficient notice and in that case it was a notice for the coming January as it would not have been a sufficient notice for a past date. The ease was therefore properly on the general calendar and might be placed upon the special calendar for short causes. The appeal is mainly argued on the question as to whether the courts of this state have power to appoint a short cause calendar and place causes thereon for trial out of their order upon the general calendar. It is claimed that this is giving a preference to certain causes not enumerated in the statute of preferences. Code of Civil Procedure, chap. 8, title 6, art. 2. The provisions of the Code are not exclusive, and do not limit the power of the courts over their calendars, nor consequently prohibit the establishing a calendar ■ for short causes, according to the practice of all the courts long before the adoption of the present Code. The general rules of practice under which such summary trials are had, are not inconsistent with any provision of the Code; for since the statute recognizes the propriety of granting certain preferences, the granting of a preference in any other special case is entirely consistent with the statutory provision. The short cause rule is also attacked upon the ground that the right to move under it is confined to the plaintiff, to the exclusion of a defendant who has pleaded a counterclaim and who is entitled to all the remedies-of a plaintiff. As the defendants here do not set up a counterclaim it is not necessary to discuss this point. It by no means follows, however, that under the rules of the city court, or of the other courts, a defendant with a counterclaim would not be allowed to move for the short cause calendar. Ho injury was done to the defendants by the entry of the order setting the cause down for the 4th instead of the 2nd of January, which latter date was that specified in the notice. The decision upon the motion not having been rendered in time for a trial upon the latter date (owing to the rule which requires that the order be filed with the clerk at least two days before the day on which a case shall be entered on the special calendar) it was proper to fix a latter date. As defendants had notice of such date they were not injured and their motion to re-settle the order and to strike the cause from the special calendar was properly denied. These appeals involve a mere question of procedure in the city court and do not affect any substantial right or the merits. In such case this court will not. interfere. Waters v. Curtis, 13 Daly, 179; Whitney v. Townsend, 67 N. Y. 40. Orders appealed from affirmed with costs and disbursements.


source: Caselaw Access Project

author: Beckham, J.

license: Public Domain

text:
    William H. Knauss, App’lt, v. Gottfried Krueger Brewing Company, Resp’t.

      (Court of Appeals,

      Filed April, 1894.)

    1. Brokers—New- Jersey statute.
    The New Jersey statute refers to those brokers only who are themselves authorized to make the sale or exchange of the lands.
    2. Same.—Employment on both sides.
    There is no violation of duty, where the owner and proposed purchaser are to meet and agree upon the terms of the contract, in the broker’s agreeing for commissions from each party upon a bargain being made, or in. his failing to notify each of his employment by the other party.

      Andrew Wesley Kent, for app’lt; Louis Marshall, for resp’t.

      Reversing 41 St. Rep. 298.

   Beckham, J.

This action was brought to recover for services alleged by plaintiff to have been performed by him for defendant in regard to the sale of the brewery owned by the defendant, to-one Robert Bliss or his assignee. The answer put the employtaent in issue, and denied that any service had been- performed by or that any sum was due to the plaintiff touching the subject of such sale. The complaint was dismissed upon the trial,- and the general term has affirmed the judgment of dismissal. Upon looking through the record containing the evidence given on the trial, it is clear that the admission made by counsel for respondent in his brief, “ that the action was in fact tried upon the evidence in disregard of the pleadings,” has a good deal of support. We think it is too late to claim that the plaintiff must be judged entirely by his complaint, as if it had alleged his employment by defendant as a broker in the strict sense of the word, to obtain a purchaser of the brewery upon terms in regard to which he had some discretion. His evidence upon the subject given at the trial does not prove any such contract, and there was no evidence given which contradicted him. It showed that he was claiming compensation froih the defendant because of his having introduced the president of defendant to Mr. Bliss, with whom or whose assigns the defendant subsequently completed a sale of the brewery for the sum of $1,822,000.

It is our duty to review the case in the light of the evidence given for the plaintiff, and if there were evidence of any employment substantially within the general scope of the allegations of the complaint, we think it should have been submitted to the jury, unless there were some other fact which also appeared and which constituted a defense to the action. The record shows there was evidence of the employment of the plaintiff for the mere purpose of bringing the possible buyer and seller together, and with the understanding that if a sale were to result the plaintiff was to have some compensation from the defendant for his services. The plaintiff testified that lie was to have nothing to do with fixing the price or the terms of sale; the principals were to do that part of the business; all he had to do was to bring them together, and if, through their subsequent negotiations a sale should result the plaintiff was to be entitled to some compensation. The real defense which is sought to be maintained is that while acting for the defendant in a matter in which trust and confidence were reposed in him and where defendant relied upon his unbiased judgment, the plaintiff was at the same time, but unknown to the defendant, in the employment of the proposed purchaser, and bound by his duty to such purchaser to do all he could to forward the interests of the purchaser as against the seller. There was another defense interposed upon the trial which consisted of a Hew Jersey statute relating to brokers selling real estate, and which pi’ohibited them from claiming commissions unless their authority for selling was in writing. The brewery which was the subject of sale in this case was situated in Hew ■Jersey, and it was urged that the statute applied to the contract proved.

On this point we are of opinion that the statute has no application. It, in terms, refers to those brokers who are' themselves authorized to make the sale or exchange of the lands, and -here the proof is uncontradicted that the plaintiff had no such authority.

Upon the other question we think the defendant is clearly right as to the law, but we also think there is nothing in the evidence to make it applicable here. We agree perfectly with the case of Carman v. Beach, 63 N. Y. 97, and Murray v. Beard, 102 Id. 508; 2 St. Rep. 466. The cases upon the subject are also collected in the late one of Empire State Insurance Co. v. American Central Insurance Co., 138 N. Y. 446; 53 St. Rep. 12. It is undeniable that where the broker or agent is invested with the least discretion, or when the party has the right to rely on the broker for the benefit of his skill or judgment, in any such case an employment of the broker by the other side in a similar capacity, or in one where by possibility his duty and his interest might clash, would avoid all his right to compensation. The whole matter depends upon the character of his employment. If A is employed by B to find him a purchaser for his house upon terms and conditions to be determined by B when he meets the purchaser, I can see nothing improper or inconsistent with any duty he owes B for A to accept an employment from C to find one who will sell his house to C upon terms which they may agree upon when they meet. And there is no violation of duty in such case in agreeing for commissions from each party upon a bargain being struck, or in failing to notify each party of his employment by the other.

How, this, in substance, is what, according to the plaintiff’s ■evidence, he contracted to do with these parties. He was employed by Bliss to see if he could not obtain customers who would sell their breweries upon terms to be agreed upon by the principals themselves, and he was employed by defendant to introduce its president to some one who wished to purchase, but the terms and all else regarding the contract were to be agreed upon between the defendant and the purchaser.

There is a piece of evidence which defendant claims is fatal to-this view, and shows that the plaintiff violated his duty in concealing or in not mentioning his position in regard to Bliss. When the plaintiff came to the president of the defendant for the purpose of entering upon a discussion of the business and to learn whether he was desirous of selling, the plaintiff was inquired of by the-president as to the responsibilities of the parties the plaintiff spoke of as desiring or proposing to purchase, for it was said by the president that he did not care to go on with the matter or present, it to others unless he knew they (the persons mentioned by plaintiff) were responsible parties. The plaintiff says that he assured the president that they were responsible. From that interview others followed, and finally the plaintiff introduced the president, to Mr. Bliss, and the negotiations were thereafter conducted between them, and lasted a long time, (a number of weeks) before they finally resulted in a sale effected upon terms made up and agreed upon entirely between the parties, without the slightest aid from or interference on the part of the plaintiff.

The defendant urges that the statement of plaintiff that the parties who were intending purchasers were responsible, was a statement upon which defendant was entitled to rely, and to think that the.plaintiff was giving the defendant the benefit of his own honest judgment, uninfluenced by any concealed interest of his own in having the sale accomplished. We think this is an erroneous view of the situation. It is clear that the remark of the plaintiff in reference to the question of defendant’s president was merely incidental, and that the question itself was in reality wholly beside the main question of sale. It was plainly an interrogatory for the purpose of learning in substance whether it was worth while to take the subject into consideration or whether it. might not be mere irresponsible talk by men who had not the slightest intention or even power to carry out a sale. It had no bearing and was not asked for the purpose of obtaining knowledge upon the question whether or not to make a sale, or the terms or conditions of sale if one were to be made. No reliance was placed upon the statement as a foundation for any condition of any contract subsequently made, nor was the question asked for any such purpose. This, we think, is apparent from the nature of the question and the circumstances under which it was asked and the facts that subsequently occurred. On its face the question manifestly had nothing to do with the subsequent transactions or with the material facts in the case. It was entirely preliminary in its mature purpose. The answer might have determined the defendant’s president to see the parties and then to make up his own opinion as to whether to go on or not, and as to the terms and conditions of the sale to be made.

The case differs so widely in its facts from that of Holcomb v. Weaver, 136 Mass., 265, that we cannot think it necessary to lengthen this opinion by referring to all the material facts in the case cited elsewhere. In regard to the subject of the double employment, if it be o£ a nature where by possibility the interest of the parties may be adverse, we agree that it cannot be upheld if concealed from knowledge. There is nothing of that kind appearing in the contract or agreement with either party as testified to by plaintiff. The fact that the sale was afterwards arranged between the parties exclusively upon terms and conditions agreed upon between them and without any reference to any previous statement of plaintiff, shows that it was wholly immaterial, and was not put or answered upon any supposition that it could or would in any manner influence the conduct of the defendant after entering upon the negotiations.

The defendant claims the sale was not in fact made to Bliss but to a third party. We think the evidence shows the sale was effected between the parties as contemplated in the contract, and that upon such sale the plaintiff became entitled to a reasonable compensation for the services rendered. He admits in his evidence that the president never said to him what particular sum of money would be paid him, or what rate of commissions, and his compensation will have to be decided upon by the jury as a sum which shall be reasonable for the labor performed. All this has been said as to the case which the plaintiff made out upon the trial. The evidence for the defendant has not been heard, and, of course, no opinion is expressed or entertained as to the merits of the controversy. It is a question for the jury to determine after hearing both sides.

For that purpose the judgment should be reversed and a new trial granted, with costs, to abide the event.

Judgment reversed.

All concur.


author: Daly, ,C. J.

text:
    Ignatz Weiss et al., Resp’ts, v. Joseph B. Morrell et al., App’lts.

      (New York Common Pleas, General Term,

      Filed, March 8, 1894.)

    Costs—Trial fee.
    A trial fee is always allowed, the plaintiff upon an inquest.

      Appeal by defendants from an affirmance, by the general term of the city court, of an order denying their motion to set aside the judgment; and from an order affirming the clerk’s adjustment of costs, allowing the plaintiffs upon taxation, a trial fee of thirty dollars for an issue of fact. The complaint was for work, labor and services, in making up materials furnished by defendants into uniforms, at the agreed price of $1,856.70. The answer set up that the work was not done in a good and workmanlike manner; that plaintiffs failed to return surplus cloth to the damage of defendants to the amount of any demand of plaintiffs which might be proved on the trial. The action having been regularly reached upon the calendar the defendants failed to appear, their default was entered, an inquest taken and plaintiffs entered judgment.

      Charles Edward Souther, for app’lts; Alfred B. Jaworower and Louis Lowenstein, for resp’ts.
   Daly, ,C. J.

The contention of defendant is, that plaintiffs were not entitled to thirty dollars trial fee for their inquest, because there was no trial of an issue of fact; there being no denial in the answer and the affirmative defense therein set up not having been tried; and a trial fee only being allowed upon the trial of an issue of fact. Code, § 3251, sub. 3. It is argued that a plaintiff being entitled only to a verdict, decision or judgment, Code,' § '980, and these plaintiffs, not being entitled to a verdict or decision because there was no issue tried, were entitled to a trial fee in taking judgment. An issue of fact was presented by the pleadings upon the defendants’ plea of recoupment which was to be deemed controverted by plaintiffs. Code, §§ 522, 964. This issue was disposed of by the judgment taken by the plaintiffs on ■defendant’s default, and such judgment was conclusive against defendant’s claim. Embury v. Conner, 3 N. Y. 522. An issue is tried and determined whether the party holding the affirmative appears or not, and the successful party is, therefore entitled to his trial fee. A trial fee is always allowed the plaintiff upon an inquest. Hawley v. Davis,'5 Hun, 642; Wessels v. Carr, 6 N. Y. Supp. 535 ; Pomeroy v. Hulin, 7 How. Prac. 101. A trial fee is taxable where the complaint is dismissed on failure of plaintiff to appear. Dodd v. Curry, 4 How. 123. Also where the cause is discontinued while on the day calender, although it had not been actually called. Duperey v. Phoenix, 1 Abb. N. C. 133. In none of these cases are there a trial other than such as was had in this case. The order appealed from must be affirmed.


author: Bischoff, J.

text:
    William Ottman and Company, Resp’t, v. Joseph E. Hoffman, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Statutes—Repeal.
    When the legislature undertakes to substitute one law for another, it intends to repeal the latter.

      3. Same.
    In the absence of contrary intention, the effect of the repeal of a repealing law is to restore the law repealed by the latter.
    3. Same.
    When two inconsistent acts are enacted on the same day, the order of their priority may, in the absence of facts to the contrary, be inferred to have been as indicated by their respective numbers.
    4. Evidence—Judicial notice.
    Judicial notice extends to the time at which a statute takes effect.
    5. Same.
    In the absence of a record of the precise time of day when the several acts were approved by the governor, the court may inquire of those present on the occasion of such approval.
    S. Statutes—Chap. 677 of 1893.
    Chap. 677 of 1893 did not affect acts passed by the legislature at the same session.
    Appeal from a judgment of the general term of the city court of Hew York, which affirmed a judgment overruling a demurrer to, and awarded plaintiff the relief demanded in the complaint. Action to recover for the debt of a corporation against one of its trustees pursuant to the provisions of § 3 of chapter 228 of the Laws of 1877, which are to the effect that the trustees of a corporation, organized without capital stock, should be jointly and severally liable for the debts of the corporation contracted while they were such trustees.

      Leo Q. Rosenblatt, for app’lt; M. A. Eursheedt, (Joseph Feitrech, of counsel), for resp’t.
   Bischoff, J.

By the express provisions of the constitution of this state, (Art. TY, § 9) acts of the legislature approved by the governor, become effective as laws only upon such approval, Sutherland on Stat. Constr. § 104; and, whenever, in the ascertainment of the rights and obligations of parties such becomes material, courts may inquire into the precise time when the several laws took effect. Town of Louisville v. Portsmouth Savings Bank, 104 U. S. 469. In the case last cited Mr. Justice Harlan observed "that “courts may, when substantial justice requires it, ascertain the precise hour when a statute took effect by the approval of the executive. * * * We look to the final act of approval by the executive to find when the statute took effect and, when necessary, inquire as to the hour of the day when that approval was in fact given.” The legal fiction that the law does not recognize the fractions of a day does not obtain in such a case, (Sutherland on ■Stat. Constr. § 110). This is in accord with the views expressed by Judge Story in the following terse language, “I am aware that it is often laid down in law there is no fraction of a day. But this doctrine is true only sub modo, and in a limited sense, where it will promote the right and justice of the case. It is a mere legal fiction, and therefore, like all other fictions, is never allowed to operate against the right and justice of the case. On the contrary, the very truth and facts, in point of time, may always be averred in furtherance of the right and justice of the case; and there may be even a priority in an instant of time; or in other words, it may have a beginning and an end." Matter of Richardson, 2 Story, U. S. C. C. 571; see also Governor v. Magill, 37 Ill. 239; Small v. McChesney, 3 Cowen, 19; Clute v. Clute, 3 Denio, 263; Phelan v. Douglass, 11 How. Pr. 193; Rusk v. Van Benschoten, 1 How. Pr. 149 ; Blydenburgh v. Cotheal, 4 N. Y. 418. The complaint predicates defendant’s liability upon tiie facts that at the- time of the contraction of the alleged debt, defendant was a trustee of the Importers and Traders’ Club, a corporation organized without capital stock pursuant to the provisions of chapter 228 of the Laws of 1877, and of the provisions of section three of the chapter and law last referred to which are to the effect that the trustees of such a corporation shall be jointly and severally liable for all the debts contracted by it while the persons proceeded against were such trustees and provided an action to enforce the liability is brought within two years from the time when the debt accrued. No question arises with reference to the contraction of the debt by the Importers and Traders’ Club, that defendant -was a trustee at the time of the contraction of the debt, and that this action was brought in due time. The allegations of the complaint in these respects are admitted by defendant’s demurrer. Cutler v. Wright, 22 N. Y. 472, 478. But, defendant contends, the provisions of § 3 of chapter 228 of the Laws of 1877 were not in force at the time of the contraction of the debt, June 1st, 1892, to December 31st, 1892, and whether they were or not, is the precise question intended to be raised by the demurrer-. The Stock Corporation Law (chap. 564 Laws of 1890) in express terms repealed the provisions of section three of chapter 228 of the Laws of 1877. Section 70 of the Stock Corporation Law of 1890 provided that so much of the several laws which were enumerated in the schedule annexed to article IV of the act as was specified in the last column of the schedule should be deemed to be repealed, but that the repeal should not be deemed to have revived any prior law which was repealed by the law last repealed and should include within its effect all laws amendatory of the law last repealed. Among the laws specified in the last column of the schedule are § § 3, 4, and 5 of chapter 228 of the Laws of 1877. Section 73 of the Stock Corporation Law of 1890 provided that the provisions of that act should be effective from and after May 1st, 1891. In 1892 (chap. 688, Laws of 1892) the Stock Corporation Law of 1890 was amended. The amendatory act provided that the act of 1890 should “read as follows,” and then substituted provisions which omit those of § 70 of the act of 1890 and others of like purport. Neither does the amendatory act of 1892 contain any provisions which are in conflict with the continued vitality of § 3 of chap. 228 of the Laws of 1877. It is always to be assumed that the legislature acted deliberately and with full knowledge of all existing laws and when therefore it undertakes to substitute one law for another, its intention to repeal the latter is obvious. Such a substitution is apparent from a subsequent act which provides that a former act shall be amended “so as to read as follows,” Moore v. Mansert, 49 N. Y. 332; People v. Supervisors, etc., 67 N. Y. 109 ; Matter of Prime, 136 N. Y. 347 ; 49 St Rep. 658; Sutherland on Stat Constr. § 137 ; and since the effect of the repeal of a repealing law is to restore the law repealed by the latter, in the absence of a contrary intention expressly declared, or necessarily to be implied from the enactment of provisions, conflicting with those of the law which would otherwise be revised, Wheeler v. Roberts et al., 7 Cowen, 536 ; Van Denburgh v. Prest., etc., of Greenbush, 66 N. Y. 1; Sutherland on Stat. Constr. Secs. 162, 168, it is indisputable that the act of 1892 amendatory of the Stock Corporation Law of 1890 revived the provisions of § 8 of chapter 228 of the Laws of 1877 and restored them to full force and vigor with respect to all transactions subsequent to the taking effect of the amendatory act of 1892, unless the last mentioned act is affected by the provisions of chapter 677 of the Laws of 1892 known as the Statutory Construction Law and next to be noticed.

The Statutory Construction Law, chapter 677, laws of 1892, provides (§ 1) that the provisions of that act shall be applicable “to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter ” and (§ 81) “that the repeal hereafter or by this chapter, of any provision of a statute which repeals any provision of a prior statute, does not revive such prior provision.” Obviously then, if the act of 1892, chapter 688, amendatory of the Stock Corporation Law of 1890 is affected by the provisions of § 31 of the Statutory Construction Law of 1892 the repeal of the Stock Corporation Law of 1890 did not revive the provisions of § 3 of chapter 228 of the laws of 1877, and defendant thus would have to be absolved from liability thereunder. But both laws, the Statutory Construction Law of 1892, as well as the act of 1892, by which the Stock Corporation Law of 1890 was amended and repealed were approved by the governor on ¡lie same day and each provided that it should take effect immediately ; and as the question of the order of their approval is presented to us by demurrer to the complaint, we have not the advantage of evidence adduced by either party to aid us in determining the order of their priority in respect to executive sanction and their consequent taking of effect. Plaintiff therefore contends that since both acts took effect on the same day, it must be assumed that they became laws simultaneously; and hence that the act amending and repealing the Stock Corporation Law of 1890 is not affected by the provisions of § 31 of the Statutory Construction Law of 1892 because that section is made applicable only to repeals subsequent to its enactment Defendant, on the other hand, maintains that inasmuch as the act of 1892 which amends and repeals the Stock Corporation Law of 1890 is numbered 688, while the Statutory Construction Law of 1892 is numbered 677,the presumption is that the acts were severally approved in the order in which they appear numbered, 677 being first and 688 latter in point of time, and so that the inhibition of the revival of a law repealed by a law in turn also repealed, provided for by § 31 of the Statutory Construction Law of 1892, chap. 677, applies to the act of 1892, chap. 688, amending and repealing the Stock Corporation Law of 1890, and that § 3 of chapter 228 of the Laws of 1877 cannot therefore be deemed to have been revived by the repeal of § 70 of the Stock Corporation Law of 1890,and was therefore not in force at the time of the contraction of plaintiffs demand against the Importers and Traders’ club. In Metropolitan Board of Health v. Schmades, 3 Daly, 282 ; 10 Abb. Pr. N. S. 205, it was held at general term of this court (Daly C. J. and Yan Brunt and Loew J. J. concurring) that when two,inconsistent acts of the legislature are enacted on the same day, the order of their priority in enactment may, in the absence of facts to the contrary, be inferred to have been as indicated by their respective numbers the one bearing the earlier number being deemed to have been first enacted. See also Strauss v. Heiss, 43 Md. 292. The same result might, however, also be reached upon other grounds respecting the case at bar. It was incompetent for defendant to tender any issue of fact by pleading the latter approval or enactment of the act of 1892 amending and repealing the Stock Corporation Law of 1890. The determination of that question comes within the range of those matters of which courts and judges are required to take judicial notice, and which need not therefore be proved, “In fine” says Chief-Judge Hunt in Swinnerton v. Columbian Insurance Co., 37 N. Y., 174 “courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction and where the “memory of the judge is at fault, he may resort to such documents of reference as may be at hand and he may deem worthy of confidence.” In People v. Purdy, 4 Hill, 284, the question was whether, or not the act there under discussion was passed by a majority of the legislature, or by a vote of two-thirds, and Senator Franklin observed (p. 404) “judges are bound to take notice of a general law, and it is their province to determine whether it be a statute or not; for as against a general statute, nul hel cannot be pleaded, but it must be tried by the judges who are to inform themselves in the best way they can.” Ottawan v. Perkins, 94 U. S. 260, it was held that the question whether an alleged statute “is realty a law or not, is a judicial one, and is not a question of fact to be determined by a juryand this was approved in Town of Walnut v. Wade, 103 U. S. 526. In Gardner v. Barney, 73 U. S. 890, the controversy was concerning the time of the taking of effect of an act of Congress by the President’s approval and Mr. Justice Miller, in delivering the opinion or the court, declared “There'is no reason, then, on sound principle, why the court should confine itself to the date made by the president, or, if he has made none, should reject all other sources of knowledge. The judicial notice of the court must extend, not only to the existence of the statute, but to the time at which it takes effect, and to its true construction. We are of opinion, therefore, on principle as well as on authority, that whenever a question arises in a court of law of the existence of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question ; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.” In The Prince's Case, 8 Coke 28, it was the opinion of the court ‘‘that against a general Act of Parliament, or such whereof the judges ex officio ought to take notice, the other party cannot plead nul tiel record, for of such Acts the judges ought to take notice. But if it be misrecited, the party ought to demur in law upon it. And in that case, the law is grounded upon great reason, for God forbid, if the record of such Acts should be lost, or consumed by fire, or other means, that it should be to the general prejudice of the Commonwealth; but rather, although it be lost or consumed, the judges either by the printed copy, or by record in which it is pleaded, or by other means, may inform themselves of it.” See also Hale’s History of the Common Law pp. 14, 16; Kent’s Commentaries, vol. 1, p. 460, Lacy’s ed. 484, &c.; Sutherland on Stat. Constr. § 181 &c., 292 &c. Judicial notice of a general statute extends to the time when it takes effect. Att'y Gen'l v. Frost, 11 Wisc. 16; State v. Bailey, 16 Ind. 46; Heaston v. Cinn. & Ft. W. R. Co., 16 Ind. 275; Pierson v. Baird, 2 G. Greene 235 ; Berliner v. Waterloo, 14 Wisc. 378.

We would be authorized, therefore, upon abundant authority, in the absence of a record of tire precise time of the day at which the several acts of the legislature were respectively approved by the Governor, to inquire of those who in the performance of their public duties were present on the occasion of such approval and to receive their statements to aid us in the determination of the question suggested by this appeal. It appears from the statement of State Senator John J. Linson, submitted for appellant, that he was present when the. Statutory Construction Law (chapter 677 of the Laws of 1892) received executive approval and that it was the first of the chapters, the priority of which is in dispute, which was so approved. Mr. T. S. Williams, then the governor’s private secretary, states that the exact time of approval was not recorded, but that bills are usually signed by the governor in the order in which ■they are numbered. We have no reason to doubt the accuracy of these statements. Nor are they disputed. As the result, therefore, we would be constrained to conclude that chapter 677 of the Laws of 1892 became effective before chapter 688 of the same year and hence that the latter chapter was subsequently within the meaning of § 31 of chapter 677 and so that § 3 of chapter 228 of the Laws of 1877 was not revived by the repeal of the Statutory Construction Law of 1890. But clearly the Statutory Construction Law of 1892 (chapter 677) affords intrinsic evidence that it was not intended to and therefore did not affect acts passed by the legislature at the same session. Chapters 677 to 691 comprised the revision of general laws which was enacted by the legislature at its session of 1892. Section 33 of the Statutory Construction Law (chapter 677) expressly provides that “ No provision of any chapter of the revision of the general laws, of which this chapter is a part, shall supersede or repeal by implication any law passed at the same session of the legislature at which any such chapter was enacted, or passed after the enactment of any such chapter and before it shall have taken effect.” To hold therefore that the inhibition of section 31 of the Statutory Construction Law (chapter 677) against the implied revival of the provisions of a statute repealed by another statute in turn also repealed applies to the act (chapter 688) amendatory of and repealing the Stock Corporation Law of 1890, is in effect to say that the provisions of chapter 688 in so far as they operated to revive § 3 of chapter 228 of the Laws of 1877 were in fact superseded by the provisions of § 31 of chapter 677 though both chapters, 677 and 688, were enacted at the same 'session of the legislature. This would be contrary to the declared legislative intention and in this aspect of the question it is immaterial which of the chapters was first approved by the governor. We are of the opinion therefore that the question presented to us was correctly decided by the court below and that the judgments appealed from should be affirmed with costs. All concur.


author: Pryor, J.

text:
    In the Matter of the Assignment of Arthur Bateman.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Pbincipal and Agent—Oontbact with agent.
    When a party knows the principal and yet chooses to take the contract of the agent, he is hound by his election, and cannot hold the principal.
    2. Evidence—Pabol.
    It is as incompetent for a privy as a party, to modify a written agreement by parol evidence.
    Appeal from judgment on decision of a referee. The opinion states the case.

      Rochfort & Stayton, for app’lt; Shearman & Sterling {¡Everett P 'Wheeler, of counsel), for resp’t.
   Pryor, J.

A claim by appellant against the estate of. Bateman in the hands of an assignee, was referred; and o.n the decision of the referee judgment was rendered for the respondent. For reversal appellant relies on an exception to the exclusion of evidence; and whether the exclusion be error, is the only question for determination. The claim is for the value of bonds, alleged to have been held by Bateman in escrow, and which he refused to deliver on performance of the condition. The defence is a denial that the bonds were deposited with Bateman. To prove his case appellant put in evidence a contract of the sale of a railway by appellant to Hood, the latter agreed to deliver the bonds to appellant. In the language of his counsel, appellant’s contention is: “ That the negotiations leading up to the sale were conducted between himself and Mr. Bateman ; that he supposed he was selling the road to Bateman ; that, when the contract came to be signed, it was executed in Hood’s name,.Bateman vouching for Hood; that all the subsequent dealings were with Bateman, and that ten bonds were still to be delivered. At this point Bateman denies that he holds or ever held such bonds, and demands that wo produce the mythical Hood to prove an actual delivery of the bonds to Bateman. To meet this we undertake to show that Bateman was the real and undisclosed principal, and it is our evidence in this behalf which was improperly excluded.” The evidence offered was of prior negotiations and of the circumstances attending the execution of the contract; and its object was, not to show Hood a myth, but to prove Bateman the principal whom Hood represented It was excluded on the ground that previous negotiations were merged in the written agreement, and parol evidence incompetent to modify it. Appellant recognizes the rule that oral testimony is inadmissible to add to a written contract, like this, complete in itself, or to explain a written contract of which, like this, the meaning is explicit beyond all obscurity or possibility of misapprehension. Broom’s Maxims 619; Corse v. Peck, 102 N. Y., 513; 2 St. Rep. 493; Lamson Consolidated S. S. Co. v. Hartung, 19 N. Y. Supp. 233; 46 St. Rep., 191. But he says the case comes within the exceptions, that parol evidence is competent to discover an undisclosed principal, Briggs v. Partridge, 64 N. Y., 357, 362, and that a written contract is conclusive only between parties and privies, whereas his controversy is with a stranger to the instrument. Coleman v. First Nat. Bank, 53 N. Y., 388. Manifestly, upon the principle of neither exception was the evidence allowable. Where a party contracts with an agent as such, in ignorance of the existence of a principal, he may on' discovering the principal, elect to hold him. But, if he know the principal at the time of the contract and yet chooses to engage with the agent, he is estopped afterward to go against the principal. So much is implied in the terms of the proposition that a party may pursue an undisclosed principal; and, indeed, the rule is elementary, neither needing nor permitting citation of authority in its support. If Bateman was the principal of Hood, appellant knew it at the time. He says: “He supposed he was selling the road to Bateman; when the contract came to be signed it was executed in Hood’s name.” Bateman was present. With knowledge of the principal, appellant chose to contract with the agent, and he is bound by his election. Bish. on Contracts § 1085. Evidence, therefore, to hold Bate-man as principal was clearly incompetent. Neither was the evidence admissible on the principle that a written contract concludes only parties and privies. Hpon this point appellant assumes a position which is the negation of his former contention. Then he said Bateman, as principal—was party to the contract made by his agent. Now he insists that he may modify the contract by parol, because Bateman is a stranger to it. In truth neither proposition is correct. Bateman was not a party nor yet a stranger to the contract ; but on appellant’s theory of the case, Bateman was a privy to the contract. In the brief, counsel for appellant opens with the statement that, “ the claimant alleges that these bonds were held in escrow for him by Mr. Bateman, and that the condition having been performed he is entitled to the bonds or their value.” To support this contention appellant put the contract in evidence; and essayed to show that Bateman held the bonds upon the terms •and conditions of the contract, and that by those terms and conditions he should have delivered the bonds to appellant. This-makes Bateman, in the strictest sense, a privy to the contract, as-much bound by its terms and conditions as if he were formerly a party to it—bound however, not as the'principal of Hood, but-as the bailee to whom, under the contract, the bonds were entrusted. The case then is within the rule, not the exception ; and. the written contract was conclusive between appellant and Bate-man. It was not competent to appellant to show by parol that Bateman held the bonds on any other terms or conditions than as stipulated in the written agreement; and the referee rightly rejected the offer. But, assuming the exclusion of the evidence unwarrantable, still the judgment must stand. By the findings of the referee that Bateman never held the bonds, the decision was-inevitably against the appellant, whatever the determination upon other issues. The error, then, was of no prejudice to the appellant. In any aspect of the case, therefore, the exception on-which appellant relies is futile. The findings of fact are supported by the evidence, and from them judgment from the respondent is a necessary conclusion. Judgment affirmed with costs.

All concur.


author: Daly, 0. J.

text:
    Joseph W. Doolittle, App’lt, v. Robert W. Selkirk, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Landlord and tenant—Surrender.
    Where tenant abandons and sends keys to landlord’s agent, who notifies him that he will rent the premises on his account, the retention of the. keys does not amount to an acceptance and surrender.
    3. Same—Tender.
    The landlord is not bound to tender a return of them. •
    3. Same—Possession op new tenant.
    Subsequent admission of a tenant in advance of a new term, to commence at end of former term, is not an acceptance and surrender.
    4. Same—Eviction
    Failure to repair, under covenant to do so by landlord, does not amount to an eviction, where the tenant can have the work done at small ex- - pense.
    5. Same—Rent. .
    Failure to repair, in such case, is no defense to action for rent.
    6. Evidence—-Presumption.
    In the absence of proof, there is no presumption of any enactment, in the state of Hew Jersey, as to the abandonment of leased premises, similar to our own.
    Appeal from a judgment of the justice of the first district court, in favor of the defendant in an action to recover the rent of a dwelling house in Bast Orange, H. J., known as number 63 Grove street, for five months from December 1st, 1891 to May 1st 1892 at $40 per month, payable in advance and also the water tax amounting to $2.60. The premises were let to defendant by lease under seal dated April 8th, 1891, for one year from the 1st of May following. The tenant abandoned the premises about December 17th, 1891, having paid rent up to and including the month of November previous. The defenses pleaded were, (1) Surrender and acceptance. (2) Agreement by the landlord, in the lease, to put a new furnace in the premises in the fall of 1891, that the same would be properly erected and the pipes leading from the same would be properly connected throughtout the house; and that she failed and refused to do so; to defendant’s damage. (3) Dangerous condition of the premises at the time the defendant went into possession ; which condition was unknown to him, but 'known to defendant, who allowed him to remain therein, although repeatedly notified thereof. (4) Eviction ; this being allowed by amendment on the trial.
   Daly, 0. J.

The defense of surrender and acceptance of the of the premises was not proved. When the tenant abandoned them he sent the keys to the landlord’s agent, who retained them and notified defendant that he would rent the premises on his account. The retention of the keys did not amount to an acceptance and surrender. The landlord was not bound to tender a return of them Thomas v. Nelson, 69 N. Y. 118. The subsequent admission of a tenant in the month of April following in advance of a new term to commence in May was not a surrender and acceptance. The landlord under the lease had the right if the premises were deserted to reenter and relet them. There was no breach of contract and no eviction by the landlord. ' She agreed to put in a new furnace and did so. There was no stipulation as to the amount of heat it should give. It failed to give out heat according to its capacity, because there was a defect in the pipe connections which caused a loss of two thirds of the hot air, but of this defect the landlord was not notified. Even if she had been notified, and failed to remedy it (without the intention to deprive the tenant of the beneficien! enjoyment of the premises) and the tenant could have had the work done at a small expense (in this case $25.00 which would have been set off against the rent) it would not have been an eviction. When the landlord, without intending to keep the tenant out of possession, retains a small portion of the demised premises, it is not an eviction . Vanderpool v. Smith, 1 Daly, 311. There was no wilful interference of the landlord with the beneficial enjoyment of the premises as in Dyett v. Pendleton, 8 Cow. 728, and Edgerton v. Page, 20 N. Y. 281. The furnace put in by the landlord failed, to yield its proper amount of heat from a defect of which the landlord had no notice. She employed a competent expert to put in the furnace, and any defect in its connections should have been called to her attention. The tenant had entire control of the furnace and the opportunity to discover defects if any in its construction. The covenant to put in a new furnace by a certain date in the fall, was not a condition precedent to the payment of rent, as is sometimes the case with respect to covenants to put demised premises in repair. Kiernan v. Germain, 61 Miss. 503 ; Stronecker v. Baldwin, 21 Ga. 430. Her covenant and that of the tenant were independent, and her failure to perform would not be a defense to an action for the rent. Failure of the landlord to make repairs is no defense to an action for rent. 12 Am. & Eng. Enc. of Law 1005. The landlord’s breach of a covenant to repair would not authorize an abandonment by the tenant unless by the terms of the agreement the repairs were made a condition precedent to the tenant’s obligation to occupy the premises. Speckels v. Sax, 1 E. D. Smith, 253. There was no proof that the premises were'in a dangerous condition when let. The sole complaint of the tenant was with respect to the insufficiency of the furnace subsequently put in. The real claim of the plaintiff is that by reason of the insufficient heat the premises became untenantable and he had a right to abandon them. Such right is given by statute in this state and does not exist independently of statute. There is no proof of the statute law of the state of Hew Jersey, where these premises are situated, and there is no presumption of any enactment there similar to our own. Graves v. Cameron, 9 Daly, 153. But in addition this was the letting of an entire dwelling house of which the tenant had exclusive possession and control, no part of which was reserved to or retained by the landlord, as in the case of tenements occupied by several families where the landlord controls the supply of steam heat, hot air furnaces, water supply and the like, and whose acts, or omissions, may consitute an eviction and justify the tenant in abandoning the premises. Ryan v. Jones, 2 Misc. R. 65 ; 49 St. Rep., 140; Lawrence v. Burrell, 17 Abb. N. C. 312; Tallman v. Murphy, 120 N. Y. 351; 31 St. Rep., 483 ; Bradley v. DeGoicouria, 12 Daly, 393. The plaintiff,therefore, seems to be entitled to recover the whole amount sued for. Even had there been an eviction the rent due on the 1st of December while the tenant was in possession would have been recoverable and so in no event could there be a dismissal of the complaint. Giles v. Comstock, 4 H. Y. 270. Judgment reversed. Hew' trial ordered. Costs to appellant to abide event. All concur.


text:
    Phillip Biershenk et al., App’lts, v. William E. D. Stokes, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Pleadings—Proof.
    The recovery must, in every case, be secundum allegata et probata.

      H. Appeal—Reversal.
    To constitute error for which a judgment will be reversed, it must appear that the error operated to the appellant’s prejudice or disadvantage. -
    Appeal from a judgment of the general term of the city court ■of Hew York which affirmed a judgment for dismissal of tiie complaint at trial term. Action to recover for work, labor and services and materials alleged to have been rendered and furnished at defendant’s request.

      Henry Cooper, for app’lts; William R. Martin {Ernest Hall, of counsel), for resp’t.
   Bischoff, J.

The complaint was for work, labor and services performed, and materials at request, answer, besides generally denying the allegations of the complaint, interposed as a counterclaim a claim for damages alleged to have accrued to defendant out of plaintiff’s unauthorized filing of a notice of lien claimed pursuant to the provisions of the Mechanic’s Lien Law. L. 1885, ch. 342. A demurrer to the counterclaim was sustained at special term, but on appeal to the general term of the court below was overruled. Defendant thereupon caused final judgment in his favor to be entered upon the decision of the general term. Upon appeal to this court that judgment was reversed as unauthorized, the proper judgment upon a decision overruling a demurrer to part of an answer being an interlocutory one. Biershenk et al., v. Stokes, 18 N. Y. Supp., 854; 46 St. Rep,, 179. Pursuant to the directions in the judgment of this court an interlocutory judgment overruling the demurrer and granting plaintiffs leave to reply to the counterclaim, on payment of costs, was thereupon entered at general term of the court below. With the conditions of the leave granted them, plaintiffs never complied and no reply to the counterclaim was ever served, so that at the time when this action was reached for trial in the court below, the counterclaim, assuming it to have been valid as such, stood admitted, except as to the amount of defendant’s alleged damages.

On the trial it appeared unchallenged, and from evidence which plaintiffs had themselves adduced, that the work, labor and services and materials, for which they sought to recover in this action, were performed and furnished by them under a contract in writing which they had made therefor with one Owen Cumiskey, a sub-contractor of Squire & Whipple with whom the defendant had contracted for the construction of certain buildings. It fur'ther appeared from plaintiffs’ own showing, and from documentary evidence adduced by them, that the only contract they had with the defendant was oné by which the latter had agreed to withhold twenty-seven hundred dollars of the amount which would accrue to Squire & Whipple under his contract with them, and to apply the sum so to be withheld towards the payment of plaintiffs’ claim against Cumiskey upon completion of the work undertaken by the former. When plaintiffs rested defendant’s counsel moved that the complaint be dismissed for a failure of proof and because of a fatal variance between the complaint and the proof. The trial justice, intimating his concurrence in the views expressed by defendant’s counsel, thereupon offered to allow plaintiffs to withdraw a juror and to apply for an amendment of the complaint. Plaintiffs’ counsel, however,without asking for an amendment of the complaint to conform to the proof, declined to avail himself of the offer made. Thereupon the complaint was dismissed. Judgment for dismissal of the complaint was entered in defendant’s favor, from which plaintiffs appealed to the general term of the court below where it was affirmed, and from the judgment of affirmance plaintiffs have again appealed to this court.

Observing the rule that the recovery must in every case be secundum allegata et probata, Romeyn v. Sickles, 1 Silvernail,Court of Appeals R. 594; 108 N. Y., 650; 13 St. Rep., 864, it is indisputable that the ruling of the trial court in granting the motion of defendant’s counsel for dismissal of the complaint was correct. The cause of action which appeared from the evidence was widely different from the cause of action alleged in the complaint and was susceptible of widely different defenses. There was, therefore, not only a variance between the complaint and the proof, and an entire failure of proof, but the cause of action alleged was disproved. Arnold v. Angell, 62 N. Y., 508. Hor can appellants . on this appeal secure a review of the interlocutory judgment of the general term of the court below which overruled their demurrer to defendant’s counterclaim. Section 3192 of the Code of Civil Procedure provides that § 1294 shall be applicable to appeals from the city court to this court, and § 1294 confers the right of appeal only upon a party or parties “ aggrieved.” How can the appellants be said on this appeal to be “aggrieved ” by the interlocutory judgment? Presumably acting upon the suggestion of this court on the occasion of the first appeal that the facts relied on in the answer do not constitute a proper counterclaim in this action, defendant abandoned his counterclaim on the trial. Ho proof of his alleged damages was made or offered on the trial and no-part of the relief awarded to defendant by the interlocutory judgment is included in the judgment appealed from. By the abandonment of his counterclaim on the trial, and the entry of final judgment for dismissal of the complaint only, defendant has waived whatever rights were secured to him by the interlocutory judgment. Appellants have, therefore, no' cause for complaint. To constitute error for which a judgment will be reversed it must appear that the error operated to the appealing party's prejudice or disadvantage. In so far as the judgment appealed from omits all award to defendant upon his counterclaim it is in appellants’ favor. Hughes v. Stickney, 13 Wend. 280; Idley v. Bowen, 11 Wend. 227 ; Reid v. Vanderheyden, 5 Cow. 719 ; Hall v. Brooks, 89 N. Y. 33 ; Steele v. White, 2 Paige, 478 ; Kellett v. Rathbun, 4 Paige, 102 ; Kelly v. Israel, 11 Paige, 147; Hackley v. Hope, 4 Keyes, 123 ; Bush v. Rochester City Bank, 48 N. Y. 659.

Judgment affirmed, with costs.

All concur.


text:
    Charles C. Johnson, Resp’t, v. Abel M. Parker, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    Appeai—Exceptions.
    Where the ground of objection is not stated, exceptions are unavailable for the purposes of review
    Appeal from a judgment of the district court in the city of Hew York for the eleventh judicial district, rendered by the justice without a jury, in favor of the plaintiff.
    Action for injury to personal property caused by negligence.

      Wm. C. Carpenter, for app’lt; G. TV. Hopkins, for resp’t.
   Bischoff, J.

Plaintiff sued to recover damages for an injury to his bicycle, alleged to have been caused by the negligence of defendant’s servant. The facts appearing from the record, are that on a certain day plaintiff, after riding the bicycle for some distance, returned to his home" for his overcoat and left the machine against the curb in front of his dwelling; that a few moments afterward he looked out of an upper window to keep watch of the bicycle and saw the defendant’s ice wagon drive to the curb and over the chattel in question, thereby causing the injury for which damages are sought. There is sufficient evidence as to the negligence of the driver of the wagon, and of defendant’s relation to him, to support a recovery upon the undisputed facts and the justice was well justified in finding that the plaintiff was not chargeable with contributory negligence. The exceptions taken by the appellant are unavailing for the purposes of review, the ground of the objection not being stated, Malcolm v. Lyon, 46 St. Rep. 921; Myers v. Cohen, 53 id. 223, but in any event they do not present grounds for reversal. In view of the evidence adduced, the motion to dismiss the complaint was properly denied. On the undisputed evidence, however, as to the value of the chattel before and after the injury, the award of $150 damages cannot be supported. That at the time of the injury the bicycle was worth $150, is the conclusion reached by both the plaintiff’s and the defendant’s experts, but these witnesses also agree that the value of the chattel unrepaired is $20. Taking the most favorable view of the evidence; the recovery should not exceed $130. Therefore the judgment must be reversed and a new trial ordered with costs to abide the event, unless the respondent shall stipulate to reduce amount recovered by $20 in which case the judgment is affirmed without costs.

Gtegerich, J., concurs.


text:
    Jamin S. Morse, Resp’t, v. Francis B. Thurber et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Evidence—Declarations—Agent.
    Tlie declarations of one, to whom a party refers another for information are competent in favor of the latter against the former party.
    2. Appeal—Finding.
    The finding of a justice, upon conflicting evidence, on a material issue will not be disturbed.
    Appeal from a judgment of the district court in the city of Hew York for the eleventh judicial district rendered by the justice without a jury, in favor of the plaintiff. Action for work, labor and services, and materials furnished.

      H. Arlington, for app’lts; Warner and Crawford, for resp’t.
   Bischoff, J.

This action was brought to recover for materials and labor furnished by plaintiff in the erection of a certain watchman’s recorder system upon the defendant’s premises. The plaintiff’s cause rested upon a contract alleged to have been made through plaintiff’s agent Morse and defendant’s agent Minrick, and this appeal is based substantially upon the contention that no authority from the defendants to Minrick to make the contract appears. To this we cannot accede. There is undisputed evidence that the plaintiff’s agent called upon the defendant Why-land and had a conversation with him in regard to installing the plant in question ; that the defendant Whyland then referred Morse, the plaintiff’s agent, to Minrick and the negotiations, ending in the order for the installing of such plant, were carried on by Morse, with such Minrick. The defendant’s evidence is to the effect that the plant was installed at plaintiff’s instance and at his own risk and that the defendant Whyland so informed the plaintiff’s workmen while they were engaged in erecting the instrument. There is sufficient evidence to support the judgment and to justify the rulings of the justice with regard to Minrick’s statements, and upon the conflict which appears as to the intention of the parties the justice’s finding is not to be disturbed. Weiss v. Strauss, 39 St. Rep. 78; Schwartz v. Wechler, 2 Misc. R. 57 ; 49 St. Rep. 145; Lynes v. Hickey, 4 Misc. Rep. 522; 54 St. Rep. 120. There are no extrinsic circumstances appearing in this case which would turn the balance of probability in favor of the appellants and we are unable to hold that the judgment is against the weight of the evidence. An examination of the exceptions fail to disclose any prejudice to the appellants. Judgment affirmed with costs.

All concur.


text:
    Morris Robinson et al., Resp’ts, v. Charles Lewis et al., App’lts.

      (New York Common Pleas, General Term,

      Filed, March 6, 1894.)

    1. Appeal—Evidence.
    A verdict, upon conflicting evidence on a material point, will not be disturbed.
    2. Evidence—Expert.
    The question as to the admissibility of proof of the price paid for the article sued for cannot arise where such evidence is given by dealers who-are experts.
    Appeal by defendants from a judgment of the general term of the city court, affirming a judgment entered upon the verdict of a jury in favor of the plaintiff, for $608.11 damages and costs; and order denying motion for new trial. The action was brought to recover $385.37 for the wrongful taking and conversion by defendants of a quantity of trimmings claimed to be worth that, sum. The answer denies the wrongful taking and conversion, and sets up that certain goods, of the value of $96.59, were delivered to the plaintiffs by defendants, in part payment of the latter’s debt; that plaintiffs subsequently requested the return of said goods but refused to take them back when they were offered by defendants, and that said goods were a part of those mentioned in the complaint; also that the goods were subsequently levied upon and taken away by the sheriff, by virtue of an execution against one of the plaintiffs.

      Nathan Lewis (Sidney A. Stuart of counsel), for app’lts; David Leventritt, for resp’ts.
   Daly, C. J.

The main question in the case was whether the trimmings in question were taken by defendants with, or without, the consent of the plaintiffs, and the evidence on that point being conflicting the verdict of jury should not be disturbed. The questions argued upon this appeal are as to the admission and exclusion of evidence, and as to whether there was sufficient evidence of value to sustain the verdict. The exceptions of defendants present no error. Proof of the aggregate amount owing by plaintiffs to their creditors could have no bearing on the question as to whether the trimmings were voluntarily given in part satisfaction of their indebtedness to the defendants. Nor would the fact that they had previously paid a part of such indebtedness have the remotest, if any, bearing upon the same issue; the fact and the amount of the indebtedness being conceded. The object of the question as to the value of certain cloths, which were levied upon at the time that these trimmings were taken, as now claimed, is to show that there remained something due to defendants over and above the value of the cloths. As the cloths were taken in a replevin proceeding, and not under a levy for the satisfaction of an indebtedness, their value would not have assisted the jury in determining the issues in the case. The allowance, in the cross-examination of the defendant Lewis, of the question as to his refusal of an offer of fifteen hundred dollars for said cloths did no harm, for he denied the offer; and even if he had admitted it, it would have been proper upon cross-examination in view of his testimony that the cloths were worth a less sum. As to the evidence of the value of the trimmings, the plaintiff Robinson who dealt in the goods swore they were worth the sum claimed in the complaint, and added that that was what he had paid for them. Objection was taken to the latter part of this testimony; and to the charge of the judge, that the purchase price of an article is some evidence of value; and to the refusal to charge in effect that the jury must disregard the evidence of the witness as to value; and that they might find the value of the trimmings to be as claimed in the complaint. Ordinarily the question as to the admissibility of proof of the price paid for an article sued for, arises in cases where such evidence is given by persons who are not dealers in the article; but manifestly no such question can arise in the case of a dealer who is an expert, and who, in support of his opinion as to value, may always give the ground upon which it is based, to wit, the price actually paid. Dealers derive their knowledge of value from the prices at which goods are actually bought and sold and we have never known of objections being made to proof of such facts. There was sufficient evidence therefore, of value to uphold the verdict. The exception remaining to be considered is to the refusal of the court to charge that the plaintiffs were not entitled to an inspection of the trimmings before receipting for them, and that a refusal to allow an inspection did not make the defendants liable. This instruction was upon the defense that the goods had been offered back before the trial. It appeared that defendants exacted a receipt, before -riving up the goods and refused to permit plaintiffs to examine them before giving such receipt. This was an unreasonable requirement and defendant was not entitled to the instruction. The judgment and order will be affirmed.


author: Daily, C. J.

text:
    Michael Hassett, Resp’t, v. Patrick J. McArdle, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Contract—Construction.
    The construction of a perfectly clear and unambiguous writing is for the court, and not for the jury.
    3. Same—When consummated.
    A mere proposition or offer is not binding upon the other party until he accepts it and agrees to comply with its terms.
    3. Sme—Rules of dock officers.
    A contract for loading at the docks in New York city is made with the full understanding of the parties that it is subject to all regulations and orders of the public officers having charge of the docks.
    Appeal from a judgement of the general term of the city court, affirming a judgment of the trial term entered upon a verdict in favor of the plaintiff for $86.10. The action was to recover damages for breach of contract on defendant’s part in failing to deliver a cargo of iron to be carried on plaintiff’s boat, from ¡New York to Troy, in ¡November, 1890. The contract and its performance by plaintiff were denied. The following paper was drawn up in defendant’s office in ¡New York City on the day of its date, ¡November 27th 1890, in duplicate, and signed by plaintiff ; one copy being retained by defendants and the other delivered by them to plaintiff. “Messrs. M. ¡Donnelly & Co., ¡New York City. • Gentlemen: I hereby agree to take on boat Katie and ¡Nellie two hundred tons iron from ¡New York City to Troy, ¡N. Y., at the rate of 50 cents per gross ton. Messrs. M. '¡Donnelly & Co. to load and unload the boat. Said iron to be delivered to the Troy Steel and Iron Co., at Troy, ¡N. Y. Messrs. M. Donnelly & Co. to load the boat here three days after the boat is in the dock, and four days to unload her after she is in the dock at Troy, ¡N. Y. Messrs. M. Donnelly & Co. to pay for 200 tons at 50 cents a ton should they only load 150 tons, and should there be over 200 tons the rate is to be 50 cents per gross ton. M. Hassett.” After the papers were signed the defendants told the plaintiff to get his boat as quickly as possible to the dock and that they would load her as soon as possible. The evidence as to what was done thereafter is discussed in the opinion.

      Turner, McClure & Rolston (David McClure, of counsel) for app’lt; Hyland & Zabriskie, for resp’t.
   Daily, C. J.

The defendant is right in his contention that the writing signed by the plaintiff being perfectly clear and unambiguous, its construction was for the court and not for the jury; also that it did not constitute an agreement; but was a mere pro-, position, or offer, not obligatory upon the defendant until he ac■cepted it and agreed to deliver a specified quantity of iron to. plaintiff for shipment. Barrow S. S. Co. v. Mexican Central R. R. Co., 134 N. Y. 15 ; 45 St. Rep. 379; Chicago & G. E. R. R. Co. v. Dane, 43 N. Y. 241. The evidence clearly establishes such •an acceptance and agreement on the part of defendant. The testimony of the plaintiff, which, however contradicted by the witnesses for the defense we must assume that the jury believed, was that after the papers were signed (and immediately after is a fair inference from the testimony) defendants told him to .get his boat to the dock “as quick as possible,” and they would load her as soon as possible. The only question that can possibly arise upon the positive order thus given, is as to the quantity of iron which the defendants were to deliver or load. The plaintiff -claims only the lowest quantity under the contract, and we think that the defendant’s obligation went to that extent at least. The written proposition was to carry 200 tons at 50 cents per ton, and it was provided that if less were shipped 200 should be paid for. When the offer was accepted and the defendants promised to send a load, it is fairly to be inferred that that was the load intended by them ; for although they had ths option to ship more they did not engage to do so. There was a positive engagement to ship a load by the boat, and as the smallest load the plaintiff offered to carry was 200 tons for $100 (and that being the minimum freight for any less quantity) the conclusion is inevitable that defendant intended by liis order that plaintiff should understand that he was to receive at least that load. It is, however, contended by defendant that, conceding a valid contract on their part to ship a cargo of a certain quantity, plaintiff failed to keep the agreement on his part, in not having.his boat at the dock ready to receive the cargo. Defendants had three days in which to load the boat after she was in dock, and the argument is that the boat was to be moored at the dock and there remain for at least three days awaiting the cargo. This was not done, because the dock-master would not permit plaintiff’s boat to lie idle at the wharf while other vessels needed the room; and so, after the plaintiff had secured a berth at the foot of Leroy street, with which defendants were satisfied, and had lain there part of two days waiting for a cargo which defendants had promised to send, the wharf-master told him that if he did not get the iron on immediately he could not hold the berth. Plaintiff reported this to the defendants who said they would come right down and load her. They did not come, and the dock-master made him pull out for a brick-barge. He reported this to the defendants and told them that he would have the berth again in half a day; that the wharfage master had shoved him out but had promised to give him a berth as soon as they were ready to load him. Although Mr. McArdle Jr., “felt bad” for plaintiff’s losing the berth, and said he had no business to give it up, that he (McArdle) was paying for it, the defendants did not countermand their order, but suffered the plaintiff to come to their office day after day, waiting nearly all day, putting him off with excuses, while his boat remained at the foot of Leroy street; and finally, when he said he was not going to stay there any longer, and was going to see his lawyer if they did not give him a load, they at length told him that they would not give him any load. The plaintiff did all that he could reasonably be expected to do under his contract; which, it must be assumed, was made with the full understanding between the parties that it was to be subject to all regulations and orders of the public officers having charge of the docks ; and it does not appear that the defendants would have been unreasonably delayed in the shipment of any cargo which they were at any time ready to send. The loss of the berth at Leroy street was due to defendant’s own delay in failing to send the load as they promised. As the questions of the construction of the plaintiff’s writing and the acts of the defendants alleged to constitute a contract, and the performance by plaintiff of his obligation thereunder, are the only ones discussed by appellant on his brief, no others are considered. The trial court charged upon the law of the case in all respects as the defendants requested and thus the issues of fact were properly submitted to the jury and upon evidence that supports their verdict. If any error was committed in not clearly defining the different province of the court, and of the jury, in the interpretation of the contract, no exception was taken to the instruction ; and the court in fact gave the plaintiff’s writing the interpretation which the defendants requested, and by the whole charge submitted the case correctly. The judgment must be affirmed. All concur


author: Pryor, J. Daly, 0. J.

text:
    Joseph W. Johnson, App’lt, v. James Girdwood, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Pleadings—Demubbeb.
    On demurrer a complaint will be upheld if it exhibits facts entitling to any relief, although it be insufficient for the specific form of action.
    2. POKMEIt ADJUDICATION—WHEN NO BAB.
    A judgment of conviction in a criminal court is no estoppel as between the defendant and strangers to the record
    3. Judgment—When avoided.
    A judgment of conviction on a plea of guilty, may be avoided collaterally, by proof that the plea was induced by the fraud, duress and conspiracy of the person seeking to avail of it.
    4. Consent—Pbaud
    Consent to a wrong, induced by fraud, duress and conspiracy, is not answer to an action upon the wrong by the party so consenting against the party so procuring the consent.
    Appeal from judgment on order sustaining demurrer to complaint. The opinion states the case.

      Edward 8. Clinch, for app’lt; James Dunne, for resp’t.
   Pryor, J.

The point for adjudication is, whether a complaint, in substance as follows, on demurrer, namely; plaintiff was arrested upon the complaint of the defendant; that each of the statements in defendant’s complaint was false and was known by the defendant to be false, at the time he made it; that the complaint was made without probable cause and maliciously, with the intention, on his part, to injure the plaintiff and to cause him to be unjustly arrested; that the plaintiff was taken before a police justice and subsequently before the court of special sessions, and upon a false statement, made by the defendant, that it would benefit the plaintiff so to do, and would terminate the proceedings against him, and would secure the plaintiff’s release from arrest and imprisonment, the plaintiff, believing these statements, and under duress and threats of a long imprisonment, and not knowing the consequences of his so doing, did formally plead guilty of the alleged crime, though he was not guilty, as the defendant well knew, and that thereupon the plaintiff was sentenced to imprisonment and remained imprisoned about ten months; that the statements made by the defendant were false, and were made for the purpose of preventing the plaintiff demanding a trial on the complaint against him, and thereby disclosing evidence detrimental to the defendant, and which, if produced would have established plaintiff’s innocence of the charge against him; that the complaint, the arrest of the plaintiff, his imprisonment and all the proceedings, were without a probable cause, and were the result of a conspiracy on the part of the defendant and others, and that all the defendant did, in connection with the arrest and imprisonment was for the purpose of securing for the defendant immunity from violation of the law, and from fraudulent acts of which he was guilty. If the plaintiff’s characterization of his action in the brief, as “for false arrest and imprisonment,” be correct; the complaint cannot stand for a moment. For it appears that the prosecution and conviction of the plaintiff, were upon legal process, but “an action for false imprisonment is for the defendant’s having done that which upon the “stating of it, is manifestly illegal; while a malicious prosecution is for a prosecution which upon the stating of it, is manifestly legal," Lord Mansfield in Sutton v. Johnstone, I T. R. 544. Under our system of procedure a plaintiff’s right of recovery depends, not upon the name he gives his action or the classification to which he .subjects it, but upon whether on the facts exhibited, he is entitled to any legal redress. With us all suits are special actions on the case ; and if the facts show a right to relief, the plaintiff will not be turned out of court, because of a technical error in scientific nomenclature. Emery v. Pease, 20 N. Y. 62 ; Wetmore v. Porter, 92 N. Y. 76, 80 ; Wright v. Wright, 54 N. Y. 437,443 ; Neil v. Thorn, 88 N. Y. 270 ; Code, § 1207. Mor is it an answer to an action that the like was never heard of before. It is the peculiar merit of the common law, that its principles are so flexible and expansive as to comprehend any new wrong that may be developed by the inexhaustable resources of human depravity. “ If the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it.... .Let us consider wherein the law consists, and we shall find it to be, not in particular instances or precedents, but in the reason of the law, and ubi eadem ratio, íbí idem jus.".... And it is no objection to say that it will occasion, multiplicity of actions; for if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense.” Holt, 0. J., in Ashby v. White, Lord Raymond, 938 ; 1 Smiths L. C. 455. Where cases are new in principle, there I admit that it is necessary to have recourse to legislative interposition to remedy the grievance; but where the case is only new in the instance, and the only question is upon the application of a principle recognized in the law to such new case, it will be just as competent to apply the principle to any case which may arise two centuries hence as it was two centuries ago." Ashurst, J., in Pasley v. Freman, 3 T. R. 51; 2 Smith’s L. C. 92 ; Swinarton v. Le Boutillier (herewith decided), 58 St. Rep. 345. The primary right of man is to personal security, including character; and the infringement of this right is a wrong for which the law provides reparation. No matter by what means a man is wrongfully injured in his good name or person, for such injury the law awards him redress and retribution. In the case before us, the demurrer admits that by fraud, duress and conspiracy, the defendant maliciously procured the arrest, conviction and imprisonment of the plaintiff for a crime of which he was innocent, and of which defendant knew him to be innocent; to his’grievous injury in person, property, and reputation. Is it possible that for such a confessed wrong, the plaintiff is remediless ? The defendant answers, that the judgment of conviction is conclusive of the plaintiff’s guilt. So it may be, as between the plaintiff and the people. But, that between the plaintiff and the defendant, a stranger to the record, the judgment operates an estoppel, is a proposition contrary to fundamental principle and unsupported by authority. The conviction, then, being open to impeachment between these parties, the demurrer admits everything requisite to demonstrate it a nullity. Duchess of Kingston's Case, 2 Smith’s L. C. 573; Ward v. Town of Southfield, 102 N. Y. 287; 1 St. Rep. 689.

It is urged again, that the conviction of plaintiff was upon his own confession in open court. But, the demurrer concedes that the confession was procured by fraud, duress and conspiracy; and surely, argument is needless to show that, if a judgment obtained by such terms is of no effect, a confession so extorted must if possible be still less conclusive. It is insisted further, that, assuming the defendant guilty of the wz'ong alleged, the plaintiff may not maintain the action, because by his plea to the charge, he aided and abetted his conviction. This application of the law of contributory negligence is, it must be owuied, a novelty. The defense of contributory negligence is no answer to an action for an'intentional tort. Bish. on Non-Contract Law, § 475; Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 267. It is law, however, that the thing to which a man consents, he may not allege as an actionable injury; the fundamental principle being volenti non fit injuria. Broom’s Maxims, 267; Bish. on Non-Contract Law, § 49. But, in reason, as the terms of the maxim import, and the courts in countless cases have adjudged, an involuntary consent is no consent. Since then the demurrer admits the plea of guilty to be the effect of defendant’s fraud, duress and conspiracy, such plea implies no consent to the plaintiff’s conviction, and is ineffectual as a defense to the act. The conclusion is that our law is not subject to the reproach of affording no relief for the monstrous wrong apparent on the complaint and admitted by the demurrer. Judgment reversed with costs and judgment for plaintiff on demurrer with leave to defendant to answer over on payment of costs.

Bischoff, J., concurs.

Daly, 0. J.

The plaintiff was about to be tried upon a criminal charge of which he was innocent, when the prosecutor induced him to plead guilty by the false representation that to do so would secure his release. The result was his conviction and imprisonment for the crime; and now he brings an action to recover of the prosecutor damages for the false charge .and malicious prosecution ; and it being necessary in such an action for the plaintiff to show that the prosecution terminated in his favor, he seeks to avoid the effect of the conviction by showing that it was procured by the fraud referred to. It is not to be questioned that if an innocent person were convicted by perjured testimony, by the spiriting away of his witnesses or by the suppression of his evidence the conviction would go for naught and the termination of the prosecution would, for the fraud practiced be no bar to his recovery of damages against the party who committed it. And so if the person were induced to plead guilty by the representation of any fact, or by any fraudulent promise; for in such a case he might be induced to rely upon the representation or promise. In this case there was no representation of fact, but in the representation that a plea of guilty “would benefit the plaintiff and would terminate the proceedings against him and that he would be released from arrest and imprisonment,” there was implied the knowledge of some fact, circumstance, usage, or precedent or the promise of some aid and interposition which would effect suspension of sentence and punishment. Such a representation would undoubtedly affect an ignorant mind, and if falsely made, as alleged, and as admitted by the demurrer, would constitute actual fraud. The demurrer to the complaint, therefore, should have been overruled and the judgment thereon must be reversed. Judgment reversed with costs and demurrer overruled' with costs and judgment thereon ordered for plaintiff with leave to defendant to answer over on payment of costs.


text:
    Alfred Pionier, Resp’t, v. John E. Alexander, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    Judgment—Pleadings—Proof.
    A judgment must be secundum allegata et probata.

    Appeal from a judgment of the district court in the city of New York for the third judicial district rendered by the justice, without a jury, in favor of the plaintiff. Action for services.

      Henry G. Harris, for app’lt; Mias Rosenthal, for resp’t.
   Bischoff, J.

The plaintiff sued to recover the sum of $152.-50, the amount claimed being made up of wages for ten weeks, at $15 per week, and an item of $2.50 for materials furnished. By the plaintiff’s evidence it ought to established the existence of a contract of hiring for these ten weeks and the plaintiffs due performance. To the contrary appears the defendant’s evidence that there was no such contract, that plaintiff had been “laid off” and that $40 had been paid him by defendant from time to time, more as an act of charity than for any other reason. Plaintiff admitted that $15 had been paid him, when computing the amount of his claim, as appears from the bill of particulars. The justice rendered judgment in favor of the plaintiff, in the sum of $58.50 exclusive of costs, and from this judgment the defendant appeals. In view of the rule that a judgment must be a secundum allegata et probata, it is clear that this appeal should prevail. By accepting the plaintiff’s evidence as true, the justice should have awarded the full amount claimed. On the other hand, had he believed the defendant's witnesses, a judgment for the defendant should have resulted. It is true that a recovery of $127.50 might have been had in view of the defendant’s testimony that he had paid plaintiff $25 more than such plaintiff admitted having received during the period in question, but in no aspect of the case is the judgment as rendered to be supported. See Fuld v. Kahn, 4 Misc. R. 600; 54 St. Rep. 134. Judgment reversed and new trial ordered, with costs to abide the event All concur.


text:
    Peter Hay, Resp’t, v. Rosalie Muller, as Executrix etc., App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Trial—Dismissal of complaint.
    It is not error to refuse to dismiss the complaint in replevin for defect of proof of value.

      2. Same—Charge.
    Nor is it error to refuse to charge that the verdict must be for the return of the goods or six cents damages.
    3. Same.
    Nor is it error to refuse to charge that, if the jury find there is no evidence as to the value sufficient for them to consider, they should find a verdict for six cents.
    4. Appeal—Reversal.
    Where a case is simple and of trifling importance, and has been twice tried with a verdict each time for the plaintiff, the judgment will not be reversed for an error in evidence which the court can see is of no substantial prejudice.
    Appeal from a judgment of the general term of the city court affirming judgment on verdict. Replevin against executrix for goods of her testator received by him on loan, and by her wrongfully detained. Other essential facts appear in the opinion.

      É. J. Bischoff {John A. Slraley, of counsel), for app’lt; Paul Wilcox {Charles A. Brodelc, of counsel), for resp’t.
   Pryor, J.

In replevin, in the city court, for five lithographic stones, the plaintiff had judgment for the possession or else the value of the property. Upon two grounds, each in itself sufficient we are unable to review the evidence on the trial; first, because of the affirmative below; and secondly, because, by its true construction, the appeal is from the judgment only, and not also from the order denying a new trial. Still, we may look into the record to ascertain whether any essential fact be substantially without proof; provided the appellant has raised the point by a sufficiently specific objection. This she has done. By motion to dismiss the complaint, she presents the point that no evidence was given of the value of the stones. But, the position is obviously untenable. Upon the proofs it is clear to demonstration that the stones were of some value; and that was enough to sustain the action. But, suppose no evidence of value, still judgment for the plaintiff would not be defeated. True, the Code requires (§ 1730), that where, as here, the chattel was not replevid, “ the judgment must award to the plaintiff the sum fixed as the value thereof.” But this provision is manifestly for the benefit of a plaintiff only, to the end that should ■execution fail to bring him possession of the chattel, he may be indemnified by payment of its value. Plainly a defendant is not prejudiced by omission of the award from the judgment, and so is not aggrieved by the absence of evidence of value. Hence, although the jury have not found the value of the property, a plaintiff, if he will, may take judgment for possession merely. Hammond v. Morgan, 101 N. Y. 179. Button v. Chapin, 7 Civ. Pro., 278, decides nothing to the contrary, but only that when the value is awarded by the judgment, it must be the value at the time of the trial and not at the date of the demand. As some value was shown, and as plaintiff was entitled to judgment for possession at all events, it was not error to deny the motion to . dismiss for defect of proof of value.

Besides the motion to dismiss, the defendant requested a charge as follows: “ That there is no evidence of value proved in this case; and that, in the event of the jury finding for the plaintiff, the verdict must be for the return or for six cents damages.” How, there was evidence of value ; and as the court could not charge one proposition of the request, it was not error to refuse all. Eliminating, however, the faulty clause,mnd still the request was not allowable. If successful the plaintiff was entitled to judgment of possession with damages; not in the alternative for possession or damages. Code, § 1730. Still another request was, “ that in the event the jury find there is no evidence as to the value sufficient for them to consider, they should find a verdict for only six cents. It is apparent already that there was evidence of value for consideration by the jury, and they were not authorized to find the contrary. Again, whether there be evidence for the jury, is, by fundamental principle, a question of law for the court. Nelson v. Easton & A. R. R. Co., herewith decided, 58 St. Hep.-. This part of the request being inadmissible, vitiates the whole, and the whole was rightly refused. A more perplexing problem than any hitherto discussed, is presented by an objection to evidence. The answer, in due form, challenged the fact that defendant ever had possession of the chattels; and to prove it, the plaintiff himself testified that he delivered it “ to Gustav Muller’s establishment Mo. 62 Duane Street.” As the question did not apparently call for this response, the defendant was not remiss in allowing it. But when the answer was given she moved to strike it out, “ upon the ground that it shows a personal transaction between the "witness and the deceased Gustav Muller.” To a denial of the motion exception' was taken; and the question is, whether the evidence be incompetent under section 829 of the Code. Was the answer a disclosure of a personal transaction between the witness, (plaintiff), and the decedent defendant’s testator ? That it was, is thought to be settled by -our decision in Gregory v. Fitchner, 27 Abb. N. C. 86; 38 St. Rep. 192. That was a border case and its authority is not to be" extended a hair’s breadth beyond the precise predicament of fact there presented. The action was trover for a parcel of jewelry ; and to identify the articles converted, the plaintiff testified that she delivered them to the decedent in a box, through the instrumentality of a third person ignorant of the contents of the box. We held that, in effect, the delivery was by the plaintiff to the deceased, and so was a personal transaction. That this action is against the executrix, does not differ the case, for so it was in Gregory v. Fitchner. If the cases are distinguishable, it is by a line almost if not altogether too faint and too fine for judicial discrimination. Here the chattels were delivered by the plaintiff at the establishment ” of the deceased—not to him personally—-and they came into his possesion by the agency of others. Assuming the evidence to be-within the scope of our previous adjudication, and so wrongfully received, the error was repaired by cumulative testimony to thefact1 Olcott v Kohlsaat, 27 St. Rep., 900. Another witness swore positively to the possession of the stones by the deceased; and his son said “ we returned them.” True, he denied it; but nevertheless the jury may have believed the alleged .admission. We should not be justified in reversing the judgment for error, if error there was, in receiving the evidence. “ Although the ruling is-undoubtedly subject to criticism, its effect can hardly have been seriously injurious to the plaintiff; certainly not harmful enough to warrant a reversal. We think there ought not to be any more trials of this action. It involves simple issues of fact which two-out of three judges have decided in favor of the defendant. Mo substantial error is shown to have occurred upon the last trial, and the judgment should be affirmed.” Yeandle v. Yeandle, 40 St. Rep., 791, 792. So here; the action involved simple issues of fact, and a trifling sum of money; it has been tried twice, and each time the verdict was for the plaintiff. We are of the opinion that the litigation should cease; and to that end we affirm the-, judgment, with costs.

All concur.