text:
    Caroline Amanda McCready, App’lt, v. Farmers’ Loan and Trust Company, App’lt. William Whaley, as Administrator, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Reference—Power of referee.
    The report of a referee appointed to hear and determine, after it is filed, cannot be sent back to him to take further testimony.
    Appeal from an order sending back to the referee his report for the purpose of taking further testimony.

      David McClure and Charles Steele, for app’lts; Charles A. Jackson, for resp’t.
   Parker, J.

After the referee had made his report in the suit which was referred to hear and determine, leaving him without further power, except to settle the case on appeal, the court, at special term, “ordered that the report of William H. Willis, Esq., the referee herein, which was filed herein on the 5th day of April, 1894, be, and it is hereby, sent back to said referee, for the purpose of taking testimony in regard to the commissions alleged to be due toWilliamWhaley, as administrator of Louisine W. Whaley, deceased, and receiving evidence on behalf of said administrator, as well as of the other parties hereto, in regard to said matter, and to allow the said administrator to cross-examine the said Nathaniel L. McCready in regard to his testimony on said matter, and to make such legal objections thereto as he may see fit.” Our attention is not called to any statutory provision authorizing such practice. Under § 1228 of the Code, a referee’s report, in an action where the whole issue is one of fact, stands as the decision of the court; and, in other than a few exceptional cases, judgment is entered thereon by the clerk. After his report has been filed, he cannot proceed further in the taking of testimony looking to, or which might result in a change of decision. That power has passed from him, and the special term cannot restore it, let alone compel its exercise. If the record of the trial shows error, as against the defeated party, his remedy is by appeal; otherwise, the judgment must stand, unless there exist such facts outside the record as entitle him to a new trial. The grounds upon which the granting of a new trial may be predicated need not be adverted to, nor need we consider whether the affidavits before the special term would have supported an order granting a new trial, for no such order was made or asked for. Therefore, we have not that question before us. The court did not grant a new trial, and appoint the same person or another to act as referee, specifying in the order, as required by rule 31 of the general rules of practice, the grounds upon which the motion was granted. Instead, it treated the report of the referee as something which could be recalled and corrected in accordance with evidence, to be presented, which should conflict with that upon which it was based, —the referee as having the power to take other testimony, and render a different judgment, if put in motion by the special term, and the court as having the authority to specify the subjects as to which further evidence should be taken, and, necessarily, the respects in which a different decision would be permissible. Ross v. Ross, 31 Hun, 140, and the cases cited in the opinion of Brown, J., support the position taken. The order should be reversed, with costs and printing disbursements, and the motion denied, with $10 costs.

All concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    R. Baring Gould, as Trustee, etc., App’lt and Resp’t, v. John A. Rutherfurd et al., App’lts and Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894)
    W ILLS—CONSTBUCTION.
    The income of a trust estate, not disposed of during the suspension of power of alienation, belongs to persons entitled to the next eventual estate.
    Appeal by plaintiff from so much of the judgment as relates to costs, and, by some of the defendants, -from the part which does not relate to costs.

      John V. Bouvier, Jr., for app’lt Gould; H. R. Squier (G. F. Thomson, of counsel), for app’lts Myers and others; B. Tuska, for respt’s.
   Van Brunt, P. J.

It seems to us that it would be difficult to imagine a case to which the statute in reference to undisposed of rents and profits could be intended to apply if it does not control the case at bar. It is urged upon the part of the appellants that the income which Matilda Myers, one of the beneficiaries, was entitled to receive as long as she lived, devolved upon her sister at her death. An examination of the terms of the will, however, does not bear out any such construction pond such a result can be arrived at only by mating provisions in the will for a contingency which the testator himself does not seem to have anticipated. He gives and bequeaths his personal property, remaining after certain specific dispositions, to the plaintiffs, as trustees, in trust to collect, invest, and reinvest the same, and pay the income thereof in equal shares to his sisters, Matilda Myers and Louisa Myers. He further provides that, at the death of the last surviving of his sisters, one-half of the principal of his estate shall go to his friend and partner, John A. Rutherfurd, forever. Matilda Myers, one of the beneficiaries under the will, having died, there appears to be no disposition of the income of the share the income of which she was entitled to recover, during her life. It is to be observed that the suspension of the power of alienation in respect to this trust estate extends, as to the whole of it, to the death of the survivor of the two sisters. There is thus a valid suspension of the power of alienation, during the continuance of which there is no disposition made of one-half of the rents and profits. Hence, under the statute, such rents and profits belong to the persons entitled to the next eventual estate.

There is no ground for the claim that the surviving sister is entitled to hold the same. There is no such provision in the will. The income is given in equal shares to the two sisters, namely, one-half of the income to each; and, when Matilda died, there was no disposition of that which she would have received had she continued living. Neither is there any ground for the claim that such income is payable to the next of kin. The provisions of the-statute expressly provide for a' different disposition, and one which is probably more in harmony with the wishes of the testator. Indeed, it may safely be assumed that the will in question was made having in view the provisions of the statute in reference to undisposed of income, rather than that the testator was ignorant of the law, and had an intention in respect to the income to which he gave no expression. The defendants Rutherfurd certainly will be entitled to receive absolutely the whole of the fund from which the income arises upon the termination of the intermediate estate; and, as has already been observed, if they do not hold the next eventual estate, it is difficult to see where it is located.

There is no ground for the objection in regard to the disposition made as to costs. There would be no propriety in taxing the successful party with the payment of the whole of the expenses of this litigation. The costs are charged against the principal of the fund which forms the subject-matter of the trust, and we think properly so charged.

It may be observed in passing' that some question is made in regard to the income which accrued during the lifetime of Matilda Myers, and which had not been-paid over to her at the time of her death. An examination of the case shows that no disposition was made of this income by the decree, except from the time of the death of Matilda Myers, and therefore there is no such question involved on this appeal.

The judgment should therefore be affirmed, with costs to the respondent, to be paid out of the principal of the fund.

All concur.


author: O’Brien, J.

text:
    Patrick H. McCooey, Resp’t, v. Forty-Second St. and Grand St. Ferry Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Evidence—Maps.
    Map of the locality where the accident occurred is admissible in an action for personal injuries.
    2. Appeal—Fibst instance.
    A ground of objection, not taken at the trial, is no.t available on appeal.
    3. Damages—Excessive.
    A verdict for $1,500 for personal injuries was held not to be excessive in view of the evidence in this case.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new tcial.

      Henry A. Robinson, for app’lt; G. Washbourne Smith, for resp’t.
   O’Brien, J.

This action was brought to recover damages for injuries alleged to have been received by plaintiff while engaged in work as a laborer on the 18th of December, 1891. According to the version given by plaintiff and his witnesses, it appears that on that day, while engaged in building a cable railroad in Broadway, just south of Thirty-fourth street, he was knocked down by the nigh horse attached to one of defendant’s cars going in a southerly direction, and his right foot went under a Broadway car, passing south at that instant, and was run over and injured. Plaintiff was engaged at the time of the accident in the work of replacing a cast-iron manhole cover over the entrance to a vault. The place where he was working was in a space between the four tracks of the Sixth Avenue Railroad Company and the Broadway & Seventh Avenue Railroad Company, where they cross south of Thirty-fourth street, which space is called “The Diamond.” Having raised the manhole cover, and permitted three or four men to go down into the manhole to work, the plaintiff and a fellow workman were engaged in replacing the cover, the accident happening just while the plaintiff was letting the cover down in its place, wifh the bar inserted in the cover, and while he was in a stooping position. Testimony was given to show that the defendant’s car was going at the rate of at least five and one-half miles an hour; that the driver was not looking in the direction in which he was going, but towards the east, and though shouted to, to stop, when the horses were twenty-five to thirty feet away (which, as shown by an expert, would have been sufficient space within which to have stopped the car), the driver paid no attention to these signals, but drove right on, striking the plaintiff, and causing the injuries for which he sued. The plaintiff being lawfully engaged, therefore, in a work upon the streets, and near the track over which the defendant’s cars ran, and being struck while so engaged by a car running at a considerable rate of speed, the question of the defendant’s negligence and the plaintiff’s freedom from contributory negligence was properly submitted to the jury. It was shown that the plaintiff was thrown down in such a position that the wheel of the Broadway car went over his right foot, starting at the toes, and running off near the ankle, wrenching the ankle, and tearing the heel of the shoe loose. He remained in the hospital five days, was then taken home, and was laid up by the injury a little over four months, during which he suffered pain, and was unable to use his foot or to work, and during two or three of such months obliged to use crutches. The amount awarded of $1,500 was not, under the circumstances, excessive.

This leaves, as the only grounds upon which the verdict or judgment can be assailed, the exceptions taken to the admission of evidence. • The first is to the introduction in evidence of a map, and permitting the witness to state that the distance between the tracks of the Sixth Avenue road, and at the point where the accident occurred, was five feet “three inches. It is urged that this was entirely irrelevant, because the Sixth avenue road was a stranger to the suit. But the simple answer to this objection, it seems to us, clearly appears from the record, wherein it is shown that such testimony was elicited on ’the testimony of the city surveyor, who produced a map showing the location of the accident, and upon which the various distances of the several tracks from the place where the accident occurred were marked. That it is competent to sh<jw the surroundings of the accident, and for that purpose to introduce a map properly authenticated and proved, has been many times held.

The next objection relates to a hypothetical question asked of a doctor, and which is sought to be sustained by the line of (jases which hold that the question must contain the facts assumed, so that the jury can have before them the facts in the expert’s mind upon which he bases his answer to the hypothetical question. These cases are not available to the appellant, because his objection was not put upon the ground that the question did not contain all the facts necessary to enable the expert to answer, but upon the ground of its incompetency. That such evidence was not incompetent is not only apparent from its character, but from the fact appearing from the record that the defendant’s own counsel had, in a series of hypothetical questions, endeavored to elict like testimony.

Other exceptions relied upon by appellant were to rulings of the court in permitting the doctor to give his opinion as to the probable duration of the injuries. Such questions were objected to, not as to form, but as being incompetent; and the objection thus made was not sufficent to call the attention of the trial judge to the ground now relied upon. That it is competent in these cases to show what results will flow with reasonable certainty from injuries received, as well as the right to recover for such injuries, has been frequently recognized. The witness under examination was a skilled surgeon, who was in every way qualified to give the information which the questions were directed to elicting.

It is unnecessary to notice in detail the other objections relied upon on this appeal, it being sufficient to say that they are wanting either in form or substance. Upon the whole case, we think that the verdict of the jury was sustained by the evidence; that the damages were not excessive, and that the judgment is right, and should be affirmed, with costs.

All concur.


text:
    John McQueen, App’lt, v. Charles E. Lockwood, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Evidence—Admissions—Pleadings.
    Evidence of facts admitted by the pleadings need not be given.
    Appeal from a judgment entered on a dismissal of the complaint, and from an order denying a motion for a new trial.

      H. H. Whitman, for app’lt; W. B. Ellison, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the . balance of the proceeds of the discount of certain notes belonging to and made by the Powerville Felt Roofing Company, Limited, and which the said company had intrusted to the defendant, its secretary, to have discounted, and with the proceeds thereof to pay certain indebtedness of the company; and also for a balance upon certain cash which the said company had intrusted to the defendant for the same purpose. The complaint alleges that the defendant had fraudulently appropriated and converted to his own use the said balance. The answer admitted the receipt of the note, and the amount realized thereon, and also the receipt of the cash; but denied that the defendant had failed or neglected to pay over said balance for the benefit of said company or the creditors thereof, or that he had wrongfully appropriated and converted the same to his own use.

We think that the errors, which have arisen in the trial of this cause were due to the fact that both the parties and the court lost sight of the admissions contained in the pleadings. The defendant upon this argument states that the answer was, in effect, a general denial; whereas, instead of being a general denial, it admitted all the allegations of the complaint except that the defendant had failed to apply to the purposes designated all the moneys which he had received from the company. Upon the trial, the plaintiff seems to have thought it incumbent upon him to show by evidence that the relation of debtor and creditor did not exist between the company and the defendant by reason of the transactions alleged in the complaint; whereas, in fact, the defendant had admitted all the allegations of the complaint in regard to the receipt of the notes and cash for special purposes, and it required no evidence to establish- the conditions under which he held the cash and the proceeds of the discounts of the notes. All that it was necessary for the plaintiff to prove in order to make out a cause of action was that the defendant had failed to apply the money in the manner in which he was under obligation to do. Evidence seems to have been given from which this fact might very reasonably be inferred. It was shown that, according to the accounts, there was this balance due from the defendant; that it was demanded of him ; that he promised to pay it, and that he did not pay it; that at the time of the demand there was no denial of the fact that he had not applied the money to the purposes designated, but that he was answerable therefor.

It is stated upon the argument of this appeal that the defendant could show that he had applied the money in the manner required by^the terms under which he had received it. But; no evidence of this kind was offered, and, if the defendant was able to establish this application of the moneys received by him, it was incumbent upon him so to do. The court seems to have been of the opinion that the evidence did not establish the fact that the defendant held this money in a fiduciary capacity, having no title thereto himself, and was bound to apply it in accordance with the terms of his trust. It is undoubtedly true that the evidence failed to establish any such relation between the company and the defendant. But the existence of such a relation had been admitted by the pleadings, and it was not necessary under such circumstances to establish it by proof. We are of the opinion, therefore, that the learned court erred in dismissing the complaint, and that the defendant should have been put upon his proof to establish the application of the money in the manner in which he was under «obligation to do. The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: Parker, J.

text:
    William A. Hardt et al., Resp’ts, v. Moses S. Levy, Impleaded etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Receiver—Vacating order of appointment.
    An order appointing a receiver will not be vacated, after the lapse of two years, during which he has expended large sums in discharging the duties of his office, where the moving party knew, at the time of his appointment, the facts upon which his motion is based, without appearing to oppose such appointment.
    Appeal from an order requiring the receiver to account, and refusing to vacate the order by which he was appointed.

      Benjamin N. Cardozo, for app’lt; George Zabriskie, for resp'ts.
   Parker, J.

We held at the October term of 1893, 55 St. Rep. 706, that, while an action by the general creditors of a firm for the appointment of a receiver and the disposition of its assets is maintainable against a limited partnership, it is not against a general partnership ; that the record disclosed the existence of a general, and not a limited, partnership by and between these defendants; and reversed the judgment which the special term had granted to the plaintiffs. The suit was commenced May 18, 1891. by the service of summons and complaint on the defendant Augustus H. Levy. On the same day an order to show cause, accompanied by affidavits, was served upon him, directing that the defendants show cause at chambers, May 21, 1891, why a receiver of the pi’operty and assets of the said limited partnership should not be appointed, and a temporary injunction granted. There was no appearance in opposition to the motion, which resulted in plaintiff’s favor, Henry Winthrop Gray being appointed receiver of all the property, assets, and effects of the defendant’s firm, Levy Bros. & Co. In due course the receiver gave his bond, which was approved, and entered upon the discharge of the duties of the office. At the outset he found the sheriff in possession of the store occupied by the defendants, and of certain merchandise and other property therein. One of the coroners was also in possession of merchandise of considerable value. One Benjamin Grouer, claiming to be a receiver appointed in proceedings supplementary to execution issued on a judgment, entered in the county of Kings, also claimed possession of the merchandise and property of which Gray was appointed receiver. Understanding it to be his duty to take all necessary proceedings to get possession of the property, he promptly took the necessary steps in that direction, and in the end was successful. He also took proceedings to collect the accounts and turn the assets of the property into cash, in the doing of which he was obliged to employ counsel, clerics and assistants, necessitating the expenditure of considerable sums of money. During all this period of time this defendant knew that the receiver was in possession as an officer of the court, performing services and expending money for the benefit of the estate, but neither he nor his codefendants took any steps to have him discharged as receiver. Nearly two years later the plaintiffs obtained a judgment against the defendants in accordance with the prayer of their complaint, which, as we have already remarked, was reversed at the end of the following October term. After that, this appellant made a motion to dissolve the injunction and to vacate the order appointing the receiver, and he insists upon this appeal from the order denying his motion that such a result logically and necessarily followed from the prior decision of this court.

Were it not for the conduct of the appellant for over two years and a half, during which time the receiver was employing his skill and expending money for the benefit of the estate, we should feel constrained to recognize the correctness of his contention. But the defendant made no motion to dissolve the injunction and discharge the receiver, although he knew, at almost the hour of the original appointment, of the facts upon which the motion was based. Certain of the affidavits referred to on this motion were made May 25, 1891,—four days after the temporary receiver was appointed. September 12, 1891, Moses S. Levy verified his amended answer to the complaint, so that he must have appeared at least some days before September 12th, and in his answer he denied that the defendants’ firm was a limited partnerphip. Without more of detail, it should be said that the defendants had full knowledge of all-the facts upon which this motion was founded, and that, having it, they did not appear-to oppose the appointment of the receiver; and, having it, they saw him take possession of the estate of the partnership, and witnessed his struggle with the sheriff, coroner and the receiver in proceedings supplementary to execution for the possession of portions of the property, all of which they well knew entailed upon him, as an officer of the court, much of labor and expense. Now, after all this lapse of time, they seek to strip this officer of the court of all the moneys in his possession, treat him as a trespasser, and leave him to personally bear the burden of expense necessarily and in good faith incurred by him while attempting to carry out the orders of the court. They were silent when they should have spoken, and now will not be heard to insist that the receiver shall not be permitted to render an account of his proceedings, and make such disposition of the money in his possession as to the court shall seem in accordance with law and justice.

The order should be affirmed, with ten dollars costs and printing disbursements.


text:
    William A. Hardt et al., Pl’ffs, v. Julius Levy et al., Defts. Kings County Trust Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Receiver—Actions against.
    The court will not consent that a receiver should he annoyed and vexed by an action charging that he is a trespasser while performing its commands.
    Appeal from an order withdrawing* leave of court previously-granted to sue the receiver, etc.

      Benjamin N. Cardozo, Jr., for app’lt; George Zabriskie, for the receiver, resp’t.
   Parker, J.

We have already decided at this term of the court, 61 St. Rep. 38, that the special term properly refused to vacate the order of May 21, 1891, which, among other things, appointed Henry Winthrop Cray receiver, and rightly directed that the receiver should account before a referee appointed for that purpose, and for the usual action in such cases, upon full compliance with which the order directs that he shall be discharged. -If our position in that case be well taken, it follows that the court should not give consent that its officer, while proceeding in the discharge of a duty imposed upon him by the court, and in the manner directed by it,-should at the same time be subjected to the annoyance and vexation of an action charging that he is a trespasser while performing the commands of the court.

The order should be affirmed, with ten dollars costs and printing disbursements.


author: Van Brunt, P. J. Parker, J.

text:
    The People, Resp’t, v. Sara B. Chase, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Evidence—Dying declarations.
    Statements of the decedent, made under a sense of impending danger, are admissible as dying declarations, though he did not die until several-days afterwards.
    Appeal from a judgment of conviction of manslaughter.

      J. E. Graybill, for app’lt; John D. Lindsay, for the People.
   Van Brunt, P. J.

We entirely agree with the rule laid down by Mr. Justice Parker in his opinion governing the admission of dying declarations; but we do not think he gives sufficient force to the testimony showing the condition of mind of the deceased at the time of making the declaration which is the subject of the exception which is considered fatal to the conviction in the case at bar. We think that, had death followed quickly after the making of the declaration in question, no doubt could possibly have arisen but that the witness showed that condition of mind in the deceased which justified the court in admitting as evidence a dying declaration; but the fact that the deceased lived nearly three days after making the declaration naturally raises a doubt which otherwise would not have existed. Under such circumstances, it does not seem so certain that the declaration was made under the shadow of impending dissolution as where death follows speedily thereafter. This, however, should have but little effect in determining the question as to the admissibility of the declaration. It is the condition of mind of the declarant which determines that question. If it appears that the declarant is conscious of impending death, and without expectation or hope of recovery, even if the final event is postponed longer than bad been anticipated, such postponement in no manner affects the condition of the mind of the declarant at the time of the making of the declaration; nor is the situation of the declarant less solemn and awful, nor is every motive to falsity less completely silent. We think, therefore, upon a consideration of the testimony in question, that, at the time the declarant made the declaration which is the subject of criticism upon this appeal, it appeared conclusively that she believed her situation hopeless; that she believed that death was at hand; and that she was without expectation or hope of recovery.

It is not necessary that any specific words or phrases shall be used by the declarant to exhibit the condition of mind requisite to make a dying declaration admissible; but the question to be determined is, was the court justified in believing from the nature of the evidence that her condition of mind was such as the rule which we have approved requires? Therefore, in different cases, there are variations in the situation and changes of expression, and hence no fixed or absolute standard or formula can be established ; but the question of the condition of mind must be determined by the facts and circumstances which surround each individual case. ■ In the case at bar the evidence upon which the dying declaration was admitted was the testimony of the mother of the deceased, who naturally was asntated, because of the impending death of her child; and it is not strange that she was not able to be absolutely certain in regard to the phraseology which was used by her daughter in connection with the dying declaration indicating her state of mind. But the fact that she was not certain of the precise language that was used does not, in our •judgment, detract from the value of her testimony, but rather impresses us with the idea that the witness was not willing to make her statement any more exact than that which her absolute recollection required. But, although she may not have been certain of the precise words which were used by her daughter, it is evident- that she honestly gives the substance of that which the daughter said, and that that substance indicated that the daughter knew that she had to die, and that there was no hope of her recovery. This being the deduction which, in our opinion, may not only properly, but must inevitably, be drawn from an examination of this witness’ testimony, we think the dying declaration was admissible. We feel all the force of the argument that death did not follow speedily after the making of this declaration ; but it appears from the evidence in the case that both the mother and the. daughter did not know but what the next minute death would occur. It seems to us, therefore, that the declaration was made under the circumstances which the law requires in order that it should be admitted in evidence against a defendant charged with crime.

The judgment should be affirmed.

Follett, J., concurs.

Parker, J.

(dissenting).— Formerly it was the rule that declarations were admissible as dying declarations if made when in extremis, and under sense of impending dissolution. Later the conclusion was reached by the courts that the mere sense of impending death did not constitute such a guaranty of truthfulness as to warrant an omission of the oath and cross-examination. This conclusion found expression in Woodcock's case, 1 Leach, 500, Lord Chief Baron Eyre asserting: “ That the only state which could safely be accepted as sufficient to render the declarations admissible is the state in which every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”

An examination of People v. Smith, 104 N. Y. 491-502; 5 St. Rep. 759, and of the authorities collated in a note to People v. Evans, 4 N. Y. Cr. Rep. 218, makes it apparent that the rule is authoritatively established that, to render dying declarations admissible, it will not suffice to show that the declarant believed he was about to die, but it must also be proved that he was at the time without any hope of recovery. Judge Andrews, in People v. Smith, supra, stated the rule as follows; "“Before admitting them, it shall be made clearly to appear that the declarant was in fact resting under the shadow of death from the fatal stroke, and so believed, entertaining no hope of recovery.”

Whether declarations are made under circumstances which entitle them to be received in evidence under the rule stated presents a question which the court has to consider and determine. It is not bound to follow blindly the statement of the declarant that he believes he is about to die, and is without any hope of recovery. If the other facts proved convince the court that he did at the time have such hope, notwithstanding he went through the formality of saying he did not, the declarations could not be received. Neither is it necessary that the declarant should say in so many words, “ I believe I am about to die, and I am without any hope of recovery,” in order to entitle the declarations to be received in evidence. It is sufficient if his conduct and his statement, considered together, are of such a character as should convince the court that, at the time of making the declarations, the declarant believed that he was about to die, and that from him all hope of recovery had departed. When, in the progress of the trial, the district attorney had reached the point where he was prepared to introduce in evidence what he claimed to be the dying declarations of Miss Manzoni, the court gave the jury a recess, in order that a preliminary examination might be had in their absence, which should enable the court to pass upon its admissibility. This action was wisely taken, for the purpose of preventing any injustice resulting to the defendant, in the event that the evidence offered on the part of the people should not be admissible. The witness called for that purpose was Eliza Biggert, the mother of the dead girl. In response to some of the questions put by the district attorney, she said: “Q. What did she say? A. She said: ‘ Mama, I believe I am going to die. I would like to live to show you what a good girl I could be, but I won’t have the chance.’ The Court: Q. You were alone with your daughter at the time? A. Yes, sir. She said: 11 know I shall die. Donovan, mama, Florence Donovan has been the cause of my trouble. He wanted me to have an operation performed, and get rid of the child. First, I went to Mrs. Diemer’s. She operated on me three times, and then she sent me to Mrs. Chase. She operated on me once, and the baby was born. Florence Donovan’s reason for wanting me to do so was that he couldn’t support me, and give me as good a home as I had, and he gave me the money to get rid of the child.’ There is something else: ‘ When he first knew, when Florence first knew o'f my condition, he was to marry me and take me away, and so deceive the public, if the child lived, as to the age of it. When we came home, he had lost his position, or was about to lose it. Then he said that lie had lost his position, and could not take care of her.’ The court: Q. Or was about to lose it? A. Yes, sir; and was about to lose it. Q. How, which do you mean to make it, madame ? A. That he was about to lose it, but hadn’t yet at the time. Q. That he was about to lose his position, and could not take care of her at the time ? A. Ho, sir. Q. Then I will take it out. That he had lost his position ? A. Yes, sir; and it was at his suggestion then that she had the operation performed. Q How, you are quoting her, are you? I know it is hard work— A. Yes, sir; it is hard work. District Attorney: Q. How, you have stated all that Maggie said, that you recollect? A. Ho, sir; I think I haven't.”

On cross-examination she testified in part: Defendant’s counsel : !-Q. Was not your daughter at the time in regard to which you have just testified in a very weak condition? A. Ho, sir; she was very strong. When she was dying, she sat right up in the bed, and reached over like this [illustrating], and took hold of the mantlepiece, and raised herself right up in a sitting position, and was in a sitting position until she died. The Court: Q. And that was some time after, that she died ? A. Yes, sir; that was on the 10th, and she died on the 13th. Q. Could you tell that as indicative of her strenght at that time? A. Yes, sir; she was very strong. Defendant’s counsel: Q. Well, on that Friday she seemed pretty strong? A. Yes, sir; so strong that she could get out of bed if we would let her, herself. Q. Did you notice any remarks made by your daughter which would ordinarily be termed iflighty’ during the period immediately preceding this declaration? A. No, sir; I don’t know as I did. At times, if she woke up, she might talk a little ; but, when you questioned her, she was just as bright as she could be. She understood everything, and knew everything. Q. Didn’t she talk rather at random at times ? A. Sometimes. Q. Immediately around this period? A. No, sir; no more that period, nor as much as towards the last. As she grew nearer her death, she seemed to grow clearer. Q. Did she talk about any subject in a desultory way ? A. No, sir. Q. Did she state to you that she had absolutely no hope of recovery ? A. Yes, sir; she did. Q. Then, when you stated that you had given all that she said, that was not the case? She said more, then? A. She did, sir. Q. When you stated, in given her declaration, that you had given it all, she still said this which you - have not given? A. I think I said that, didn’t I? The Court: Q. No. Did she use those very words ? A. Yes, sir. Q. That she had no hope of recovery? A. Yes, sir. Did she use the words ‘hope of recovery’? A. No; she said‘hope of getting well.’ Q. Then she didn’t say that she had no hope of recovery ? A. No, sir ; I supposed it meant the same thing. Q. No ; we want her exact words. She said that she had no hope of getting well ? A. Yes, sir. Q. And did she nse the word ‘hope’? A. Yes,- sir; I am sure she did. Defendant’s counsel: Now, are you absolutely sure that she made use of that expression ? A. She did. She said that, but she might have said it in a little different words. The Court: Q. Now, that is what we want. If it was in different words, counsel is entitled to them. A. I think I did say before what she said,—that she hoped to get well, but she believed she would not get well. I think those are the words that I used. She had no chance, I believe,—no chance. The court: Q. Then you don’t say that she said‘hoped’? A. No, sir; ‘no chance to get well;’, that is it. Defendant’s counsel: Q. Then you now change the wording of the declaration, as heretofore given by you ? A. I don’t know. I don’t know whether I change it or not. Q. You change it now, in accordance with your last answer ? A. I don’t know that I change it. I forget what I said before. Q. Very well. What did she say in regard to her hope, of recovery? Now, the exact words. Don’t answer the question immediately, but think, and give us the exact words that she said. A. She said that she would like to recover. ‘I would like to live, but I know I can’t live,’ or ‘I have no’— Just let me think a moment. But I know I can’t,’ I think that was the word. Q. Then you are not sure as to the exact words ? A. I will remember it in a minute or so. I will think. She said : ‘Mama, I would like to live, but I know I can’t live, to show you what a good girl I could be yet.’ Q. Did she say that she expected to die, then ? A. Yes, sir ; that she knew she couldn’t live. Q. Did she say how long she expected to live? A. No sir; no one could toll that. Q. She didn’t make the statement, then, to you, with death immediately staring her in the face ? You were not under the impression that she was going to die as soon as she uttered the words? A. Well, I was under the impression that she would die any minute. Q. Well, was she under the impression, from your conversation? A. Well, I think she must have been, or she couldn’t speak like that. She wouldn’t make use of that if she didn’t think so. Q. Well, she didn’t say anything that indicated that she expected to die immediately ? A. Well, she didn’t give me the minute or the hour. She said that she believed that she would die. Q. That she could not live ? A. Yes, sir. Q. She didn’t say that she had no hope of recovery ? A. No, sir; I don’t believe that she said that. Q. She didn’t say when she expected to die ? A. No, sir; I don’t think she could say that. Q. Did I understand you to say that, at the time, she could get up and go around the room ? A. If we let her. She was so strong. She was so strong up to the very last.”

The trial court, at the close of the examination, ruled that the declarations were admissible ; and, having in mind that experience induces appellate courts to appreciate the superior opportunities afforded to a trial court for rightly passing upon the sufficiency of preliminary proof, I have reached a different conclusion only after careful consideration and consultation. I am unable, after reading the evidence, to say that I am convinced that Miss Manzoni had no hope of recovery when she made the declarations to her mother. It is true that she said: “Mama, I believe I am going to die. I would like to live, to show you what a good girl I could be, but I know I won’t have the chance.” The tone of voice and accentuation with which this sentence was delivered would not unlikely have enabled the listener to determine whether she was wholly without hope of recovery. But either the trial court nor this court have had any assistence of that character. Those words could well be spoken by one dreading and fearning a fatal termination, and yet having hope that her usual good health and strength of body would enable her to pass the crisis safely. It does not appear that prior to that time she had been told by any one that there was no hope for her. Indeed, it does not appear that she had been warned that the result of her illness might prove fatal. It appears from the mother’s answers on cross-examination that at the moment of making the declarations, she was very strong; so strong that she could get out of bed if we would let her, herself.” This was three days before her death, and, from that time until almost her last hour, her physical strength seems to have been remarkably well sustained. Is it likely that one so young and strong, without warning from any source, would abandon all hope? Possibh', but it will not be presumed; it must be proved. Instead, we find the witness testifying that “she said that she hoped to get well, but she believed that she would not get well,”—a statement which would have been sufficient under the old rule, as we have observed, but wholly inadequate to meet the requirements of the one now established and rigorously enforced by the courts. Other portions of her testimony, it is true, tended to show that she could not recall that her daughter had said that she hoped to get well; •but the fact that she contradicted herself in that and other respects does not tend to strengthen the confidence of the court in her testimony, upon which the people solely relied as a foundation for the admission of the declarations so far considered. This is said in no unkindness, for it is easy to understand that a grief-stricken mother would not be able to accurately recall the words of her child, delivered under the circumstance-s surrounding the interview about which she testified; especially so when, at the time, she did not appreciate the necessity of carefully treasuring up every word and act, in order that ultimately they might tend to subserve the ends of justice. I advise a reversal of the judgment.


author: Follett, J.

text:
    The People, Resp’t, v. Eugene A. Marvin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Appeal—Harmless.
    On a trial of an indictment for printing circulars advertising counterfeit money, evidence that lire circulars were of a kind used by counterfeiters is not prejudicial to defendant, where the object of the circulars appears upon their face.
    Appeal from a judgment of conviction for printing a letter or circular offering counterfeit money for sale.

      William F. Howe, for app’lt; John D. Lindsay, for the People.
   Follett, J.

The defendant was indicted for the crime of feloniously printing, at the city of New7 York, on the 16th of December, 1892, a certain letter or circular, purporting to advertise and offer for sale and distribution counterfeit money, contrary to section 527 of the Penal Code. A copy of the circular was set out in the indictment, and was marked “ Ex. No. 2 ” on the trial. The defendant interposed the plea of not guilty, but he offered no evidence, except he called seven witnesses who testified that he had previously borne a good reputation. The jury rendered a verdict of guilty, and thereupon it was adjudged that the defendant be imprisoned in a state prison, at hard labor, for one year, and pay a fine of $1,000, and stand committed until paid, not exceeding one day for each dollar of the fine imposed, from and after the termination of the year’s imprisonment. The undisputed evidence in this case, which is of the most satisfactory and convincing character, shows that the defendant had been engaged in printing the circular set out in the indictment, and many others similar thereto, for four years. When his place of business was entered by the officers of the law, on the 16th of December, 1892, the circular set out in the indictment and similar ones, Exhibits Nos. 1 and 3, were being printed. It was testified that during four years preceding December 16,1892, millions of such circulars had been printed by the defendant, and a quantity of them so large was found in his place of business that it required three trucks to remove them to police headquarters. The defendant was not sworn, and, as before stated, no evidence was offered in his behalf, except of previous good reputation. 'He made no attempt to explain why he was engaged in printing the circulars, or who his employers were, or what use he intended to make- of them, or how he intended to dispose of them. The guilt of the defendant was proved beyond a shadow of a doubt. He now seeks a reversal of die judgment upon the ground that the court erred in admitting certain testimony.

Anthony Comstock was called as a witness, and testified that he was the chief special agent of the New York Society for the Suppression of Vice, and an inspector of the post-office department of the United States. He testified that in his official capacity he had frequently raided the places of business of men engaged in dealing in green goods,” or in advertising counterfeit money for sale, and had made many arrests, and in this way he had become familiar with their circulars, their literature, and the mode in which they conducted their business. He was allowed to testify, over the defendant’s objection and exception, that the circular set out in the indictment (Exhibit No. 2) was like those usually used by persons engaged in advertising counterfeit money for sale, lie was also allowed to testify, over a like objection, that printed circulars marked Exhibits Nos. 1, 3, and 8, inclusive, were of the kind and character in use by criminals engaged in such business. It seems to us that this testimony added nothing to the force and effect of the circulars themselves, which, on their face, furnish the most conclusive evidence of the character of the business in which the defendant was engaged, and for his purpose. Section 527 of the Penal Code, under which the indictment was found, declares that such papers and circulars “shall be deemed presumptive proof of the fraudulent character of such scheme.” As was said in People v. Chacon, 102 N. Y. 669 ; 1 St. Rep. 386: “ The case against the defendant was so strong and his murderous intent and his threats were so fully proven that evidence that Williams had heard of the threats, particularly after the court had just stricken out similar evidence as hearsay, could not have influenced the verdict; and the refusal to strike out the evidence, therefore, furnishes no reason for a reversal of the conviction.” People v. Buddensieck, 103 N. Y. 487; 3 St. Rep. 664; People v. Dimick, 107 N. Y. 131; 11 St. Rep. 739.

In the last case cited, it was said, after referring to §§ 542 and 684 of the Code of Criminal Procedure: “ These are mandates of the lawmaking power, and the court should, with reason and discretion, give them full force and effect. Gfiving them the observance due in this case, we find no exception in the record showing that the defendant has been prejudiced in respect to any substantial right/’

In case this testimony was incompetent—which we do not decide—it could not have been prejudicial to the defendant, or have affected his substantial rights. Mink, w.ho had been employed by defendant as a printer for several years, and Frosch, who had been so employed for four or five years, and who was found engaged in printing circulars when defendant’s place of business was entered, testified that they were then engaged in printing the circular set out in the indictment. Mink further testified that during the four years preceding December 16, 1892, he had printed millions of similar circulars. These two men were arrested, and the defendant, in protesting against it, said : “ You don’t want to hold these men. * * * I am responsible for anything they did. What they did, they did by my orders”. Bateman and Wellman, two employes of the defendant in this business, testified that the defendant had long been engaged in this business, and described the extent of it. No attempt was made to contradict any of this evidence; and it is apparent that the defendant deliberately engaged in the printing of these circulars, and that he knew the purpose for which they were printed. Evidence that similar circulars have been found in the possession of persons engaged in the business of selling, or pretending to sell, counterfeit money, and that they had been convicted, bore on no issue, and could not, under the case made by the people, have harmed the defendant.

As before stated, the defendant’s place of business was searched December 16, 1892, and, among other printed matter, a circular known as “ Ex. No. 8 ” was found which concludes as follows:

“ Keep this for reference.
“ When you are ready to come and see me, send me the following telegraph dispatch: A. Dupont, 304 Morris avenue, Elizabeth, New Jersey.”

In the defendant’s place of business the following letter was found pinned to Exhibit No. 8:

“Jersey City, December 12, 1892.
“ Friend Marvin :—Kindly print me an outfit of 10,000 same style as last, 5,000, A. Dupont, Elizabeth, New Jersey, and 5,000, H. Durand, 262 West 116th street, New York City. I want same circular I had last ordered, 5,000; 5,000, send copying ink. 5,000, send magazine No. 1. I would like to have them this week, as I ran out entirely of material.”

The defendant was arrested December 22, 1892.

Mr. Comstock was permitted to testify that between December 16 and 31, 1892, (the exact date he was unable to state), he visited No. 304 Morris avenue, Elizabeth, N. J., and found a new building with only one room on the first floor, which had a partition and a chair in it, the upper story being occupied as a dwelling. It is. difficult to see how this evidence could have prejudiced the defendant. The witness also testified that May 15, 1893, he visited Bridgeport, Conn., and that he there found circulars which were copies of those found in defendants place of business, and a bill for work done, which was marked “No: 11 ” for identification. The cashierof the defendant, Percy Wellman, testified that part of this bill was in defendant’s handwriting. This bill the court refused to receive in evidence, and it was stricken from the record. In this there was certainly no error. No error was committed by the court in receiving the evidence at folios 199 and 200, nor in permitting the cross-examination of the witness Tower by the district-attorney.

After a careful examination of the whple record, we are unable to find any error which affected the substantial rights of the defendant, and this seems to be a case to which § 542 of the Code of Criminal Procedure is particularly applicable: “After hearing the appeal, the court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

All concur.


author: O'Brien, J.

text:
    H. Koehler & Co., App’lts, v. James W. Brady, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Lease—Assignment—Waiver.
    An acceptance of rent by the lessor from an assignee of the lease waives a provision that the lease shall be void if assigned.
    2. Same—Redeem—Tender.
    In an action to redeem where the unexpired term of the lease exceeds five years, a tender of all rent in arrears, etc., within one year after the execution of a warrant in summary proceedings, entitles the lessee or his assignee to possession.
    Appeal from an order vacating a temporary injunction.

      Emanuel J. Myers, for app’lts; William E. Wyatt, for resp’t.
   O'Brien, J.

The complaint, in its prayer for relief, is susceptible of the view, either that the action is brought upon the theory that one McCabe, as a tenant at will, being in possession of the premises, after notice from plaintiffs, should remove, or, as contended by plaintiffs, that it is to redeem from the summary proceedings, and compel defendant to receive from them, as mortgagees and assignees of the lease made by the defendant landlord to one Daniel J. Foley, certain alleged arrears of rent, and charges and expenses incurred in summary proceedings. The facts are fully set forth in the complaint, showing that the plaintiffs advanced the sum of $1,800 to one McGrin for the purpose of enabling him to pay for the lease and fixtures of a store which McGrin had purchased from Wiseman, the assignee of the original tenant, Foley, and that, as security for the sum so advanced, plaintiffs received an assignment of the lease, and a mortgage on the fixtures. Subsequently, Mc-Gtin, without notice to plaintiffs, transferred whatever interest he had in the property to McCabe, who, having neglected to pay the rent, was ousted in summary proceedings brought by the defendant as landlord. Prior thereto, written notice of the interest which plaintiffs claim in the premises was given to the defendant, which notice contained a request that, if any arrearage of rent should ensue, they should be notified, so that they might pay the same; and, before the bringing of this action, they again notified the defendant of their willingness to pay the arrearages of rent, and expenses of the summary proceedings, and demanded possession of the premises. The grounds upon which such demand was resisted were—First, that the lease contained a covenant that an assignment thereof should not be made without the consent of the landlord, and that an assignment without such consent had worked a forfeiture; and, second, that the defendant, having got possession of the premises for failure of the tenant in possession to pay rent, cannot have such possession disturbed.

The answer to the first, upon the faots appearing, would seem to be furnished by the case of Murray v. Harway, 56 N. Y. 337, wherein it was held (headnote) that “where a lease contains a covenant on the part of the lessee not to assign,- with a forfeiture of the lease in case of breach, acceptance of rent by the lessor, accruing after an assignment, with knowledge thereof, is a waiver of the forfeiture; and the condition, once dispensed with, is dispensed with forever, so that the assignee can thereafter assign, and can transfer a good title to the lease,” even without the consent of the landlord. It is conceded that the defendant, as landlord, knew that Foley had assigned, and that such assignee subsequently had delivered over possession of the premises to McGin ; but he seeks to evade the force of the waiver which resulted from his acceptance of the rent by saying that he notified liin that he ■»v ould regard him merely as a monthly tenant. This, however, is no answer, because the re-entry under the forfeiture clause could not be made except upon compliance by the landlord with the provisions of law which, in such case, authorize the retaking of the premises. The acceptance of rent, therefore, from an assignee of the lease, having been a waiver of the condition of forfeiture, which was thus gone forever, it remains to determine what force there is in the other position taken by the defendant, that, having obtained possession through summary proceedings, such possession cannot he disturbed.

In view of the notice which the defendant had of the plaintiffs' interest in the premises, good faith, it seems to us, should have induced him to give plaintiffs the opportunity of paying the rent as it accrued. But, apart from this, if the action can be regarded as one to redeem, then, the unexpired term of the lease exceeding five years, the plaintiffs could at any time “within one year after the execution of the warrant pay or tender * * * all rent in arrear,” together with interest, costs, and charges incurred, by the landlord, which would entitle the plaintiffs to possession. Code Civ. Proc. § 2256. Both by the notice, and in the complaint, it is shown that such tender was made; and it is still open for the defendant to accept such amounts, and to place the plaintiffs in possession.

The fact that the complaint, in its prayer for relief, does not, in direct terms, ask for leave to redeem, is not conclusive upon the plaintiffs’ rights, because the court, upon the trial, can give sucli relief as, upon the proof, it may be shown that the plaintiffs are entitled to. It may be that upon such trial the facts may, to some extent, be varied, and that the defendant may be able to maintain his possession; but we think that sufficient was shown upon the motion to have justified the court in continuing the temporary injunction until the action could be tried, because the undertaking which they would be required to give would amply protect the defendant. Our conclusion, therefore, is that the order appealed from should be reversed, with $10 costs and disbursements, and the motion for preliminary injunction granted, upon the plaintiffs giving the usual undertaking, in the sum of $500. All concur.


author: Van Wyck, J.

text:
    Emily J. Charde et al., Resp’ts, v. The City of Brooklyn, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    Condemnation proceedings—Award—Right oe grantee.
    A grantee of land, part of which has been condemned, is entitled to the award, where it was made before the deed was executed but the possession of the grantor had not been disturbed.
    Appeal from a judgment in favor of plaintiffs.

      Albert G. McDonald, for app’lt; E. T. Payne, for resp’ts.
   Van Wyck, J.

An award was made for part of a lot taken for the widening of North Second street pursuant to the Laws of 1871, chap. 559. For years thereafter no steps were taken to actually widen the street. The owners used the land so taken, and no claim was made for the awards so made. Both the city and the owners treated the matter .as though no lands were taken, and no awards were made." While this was the existing condition, the owner of the lot involved in this action conveyed the whole of it, including the portion taken by the act of 1871. That such conveyance operated as an assignment of the award has already been decided by this court. Delap v. City of Brooklyn, 3 Misc. Rep. 22; 51 St. Rep. 128 ; Engelhardt v. City of Brooklyn, 3 Misc. Rep. 32; 50 St. Rep. 572 ; Burkard v. City of Brooklyn, 6 Misc. Rep. 431; 58 St. Rep. 302. Judgment must be affirmed, with costs.


author: Osborne, J.

text:
    Timothy C. Commerford, Resp’t, v. Atlantic Avenue Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    1. Appeal—New trial.
    A new trial will not be granted, where an issue of fact was presented to the jury for their determination.
    2. Damages—Excessive.
    A verdict for $8,500 for personal injuries was held not to he excessive under the evidence in this case.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Wm. S. Cogswell, for app’lt; Charles J. Patterson, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries alleged to have been sustained by reason of the negligence of the defendant. He claimed that, as he was getting on the rear platform of one of defendant’s cars on Fifteenth street, the ear suddenly started with a quick jerk, the effect of which was to throw him forward to the ground, and his foot was run over by one of the wheels of the car. Plaintiff had a verdict for $8,500. From the judgment entered thereon, and an order denying a motion for a new trial, this appeal is taken.

The learned counsel for the appellant bases his appeal on two grounds. He claims—Firstly, that the verdict was against the weight of evidence, and that, therefore, the motion for a new trial should have been granted; and, secondly, that the verdict was excessive. Plaintiff’s statement as to the manner in which he sustained his injuries was corroborated by two witnesses, strangers to plaintiff, who were passengers upon the rear platform at the time plaintiff was injured. Defendant sought to show that plaintiff fell and sustained his injuries in an unsuccessful attempt to board the front platform of the car while it was in motion. The conductor of the car so testified, and two passengers in the car and one on the front platform were produced to support the conductor’s statement. Here was plainly an issue of fact, which it was clearly the province of tfie jury to determine. The jury have found in favor of the plaintiff’s statement as to the manner in which he was injured, and, on a careful reading of the evidence, we can see no ground that would render it right or proper for us to interfere with the verdict in that regard. The evidence of the plaintiff and the witnesses adduced on his behalf was clear and straightforward, arid was not shaken by cross-examination ; while, on the other hand, in our opinion, the evidence on the part of the defendant contained several inconsistencies.

Nor can we say that the verdict was excessive. Plaintiff was a young man, 23 years of age. His injury was a very painful one, and he is permanently disabled, and still suffers pain. The first and second toes of his left foot were amputated at the second joint, and half of the third toe was also amputated. He was unable to get out of bed for ten weeks without assistance. He did not go out for five months, and he then had to use crutches for a month, and it was eight months after the injury before he was able to resume his work. Plaintiff was a bookbinder by trade, and earned $15 a week. His occupation required him to be on his feet, and to carry heavy books. This he is now unable to do steadily by reason of the pain in his foot, and he is unable to work more than three-quarters of his time. He is lame now, and always will be, and his foot is somewhat wasted. The bill of one of his physicians is $200. When we take into consideration plaintiff’s severe pain and suffering, his long confinement, the fact that he is permanently lame and disabled, and that his earning power is impaired,-we cannot say that the verdict was excessive, or,calls for our interference. We think that the judgment and the order denying the motion for a new trial should be affirmed, with costs.


author: Clement, C. J.

text:
    Gilbert C. Shepherd, Resp’t, v. Alexander T. Moodhe, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    Replevin—Possession.
    Where the defendant in replevin demands in his answer a judgment for the return of the property, he cannot sue for possession if the judgment in his favor does not direct such return.
    Appeal from an order granting a new trial.

      Fisher & Voltz, for app’lt; Hurd & Grim, for resp’t.
   Clement, C. J.

Before January 19, 1893, the plaintiff, Shepherd., had possession of live chattels, namely, two black horses, one set of double harness, one Berlin coach, and one hearse. On January 20th the present defendant, Moodhe, commenced an action in this court against the plaintiff, Shepherd, in replevin, to recover the five chattels, and took the same by process of claim and delivery, and in his complaint alleged title, and that defendant wrongfully detained the same. Shepherd answered by a general denial, and claimed title to the hearse, and asked judgment for possession, or for its value in case a delivery could not be had. Shepherd then made an offer that Moodhe talco judgment for the possession of four of the chattels, viz. two black horses, one set of double harness, and one Berlin coach, with costs of the action. Moodhe served a notice of acceptance of the offer, and took judgment on February 10, 1893, that he retain possession of the four chattels, with costs. The offer and judgment do not refer to the hearse at all. Shepherd paid the costs, and, on the day following the judgment, commenced this action in replevin, and, by claim and delivery, took the hearse from the possession of Moodhe. The case was tried, and the presiding judge ruled'at the trial that judgment entered on the offer was not an adjudication of the title of the hearse; and the jury decided that Moodhe was the owner of the chattel, and entitled to its possession. Subsequent to the entry of judgment on the verdict, a motion was made for a new trial by Shepherd, on a case made, which motion was heard and granted by the trial judge, and from the order entered thereon this appeal is taken by Moodhe.

The jury, on conflicting testimony, having found that the title to the hearse is in Moodhe, if the judgment on the offer is not an adjudication, the sole question to be decided on this appeal is as to the effect of such judgment. We are of opinion, after careful examination, that Shepherd cannot claim successfully that the judgment is an adjudication in his favor, because, if it was, he should have procured a return of the hearse by the judgment, and neglected so to do. The offer made by Shepherd, if he desired a return of the hearse, should have been that the plaintiff take judgment for the possession of the four chattels, and that the defendant have judgment for the return of "the hearse, but he (Shepherd) did not mention the hearse in his offer. If the offer had been made as just stated, then Shepherd would have protected himself against a claim of costs after the offer, if he was the owner of the hearse, and could not establish his defense as to the claim of a lien upon the other four chattels. In other states, it has been held that the plaintiff, when he takes property in an action of replevin by claim and delivery, is not liable to return the same, unless so ordered by the court in that action. Clark v. Norton, 6 Minn. 412 (Gil. 277); Ladd v. Prentice, 14 Conn. 117 ; Way v. Barnard, 36 Vt. 366 : Collamer v. Page, 35 Vt. 387 ; Kayser v. Bauer, 5 Kan. 211; Cobbey, Repl. § 1133. In this state this harsh rule has been modified, and in three cases it was decided that where the defendant pleaded merely non detinet, and did not demand a return, and the verdict was in his favor, such defendant can bring a subsequent affirmative action to regain possession of the chattels in dispute. In the leading case of Yates v. Fassett, 5 Denio, 21, it was expressly so held; and that case was followed in Angel v. Hollister, 38 N. Y. 378, and in Brady v. Beadleston, 62 Hun, 548; 42 St. Rep. 422. In the case before us, it will be remembered that Shepherd, in the dipt action, did plead title, and asked judgment for a return, and, on the complaint and answer, made the offer of judgment. Judge Woodruff, in Angel v. Hollister, supra, held (page 380),—citing Yates v. Fassett,—that a defendant who did not plead title or right of possession in himself- or another could not have judgment for the return of the property, and that, under the Oode, it is only where a defendant, by his answer, asks a judgment for the return, that such a judgment can be given. See § 277 of old Oode; § 1730 of new Code. While the question presented on this appeal has never been decided directly in this state, it is only necessary to read the three authorities before cited to see that it was held that the judgments in question in those cases did not bar subsequent actions, for the sole reason that the defendants did not pray judgment for the return of the property. The entire reasoning seems to be based on that ground, and, if the defendants had asked the return of the property, it seems clear that the judgments would have been held to prevent the bringing of new actions. Parties are concluded by a judgment, not only as to the subject-matter actually determined, hut also as to every other matter which was in issue, and which the parties might have litigated. The offer of judgment, and the acceptance thereof, were equivalent to a verdict of a jury. Suppose, in an action of replevin, where plaintiff has taken the property by claim and'delivery, and in the pleadings and on the trial a claim of title is made by both parties, the verdict is simply for defend - ant, arid the defendant does not ask to have it corrected, so as to he a verdict for the return of the property, and judgment,is entered on the verdict, simply dismissing the complaint, with costs; we would hold that the defendant could not bring another action to recover the property of the plaintiff, for the reason that he (defendant) had had his day in court, and, if he did not obtain the judgment he was entitled to, it was a misfortune which he brought upon himself. The order granting a new trial must be reversed, with costs.


text:
    Eliza Guyer, Pl’ff, v. Jasper N. Raymond, Def’t.

      (Brooklyn City Court, General Term,

      Filed May 28, 1894.)

    Service—Summons—Publication as to unknown defendants.
    Service by publication on an absent defendant and liis heirs, as unknown defendants,' is sufficient, though it finally appears that, he was dead, and certain persons, whose names were known, were his heirs.
    Controversy submitted on an agreed statement of facts.

      Luther W. Emerson, for pl’ff; Frederick C. Leubuscher, for def’t.
   Van Wyck, J.

This controversy comes before us upon agreed facts, under .§§ 1279-1281 of the Oode of Civil Procedure. In a partition suit, one of the record owners, James Mahady, had been absent from the state, and unheard of, for 18 years. It was not known whether he was living or dead, or whether he was married or unmarried, or whether he had children or not. It is conceded that service of the summons therein was duly served on him and on his wife, if any, his heirs, grantees, devisees, or assigns, as unknown defendants, by publication, pursuant to an order under and by virtue of § 438 of the Code of Civil Procedure.

The contention of defendant herein, who is under contract to purchase the premises from the plaintiff, the purchaser at the partition sale, is that, if James Mahady is dead, and left him surviving no wife or children, no devisees or grantees or assignees, that then his brothers and sisters, whose names are known, cannot be cut off by the judgment of partition as unknown defendants. This mode of service on unknown defendants is applicable to partition actions by § 1541 of the Code of Civil Procedure. Assuming that James Mahady was dead at the time of the commencement of the partition action, and that no one had heard from iiim after he departed from the state at the age of 19, some 18 years before, can it be seriously questioned by any one, without some proof, that he died without marrying or without cliildivn or devisees,, or without granting or assigning his interest, and that those who succeeded to his interest are unknown? If he is dead, his heirs are unknown, for who can say who they are without some proof on the subject? We think his heirs, whoever they may be, are bound by the judgment, for they were properly served as unknown defendants. Wheeler v. Scully, 50 N. Y. 667; Moran v. Conoma, 36 St. Rep. 680; 13 N. Y. Supp. 625; Abbott v. Curran, 98 N. Y. 665.

The plaintiff is entitled to judgment, with costs and disbursements. All concur.


text:
    James W. Elwell, App’lt, v. Philip Bender, as Guardian, etc., et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June, 1894.)

    1. Jurisdiction—Sections 4283, 4284 and 4285 of IT. S. R. S.
    The remedy under sections 4283, 4284, and 4285, United States Revised Statutes, is confined to those cases of which courts of admirality have jurisdiction.
    2. Same.
    The st ite courts have no jurisdiction in such cases.
    Appeal from an order denying plaintiff’s application for an injunction to restrain defendants from prosecuting actions. -

      Benedict & Benedict, for app’lt; Christopher Fine, for resp’ts.
   Parker, J.

The brig Keystone, of which the plaintiff is the principal owner, collided with the pier at the foot of Fifth street, Mew York, on the 21st of April, 1884. At the moment of collision, Conrad and Charles Geibel, infants, were on this public pier, and' in such a position that they were caught between the anchor of the brig and a spile on the end of the pier, and both were injured. In December, 1892, Conrad Geibel, by his guardian, commenced an action-in this court against James W. Elwell, this plaintiff, to recover for the injury sustained. A little over„a year later his brother, Charles Geible, instituted an action against this plaintiff for a like purpose. About two weeks later, this suit was begun against the" plaintiffs in the actions referred to, its purpose being to limit the liability of the plaintiff herein under §§ 4283, 4284 and 4285 of the Eevised Statutes of the United States.

By the 4283d section, the liability of the owner of a vessel for “any loss, damage or injury by a collision,” or for “any act, matter or thing, loss, damage or forfeiture done, occasioned or incurred without his privity or knowledge,” is not to exceed the amount of the value of his interest in the vessel, or her freight then pending.

By § 4284 such an owner is authorized to take appropriate proceedings “ in any court for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties thereto.”

As the value of the interest of Mr. Elwell in the brig Keystone and her freight pending does not exceed $8,500, and the infants Geibel, in their actions, each claim to have sustained damages in a much larger sum than $3,500 the plaintiff insists that he is entitled in this suit, on the equity side of the court, to obtain the benefit of the statute limiting the liability of the owner in certain cases. And that such a result can only be accomplished by having it determined in one suit, whether the damages sustained by them aggregate $3,500, and if so, what proportion thereof each are entitled to recover. With that purpose in view, plaintiffs, after the suit had been commenced, obtained an order to show cause why an injunction should not be granted restraining the prosecution of the actions brought on behalf of the infants to recover damages during the pendency of this suit.

The court having denied the injunction, this appeal brings up for review the order entered thereon.

It is apparent that, if the statute can be made available to plaintiff in this court, for the purpose of securing the benefit of the limitation for which it provides, it can only be accomplished by means of a suit of this character, through which there could be appropriated the value of plaintiff’s entire interest in the brig, in such portions as it should be adjudged the infants were severally entitled. And such a suit can only be made efficacious by a stay of the other actions during its pendency.

Such is thé purpose of this suit, and it prompted the request for the injunction, which ought to have been granted, provided the suit be undoubtedly maintainable. If it were a case of first impressions, we might, perhaps, have reached the conclusion that, inasmuch as the statute provides that an owner may “take appropriate proceedings in any court,” it ought not to be so construed as to bestow its intended benefits only upon such parties as should proceed, or be in a position to proceed, in a court of admirality. But a different view seems to have been taken by the United States court, in so far as the decisions upon that subject have been brought to our attention.

In Norwich Co. v. Wright, 13 Wallace, 104, 123, Judge Bradley", in his opinion, says: “ The act does not state what court shall be resorted to, nor what proceedings shall be taken, but that the parties, or any of them, may take “ the appropriate proceedings in any court for the purpose of apportioning the sum for which,’ etc. How, no court is better adapted than a court of admiralty to administer precisely such relief. * * * Congress might have invested the circuit courts of the United States with jurisdiction of such cases by bill in equity, but it did not. It is also evident that the state courts have not the requisite jurisdiction. Unless, therefore, the district courts themselves can administer the law, we are reduced to the dilemma of inferring that congress has passed a law which is incapable of execution. We have no doubt that the district courts, as courts of admiralty and maritime jurisdiction, have jurisdiction of the matter; and this court undoubtedly has the power to make all needful rules and regulations for facilitating the course of proceedings.”

These observations of the learned justice were quoted and distinctly approved in Providence & N. Y. S. Co. v. Hill Manufacturing Co., 109 U. S. Rep. 578 and 598. Such a construction operates, of course, to deny to this plaintiff any benefit whatever from the statute, because, as the collision was with the pier, instead of a vessel, the admiralty court has not jurisdiction to entertain an action to recover for injury done to the boys on the pier, or to carry into effect the limitation of liability for which the statute provides.

For such an injury resort must be had to the state courts. And in such a case, according to the decisions referred to, the benefits of the statute cannot be invoked in aid of the owner of a vessel, because it is said that the statue which created this right by implication prescribes that it shall be enforced only in the district courts. In other words, that while the statute in express terms declares that, under certain conditions, the liability of an owner of a vessel shall be limited to the extent described, and that the limitations may be enforced in any court, still the remedy is confined to those cases of which courts of admiralty have jurisdiction.

The plaintiffs in this suit presented this question in the circuit court of the United States, in Elwell v. Giebel et al., 33 Fed. Rep. 71. The court, after considering the cases herein referred to, reached the conclusion that the circuit court of the United States was without jurisdiction to enforce the limitations of the statute. The court further declared that the statute “ created a new right and by implication prescribed .that it should be enforced in the district court. The remedy is confined to the jurisdiction provided by the statute which created the right.”

These authorities, we think, require an affirmance of the order.

The order should be affirmed, with $10 costs and printing disbursements.

Van Brunt, P. J., concurs in result; Follett, J., concurs.


author: Mayham, P. J.

text:
    Charles E. Bullard et al., Resp’ts, v. James H. Kenyon et al., App’lts, Impleaded, etc.

      (Supreme Court, General Term, Third Department,

      Filed May, 1894.)

    Appeal—Aggrieved.
    A judgment, which in no way injures or jeopardizes the person or property of the appellant, will he affirmed.
    Appeal by the defendants, James H. Kenyon and another, from a judgment of the supreme court in favor of the plaintiffs, entered upon the decision of the court rendered on a trial at the Saratoga special term.
    W. H. McCall, for app’lts; G. F. Bullard, for resp’ts.
   Mayham, P. J.

On the 10th of February, 1881, the plaintiffs obtained a judgment against the defendant James H. Kenyon for $157.37. On the 23d of February, 1891, they caused an execution to be issued and placed in the hands of the sheriff of Saratoga county, where the defendant James H. Kenyon resided. On the 6th of July, 1889, the defendant James H. Kenyon and Ellen M. Kenyon, his wife, mortgaged all or nearly all the personal property in their possession to the defendant Mary 0. Harris, who, when the sheriff sought to seize the property so mortgaged, asserted her right to it under the mortgage and threatened to prosecute the sheriff for selling such property, or any one who should purchase the same at the sheriff's sale.

The chattel mortgage was never recorded or filed in the town clerk’s office.

To relieve this property from the cloud of the mortgage, so that the same would -sell for its true value, under this execution, the plaintiff brought this action, charging that as against their judgment the mortgage was fraudulent and void and asking to have it so adjudged, with costs against Harris, the mortgagee.

As the mortgage had been foreclosed and the mortgaged property taken by Harris before the action was brought, it may be doubted whether the Kenyons were necessary parties to this action, but that question does not seem to have been raised by them on the answer or at the trial, and as the judgment in the action does not charge them with costs, it is difficult to see what interest they have in this litigation or how they can be benefited by a reversal of this judgment except as to the question of costs on the appeal.

The trial judge found on this trial that the defendants Kenyon were guilty "of no active fraud in executing this mortgage, but that the mortgage itself was fraudulent and void, and this last proposition is not seriously contested on this appeal.

We see no grounds for the reversal of this judgment, and as the defendants have prosecuted this appeal when the judgment as to them in no way injured or jeopardized them or their property, it must be affirmed.

Judgment affirmed, with costs and disbursements.

Putnam and Herrick, JJ., concur.


author: Forbes, J.

text:
    Henry L. Manning, Pl’ff, v. Cornelius L. Wells, Def't.

      (Supreme Court, Broome Special Term,

      Filed May, 1894.)

    Parent and child—Necessaries.
    A father, who drives his infant son from home and refuses to provide for him, is liable for the value of necessaries furnished upon the application of the son, who is destitute and without physical ability to provide for himself, after notice to the father of such application.
    Demurrer to complaint.

      Millard & Stewart, for pl’ff; John Z. Lott, for def’t.
   Forbes, J.

The defendant in this action demurs to the complaint, and states as the ground thereof: “ That it appears upon the face of said complaint that the said complaint does not state facts sufficient to constitute a cause of action.”

The test in this case is: Is the complaint sufficient to warrant a recovery against the defendant upon the facts stated therein ; or, in other words, does the complaint state a cause of action? Milliken v. Western Un. Tel. Co., 110 N. Y. 403; 18 St. Rep. 328.

A demurrer admits only such relevant facts as are well pleaded; it does not admit a legal conclusion. Masterson v. Townshend, 123 N. Y. 458 ; 34 St. Rep. 104.

“ The general rule in determining the sufficiency of a pleading demurred to is, that it must be assumed that the facts stated therein, as well as such as may by reasonable and fair intendment be implied from the allegations made, are true.” Arrow Steamship Co. v. Bennett, 73 Hun, 81; 57 St. Rep. 113; Rafolovitz v. Am. Tobacco Co., 73 Hun, 87; 57 St. Rep. 144; Kain v. Larkin, 141 N. Y. 114; 56 St. Rep. 675.

An inartistic pleading is not one to which a demurrer can be interposed. The remedy to make such a pleading more explicit is by motion. City of Ithaca v. Cornell, 75 Hun, 425; 57 St. Rep. 343; Pettibone v. Moore, 57 Hun, 461; 57 St. Rep. 363.

Applying these tests to the complaint under consideration, does tire complaint state a cause of action-in any form ?

pt is admitted that L. B. Wells is the infant son of Cornelius L. Wells, the defendant in this action; that in the month of June, 1893, he was in a destitute condition and without the physical ability for providing himself with the necessaries of life; that the defendant refused' to furnish his said son with necessaries, had driven him from home, repudiated, abandoned him, and refused longer to provide for him ; that the infant made application to plaintiff for care, etc., while in that destitute condition, and while unable to support himself, and that notice was thereupon given to the defendant of the son’s condition and his application for help. The plaintiff thereupon furnished him with board, lodging, clothing and care while he was thus ill, and with money to secure his return to the defendant’s house; that what was so furnished was necessary and of the value of the sum claimed in the complaint ; that prior to the commencement of this action the plaintiff demanded of the defendant payment for the necessaries thus furnished. to the defendant’s infant son; that the same remains unpaid, and a judgment is demanded against the defendant for the money so expended.

The defendant’s counsel relies principally upon the case of Raymond v. Loyl, 10 Barb. 483, in which it is asserted that: “ There is no legal obligation on a parent to maintain his child, independent of the statutes. Hence, a third person, who supplies an infant with necessaries, cannot maintain an- action against the parent therefor, unless the latter has expressly or impliedly contracted to pay the amount.”

There are two grounds upon which it is contended by the plaintiff in this action that the cause of action can be sustained:

First. Upon the ground of an implied contract arising out of the natural relations of the father and son to each other, to support and maintain the infant when he is sick and in destitute condition, independently of the common-law rule.

Secondly. An express consent on the part of the father, with full knowledge of the situation and the condition of the infant, that the plaintiff should furnish him with such necessaries, upon notice thereof to the defendant, and that no objection having been raised by the father upon that undertaking by the plaintiff, works a ratification of the assumed agency of the infant to contract for necessaries in behalf of the father.

First. “ The duty of parents to provide for the maintenance of their children is a principle of natural law. The obligation continues until the child is in a condition to provide for himself, and it extends only to a necessary support.” 17 Am. & Eng. Ency. of Law, 348; Porter v. Powell, 79 Iowa, 151; 18 Am. St. Rep. 353.

In this last-mentioned case it is held that the implied promise may be inferred on the ground of the legal duty imposed, the same case also holding that it is a legal as well as a moral duty of the parent to furnish necessary support. This case is reported in 7 Lawyers’ Eeports, Annotated, 176, with an extensive note on the subject referring to many cases in this and other states of the Union.

The same doctrine is asserted in the case of Chilcott v. Trimble, 13 Barb. 504, where it is held: “ When a parent is willing to support his infant child * * * no agreement of the father to pay for such support can be implied. The moral obligation of a parent to support his child imposes on him no liability to pay for its support * * * without his request. The law of nature, which requires the parent to support his infant offspring, designates his own house as the place where that duty shall be performed. A implied promise does not differ from an express promise except in the evidence by which it is proved.”

In the case of Certwell v. Hoyt, 6 Hun, 579, a case decided in our department, Gilbert, J., writing the opinion, said: “The duty of the father to maintain the child, however, is and always has been recognized in some way and in some degree in all civilized countries. The infant cannot support herself; others must supply her with the means of subsistence, and the only question has ever been whether the state shall do this or her parent. No doubt it is the duty of the parent to do it, but the duty is not made a legal obligation by the common law. The cases not founded upon the statute, in which the duty has been enforced, rest upon the ground of agency.” Several cases are cited, including 10 Barb, supra, holding that doctrine.

In the case of Crane v. Baudouine, 55 N. Y. 259, Folger, J., writing the opinion of the court, approves the case of Van Valkenburgh v. Watson, 13 Johns. 480, in which it is held : “A parent is bound to provide his infant children with necessaries, and if he neglects to do so a-third person may supply them and charge the parent with the amount," and says: “And were she a daughter whom, by reason of her minority and dependence upon him, the defendant was under a moral obligation to provide necessaries, this fact would be strong, with others to be mentioned, to sustain an implication of a promise.”

In the case of Beardsley v. Hotchkiss, 96 N. Y. 220, Earl, J., writing the opinion, quotes from Schouler on Domestic Relations, 322, as follows: “As a general rule the father must, if he can, maintain his infant children, whatever their circumstances may be, and no allowance will be made him for that purpose,” and then holds: “When a father is of sufficient ability to support his minor child, the circumstances would have to be very peculiar which would require the court to make an allowance; this principle is clearly established both in England and America.”

This was a case in which an allowance was asked for out of the infant’s estate. At page 219 in the same case Folgeb, J., says : “A father' is under a natural obligation to support his minor children, and generally, if of sufficient ability, he is obliged to, without reference to their pecuniary circumstances.”

In the case of Clinton v. Rowland, 24 Barb. 634, Balcom, J., said : “A father is not liable for articles of clothing furnished to his minor child without his consent, in the absence of any proof .that he neglected to supply such child with clothing necessary and proper for his condition in life,” approving of the case of Van Valkenburgh v. Watson, 13 Johns. 480.

In the case of Smith v. Church, 5 Hun, 109, in our own department, the general term again holds: “One who seeks to make a parent liable for purchases of a child must show a failure on the part of the parent to discharge 'the obligation to provide necessaries for the infant, and that the goods supplied were in fact necessaries,” citing the case of Clinton v. Rowland, 24 Barb. 634, approving the doctrine there held.

The same doctrine is held in Reeves’ Domestic Relations (4th ,ed.), 351, in the following language : “This duty is founded on the ■law of nature. Whoever has been the instrument of giving life to a being incapable of supporting itself is bound by law of morality to support such being during such incapacity.”

In the case of People ex rel. Balch v. Strickland, 13 Abb. N. C. 473, it was held : “The fact that the child has voluntarily left its home does not absolve the father from his obligation to support and maintain it, nor relieve him from liability, under Code Criminal Procedure, § 899, for a failure to do so.”

In the case of Parker v. Tillinghast, 19 Abb. N. C. 190 ; 9 St. Rep. 510, it was held: “Where a parent sends his boy away from home to attend school in a distant place, and fails to supply him with clothing suitable to the climate, and required by the boy’s growth, he is liable to a person furnishing such necessaries to the boy upon the parent’s credit.”

This case also holds: “Where the standard of parental duty is a shifting one, depending upon circumstances and on inferences about which intelligent persons may honestly differ, the question of necessity should be left to the jury.”

In the case at bar there is nothing in the pleading to show that there was an emancipation of the child intended. The child was driven away from home and abandoned; the contractual relations of emancipation do not come within the cases of Johnson v. Gibson, 4 E. D. Smith, 231; Kain v. Larkin, 131 N. Y. 300 ; 43 St. Rep. 197.

Under § 899 of the Code of Criminal Procedure, if the circumstances of the abandonment of the child are sufficient to warrant it, a criminal prosecution can be had. People ex rel. Balch v. Strickland, 13 Abb. N. C. 473.

Wherever a statute has been violated, a wrong done, a civil action may be had for the injury which is sustained. Thomas v. Smith, 75 Hun, 573; 58 St. Rep. 597.

Second. In the case at bar the pleading not only shows the destitute and helpless condition of the minor, but also shows the fact that the father was notified of this condition ; that the plaintiff had been applied to to furnish the necessaries required; and there is nothing in the complaint that shows that any objection was raised by the defendant to the plaintiff’s furnishing the necessaries sought to be obtained, but the inference to be drawn is that the contract for furnishing the necessaries by the plaintiff, upon the application of the infant, was assented to by the defendant.

The action can, therefore, be sustained under the authorities cited, not only upon the implied promise to pay, but also upon the theory of an expressed promise, the infant acting as the agent of the parent in contracting for necessaries; and that, upon notice to the defendant of that application to contract by the infant, the defendant ratified the contract to furnish such necessaries as the circumstances of the case required. Certwell v. Hoyt, 6 Hun, 579.

If I am right in the conclusion arrived at, the demurrer must be overruled, and an interlocutory judgment entered thereon, under the rules and practice of this court.

This conclusion is reached independently of the statutory ^ obligation compelling the parent to support the child, and the child to support the parent, under certain well-defined circumstances.

Demurrer overruled.