text:
    William H. Smith, Resp’t, v. Orren Weston, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Estoppel—Judgment—Opening.
    A defendant is not estopped from asking to have a default opened and for leave to set up a meritorious defense, unless the plaintiff will he prejudiced thereby.
    2. Judgment—Default—Opening.
    The default, in this case, was held to he sufficiently excused to justify opening the judgment.
    Appeal from an order denying a motion to set aside a judgment taken by default, and for leave to answer.

      J. R Waring, for app’lt; C. S. Carey, for resp’t.
   Dwight, P. J.

The action was to charge the defendants, William W. Weston, Orren Weston and Abijah Weston, as indorsers of a promissory note of $2,000, made by the firm of George Yan Campen & Sons, payable to the order of J. K. Yan Campen, and bearing, besides the indorsement of the payee, an indorsement in the firm name of “ Weston Brothers.” The complaint alleged that the firm so named was a copartnership consisting of the three defendants; that they indorsed the note in their firm name, and that it was afterwards, and before maturity, duly transferred to the plaintiff, for value. All the defendants were personally served in the action about the 1st of February, 1893. The defendant Abijah alone answered the complaint. He denied that the indorsement in question was made by or for the firm of Weston Bros., but alleged that it was made by the defendant William W. after the dissolution of the firm, and without the knowledge or consent of the defendant answering ; that it was not made in the business of the firm, but solely for the accommodation of the makers of the note; and that the plaintiff took the note with notice of all those facts. On the trial of the issues thus joined the facts above stated were proved without contradiction, and a verdict was directed for the defendant Abijah, and judgment was entered dismissing the complaint as to him. Immediately after the entry of that judgment the plaintiff caused judgment for the amount of the note to be entered as by default against the defendant William W. Weston and this appellant, and it is from the denial of the motion of the latter to open the default as to him, that this appeal was taken.

The papers on this appeal show the same defense existing in favor of this appellant as that which has been established in favor of the defendant Abijah. That defense is ample and highly meritorious. The indorsement by William was a fraud on the other defendants, and knowledge that it was made outside the business of the firm, and after its dissolution, charged the plaintiff with notice of the want of authority to make it, and with complicity in the fraud involved. Gansevoort v. Williams, 14 Wend. 138. In such a case the law will not lend its aid to the enforcement of the claim, even as punishment for neglect to answer, if such neglect can be reasonably excused, consistently with good faith, on the part of the defendant. The statute expressly provides for opening defaults which are suffered through excusable neglect. Code Civ. Pro. § 724. The excuse of the defendant here for not answering was that he was assured by his brother William that part of the note was paid already, and .that the rest would be paid before judgment could be taken against him, and that he relied implicitly upon such assurance. We have no doubt that this excuse would have been deemed by the court at special term sufficient to justify the granting of the motion, but for a contention which seems to have been made on the part of the plaintiff, to the effect that the defendant is precluded by something in the nature of an estoppel from now making a defense in the action. The contention is based upon the alleged fact that, at the time the default was sufferred by the two defendants the defendant William, whose liability is unquestioned, was responsible, and that, if a judgment had been taken against him at that time, it could have been collected; but that, relying upon the judgment to result from the default of the defendant Orren, the plaintiff omitted to apply for the judgment which might have been obtained against William, and that since that time the latter has become irresponsible, and that the j udgment now obtained against him is of no avail. The most obvious answer to this contention is that the plaintiff could not have judgment against either of the joint defendants in default until the issues joined by the answer of the other joint defendant or defendants should be disposed of. It is only when the liability of the defendants in several, and the contract, though in form joint, is shown to bind only one—or less than all—of the parties sought to be charged, that judgment may be taken against those of the defendants who are in default, and the action be severed, and proceed against those who have answered. Code Civ. Proc., § 456 ; Brumskill v. James, 11 N. Y. 294; Pruyn v. Black, 21 N. Y. 300. This rule is perfectly well understood, and is not questioned by counsel for the plaintiff. But he uiges that the issues in this action could have been disposed of, if Orren had answered with Abijah, without the necessity of a trial, viz. by the plaintiff’s going into court and admitting the truth of the answer interposed, and consenting to judgment dismissing his complaint as to the defendants answering; and that thereupon he would have been entitled to enter judgment in his own favor against the defendant William. The proposition is a novel one, there being, so far as we know, no precedent for such a confession of judgment by the plaintiff in an action for any purpose; but we are not disposed to argue that it might not be done, or that the court might not thereupon give leave to enter judgment against the defendant in default. But- the trouble with the plaintiff’s contention is that there is no evidence or reason to suppose that this course would have been pursued by the plaintiff, and the probabilities are to the contrary. The plaintiff has' never admitted the truth of the defense in question, but, on the contrary, has contested it with the defendant Abijah, and put him to the proof of it before a jury, and has entered a judgment against this appellant which ignores the existence of any such defense. The mere possibility of his admitting the truth of that defense, involving as it did his own complicity in the attempt of William to defraud his brothers by the unlawful use of the late firm name, with the effect of releasing two perfectly responsible defendants in order that he might obtain a judgment against a defendant of at least very doubtful responsibility, was too remote and contingent to form the basis of an estoppel against this defendant. Before the defendant can be held to be estopped from now setting up his meritorious defense against the unjust demand of the plaintiff, it should appear that the plaintiff has been prejudiced by the loss of some substantial advantage which would have been his had that defense been interposed within the time prescribed by law. But there is the further answer to the plaintiff’s contention arising from the proofs bearing upon the question of William’s responsibility at the time when this default occurred. We think the balance of proof is distinctly opposed to the theory that property of the defendant William would have been found out of which to satisfy an execution issued on any judgment which might have been obtained against him after the expiration of the time of the appellant to answer herein. We think the default of the appellant was reasonably excused, and that no injustice is liable to be done by opening that.default, and permitting the appellant to answer as proposed, unless it may be by a possible augmentation of costs against the plaintiff, which may be provided .against by the order here. If the defendant Orren had joined in the answer of his brother Abijah, or had answered separately to the same effect ih time, there would have been but one trial of the issues joined by both. Now, if the plaintiff still contests the defense, a second trial is necessitated. The order opening the default should therefore provide that, in case of a recovery by the defendant, his judgment, shall be without costs of the action, after notice of the trial; and, further, that if the plaintiff elect to discontinue the action he may do so without payment of costs.

All concur.

Order appealed from reversed, and the motion granted on the terms above stated, without costs of this appeal to either party.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    George High, Resp’t, v. Charles F. Chick, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Appeal—Justice’s court.
    In an action in a justice’s court, it is reversiblejerror for tbe justice, unaccompanied by the attorneys, to enter the jury room while the jury are deliberating.
    Appeal from a judgment, affirming the judgment of a justice’s court rendered on a verdict in favor of the plaintiff.

      C. H. Bean, for app’lt; W. F. Ciarle, for resp’t.
   Dwight, P. J.

The only question which we deem necessary to consider in this case relates to an alleged error in fact in connection with the trial of the action. The facts upon which the question arises appear in part by the return of the justice and more fully by a stipulation of the attorneys for the respective parties, and are as follows:- After the case had been submitted to the jury, all persons except the jury and the constable who was sworn to attend them withdrew from the room in which the trial had taken place, and the jury remained there to deliberate on the verdict. The room was in ah unoccupied house owned by the justice, aud opened off from the main hall of the building. After the jury had been engaged in their deliberations several hours, they sent the constable to find the justice, and inform him that they wished to see him. The constable found the justice at his house, in company with the attorneys for both the parties, and informed him in their presence that the jury had not agreed, and wished to see him. The justice thereupon proceeded to the building where the jury were confined, and the attorneys accompanied him to the front door. There they stopped, and the attorney for the defendant protested against the justice’s going into the jury room. He went in, however, without inviting either of the attorneys to accompany him, and closed both doors behind him. In the jury room, no other person being present, unless possibly the constable, he was asked and answered a question in respect to the effect of a verdict, if one should be rendered, and then left the jury to their further deliberations. They afterwards found a verdict for the plaintiff. We think the proceedings constituted an error for which the judgment must be reversed. We had occasion at the last term; in the case of People v. Linzey, 79 Hun, 23; 61 St. Rep. 240, to consider the question of the effect upon the vei-dict of a communication by the justice to the jury while engaged in their deliberations, and held that the effect, under the circumstances there disclosed, was to vitate the verdict. The proceeding in this case seems to us still more objectionable than what occurred in that case. But the rule is very strict, and forbids any communication whatever by the court to the jury after the cause had been submitted to the latter, except in open court, and, where practicable, in presence of the counsel in the case. See the cases cited and quoted from Haight, J., in the opinion in the Case of Linzey, supra. Among those cases is that of Taylor v. Betsford, 13 Johns. 487, where the language of the court is closely applicable to this case. The court said: “ The only error necessary to be noticed in this case is that the justice went into the room with the jury at their request, privately, and apart from the parties, to answer certain questions proposed to him by the jury. This we have repeatedly held to be erroneous, unless done with the consent of the parties. Whether the information given by the justice was material, or had any influence upon the verdict of the jury, is a matter which we will not inquire into.”

The justice, in his return, intimates that he regarded the court as opened when he went into the room, and that counsel were at liberty to go in with him if they had seen fit to do so. But he gave no such intimation to the counsel at the time, but left them standing at the outer door of the building; the counsel for the defendant protesting against the justice’s going in. The action of the justice, although no doubt innocent in its intent, was inconsiderate. He would have avoided the error complained of if he had answered to the objection of the defendant’s counsel that the court was to be considered open while he conferred with the jury, and invited them both to be present with him. For the error in fact here considered the judgment of the county court and of the justice must be reversed.

All concur.

So ordered, with costs in this court and the county court.


text:
    In the Matter of Ernest Ayrault, as Administrator, etc. In the Matter of the Accounting of Charles P. Bowditch, as Trustee, etc.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Courts—Jurisdiction.
    The jurisdiction of the supreme court, when a proceeding for an accounting is instituted therein, is exclusive, and another proceeding . therefor cannot afterwards be maintained in the surrogate’s court.

      % Parties—Accounting.
    The administrator of a beneficiary is not a necessary party to an accounting where his heirs and next of kin are parties.
    3. Same—Intervention.
    A person, who claims an interest in an estate, may intervene in such proceeding at any time before the execution of the judgment rendered therein.
    Appeal from a decree dismissing the petition.

      JEJ. F. Ayrault, in pro per.; J. Q. Milburn, for resp’t.
   Dwight, P. J.

The petitioner prayed for an accounting by the trustee of Allen Ayrault of all such moneys as had come to his hands, belonging to the estate of Mary Ayrault, under the provisions of the will of Allen Ayrault. Allen Ayrault died in 1861, leaving a large estate, and' a will, by which he disposed of the same under various trusts. Mr. Bowditch, the respondent, was appointed trustee in 1868, and has acted as such, under occasional directions of this court, procured on his application, until this time. The dispositions of the will resulted in a large residuary estate, into which the subjects of several life estates fell from time to time, as those life estates expired, and the final distribution of the residuary estate did not become practicable before the year 1890. Two-tliirds of the residuary estate was given by the will to such of the children of the testator’s brothers and sisters as should be living at the time of his decease, and to the descendants of such of said children as should be deceased when said residuary estate, or any part thereof, should be distributed. Mary Ayrault the petitioner’s intestate, was one of the residuary legatees under the former of the two designations, and she was also the legatee of a life interest in a fund which should fall into the residuary estate at her decease. She died unmarried and intestate, in August, 1877, and 16 years later, in September, 1893, the petitioner took out letters of administration upon her estate. In February, 1890, the trustee commenced an action iñ this court to procure a final distribution of the residuary estate. In his complaint in that action there were alleged, among others, .the facts above stated, 'specifying among the funds which had fallen into the residuary estate and been received by the trustee, and for which he was ready to account, that in which Mary Ayrault had held a life estate. It was alleged that she was the daughter of a brother of the testator; that she died at the date above mentioned, unmarried, intestate, leaving no descendants ; and that no administration had been granted upon her estate. In his complaint the trustee also alleged that partial distributions of the residuary estate had already been made by him and his predecessor in the trust, from time to time, on the theory, as they had been advised, that the several interests in that estate did not vest until actual division was made, and that if a legatee had died before the time of any division the share he would have taken if living did not pass to his personal representatives, but to his descendants, if he left any, and if not then to the other residuary legatees. He also alleged that grave questions had arisen in regard to the proper construction of that clause of the will (§ 25) which provided for the disposition of the residuary estate, viz. whether such estate vested absolutely in the residuary legatees at the death of the testator, or (as to each of the funds which fell into it) at the time it so fell in, or at'the time of actual division; and in respect to these questions he asked for a construction of § 25 of the will, and for the directions of the court tosenable him to distribute the estate remaining in his hands among those entitled to receive it. He prayed for a final accounting by himself as trustee, to be taken and finally settled by the court, and that he be finally discharged from duty and responsibility as such trustee. All the heirs at law and next of kin of Mary Ayrault, including the petitioner in his individual capacity, were made parties defendant to, that action, and all appeared therein, and litigated the issues raised by the pleadings. The controversy terminated in the court of appeals, where it was held that the gift of the residuary estate vested in the designated legatees at the time of the testator’s death, and that distribution of the fund remaining in the hands of the trustee should be made upon that basis; but it was adjudged that all payments theretofore made by the several trustees of the residuary estate, upon their several accountings and settlements to the several legatees and distributees, should be confirmed as final and conclusive. The matter was then sent to a referee to ascertain and-report who were the persons entitled to share the residuary estate under the decision of the court of appeals, and the share of each. He reported the share of Mary Ayrault as the one thirty-fourth, and that it was payable to her administrator to be appointed, and judgment was entered on the report, directing distribution in accordance therewith. That judgment was entered August 9, 1893. Letters of administration were granted to the petitioner herein September 4, 1893. He filed his petition herein November 3,, 1893, in which he prayed for an accounting de novo by the same trustee of all the moneys that have come into his hands, belonging to the estate of Mary Ayrault, under the will of Allen Ayrault, deceased. The judgment of the supreme court, above described, is still in force, unexecuted, no distribution having yet been made in accordance with its direction.

We think that the foregoing statement justifies the conclusion of law of the learned surrogate to the effect that, by the action so brought by the trustee in the supreme court, that court obtained full and complete jurisdiction over all the parties to said action, and over the residuary estate of Allen Ayrault, deceased, of which the said Bowditch is trustee, to make a full and complete-determination, disposition, and distribution thereof among the various parties, entitled to share in such distribution, and still retains jurisdiction thereof, and accordingly that the petition in this proceeding must be dismissed. The jurisdiction of the supreme court, being first obtained, was necessarily exclusive. It is impossible that two tribunals should entertain jurisdiction of the administration and settlement of the same estate at the same time,—a proposition which seems to require no citation of authorities in its support. But to the application of this proposition the petitioner objects that he was not made a party, in his representative capacity, to the action in the supreme court. There seems to us to be two answers to this objection—First, that it was necessary that he should have been a party for the complete adjudication of all the rights of those whom he represents, since all those were themselves parties in their own person, and litigated all the issues involved in their own behalf; and, second, that if it were necessary for him to be a party to that action, in order to obtain the rights of those whom he represents, he may still become such by intervening therein. The jurisdiction of that court was not exhausted by the rendition of its judgment, but continues until that judgment is executed. Wayman v. Southard, 10 Wheat. 23; Wegman v. Childs, 41 N. Y. 159. It is not yet too late for the petitioner if he can satisfy the supreme court that he represents rights and interests in connection with the settlement of the estate in controversy, which have not had their day in court, to obtain an order permitting him to intervene and obtain such a modification of the judgment as those rights and interests may require. And we think the other answer to the objection is equally conclusive. It is not pretended that any rights of creditors are involved in the controversy, as after the lapse of 16 years from the death of the intestate there cannot be. The petitioner therefore stands solely as the trustee for the next of kin of Mary Ayrault. Ledyard v. Bull, 119 N. Y. 62, 72; 28 St. Rep. 551. But all the next of kin, including the petitioner himself, in his individual capacity, were parties to the litigation, and are bound by the judgment. Shall their mere representative be permitted to assail in their behalf an adjudication which is completely binding upon them, and that, too, collaterally, and in another tribunal of inferior jurisdiction? We think the negative answer to this question is compelled by many obvious considerations, and that the lately constituted trustee of the next of kin of said Mary Ayrault must either be content to abide with them the adjudication of their rights already made, or seek to intervene in the same action in which that adj udication was rendered, and there to obtain a modification of the judgment complained of. The decree of the surrogate should be affirmed, with costs.

All concur.

So ordered.


author: Lewis, J.

text:
    Phoebe T. Colby, Resp’t, v. Edward Colby, Guardian, etc., Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Wills—Actions to establish.
    Chap. 316 of 1879, authorizing actions in the supreme court to establish wills, was impliedly repealed by §§ 1866, 1867 of Code.
    2. Specific performance—Agreement to make devise.
    An agreement by a decedent to devise land may be enforced against his heirs.
    Appeal from an interlocutory judgment entered on a decision sustaining a demurrer to the complaint.

      James B. Cox, for app’lt; Rich & Ailcen, for resp’t.
   Lewis, J.

The demurrer was sustained, as appears from the opinion of the trial court printed in the case, upon two grounds: 1. That the complaint fails to show a cause of action; 2. That :there is a defect of parties, in that the personal representatives are not made parties defendant.

In construing a pleading demurred to, all reasonable intendments will be indulged in for its support. Lorillard v. Clyde, 86 N. Y. 385. Guided by this rule in construing this complaint, we are of the opinion that it states a cause of action,—not, perhaps, the one that the pleader had in mind when he prepared the complaint. It states that one Lucius H. Colby, in his lifetime was the owner and in possession of a house and lot in the city of Auburn, N. Y., and that in the month of May, 1893, he made a proposition of marriage to the plaintiff, which she accepted, and that thereupon an agreement in writing was made and subscribed by the parties, bearing date on the 20th day of May, 1893, by the terms of which it was mutually agreed that the two should be presently married, and that the plaintiff should live with the defendant at his residence, and be a faithful and loving wife to him so long as he should live, and if the plaintiff should survive him she should have the said premises as her own in fee simple absolute, and that in pursuance of the terms of said contract, and in part performance of said agreement, the said Colby executed and published his will and testament in due form of law, by which he duly devised to the plaintiff, her heirs and assigns, forever, the whole of the said premises, and he agreed that he would not r^ voke or alter the will; that on said 20th day of May the parties were duly married, and the plaintiff went at once to live with said Colby at his residence aforesaid,'and from that time continued to live with him as his wife, doing all things necessary for his health and comfort, until he died, on the 10th day of March, 1894; that the defendants are the children, grandchildren, and heirs at law of the deceased; that by the undue influence and persuasion of some of the defendants the said Colby, in the month of September, 1893, disregarding the obligations of his said antenuptial contract with the plaintiff, executed and published another and a different will, and undertook thereby to revoke the said will of May 20, 1893, with a view of defrauding the plaintiff. The complaint further alleged that the plaintiff is in the quiet possession of the premises, claiming to be the owner thereof in fee under the said contract and the will made as aforesaid in May, 1893; and judgment is demanded for the enforcement of the said antenuptial contract, and confirmation of her title to said premises, and for such other or different relief as to the court shall seem meet and proper. The complaint, in addition to the foregoing, demands judgment for the establishment and probate of the will of May 20,1893, according to the statute in such case made and provided, and further that the will of September, 1893, be declared fraudulent and void. The latter relief was asked for under chapter 316 of the Laws of 1879, providing for the establishment and probate of wills in the supreme court. The act of 1879 was repealed by §§ 1866 and 1867 of the Code of Civil Procedure. Horton v. Cantwell, 108 N. Y. 255; 13 St. Rep. 615; Anderson v. Anderson, 112 N. Y. 104; 20 St. Rep. 344. The pleader did not seem to have been aware of the repeal of this act when he prepared his complaint. But asking for this relief to which the plaintiff was not entitled' did not prevent her from obtaining other relief to which she was entitled under the allegations of her complaint. There was a legal, binding contract alleged in the complaint, made upon a good and sufficient consideration, which the plaintiff fully and faithfully performed upon her part. The deceased failed to perform on his part. He failed to vest her with the title to the property in question, and in consequence of such failure on the part of the deceased the title to the house and lot descended to the defendants, who are his heirs at law. The relief to which the plaintiff is entitled is a conveyance from these heirs of the title to the premises in fulfillment of the contract of their ancestor. While an agreement to make a certain disposition of property by a last will is one which, strictly speaking, is not capable of a specific execution, yet it has been held to be within the jurisdiction of equity to do what is equivalent to a specific performance of such an agreement by requiring those upon whom the legal title has descended to convey the property in accordance with its terms. 3 Pars. Oont. 405. And the court will not allow this post mortemremedy to be defeated by any devise inconsistent with the agreement. The making of the'first will was not a complete performance of the contract on the part of the deceased. The contract provided that if the plaintiff performed the contract upon her part she should have the fee of the premises in question. In this respect the deceased failed to perform the contract. The relief to which the plaintiff is entitled" is a conveyance of the premises from the heirs at law of the deceased.

There is no claim for damages against the estate. The personal representatives of the deceased are not, therefore, necessary parties, and then it does not appear from anything alleged in the complaint that the deceased has any personal representatives. He left a will, but it does not appear that there'was any executor appointed by the will, or that it has ever been admitted to probate. The interlocutory judgment appealed from should be reversed, and the demurrer overruled, with costs, but with leave, however, to the defendant demurring to serve an answer to the complaint within 20 days.upon payment of tne costs of this appeal and of the demurrer. All concur.


text:
    John A. Smith, Resp’t, v. Henry W. Foote, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Sale—Sample.
    Upon an executory sale by sample, with warranty to correspond with, sample, the vendee is not, though he has accepted the goods after an opportunity for inspection, precluded from claiming and recovering damages for breach of warranty.
    2. Same.
    The sale, in this case, was held to be by sample, with warranty that the glass should be of the same shade as the sample.
    3. Damages—Sale.
    The rule of damages, applied under the peculiar circumstances of this case, approved.
    Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      N. Bull, for app’lt; B. F. TurJc, for resp’t.
   Dwight, P. J.

The judgment appealed from awarded damages to the plaintiff for the breach of an alleged warranty embraced in an executory contract for the sale of a quantity of stained glass. The contract was by letters which passed between the parties. The plaintiff, at Rochester, wrote the defendant, at New York, inclosing a piece of stained glass, and inquiring for the price at which the defendant would furnish him with 1,500 feet of glass “like the sample inclosed,” and when he could furnish it. The defendant answered that he could ship immediately the full amount required of glass “ a little lighter than the samplethat he had on hand about 600 feet “ like the sample and that he could ship him the full amount “of the same shade” within two or three weeks, as it would shortly arrive ; and he quoted the price at which the glass would be furnished. The plaintiff wrote that the price was satisfactory, and giving the order, provided the de: fendant would ship the 600 feet at once, and the balance within 15 days; “the glass to be like the sample sent.” This was the contract. It plainly embraced a warranty on the part of the defendant that the glass should be of the same shade of coloras that of the sample. The language of the order was “like” the sample sent or inclosed. On the trial the defendant offered evidence to prove that the word “like” had some special meaning in the glass trade. The offered evidence was excluded, and, as we think, properly, because, whatever meaning the word may have had in the general usage of the trade, its meaning as used in this transaction was fixed by the terms of the contract itself. The inquiry was for glass like the sample. The answer was that the defendant had on hand about 600 feet like the sample, but could ship at once the whole 1,500 feet “a little 'lighter than the sample,” or the whole amount “of the same shade” within a time named ; and the acceptance was of the latter proposition. Here the defendant himself makes the clear distinction between glass like the sample and glass only a little lighter in shade, and the contract is closed for glass of the former description only. On the principles so strongly enforced in the case of Zabriskie v. Cent. Vt. Railroad Co., 131 N. Y. 72; 42 St. Rep. 629, this was a sale by sample, and with a warranty which survived the acceptance of the goods. In that ease the sample referred to was not present, nor even in existence, at the time the contract was made, being the coal sold by plaintiff to the defendant, and consumed by it in the previous year; but its qualities had been observed in the results of its use, and these afforded a. standard of comparison to which the subject of the later sale should conform.' In that case the court of appeals adopted the opinion prepared by their late Chief Judge Ruger, in which he said: “The principle is well established that upon- an executory sale of goods by sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claiming and recovering damages for breach of warranty, although he has accepted the goods after an' opportunity of inspection,”—citing Kent v. Friedman, 101 N. Y. 616; Brigg v. Hilton, 99 N. Y. 517; Gurney v. Atlantic & G. W. Railroad Co., 58 N. Y. 358.

. In the present case there can be no .question that the sale was by sample, and with warranty that the glass should be of one shade of color, and that the same as of the sample furnished. It was received by the plaintiff in sheets of varying size, which he cut into the sizes required by the work for which it was intended, and set it in the sashes which had been prepared to receive it. It was only when the sashes, thus glazed, had been framed in the church windows for which they were designed, and a uniform light was transmitted through the glass, that its defects were first, apparent. It was then discovered to be of several different shades of color, and to present so mottled and variegated an appearance as to be unfit for its purpose. The windows so glazed were rejected by the architect and the committee having charge of the work, and the plaintiff was compelled to take out the glass furnished by the defendant, and supply its place with other and fitter glass, procured elsewhere; and, failing to obtain the allowance of his claim for damages, he paid the defendant’s claim, in an action for the contract price, and brought his own action for the breach of warranty. The action was, no doubt, properly brought and maintained. The plaintiff’s claim on the warranty was not necessarily dependent upon the defendant’s claim to recover the contract price, and was not waived by his failure to set it up as a counterclaim to the defendant’s aption. Muller v. Eno, 14 N. Y. 597; Schwinger v. Raymond, 83 N. Y. 198. We are inclined to think that the rulé of the measure of damages applied by the court in its instructions to the jury was correct under the peculiar circumstances of the case. It was, in effect, that the plaintiff was entitled to recover the actual damages snstained by him in the use of the glass in question up to the time when he did in fact or ought, in the exercise of reasonable care, to have ascertained that the glass was unfit for the use to which it was put. ' The ordinary rule on that subject is not of universal application (Swain v. Schieffelin, 134 N. Y. 471; 47 St. Rep. 910); and probably the- particular facts of this case justified the application of a different rule. But no exception was taken by the defendant to the rule actually applied; ana, since it is not apparent that any injustice resulted therefrom, we do not feel called upon to examine that question more fully in this case. There is no other exception in the case which seems to require discussion.

The judgment and order appealed from should be affirmed.

All concur. So ordered.


text:
    Hampton Dodge, Resp’t, v. Henry Weill, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Witness—Cross-examination.
    Allowing irrelevant questions to be put on cross-examination is reversible error, if it tends to prejudice the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      Moses Shire, for app’lt; S. S. Rogers, for resp’t.
   Dwight, P. J.

The action was to recover the amount of certain commissions alleged to have been earned by the plaintiff under a special contract with the defendant to pay him per centum of the purchase price of all lands the sale of which to the defendant should be procured by the plaintiff. The question presented by this appeal is purely a question of fact, upon which the verdict of the jury was, as we think, so far contrary to the just effect of the evidence as to have justified the granting of the defendant’s motion for a new trial at the circuit, even though that question was properly submitted to the jury. Colt v. Sixth Ave. R. R. Co., 49 N. Y. 671; Smith v. Ætna L. Ins Co, 49 N. Y. 211; Kaare v. Troy Steel & Iron Co., 139 N. Y. 869; 54 St. Rep. 653. The plaintiff’s theory of the contract, under the circumstances of the case, was such as to suggest a careful scrutiny of the testimony bearing upon the question of its performance by the plaintiff. The latter is the question upon which, as we think, the testimony, as it stands in the record before us, fails to support to the full extent the verdict which was rendered. On this question the testimony of each of the parties to the action is directly opposed to that of the other, and at the same time the testimony of several of the vendors in the contracts of sale alleged to have been procured through the agency of the plaintiff not only fails to support, but, on the other hand, directly contradicts, his testimony in that behalf. Upon this question, material to the plaintiff’s recovery, the burden of proof, which was upon him, was plainly not successfully borne in respect to several of the items embraced in the verdict, and for that reason the motion, for a new trial should have been granted. There was, besides, evidence received in the case, under the objection of the defendant, to which there is reason to apprehend that undue weight and effect was given. The defendant, when on his cross-examination, was subjected to the inquiry as to what profits he finally made on sales of the several pieces of land for the purchase of which commissions were claimed. The questions were objected to generally, without specifying any ground of objection. The evidence was clearly impertinent to the question which was litigated on the trial. Its apparent object and probable effect were to create the impression in the minds of the jury that the defendant could well afford to make a small dividend of profits to the plaintiff. It is true that the complaint in the action, in stating the alleged oral contract of the defendant, adds to the allegation of an agreement to pay commissions the following: “ And that, if purchases turned out well, plaintiff should have a handsome percentage on the profits besides.” But when a bill of particulars of the plaintiff’s claim was demanded and supplied, there was no mention of any claim for a share of the profits. When the plaintiff had the case, no evidence was given or proposed in support of such a claim; and when the case was submitted to the jury this partial allegation was equally disregarded. It must be understood, therefore, that the cause was not tried upon the theory that there was any such issue in the case, and, if the evidence in question had been objected to on the ground that the claim was not in the bill of particulars, its admission would certainly have been error. If its admission now escapes that condemnation, the evidence itself does not escape animadversion, as having probably tended to create an unfair prejudice in the minds of the jury, and to produce a verdict, to some extent at least, against the just weight of the evidence in the case.

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

All concur. So ordered.


text:
    In the Matter of the Judicial Settlement of the Accounts of Norman M. Allen, as Executor of the Will of Norman Howard, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Wills—Construction.
    A bequest to the sisters of the testator and to the children of a deceased brother, was held not to include the children of a deceased sister.
    Appeal from portions of a decree relating to the distribution of the residuary estate.

      J. E. Bixby, for app’lt; W". H. Henderson, for resp’ts.
   Dwight, P. J.

Two provisions of the decree are specified in the notice of appeal, only one of which has any effect upon the distribution of the residuary estate, so far as the sole appellant is concerned, and it does not appear that she has any interest in the question which arises on the other of the two provisions specified ; whereas, the residuary legatee, whose interest is directly affected by the last-mentioned provision, does not appeal from it, but appears generally as a respondent on this appeal. We shall therefore confine our attention to that portion in which alone, so far as appears, the appellant has any interest on which to base an appeal. That is the provision by which a share of the residuary estate is awarded to the respondent Henry Milk. The facts bearing upon this branch of the case are as follows: Norman Howard, the testator, died in 1866, at the age of twenty-nine years, leaving a widow, but no children, a father, mother and three sisters. There were also living at the time of his death, and at the time of the execution of his will, a son of a deceased sister (the respondent Henry Milk) and three children of a deceased brother. By the second section of his will he gave the use of his farm, or, in case the farm should be sold under a power conferred upon his executors, the use of the avails, to his widow, during her life, or one-half of such use in case she should marry again. He then made several pecuniary bequests, and followed them by a residuary clause, as follpws: Seventh. At the decease of my said wife, all the restand residue and remainder of my said estate, after paying the bequests before made, shall descend to my father, Harry Howard, if he shall then be living; and if he shall not be living at the time of the decease of my said wife, then the same shall descend to my mother, Delilah Howard, if she shall then be living; and, if she shall not then be living, then the same shall descend to my sisters and their heirs and. assigns, and to the children of my deceased brother and their heirs and assigns. Th children of any of my sisters or of my brother are only to r the same share as my brother or sisters would receive if the living at the decease of my said wife.”

The father and mother of the testator both died \ widow, and she died in 1890, leaving, surviving her, the relatives of the testator, as at the time of the .e xecution c. will, viz., three sisters, the son of the deceased sifter, and the dren of the deceased brother. The learned surrogate held decided that the residuar^state should be divided into five parts, to be distribute 1 ono part each of the three si; ar?d one ptf.rt_to the son of 'Njjjped sister, Henry Milk, one part tc ¿'iyidod between tTtliree children of the deceased brother. Tv t, ricitdr ch'd"efeot:'e'e*^n wfis-respect was erroneous, for the reason that the case of the sister already deceased at the date of the will was not included within the terms or the intention of the testator, as expressed in the seventh or residuary section above quoted. The language is, “to my sisters and their heirs and assigns, and to the children of any deceased brother and their heirs and assigns.” It is evident that the word “sisters,” as here used, did not include th^jiscer then deceased, because the gift was to them, the words “aRt their heirs and assigns” being words of inheritance merely. He did not give a share of his property to his deceased brother and his heirs and assigns, which he might as well have done as to include his deceased sister among those who were the objects of his bounty. The gift is to^ his sisters and to the children of his deceased brother, all persons in being at the time his will was made; and by the subsequent clause of the same section, as already quoted, he made provision for the case which would arise if any of his sisters should die after the execution of the will, and before the death of his widow, to the effect, viz., that their children, in such case, should take per stirpes, and not per capita. Of course the one thing to be ascertained, if possible, in the construction of the clauses of this, as of any other, will, is the intention of the testator, and this, first of all, if possible, from the plain import of the terms employed. In this case it seems scarcely necessary to go beyond that first canon of construction. Here the testator gives a share of his residuary estate to each of his sisters (of course, his living sisters; he cannot give to any others), and to their heirs and- assigns. These are the only sisters mentioned, and there seems to be no language employed which can include the deceased sister or her son. The deceased brother is mentioned, as such; and the gift is not to him, and his heirs and assigns, but to his children and their heirs and assigns. Had the son of ¿he deceased sister been included in the purpose of the testator, he might as easily have been described as such. The son of the deceased sister not being within the plain import of the terms of the will, he cannot be brought within its provisions by virtue of any presumption arising from his relationship to the testator. All the authorities referred to by the learned surrogate and by counsel in support of a presumed disinclination to disinherit the heir relate to the case of children or ther direct descendants, and none of them to collateral relatives, re the cases of In re Brown, 93 N. Y. 299; Low v. Har72 N. Y. 408; Scott v. Guernsey, 48 N. Y. 106; and In re 11 N. Y. 480; 19 St. Rep. 67. Nor is there anything in iden'cS aliunde the will itself which aids the contention of csnondent. There is but little of such evidence, but it ars*that hit.' deceased sister, the mother of Henry Milk, died than twenty years before the will was made, and when teswas a child of not more than eight years, and that her son, y Milk, was a man of nearly, j^ot quite, the age of the tor, and the father of <* age is not stated, in whose jr the testator made a 'Wl^‘ir‘dry bequest. ^Tljrase circumstances may or may not accou|f . for the discriniia^tion between Henry Milk and -the children óitíe' deceased Yn-híner. It is sufficient to say that they are not inconsistent with the discrimination which is actually made by the terms of the will. The proposition in the argument of counsel that the children of the deceased sister as well as of the deceased brother take as primary legatees, and not by substitution or representation, is entirely untenable. It would not have been true of the children of either of the three, living sisters, had either of them before the death of the widow. Those living sisters were,'by"the plain terms of the will, the primary legatees of three shares of the estate, and their children, had any oí/ them died, could have taken by no other means than by substitution or representation, and that per stripes, as indicated by the l ast clause of § 7 of the will; and, in regard to the son of the deceased sister, we have stated our reasons for the conclusion that ke is neither by original mention, nor by substitution or represen tation, embraced within the provisions of the will. These views lead to a reversal of that part of the decree which awards a share of the residuary estate to the respondent Henry Milk, and its affirmance in all other respects. This will result in a modification of the decree in such a manner as to give to each of the livi’hg sisters one-fourth of the estate, and to each of the children of the deceased brother one-twelfth.

All concur.

So ordered, with costs to the appellant, payable out of the fund.


text:
    Trustees of the Village of Canandaigua, Resp’t, v. William L. Foster, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Municipal corporation—Street—Abutting owner.
    An abutting owner, who reconstructs a coal hole in the sidewalk without the consent of the village, is liable to such village for the damages it is compelled to pay to a person injured thereby.
    Appeal from an order denying, a new trial on the minutes of the court.

      John Gillette, or app’lt; Frank Bice, for resp’t
   Dwight, P. J.

One McSherry, in 1889, brought an action against the village of Canandaigua for injuries sustained by him in falling on a defective sidewalk, in front of premises of defendant, on one of the streets of that villnge. The plaintiffs gave the defendant notice to defend the action, and he undertook to do so. Judgment, however, went against the village, which the plaintiffs paid, and now bring their action over, to recover of the defendant the amount so paid. The defect in the sidewalk was a loose grating, covering the opening into a vault beneath. The vault was excavated and the grating set by the defendant many years before, with the acquiescence and consent, actual or implied, of the village authorities. Babbage v. Powers, 130 N. Y. 281; 41 St. Rep. 521. It was, therefore, out^-of the question that the plaintiffs should recover over, agaij/st the defendant, for the original construction, good or badij 0f fee vault and grating (Trustees of Geneva v. Brush Electric Co. 50 Hun, 581; 20 St. Rep. 422; affirmed, 130 N. Y. 670; 41 St. Rep. 952); and so the court held at the circifefc But the de«£^ant recon' structed the opening and reset'the grating in the "SM£-mer °f 1888, and the evidence on the'-part of the plaintiffs' show that this work was done m an improper manner, and that* in consequence of it the grating soon after came to be in an unsafe condition, and that the accident to McSherry resulted there from. This evidence presented the main question which was sub' mittee to the jury, and properly submitted, i]s we think. There was no evidence of consent on the part of the.ivillage to the reconstruction, nor lapse of time from which acquiescence should be inferred. • If, therefore, the reconstructed opening and grating were a nuisance, the defendant, and not the village, was primarily liable for injuries to third persons resulting therefrom. As we had occusion to say in the Case of Village of Geneva, supra: “ The general rule which denies indemnity or contribution to jo.int wrong-doers is elementary. The cases in which recovery over is permitted in favor, of one who has been compelled to respond to the party injured are exceptions to the general!' rule, and are based upon principles of equity. Such exceptions obtain in two classes' of cases: First, where the party claiming indemnity has not been guilty of any fault except technically or constructively, as where an innocent master is held to respond for the tort of his servant, acting within the scope of his employment; or, second, where both parties have been in fault, but not in the same fault, towards the person injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury.”

Illustrations of the second class were found in cases, like the present, “of recovery against municipalities for obstructions to the highways caused by private persons. The fault of the latter is the creation of the nuisance; that of the former, the failure to remove it, in the exercise of its duty to care for the safety of the public streets. The first was a positive tort, and the efficient cause of the injury complained of; the latter, the negative tort of neglect to act upon notice, express or implied.” The cases here cited of Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Village of Seneca Falls v. Zalinski, 8 Hun, 575, and City of Rochester v. Montgomery, 72 N. Y. 65, and many others of like character, are cases of the second class above described; and they clearly support the submission of this case to the jury, with the instruction, in effect, that if they should find that, in the reconstruction of the grating, the defendant did the work improperly, and in such a manner as to make the use of the sidewalk dangerous, and that the accident in question resulted therefrom, then the plaintiffs might maintain their action over, against the defendant.

The next following instruction of the court to the jury in this case related to the question of the defendant’s neglect to keep the opening in the sidewalk and its covering in repair, without reference to that which way-dlone by way of reconstruction in 1888. The instruction was ii efeect, that if the defendant negligently permitted the structu,-. in question to fall into disrepair, and thus to become dangers to passengers on the sidewalk, and the accident in quests resulted therefrom, the village, being subjected to -the paynjgfit 0f damages ttóereby, wa? entitled to recover the same fidefendant. Th'is instruction was also, we think, J&recton the principle that the defendant, when he availed him'self of the license by implication to'make the opening m the sidewalk did so under the implied contract, not only to do the work in a’safe and proper manner, but also to keep the structure m a safe condition, by repairs, as the same should become necessary. Babbagle v. Powers, 130 N. Y. 281, 286; 41 St. Rep. 521, and the' cases cited. In Babbage v. Powers, the defendant was held not liable ; as an original trespasser, because of the implied license, as in thjfs case, to make the opening ; and the question of his neglect tokt,ep it in repair was not considered, because, as is premised in the cutset of the opinion of the court, no charge of negligence was m*ac|e by the plaintiff. Nor do we. find this instruction to be in contravention of the principles established by the case of City of Rochester v. Campbell, 123 N. Y. 405; 34 St. Rep. 77, which arose on 'demurrer to the complaint, because the court there say : “ It will be observed. that the complaint does not charge the defendant’s testator with negligence, or the breach of any contract duty; but ^his liability is predicated wholly upon the statutory duty to repalir and the assumption that ah omission to perform it imposes a liability in favor of all persons who may be injured by such omission.”

It Appeared in evidence that, at the time of the accident to McShdrry, the premises to which the vault or coal hole was attached, being one store in a block owned by the defendant, was under! lease to a man by the name of Parsons, for the term of three .years from the 1st day of April, 1886; that the tenant was in possession from that date to and including the date of the accident ; add that the lease contained no covenant on the part of the lessor t.o repair. At the close of the evidence, counsel for the defendant .moved for the direction of a verdict, on the ground, among ethers, that the defendant was not in possession or control of the preimises at the time of .the accident.’ The defendant also requested; the court to charge the jury that, if the grating was in proper position at the time the store was leased to Parsons, there could be ino recovery against the defendant after that time. It is apparent Ihat both the motion, on the ground stated, and the request to ..charge, were properly denied. Both ignored the facts which constituted one of the principal grounds upon which the plaintiffs cilaimed to recover, viz. those which related to the reconstruction -of the opening and its cover in 1888. That was during the terna of the lease, but the defendant, as owner of the premises, the.’j assumed sufficient control' to make the change in the structure complained of; and we have approved the submission to the jury of the question whether that new construction was made in an ' improper manner, which rendered the sidewalk unsafe for passengers, and was the cause of the accident in question. This questiova was plainly unaffected by the lease to .Parsons, and to have granted either the motion or the request above stated would have withdrawn that question from the jury.

We find no question in the case beyond those already considered which seems to require discussion. The order appealed from should be affirmed. All concur.

So ordered.


author: DWIGHT, P. J.

text:
    Charlotte Thon, Resp’t, v. The Rochester Railway Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

      1. Evidence—Admissions.
    Where a witness testifies to an admission made by plaintiff in the, German'language, and states the German words and their English equivalent, the plaintiff may show that the latter is different from that given tvy the witness.
    3. Witness—Counsel.
    Counsel is a competent witness for his client.
    Appeal from an order setting uside a verdict in favor of, defendant and granting a motion for a new trial on the minutes,,

      O. J. Bissell, for app’lt; Ivau Powers, for -resp’t.,
   DWIGHT, P. J.

The action was to recover-damages for a Ipcdily injury, caused, as alleged, by negligence of a driver of a ho^’se car of the defendant, upon which the plaintiff was a passengelr, and from which she was alighting when the injury was received.'* One Wolff, a witness for the defense, testified that the plaintiff,- relating to' him the circumstances of the accident soon after its ; occurrence, told him, in effect, that in her haste to reach another car at the junction of the two routes she stepped from the car '.she was on while it was in motion, and thus fell to the ground; ‘that she had rung the bell once or twice for the car to stop, and. [that she did not know it was not allowed to stop on the intersection of the two streets. . On the cross-examination of this witness kt appeared that the statement made to him by the plaintiff was íl-j the German language, and he was asked to repeat it in Gerrna n. After protesting more than once.that he could not give thewmrdsof the plaintiff, he finally, in response to a direction of the c:ourt, gave what he declared to be in substance, as nearly as he could reproduce it, the statement of the plaintiff as made by her- -in German, which testimony, in German, the stenographer was u-cable to take. Subsequently, when the plaintiff'had the case, to i'epfiy, she called to the stand one of her counsel, Mr. .Jacob Spahn,, a competent German and English scholar, who testified that' he/ took-down in writing verbatim the German words which the yvitness Wolff, by his .testimony, attributed to the plaintiff in the «conversation testified to by him. The words so taken by Mr. Spahn were submitted to the witness Wolff, and he identified mem as the German words used by the .plaintiff, as nearly as he fjjould recollect .them. The plaintiff thereupon offered to prove bji Mr. Spahn what the meaning of those words was w,hen correctly translated into English. The evidence offered was excluded ,under the defendant’s objection, and plaintiff's exception to this ruling was the ground upon which the learned judge at the circuit granted the motion for a new ‘«.rial. We think 'be evidence offered was competent and admissible, and that for the er;w: of its exclusion the motion for a new trial was properly granted. The situation was one which did not call for an interpreter, but for a translator, and for that purpose Mr. Spahn was competent,, both- as a witness and as a German and English .scholar. His position as counsel for the plaintiff went only to his credibility. He was presumably the only person connected with the case who was at the same time interested and competent to recognize and identify with accuracy the German words which the witness Wolff attributed to the plaintiff This he .testified lie did, and reduced them to writing as they were spoken by the witness, and he produced them before the court. Those words, when thus secured and identified, were a part of the evidence in the case, .and, being such, it was necessary that they should be translated into English. The proposal of the court to permit the witness Wolff to .be recalled, and to be again asked for a German version of the statement of the plaintiff, and to permit that portion of his testimony to be interpreted to the jury, did not quite meet the situation. The witness had once given his version of the plaintiff’s statement in German. The words had been taken down and preserved. They were a part of the evidence already given in the case. It only remained to have them translated, in order that the plaintiff should have the benefit of the evidence if it should prove to be beneficial to her. Of course, all the evidence thus given and proposed to be given by the witness Spahn was subject to contradiction by the witness Wolff'as to the identity of the German words testified to by him, and by Wolff or any other competent witness as to the correctness of their translation. But that the plaintiff had a right that the jury should know what the testimony was when first given, and what was the meaning of the German words then testified to, we cannot doubt. The testimony excluded related to an alleged admission of the plaintiff closely affecting her cause of action, and it is impossible to say that its exclusion was not to the prejudice of the plaintiff. „ >

The order for a new trial should hie affirmed:

So ordered, with costs of this appteal to abide the event.

Haight, J., concurs; Lewis, J., ilissents.


author: Clement, Ch. J.

text:
    Joseph Jenkinson, App’lt, v. Patrick J. Carlin et al., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    Master and servant—Fellow. ,
    A master is not liable for injuries tó a servant, occasioned by tbe -failure of another servant to provide proper appliances.
    Appeal from a judgment of nonsuit.

      Shorter é Kurth, for app’lt; Wm. S. Cogswell, for resp’ts.
   Clement, Ch. J.

The plaintiff, a bricklayer by trade, was on the 18th day of Ma tch, 1893, in the ^Lploy &k the defendants, who were erecting a building at the cj/ner of Rockv^fiJ] place and Dekalb avenue, in tluis city ' ire’’arrived at that place'NJ’bij'ht o’clock in the morning, ahd was directed by one McCabe, who was a foreman for the defendants, to work on a certain wall. After working there for about two hours, he was ordered by Mc-Cabe to work on a pier near a derrick on which there was no check rope. After working an hour on the pier, the derrick fell, and he was severely injured. The derrick fell for the reason that it ha(l no check rope. The plaintiff brought this •action to recover damages from the defendants for thqir alleged negligence. The learned trial judge dismissed the complaint at the close of plaintiff's case, and this appeal is taken from the judgment of nonsuit.

1 We are of opinion that the defendants are not responsible for the failure of McCabe to see that the check rope was attached to the derrick. Crispin v. Babbitt, 81 N. Y. 516; Hussey v. Coger, 112 id. 614; 21 St. Rep. 848; Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359. McCabe was simply a foreman over the mason Work, and his declarations after the accident did not bind the defendants. It appeared that John Richardson, a fellow servant of plaintiff, had charge of the derrick. He testified that the derrick fell for the reason that it had no check rope, and that he forgot to attach a rope to it. The case, therefore, falls within the rule laid down by the court of appeals in Cregan v. Marston, 126 N. Y. 568; 38 St. Rep. 428, and the dismissal of the complaint was, therefore, right. If the questions which were ruled out below had been answered favorably to the claim of the plaintiff, he would not stand in any better position. There was no testimony tending to show that McCabe was incompetent to fill the position of foreman.

Judgment affirmed, with costs.


author: Yan Wyck, J.

text:
    Konstantine Kosters, by Guardian, etc., Resp’t, v. The Brooklyn Bath and West End Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    Trial—Charge—Assault and ^attery.
    Where, in an action for .an > assault, defendant testifies that he did not strike the plaintiff until the latter struck him, he is not entitled to an instruction as to provocation by resulting language.
    Appeal from a judgment, emtered on a verdict in favor of the defendant, and from an order cfenyinga motion for a new trial.

      Morris & Whitehouse, for app’lt; '\£eo. W. Miller, for resp’t.
   Yan Wyck, J.

The plaintiff sued to l-Ncooer damages for an alleged assault committed upon him while a '.passenger on defendant’s car by the conductor. The only question for our consideration is whether the &"OT’t erred in refusing tq charge at defendant’s request that “ifAíhe pf intiff commenced the altercation, and in the course ojj- it addressed indecent and insyilting language to the cokfVddtorfand language skLas w,as cale.vilated or likely to pro"duee an assault, the verdict must be 'or defendant. ” Assuming that this is a sound statement of law under the authority of the prevailing opinion in Scott v. Central Park, etc., R. R. Co., 53 Hun, 414; 24 St. Rep. 754, it seems to us that the court charged so much thereof as was applicable to the facts in this case. The plaintiff testified that the conductor, after he .had paid his fare, demanded of him, at several -different times, the payment of the same, and without provocation, save his refusal to pay his fare a second time, that the conductor clubbed him severely. The conductor testified that at different times he demanded the fare, which was not paid, and that plaintiff, while standing on the platform, used abusive language to .him, after which he stepped from that platform to the platform of the adjoining car, when the plaintiff drew an iron wrench out of his pocket, and struck at him; that he then took his eight-inch stick out of his pocket and struck the plaintiff. It is.manifest from this testimony, if the conductor is to be believed, that this assault on plaintiff was not provoked by any insulting words, but by the threatened assault upon him by plaintiff with the .wrench. ■ The court charged that if plaintiff assaulted or threatened to assault the conductor, the latter was justified in assaulting plaintiff. The testimony of the conductor is the only evidence that, before he assaulted the plaintiff, the latter used insulting language, or threatened to assault the con-ductor. After examining the testimony, we see no reason to disturb the verdict.

Judgment and order affirmed, with costs.


author: Osborne, J.

text:
    Thomas A. Mills, Resp’t, v. The Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    Negligence—Question ' fob juby.
    The negligence of an old man, in attempting to cross the street in front of a horse car then about sixty feet from the crossing, is a question for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Moore & Wallace, for app’lt; Shorter & Kurih, for resp’t,
   Osborne, J.

This action was brought to recover damages for injuries sustained by plaintiff through the alleged negligence of defendant. Plaintiff obtained a verdict, and from the judgment entered thereon, and also from the order denying a motion for a new trial, defendant appeals.

The counsel for the appellant contends that the learned trial judge erred in denying the motion made to dismiss the complaint at the close of the plaintiff’s case, and again upon the whole case, which rulings were duly excepted to. The testimony of and on behalf of plaintiff shows that on the 4th day of February, 1898, between 4 and 5 o’clock p. m., plaintiff (a man upwards of 70 years of age) arrived at the corner of Marcy avenue and South Fourth street, over which latter street defendant then operated one of its lines of horse oars. The day was damp, and there was mud and slush on the streets. When plaintiff reached the curb at South Fourth street, he paused, and looked up and down the street to see if a car was approaching, and hetestifies that he saw one of defendant’s cars approaching from the west. That the horses’ heads were “one, if not two, lengths of a car” the other side of the further cross walk on’ South Fourth street, a distance of upwards of 60 feet from the cross walk which'he was about to cross.1 Plaintiff started to cross,and, to clear the car track on" which the car was- approaching, it' was necessary for him to traverse a distance of 12 feet 4J inches. Plaintiff was impeded somewhat in his progress by the mud and' slush, and before he could cross the track he was knocked down by the horses of the car, and suffered the injuries complained of. Defendant’s driver testified that when he reached the lower crossing on Marcy avenue (a distance of 38 feet 2 inches' from the cross walk on which plaintiff was) he saw the plaintiff starting to cross ; that' his horses was going at a slow trot;. that1 he (the driver) called out to plaintiff, and applied the brakes, but that; owing to its being a down grade at that place, and'the track being slippery, and his brakes not taking hold properly, he was unable to stop the car before it reached the plaintiff Other witnesses were also put on the stand by defendant’s counsel with a view of corroborating the driver. The learned counsel for the appellant claims that plaintiff failed to show that he exercised due care, and that he was guilty of contributory negligence. We do not think that the evidence showed such want of due care on the part of the plaintiff as to warrant the trial judge in taking that question from the consideration of the jury. It is true that the courts have laid down the rule that, where parties take chances to cross a railroad track in front of an approaching cai’, and fail, they must bear the results of their own miscalculations ; but in the case before us there was no taking of chances, no attempt to make close calculations. The car was, according to plaintiff’s testimony, upwards of 60 feet'away when he looked and saw it approaching as he was about to cross the street, and he had 12 feet 4jjj inches to walk to get entirely across the tracks. We cannot say, as matter of law, that plaintiff was negligent, or lacking in due care, when he assumed that he could walk 12 feet 4J inches before'the car would travel upwards of 60 feet. We are of the opinion that that was plainly a#question for a jury to determine. Wells v. Brooklyn City R. R. Co., 58 Hun, 389; 34 St. Rep. 636: Friedman v. D. D., etc., R. R. Co., 33 St. Rep. 649; 11 N. Y. Supp. 429; affirmed, 110 N. Y. 676. Nor can we say, as matter of law, on all the evidence, that the driver of the car did all that a prudent man should have done. That is a question on which different conclusions, might be reached by different men on hearing all the evidence on that’point, and therefore it should have been submitted to the jury, Friedman v. Railroad Co., supra. The motion for a new trial on the minutes was, in our judgment, properly denied. As above stated, plaintiff’s freedom from contributory negligence and the negligence of the defendant were questions that belonged to the jury to determine. There were frequent contradictions in the testimony of the witnesses on either side, and some discrepancies in the testimony of ■the various witnesses on the part of the defendant. The jury have decided in favor of plaintiff’s contention after the law bearing on the case had been laid down by the learned trial judge in ■a charge to which no exception was taken, and we can see no reason for interfering with the verdict. Neither of the exceptions to the refusals to charge as requested seems to us to be well taken, or of sufficient importance to call for any discussion.

For the reasons above stated, we think the judgment and order ■denying motion for a new trial should be affirmed, with costs.


text:
    John F. McCormick, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    Appeal—Conflict of evidence. ■
    A verdict, on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Dailey, Bell & Crane, for resp’t.
   Osborne, J.

This action was brought to recover damages for injuries sustained by the plaintiff, through the alleged negligence of the defendant. Plaintiff obtained a verdict, and from the judgment entered thereon the defendant appeals; and it is claimed, ;as ground for 'reversing said judgment, that the learned trial judge erred in not granting the motion to dismiss the complaint made at the close of the plaintiff’s case, and renewed at the close of all the evidence. The learned counsel- for the defendant contends that the evidence shows that plaintiff was guilty of contributory negligence, and that no negligence was shown on the part of the defendant, and that, therefore, the judgment should be reversed. It appears that on the evening of the 8th of February, 1893, plaintiff, who resided in the state of Connecticut, and was somewhat of a stranger in this city, started to cross Hamilton avenue, about '9 o’clock in the evening. On this avenue the defendant operates •one of its lines of trolley ears. Plaintiff was on the north side of the avenue (being the right-hand side, leading to the ferry), and started to cross to the southerly side. He.claims in his evidence that before leaving the sidewalk he looked up the avenue to see-if any car was coming on the down or right-hand track; that he -could see some 70 or 80 feet; and that no car was in sight, but he did see a milk wagon crossing the northerly track. Plaintiff then, according to his story, started to walk across, had crossed the northerly track leading to the ferry, when, on looking down, he saw a car rapidly approaching on this latter track. Thinking that, he had not time to cross that track before the car would reach him, he began to move backward, in order to avoid the approach? ing car. Just then another car of the defendant, on the down track, approached, and when plaintiff had nearly gotten across the track he was struck by the right-hand front corner of the car, and knocked down and seriously injured. His left foot was crushed and liad to be amputated, and he sustained other painful injuries. Plaintiff adduced several witnesses for the purpose of corroborating his statement as to how the accident occurred. The defense was a square denial of the plaintiff’s story as .to how he came to be struck by the car, the contention being that he walked across the avenue right into the car, at its side, and was then struck and thus injured. The motorman of the car in question testified that the track was clear and unobstructed in front of him, and that he could have seen plaintiff if he had been there, and that he did not see him. Other witnesses were introduced on the part of the defendant with a view of corroborating the story of the defense. There was thus a direct conflict of testimony as to the manner in which plaintiff sustained his injuries. It was further testified on behalf of the plaintiff that the car which struck him was going very rapidly, and that it sounded no gong to give warning of its approach. We cannot say, as a matter of law, on all the evidence, that plaintiff was guilty of contributory negligence. He started, ■it appears," to cross the avenue after looking to see if a car was approaching, and, after crossing the down track, was confronted by the approaching car on the up track, which he naturally sought to avoid by moving backward. He had previously looked, and failed to see any car approaching on the down track, and it was therefore an apparently natural act on his part to step back on this track to avoid the up car. Had the motorman been on the lookout, he would have seen plaintiff crossing the track; would have seen the car approaching on the other track; could have readily foreseen that, unless he halted his car, plaintiff was liable to' be caught between the two cars; and it was therefore his duty to have halted his - car, in order to allow plaintiff time to escape from a position of danger. This conclusion is based, of course, on the assumption of the truth of the plaintiff’s story. While it is true that the-motorman testified that the plaintiff was not. in front of his car, and the conductor testified that the plaintiff walked into the car, yet, on a submission of the case to the jury on all the evidence, the jury have found in favor of the plaintiff. They have credited plaintiff’s evidence, and discredited the defendant’s evidence. We cannot see that the learned trial judge could have done otherwise than submit this case to the jury. There is ample evidence to sustain the verdict, and we are of the opinion that it should not be disturbed. There is no question on the facts arising before us, in the absence of any order denying a motion for a new trial on the minutes.

Judgment affirmed, with costs.


author: Per Curiam.

text:
    Ellen McGillicuddy, an Infant, etc., App’lt, v. The Kings County Elevated Railway Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed October, 1894.)
    1. Parties—Poor person.
    Upon an application to sue as a poor person, the statements in the complaint must be taken as true for the purposes of the motion, where no papers in opposition thereto are presented.

      2. Same—Petition.
    The petition, in such case, where it and the notice of motion refer to the complaint, sufficiently states the nature of the action.
    Appeal from an order, denying a motion for leave to sue as a poor person.

      Louis J. Grant, for app’lt; Hirsh & liasquin, for resp’t
   Per Curiam.

The complaint in this case sets forth a cause of • action against the defendant. There was no affidavits before the court tending to show that the action was not brought in good faith, and no denial of the allegations of the complaint. On the papers used on the motion, we are satisfied that the plaintiff had a good cause of action, for the reason that no papers were read in opposition to the statements set forth in the complaint, and the complaint must, for the purposes of the motion, be taken as true.

The complaint was referred to in the petition and notice of motion, and we, therefore, are of opinion that the petition did state the nature of the action.

The order should be reversed and motion granted, with $10 costs and disbursements.

Present: Clement, Ch. J., and Van Wyck, J.

Order reversed and motion granted, with $10 costs and disbursements.


text:
    Emil O. Myer, Resp’t, v. The Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    1. Witness—Examination.
    In an action for injuries caused by a collision between a street car and a wagon, the plaintiff may, on cross-examination, interrogate defendant’s motor-man as to the number of appliances used in stopping the car quickly.
    2. Evidence—Expert.
    Whether a wagon could, or could not, have crossed a street car track at a certain point without colliding with an approaching car, is not a subject of expert testimony.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Wm. G. DeWitt, for resp’t.
   Osborne, J.

Plaintiff, while riding on the front platform of one of defendant’s electric cars going along Second avenue, was injured by reason of the car coming into collision with a four-horse beer truck seeking to cross Second avenue at Forty-second street. Plaintiff obtained a verdict, on the ground that his injuries were caused by the negligence of the defendant, and from the judgment entered thereon, and the order denying motion for a new trial, this appeal is taken. The learned counsel for the appellant alleges for ground of reversal certain erroneous rulings of the trial judge, which we will proceed to examine.

The first ground of error alleged is the admission of the follow-' ing question, put during the cross-examination of the motorman of the car in question. The witness was being cross-examined as to the number of the various appliances for stopping the car, and the following question was put by plaintiff’s counsel: “ Q. On the front platform of this car, do you mean- to say that the instrument (one for sanding the track) wasn’t there ? A. I didn’t use it if it was there. I can’t say it was or it wasn’t. Q. If it were there, then there would be six instruments for the motorman to handle in case of a rapid stopping of the car, wouldn’t there ? ”

This question was objected to, and an exception was taken to its admission, and the witness answered in the affirmative. We fail to see the slightest force in this exception, or how it could affect the result. The number of appliances for stopping tbe car was certainly a proper subject for cross-exatnination. The witness, in his answer just previous to the question excepted to, said that he did not know if the sanding instrument was on his car. Non constat but that counsel intended to prove by some other witness that it was there. How, then, could defendant’s case be affected by the witness’ admission that, if it was there, it would, with the other •appliances he had already enumerated, make six in all to handle in order to stop the car quickly ? Even if it was erroneous to allow the question, it must appear that it would have a tendency to excite the passions, arouse the prejudice, awaken the sympathies, or warp or influence the jury, to make its admission constitute error. Anderson v. R., W. & O. R. R. Co., 54 N. Y. 334. That the admission of this question could not affect the result we are bound to conclude from the fact that the witness bad already testified fully on this subject of the sanding machine, as appears by the following questions and answers, at folio 249: “Q. Aren’t you, as a motorman, called on to sand the track ? A. Not always ; no, sir, There is an instrument for sanding the track. It is on the car. It is on all the cars. It is underneath the seat at each end.”

And again, at folio 251, and immediately preceding the question objected to, the witness testified as follows: “Q. Now, we have-got five instruments for the single motorman to use, all of which come in play when it is desirable to make a sudden stop of the car, haven’t we ? A. In case we have a train like I had that morning, yes, sir. Q. You started, I think, in y.our examination, with only two of them? ■ A. To stop a car, but there is— Q-There seem to be five at least. Now, how about the sand? That would make a sixth one, wouldn’t it? A. Yes, sir.” That exception is untenable.

Further ground of error is alleged in the exclusion of a question put to the witness Inman, who was called on the part of the defendant. He had testified that he saw the accident; that, when he first saw the horses attached to the beér wagon, they were walking on an ordinary walk; that, when the leaders- got near the cross walk of Second avenue, the driver jerked his lines, applied his whip, and started his horses ahead; and that at that time the train was between 50 and 70 feet from Forty-second street. He also testified that he “ had had a great deal of experience with the operation of driving trdcks and horses.” Then the following question was put: “Q. Now, if the driver of that beer wagon had not whipped up his horses, starting them ahead, as he did, when that train was within fifty or seventy feet of it, would there have been plenty of time for that team to have passed in safety ? (Objected to by plaintiff’s counsel.) The Court: That is a conclusion. Defendant’s counsel: I will take an exception. The Court :■ Yes, and I state to you that you can ask him what extra speed he put on, and how far he went,-but not his general conclusion. I will allow you to ask every element from which the witness can infer the conclusion that you ask. Defendant’s counsel, I take an exception.”

Plainly, this wits an attempt on the part of the'learned counsel for the appellant to get tlie opinion of the witness as an expert trucli driver before the jury. We do not think that this was such a case or situation as to render expert testimony admissible. On 'the contrary, it was one where, with all the facts and circumstances before them, the jury was just as competent to answer the question for themselves as to rely on the opinion of the witness, be he ever so expert or experienced a driver. The court, as above shown, tendered counsel an opportunity to prove all the facts, all the elements from which a correct conclusion might be drawn by the jury, and that was all that the defendant was entitled to. As was said in Ferguson v. Hubbell, 97 N. Y. 507, at page 513: “ Where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence, it is not needed that the jurors should be able to see the facts as they appear to eyewitnesses, or to be as capable to draw conclusions from them as some witnesses might be, but it is ^sufficient that the facts can be presented in such a mannerthat jurors of ordinary intelligence and experience in the affairs of life-can appreciate them, can base intelligent judgments upon them, and comprehend them- sufficiently for the ordinary-administration of justice.”

No one of the cases cited in appellant’s brief sustains' the position taken by the learned counsel for the appellant that the exclusion of the question was erroneous. We might go further, and sustain the exclusion of the question, on the ground that the witness was not fully qualified as an- expert to answer it. A proper answer involved not alone experience- in driving horses, but also some knowledge as to the speed of trolley cars and the ability of the witness to judge as to how rapidly the car was moving. On this latter point, be was not shown to possess any expert knowledge.

It is further contended that the learned trial judge should have charged the following request: “Defendant’s counsel: I ask your honor to charge the jury that there can in no view of the case be any recovery in this case by the plaintiff for loss'of wages or earnings subsequent to the 1st day of January, 1893.

To this request the court replied: “ I think I will decline to charge that, and leave 4o the recollection of the jury the question of the evidence.”

The defendant’s counsel took an exception, whereupon the court saidr ■ “If you cab my attention to special parts of the evidence, I will have it read to the jury.”

We do not think that this exception was well taken, in view of the fact that the decision of the point covered by the request was left to the jury to determine, on its recollection of the evidence, and that, coupled therewith^ the learned trial judge offered to have read to the jury any special parts of the evidence relevant to the question to which defendant’s counsel might call attention. The trial of this cause was begun on the morning of February 7, 1894, and was not concluded till the 9th. Some twenty witnesses were examined on the trial, and the testimony in' the case on appeal' covers one hundred and fourteen pages. It is unreasonable to assume or expect that,' after such a protracted trial, the court should *be able to recall at once the evidence on each particular point involved, and be prepared to say exactly what the evidence was thereon. The course of the learned trial .judge in declining to charge the request as a matter of law, and in leaving it to the recollection of the jury to determine on the evidence, .together with the offer to have read to the jury any special parts of the evidence to which defendant’s counsel might call his attention, was eminently fair to the defendant, and we fail to see how this disposition of the request could be in any respect prejudicial to the defendant.

It is further contended that the learned trial judge erred in refusing to charge the following requests by defendant’s counsel: “ I ask your honor to charge the jury that the testimony of the plaintiff as to whether his knee was cracked shall be disregarded, in the light of the testimony of Dr. Speir, Dr. Malone, and Dr. Fowler in this case. (Refused and exception.) I ask your honor to charge the jury now that in n-o view of the evidence can there be any recovery in this case on account of any cracked or fractured kneepan. (Refused and exception;)”

Immediately previous to the putting of ' the first of the above requests, a portion of the plaintiff’s testimony as to his injuries was read from the stenographer’s minutes, as follows: “ The dashboard turned back, and the pin that the bar handle goes onto damaged my left knee; that is, made an incised wound in the left knee. Q. Is that the knee in which you are still lame? A. Yes, sir. Q. Now deep did it puncture the knee? Do you know? Didn’t it pierce through the knee? A. It pierced right through the cap; yes, sir. Q. You don’t know how deep it was ? A. No, sir; I can’t say how deep. Q. Yi^as your knee affected ? A. It was slightly cracked. Q. The kneepan ? . A. Yes, sir.”

Dr. Speir, one of plaintiff’s witnesses, testified that plaintiff had an injury over the right knee ; that the left knee had a punctured wound over the patella or kneecap, and that it had penetrated in a way which produced an inflammation of the lining membrane of the kneejoint; that the patella was not factured in either knee. Dr. Malone, another of plaintiff’s witnesses, testified that when he first saw plaintiff, over two weeks after the accident, he “had an injury to both knees. There was a wound over- the patella of the right knee, and a scar over the patella of the left linee. ” And both Drs. Speir and Malone testified that the injury to the left knee developed synovitis. We think that with this evidence before the jury, coupled with that of Dr. Fowler, the expert witness on the part of the defendant, it was not the duty of the court to direct the j ury to disregard plaintiff’s testimony in any particular. All of the evidence was before the jury. It was their duty to carefully weigh it all, to reconcile, if they could, apparent discrepancies, and to determine the facts. We can readily see how the plaintiff might have used the word “ cracked ” in the sense of “ punctured ” in describing the injury to his kneepan, and believe that he was testifying truly. Defendant was not, in our opinion, in any manner prejudiced by the refusals to charge as requested, as the court had already charged, in response to a previous request of defendant’s counsel, that there was “no evidence that plaintiff’s kneecap or kneepan was fractured, as claimed by plaintiff’s counsel in his summing up.”

In the course of the discussion arising out of the last mentioned request, the learned trial judge incidentally said: “As I understand, the testimony is that both of his kneecaps were punctured. That would be a fracture.”

To this remark counsel for the defendant excepted, whereupon the trial judge said: “ That is as I understand the evidence; but, if that is not the evidence, I ask the jury to disregard entirely what I say upon the subject. If counsel will call my attention to that particular part of the evidence, I will have it read to the jury.” *

Even if we were convinced that the remark of the trial judge was erroneous, and offered ground for a valid exception, such error was effectually cured by the direction to the jury to disregard entirely what the trial judge had said, and the offer to have read the particular part of the evidence bearing on the question. We do not, however, desire to be understood as holding that the remark of the trial judge constituted reversible errror.

For the reasons above stated, the judgment and order denying motion for a new trial should be affirmed, with costs.


author: Clement, C. J.

text:
    Joseph W. Mackie, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    Negligence—Contributory.
    A person, upon seeing a street car approaching at a distance of 500 feet, has the right to assume that he can drive 38 feet before the car will reach him.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for .app’lt; Dailey, Bell & Grane, for resp’t.
   Clement, C. J.

The questions involved in this action seem to be purely of'fact. The theory of plaintiff was that he drove a horse and cart on February 21, 1898, in an easterly direction, along Third street, and that, when he had nearly reached the westerly cross walk of Third streetandThirdavenue, hesawatrolley car of the defendant, on Third avenue, 500 feet away, and-running in a southerly direction, towards Third street; that plaintiff moyed on, and endeavored to drive across the track on which the car was approaching, -to the other track; that he could not drive between the curb and the first track -for the reason that the snow which had 'been -thrown off the track was there two feet deep; and that the plaintiff had to drive 23 feet to get to the first track. The plaintiff further proved that when the left wheel of the cart was over the first track, and the right wheel was turning off, his cart was struck in the rear by the car, and that he sustained injuries as the result of -the collision. Plaintiff was substantially corroborated by the testimony of a fellow workman. The motorman testified that the cart was off the track, and that when his car approached the plaintiff pulled his reins, and suddenly turned in front of him. The testimony of three witnesses for the company tended to corroborate the motorman. We do not think that the plaintiff was guilty of contributory negligence, as matter of law, but hold that the same -was a question of fact, for the jury. The plaintiff, when he saw a car approaching at a distance of 500 feet, had the right to assume that he could drive 28 feet before the car would reach him. The track' is less than 5 feet wide. If we held otherwise, in many streets in this city it would be impossible to drive a business wagon. The cart was in full view of the motorman for a long distance, and he had ample time to check the speed of his car. The case turned mainly on the question whether the plaintiff was turning off the track when his cart was struck by the ear, or whether he was driving along the street, and suddenly turned his cart upon the track upon which the ear was moving. We have carefully examined the exceptions, -and discover no error. The judgment and order denying a new trial affirmed, with cost,


author: Van Wyck, J.

text:
    Charles Berntsen, Resp’t, v. John T. Huner, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    Pleadings—Demurrer—Misjoinder..
    An objection on the ground of misjoinder of causes of action must he takep -by -demurrer.
    Appeal from a j udgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Uriah W. Tompkins, for app’lt; L. H. Hurst, for resp’t.
   Van Wyck, J.

Plaintiff recovered a verdict herein for .$450, and from the judgment entered thereupon, and from the order denying .motion for new trial, this appeal is taken. Assuming that appellant’s contention is correct, that there are two causes of action,^-one for trespass upon real estate, and the other for trespass against the person , (an assault),—even then he is in no position to raise the question that they were improperly united, for he waived that objection by failing to make it upon demurrer. Code Civ. Proc. §§ 484, 488, 499. Upon the refusal of the trial court to charge a general request that, for trespass, only nominal.damages can be recovered, error cannot be predicated, for it cannot be seriously insisted upon that, for trespass against the person (an assault), such a rule is correct. Wq think the testimony sustains the verdict, and that the verdict is not excessive. Judgment and order must be affirmed, -with costs.

Osborne, J., concurs.