text:
    In the Matter of the Petition of the NEW YORK PROTESTANT EPISCOPAL PUBLIC SCHOOL to vacate Assessment, etc.

      Application to vacate an assessment— Oosts of an appeal to the General Term — what sum will be allowed as — powes' of the Special Term to allow them.

    Upon an appeal from an order of a General Term reversing, with ten dollars costs and disbursements, an order of tbe Special Term vacating an assessment, the Court of Appeals reversed the order of the General Term, with costs. Upon the filing of the remittitur, an order was made at Special Term directing that the petitioners recover their costs of the appeal taken from the Special to the General Term.

      Held, that the petitioner was only entitled to recover for the costs of the appeal to the General Term the sum of ten dollars and his disbursements.

      Quasre, as to the right of the Special Term to make any allowance of costs on the appeal to the General Term.
    Appeal by tbe petitioner from an order made at Special Term, readjusting tbe costs on a preceding appeal taken to tbe General Term of this department.

      George C. Genet, for the petitioner appellant.

      Thomas P. Wickes, for The Mayor, etc., of New York, respondent.
   Daniels, J.:

An order was made in this proceeding at Special Term vacating the assessment which was the subject of complaint. Upon the appeal taken from that order it was reversed with ten dollars costs, besides disbursements, to the appellant. From the order then made a further appeal was taken by the petitioner to the Court of Appeals, where the order of the General Term was reversed, with costs. When the remittitur from the Court of Appeals was filed an order was entered at Special Term directing that the petitioners recover their costs of the appeal taken from the first order. Under the authority of that order the clerk allowed to the petitioner, by way of costs upon the appeal from the Special to the General Term twenty dollars before argument and forty dollars for argument; but on the readjustment made by the court these items were reduced to the sum of ten dollars, and it is because of that reduction that the present appeal has been taken on behalf of the petitioner. By way of supporting it the counsel for the appellant has urged that this was a special proceeding and for that reason that the costs upon the appeal to the General Term should be the same as those allowed upon an appeal from a judgment or an order granting or denying a new trial. But it does not follow from the circumstance that it is a special proceeding that such costs should be allowed to the successful party. What the Code has provided is that the rates should be the same in a special proceeding as are allowed for similar services in an action brought in the same court. (Code of Civil Pro., § 3240.)

The appeal which is the subject of consideration was taken from an order, and the proceedings in it were not of the nature of those required to be considered in the appeals mentioned in subdivision 4, section 3251 of the Code of Civil Procedure. It has been the practice, on the contrary, to regard such an appeal simply as an appeal from an order to be compensated by a sum not exceeding that of ten dollars under the provisions .of subdivision 3, section 3251 of the Code, and that practically was the construction given by this court to a similar provision contained in another statute, at the time when it allowed costs upon the appeal which is now in question to the party that was then successful.

But if that construction shall not be considered well founded the result must still be the same; for the costs of such an appeal, whether the proceeding be considered as a motion or a special proceeding, are in the discretion of the court determining the appeal. That was not exercised by the direction given as a part of its decision by the Court of Appeals, for that related only to the costs of that court. (Sisters of Charity v. Kelly, 68 N. Y., 628.) The only discretion which could be effectually exercised over this subject was that of the General Term itself, but that in no form has been used or exercised upon this subject in favor of the appellant. The direction contained in the order that costs of the appeal should be recovered was that alone of the Special Term, which had no power to determine what might be a proper order for the General Term to make upon this subject in the case. It could very well regulate the costs to be allowed in the” court that made it, but it could extend no further than that. No complaint, however, is made as to the allowance of ten dollars, to which sum the costs of the appeal were restricted by the order from which this appeal has been taken, and for that as well as the other reasons already assigned restricting the power over the application at the Special Term to the costs in that court the adjustment should be allowed to stand. But as no authority exists in the case for any further award of costs the order should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Ready, J.:

license: Public Domain

text:
    MARIA F. FITZGERALD, Relator and Appellant, v. THOMAS FITZGERALD, Respondent.

      A father may appoint a guardian for his child without the consent of the mother— chapter 172 of 1862, was repealed by chapter 32 of 1871.
    Section 6 of chapter 172 of 1862, declaring that no man should create any testamentary guardian for his child unless the mother, if living, should in writing signify her assent thereto, was repealed hy chapter 32 of 1871, authorizing every father to dispose, hy deed or will duly executed, of the custody and tuition of any living child, or one likely to he horn, during its minority or for any less time to any person or persons in possession or remainder.
    Appeal from an order made at a Special Term denying a petition for a writ of habeas corpus.

      Thomas Nolan, for the relator and appellant.

      Francis V. S. Oliver, for the respondent.
   Ready, J.:

This proceeding was commenced by the service of a habeas corpus on the petition of Maria F. Fitzgerald.

The return alleged that the respondent, Thomas Fitzgerald, had the possession and care of the infant Thomas Fitzgerald by the direction and consent of Hannah E. Fitzgerald, who was appointed the guardian of the infant by his father, Michael F. Fitzgerald, in his last will and testament, which was found on file in the office of the surrogate of the county of New York and offered for probate. The traverse to the return admitted the appointment of Hannah E. Fitzgerald as the guardian of the infant, but alleged that the relator, who was the mother of the infant, never by word, in writing or in any way signified her assent thereto. The writ was dismissed upon the ground that the father’s appointment of a guardian was valid and effectual without the consent of the mother, and hence this appeal.

The statute of 1871 (Laws of 1871, chap. 32, p. 39) declares that every father may, by deed or last will duly executed, dispose of the custody and tuition of any living child, or one likely to be born, during its minority, or for any less time, to any person or persons in possession or remainder.

The legislature had, in a prior act passed in 1862 (see Laws 1862, chap. 172, § 6), declared that no man should bind his child to apprenticeship or service, or part with the control of such child, or create any testamentary guardian- therefor unless the mother, if living^ should, in writing, signify her assent thereto. The statute of 1871, in reference to the testamentary guardian, is therefore in direct conflict with the provisions of the act of 1862. The appellant seems to think that the act of 1862 is still in force notwithstanding the enactment of 1871, to which reference has been made. The two acts are, in the respect mentioned, in direct antagonism to each other; the one declaring that no man shall create a testamentary guardian for his child without the assent of the mother, if living, and the other declaring that he may so do. The statute of 1862 would, in consequence, seem' to be repealed by very well settled principles. The question presented by the appellant has been elaborately considered by Mr. Justice Yan Yorst in the case of Thompson v. Thompson (see 55 How., 494), and he arrived at the conclusion that the statute of 1862 was repealed. We entertain no doubt as to the correctness of that decision and consider that case to be decisive, therefore, of the question at issue.

We are not advised of the reasons which induced the legislature to change the law on the subject under consideration, nor are we called upon to express our views upon the propriety of its action in so doing. The power of disposition given by the act of 1871 would seem to be very impolitic and unjust, although instances might arise in which its exercise would be for the advantage of the child. It would seem to be unjust for the reason that the custody might be given to a person other than a deserving mother by reason of the mere caprice or prejudice of the decedent or of the exercise of undue influence over him.

It is our duty, however, to administer the law as we understand it, and we have, therefore, no alternative other than to affirm the order appealed from, without costs.

Daniels, J., concurred; Davis, P. J., taking no part.

Order affirmed, without costs.


text:
    GERTRUDE JONES, Respondent, v. WILLIAM R. MORGAN, Appellant.

      Action to recover the value of goods, lost through the negligence of the bailee —when their purchase price may be proved on the question of damages.

    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The plaintiff, in April, 1875, stored a large and valuable quantity of household furniture and other property in a building owned by the defendant and known as No. 12 Washington Place. It was designed that it should remain there while the plaintiff and her husband were in Europe, which it was contemplated might cover a period of several years. They did, however, return in 1876, when the property was found in the same condition in which they had left it, and they went again to Europe in the summer of that year, returning finally in November, 1877. During their second absence most of the property deposited in the building had been removed and feloniously misappropriated by the persons who had charge of it under the defendant, and it was to recover the value of that which had been so taken that the action in this case was brought.
    After reviewing at length the evidence, the court at General Term said : “ The property consisted of household furniture, works of art and ornaments of a valuable description. They had been purchased mostly by the plaintiff several years before the arrangement for their storage was made, and had been used as such articles ordinarily are during the intermediate period of time. Eor the purpose of ascertaining their value she was permitted, as a circumstance only having a bearing upon that subject, to state the prices which she had paid for the purchase of the property.
    This was objected to by the connsel for the defendant, and an exception was taken to the ruling of the court allowing the evidence to be given. That exception is now relied upon in support of the appeal, and the case of Beach v. Rarita/n., etc., Railroad. Gom/pmiy (37 N. Y., 457) has been cited as sustaining the propriety of this objection. But in that case the barge which was the subject of controversy was susceptible of direct proof as to its value, because it was exposed to the daily observations of a class of persons familiar with the value of such property, while that which was the subject of controversy in this action would not probably attract the attention of persons observing it, to such an extent as to enable them to give evidence concerning its value at the time when it was taken from the place where it had been deposited for storage and misappropriated. If the plaintiff had been restricted to direct proof of the value of the property at or near that time, it is evident that no redress could possibly be afforded for the injury and loss which she had sustained. Bor that reason it was a matter of strict necessity that evidence of a different character should be produced and relied upon, not as controlling in the case, but as a basis from which, in view of succeeding circumstances, a fair valuation of the property might be ascertained. Upon this subject no unbending rule of law exists. But what is required is that reliable and satisfactory evidence shall be produced from which the value of the property in controversy may be ascertained with a reasonable degree of certainty. In the case already referred to it was stated that the admissibility of evidence of the price for which property sold depends upon the special circumstances of each ease. (Id., 470.) In ordinary cases it is confined to the time when the right to demand payment accrued, or to a reasonable period either before or after that time. (Dana v. Fiedler, 2 Kernan, 41; Gary v. Grv/man, 4 Hill, 625.)
    But where the circumstances of the case indicate the necessity of a broader range of inquiry, it certainly should be permitted to be made for the purpose of obtaining the ends of justice. This was a case of that nature. For it appeared by the testimony of a witness who was engaged in the manufacture and sale of furniture, that articles of this description which had been in nse for the period they were owned by the plaintiff had no market value. If testimony on the cost of the articles, together with proof showing the extent of their depreciation since the time of their purchase, and the manner in which they had been used, could not be received for the purpose of enabling the jury to place a proper valuation upon them, then a practical denial of justice would be the result. There is no rigid or unbending rule of the law requiring such a sacrifice of right to the mere consideration of legal forms. The evidence which was allowed to be given formed a reliable standard from which, with other testimony, the value of this property could be ascertained. And that testimony was given by showing the use which had been made of the articles, arid the extent to which that use and the changes in styles would reduce the original cost price of the property. Very clear, satisfactory evidence upon this subject was given by the witnesses Herts and Leavitt, the first of whom placed the depreciation below the purchase-price paid at the time when the property was bought at over fifty per cent, and the other at about thirty or forty per cent. This evidence with that already given formed an intelligent, reliable and proper mode of indicating the probable value of the property in controversy at the time when it was taken by the persons who had been placed in charge of it by the defendant in this action; and no other mode of ascertaining its value seemed to be practicable under the circumstances of this case. For that reason it was admissible, and the objection which was taken by the defendant was properly overruled by the court

      J. R. Flanders and A. J. Reguier, for the appellant.

      Algernon S. Sullivan, for the respondent.
    Davis, P. J. and Brady, J., concurred in the foregoing portion of opinion by Daniels, J., but dissent from the conclusion reached by him on another point, and direct an affirmance of the judgment.
   Judgment and order affirmed.


author: Brady, J.

text:
    SIMON FRIEDBERG, Appellant, v. DANIEL BATES, PHILIP J. SEITER and others, Respondents.

      BUI of pa/rticulwrs as to assets of a savings bank, alleged to have been misappropriated by a director, the defendant — when the plaintiff should be required to furnish one.

    Appeal from an order made at Special Term, directing the plaintiff to furnish a bill of particulars.
    This action was brought against certain defendants, who were alleged in the complaint to be the officers and directors of the Third Avenue Savings Bank, and who had the sole control and management of the business and assets thereof, and charges them, between the 1st day of January, 1870, and the 1st day of January, 1875, in violation of law, to have fraudulently, and for their own benefit and advantage, misappropriated a large portion of the assets of the bank, and fraudulently converted the same to their own use, by reason of which the bank became insolvent and unable to meet its obligations prior to January 1, 1875, and so remained; and further, that the true condition of the affairs of said bank, and the fact that its assets were insufficient to meet its liabilities were, at all the times mentioned, well known to the defendants, and each of them individually, but that notwithstanding such knowledge they and each of them represented and held out that it was in all respects able to meet its obligations, had a large surplus of assets and was entirely solvent; and that the defendants were guilty of representations which were made falsely and for the purpose of deceiving the public, and for their own gain and advantage. An application was made to have the complaint made more definite and certain, which was denied because it was not made within twenty days after the service of the complaint; but a motion which was brought on at the same time for a bill of particulars was granted.
    The defendant Seiter, who is the respondent, alleged that he did not know of any misappropriation of any of the assets; that he was not guilty of any such action, and that he had not converted any of them to his own use, and further, that he never assented to the publication of any report showing the condition of the bank, and that he had a good and’substantia defense upon the merits.

      The court at General Term said: “ It will be perceived that the charges against the defendant Seiter cover a period of five years, and that the complaint failed to show any specific time or place when any of the assets were misappropriated or converted, or to specify the particular assets, in amount or otherwise, which were misappropriated or converted, and it follows that the defendant is not advised of the precise acts charged against him, and which it is necessary that he should know in order to make preparation to meet them.
    It seems to be very proper, when such general charges are made, that a bill of particulars should be required, and more especially when, on a motion made to make the complaint more definite and certain, the moving party has failed, in consequence of the omission to make the same within the time declared by the statute. The allegations in the complaint are grave in character, involving responsibility for the conversion of funds received in a quasi fiduciary capacity, the receipt of which was induced by fraudulent representations and with a fraudulent intent.

      ~We think, under all the circumstances, that the order made in the court below should be affirmed, with ten dollars costs and the disbursements of this appeal, to abide the event.”

      Henry Hoyt, for the appellant.

      Jacob A. Gross, for the respondent Seiter.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J. concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.

text:
    DANIEL R. LYDDY, Executor, Respondent, v. SELAH CHAMBERLAIN, Appellant.

      Judgment roll — what it should contain — right of a party to insist that the report of a referee (which owing to defects therein has been sent baak\ to the refw'ee and a new and emended report been made) shall be included in it.

    Appeal from an order made at Special Term denying a motion to add to the judgment roll a'report made by the referee before whom this action was tried and determined.
    The report, which it was claimed on the part of the defendant should be added to the judgment roll, was made by the referee in such general terms as not specifically to show the facts found under the evidence. And at the instance of the defendant an order was afterwards made requiring the report to be amended in several particulars. Hnder that order it was sent back to the referee, and he made another report which by its terms, seems to have warranted the judgment entered in the case. That report was made a part of the judgment roll, but the original report was omitted from it, and that the defendant desires to have incorporated in the roll.
    The court at General Term said: “ The report which has been made a part of the roll in no way refers to the one previously made. It is not dependent upon it, or in any manner qualified by it, but the report as it is included in the roll is entirely complete in and of itself. By section 1237 of the Code of Civil Procedure, this report was required to form a part of the roll, and it was only that which constituted the basis for the judgment. The other report, upon which the judgment in no manner depended, was not by the terms of this section required to be made any part of the judgment roll.
    If the first report, or anything contained in it, established the fact that any portion of the one which was included in the roll was erroneously or improperly made, the mode of bringing that before the court is by a different proceeding. Eor that purpose a case must be made including such evidence, documents or other things, forming a part of the proceedings, as may show that the referee erred in any of the conclusions reached by him. When the second report was made, it became for the purpose of the judgment the referee’s report in the action, and it was the only report which, under the requirements made by the Code, could properly fonn a part of the judgment roll. If the rights of the defendant require that the preceding report should be brought to the notice of the court for the purpose of properly determining the rights of the defendant in the action, that must be done in the mode already indicated. It cannot be by adding it to the judgment roll. The order seems to have been right and it should be affirmed with the usual costs.”

      Francis N. Bangs and Francis Lynde Stetson, for the appellant.

      Robert Sewell, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the DEPARTMENT OF PUBLIC WORKS, for and on behalf of the MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Relative to the opening of One Hundred and Thirty-eighth and other streets.

      The words “ laying out,” in the title of an oat of the legislature, includes the opening of streets.

    Appeal by the mayor, etc., of the city of New York, from' an order made herein confirming the report of the commissioners of estimate and assessment.
    The appeal in this case rested upon the supposed unconstitutionality of the act, chapter 604 of 1874, under which the proceedings herein were taken. The unconstitutionality consisted, as alleged, in the fact that the opening of streets is not expressed in the title, as required by section 16 of article 3 of the Constitution, which provides that no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.
    The court at General Term held the act to be constitutional, saying, among other things: “The constitutionality of the act, chapter 604 of 1874, therefore, necessarily depends upon the question whether the words ‘ laying out ’ include the opening of the streets, or whether the provisions for opening the streets that are laid out, contained in the act, present a subject other than that indicated by the words urveying, laying out and monumenting.’ The words laying out,’ in a popular sense, mean more than the creation of a mere plan or map. They signify an appropriation, and, when used in reference to a street or park, mean the appropriation of the particular place necessary to accomplish the object in view; and more especially when used in connection with the words monumenting and surveying,’ because the term monumentiing necessarily implies the quasi possession of the locality surveyed, and for which the act itself made provision by directing the commissioners to erect suitable and durable monuments whenever they deemed it requisite to define and designate the streets, and further directing the location of such monuments to be entered upon the maps or plans or profiles filed by them,” citing People ex rel. Gorromissioners v. Berniks (67 N. Y., 572).

      Wm. C. Whitney, for the corporation, appellant.

      John C. Shaw and James A. Peering, for the respondents.
   Opinion by

Brady, J.

Davis, P. J., concurred.

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

Order appealed from affirmed.


author: Brady, J.;

text:
    FRANCIS B. WALLACE and JOHN P. PHILLIPS, Respondents, v. THEODORE BERDELL, Appellant.

      Pledge of stock as collateral to a loan — right of the pledgee to sell it without notice to the pledgor.

    Appeal from an order and a judgment entered thereon overruling a demurrer interposed to the complaint on the ground of its. frivolousness.
    The complaint in this case alleged that on the 18th of Septem ber, 1873, the plaintiffs advanced to the defendant the sum of $19,800, taking as security therefor certain shares of stock, and that on the 19th of September, 1873, the stock was sold and the plaintiffs received for it the sum of $18,200 which was credited on the account, and, after stating certain amounts of interest, demanded judgment for the difference between those two sums and such interest. The defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and on motion the demurrer was stricken out as frivolous. The demurrer was interposed on the theory that the plaintiffs had no right to sell the stock which was given as collateral security for the advance, according to the statement made in the complaint, without having demanded the payment of the advance and given notice of the time and place of sale of the stock.
    The court at General Term said: “ The error of the defendant’s counsel consists in treating this as a case of the purchase and sale of stock which, according to the allegations of the complaint, it does not appear to have been. It was a loan or advance of money to the defendant, for which the stock ivas taken as collateral, and not a purchase of stock upon a margin or in any other mode. It is, therefore, not within that class of cases which hold that in such transactions it is necessary to give notice, of the time and place of the sale of the stock bought on account of the defendant. Whether the collateral given herein was improperly sold or not is a matter for investigation upon the trial.
    The general rule is that a party having several remedies for the recovery of the same debt may resort to all of them though he can have but one satisfaction. (Gambling v. Haight, 59 N. Y., 354.) The stock having been deposited as collateral secui’ity for an advance or loan of money might therefore be disposed of for the nayment of the advance, but its improper conversion would constitute a good defense to the action brought to recover the loan.
    If, therefore, the stock deposited as collateral security by the defendant was improperly disposed of, and the defendant suffered in consequence, he could avail himself of the circumstance as a defense. The plaintiffs’ demand being for an advance or loan of money it would have been sufficient if they had stated simply that the defendant was indebted to them for an amount of money loaned and advanced, which would make a perfectly good complaint. But they have chosen to state the particulars, namely, that an advance of money was made, that stock was received as collateral, that it was sold and that it produced a certain sum of .money which, being deducted from the advance made, left a balance which, with accrued interest, amounted to the sum stated. It was not necessary in a case like this for them to allege the demand for the advance and notice of the contemplated sale of the securities. This would form, if the defendant were prejudiced by it, the subject of a legal defense, as already suggested, but it does not constitute a good cause of demurrer, inasmuch as it does not appear from the facts stated in the complaint that the plaintiffs were not fully authorized to make the sale of the stock which was consummated. In order to determine that the sale was unauthorized we should have to assume that, by the agreement between the parties, the sale was not to be made until after demand for the payment of the loan was made and notice' of the sale of the stock given.”

      David Tomlinson, for the appellant.

      S. W. Fullerton, for the respondents.
   Opinion by

Brady, J.;

Davis, P. J., and Daniels, J., concurred.

Judgment and order affirmed, with costs.


text:
    William S. Livingston v. William Gordon and others.
   Motion granted.


author: Per Curiam.

text:
    In the Matter of the Final Accounting of Horace Gray and others, Executors, &c.

   Motion to dismiss the appeal as far as it affects the allowance to the special guardian, E. R. Meade, granted without costs, and proceedings in respect to such allowance remanded to the surrogate for further action. Opinion,

Per Curiam.


text:
    In the Matter of the Final Accounting of Horace Gray and others.
   Motion of respondent to dismiss appeal on the ground of non-service of papers denied, without costs.


text:
    Michael Gernon, Appellant, v. Joseph B. Hoyt, Respondent.
   Motion for reargument denied.


text:
    Moses Heilman v. Isaac Lazarus.
   Motion granted as far as to allow the appeal to be placed among the preferred causes of the May term.


text:
    Oliver R. Martin v. Augustus Prentiss.
   Motion denied on the ground of laches, without costs.


text:
    Maximillian Fleischman v. Emil Stern.
   Motion for reargument denied, with ten dollars costs.


text:
    Robert L. Cutting, Receiver, &c., v. William G. Damerel.
   Motion for leave to go to the Court of Appeals, granted'.


text:
    In the Matter of Diana Bannister.
   Motion denied, without costs.


text:
    Abel Horton v. Jacob R. Shepherd.
   Motion denied on plaintiff stipulating within ten days that the credit of the preceding motion, costs upon the judgment, shall stand as it has been already made, otherwise motion granted.


text:
    Marie A. Witthaus, Appellant, v. Frederick C. Schack, Respondent.
   Motion to resettle order denied, without costs.


text:
    In the Matter of Titus G. Eldridge.
   Petition denied.


text:
    John J. Marvin, Appellant, v. James J. Brooks, Respondent.
   Order reversed and motion granted, without costs. Opinion by

Brady, J.


text:
    Jacob Rupert, Appellant, v. Christian F. Haug, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Anna M. Kerr, Respondent, v. The Liverpool and Great Western Steamship Company (limited), Appellant.

   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Louise M. Tournicon, Appellant, v. De Lord Safford and others, Respondents.

   Order affirmed, with ten dollars costs and disbursements.


text:
    The Metropolitan Life Insurance Company, Appellant, v. S. B. McCoy, Respondent.

   Order affirmed. Opinion by

Brady, J.


text:
    Chauncey Vibbard and others, Appellants, v. Chester W. Chapin, Respondent, Impleaded with others.

   Judgment affirmed.


text:
    Margaretha Kassebaum, Respondent, v. Heinrich Kassebaum, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Marie Dold, Respondent, v. George A. Haggerty and others, Appellants. — Same v. Same.
   Order modified so as to direct a rehearing before another referee, without costs. ' Opinion by

Daniels, J.


text:
    Gilbert M. Speir, Jr., Respondent, v. Charles W. Lord, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Joseph Wangler, Respondent, v. Francis Swift, Appellant.
   Judgment and order affirmed.


text:
    Revere Copper Company, Respondent, v. Anthony W. Dimock, Appellant.

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

Per Curiam.


text:
    The People of The State of New York ex rel., John Flanagan, v. The Board of Police Commissioners of the Police Department of the City of New York.
   Proceeding affirmed and writ quashed, with costs.


text:
    The People of the State of New York ex rel. John Constant v. The Board of Police Commissioners of the Police Department of the City of New York.
   Order reversed on the terms stipulated in the opinion, without costs. Opinion

Per Curiam.


text:
    In the Matter of Ferdinand S. Hahn.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Sydney H. Carney, as Administrator, etc., Appellant, v. Isaac Bernheimer, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    N. Sherman Read, Plaintiff in Error, v. The People of the State of New York, Defendant in Error.

   Judgment affirmed.


text:
    Harriet E. Butler v. George V. House and others.
   Order affirmed, with ten dollars costs and disbursements.


text:
    James F. Rodgers, Plaintiff in Error, v. The People of the State of New York, Defendant in Error.

   Judgment affirmed.


text:
    William Harrington, Appellant, v. Charles Goepp and Dennis Quinn, Respondents.
   Judgment reversed, demurrer overruled, witb. leave to answer in twenty days.


text:
    Francis H. Saltus, Appellant, v. Elliott F. Shepard, as Trustee, etc., and others, Respondents.
   Judgment and decree affirmed. Opinion by

Daniels, J.


text:
    Charles H. Jordan, Appellant, v. Bernard Reilly, Sheriff, etc., Respondent.
   Judgment reversed, new trial granted, costs to appellant to abide event. Opinion

Per Curiam.


text:
    John F. Dillon, Respondent, v. James Cockroft, Appellant, Impleaded, etc.

   Judgment affirmed. Opinion

Per Curiam.


text:
    The People of the State of New York ex rel. Edwin A. Potter v. The Court of Special Sessions in and for the City and County of New York.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Gustav Wenzler, Respondent, v. John Cronogue, Appellant.
   Order affirmed on opinion of Donohue, J., and on Phœnix Insurance Company v. Continental Insurance Company (14 Abb. [N. S.], 266).


text:
    The People of the State of New York ex rel. Kate Lunn, Respondents, v. J. C. Julius Langbein, Justice, Appellant.
   Order reversed and application denied, witb ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    John Roach, Appellant, v. Richard B. Chapman, Respondent.
   Order affirmed, witb ten dollars costs and disbursements.


text:
    Emile Huber and Louis C. Braun, Appellants, v. Joseph A. Miller, Respondent.

   Order affirmed, witb ten dollars costs and disbursements.


text:
    Patrick Cuff, Appellant, v. Jane A. Dorland, Respondent.

   Motion granted. Opinion by

Daniels, J.


author: Davis, P. J.

text:
    William H. M. Sistare, Respondent, v. William J. Best, as Receiver, etc., Appellant.

   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Samuel R. Platt, Appellant, v. Charles H. Van Amburgh, Respondent.

   Motion for reargument granted on condition that the plaintiff file security for costs in the sum of $500 within thirty days, and in default thereof motion denied without costs.


text:
    In the Matter of the Gilbert Elevated Railroad Company.
   Petition granted and commissioners appointed.


text:
    Edward Thompson, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Judgment affirmed.


text:
    John G. Schumaker, Appellant, v. John A. Croseman and others. Morgan A. Dayton (Purchaser), Respondent.

   Order affirmed, with ten dollars costs besides disbursements. Opinion

Per Curiam.


text:
    In the Matter of the Petition of Joseph Matthews, General Guardian, etc.

   Order affirmed, with ten dollars costs besides disbursements on opinion of Lawrence, J., and of Cole v. Gourlay (79 N. Y., 527) and Center v. Finch (22 Hun, 146).


text:
    Cornelius Savage and another v. Henry Sherman and others.
   Resettlement granted. Mem. by

Brady, J.


text:
    Cornelius J. Bergen, Respondent, v. Charles J. Patterson, Appellant.

   Motion granted and resettlement ordered.


text: James S. Carpenter, Respondent, v. Asher D. Atkinson, Appellant.


author: Smith, J.:

text:
    FREDERICK J. PRATT, Respondent, v. ALONZO C. MATTHEWS, Appellant, Impleaded, etc.

      GucM'aniy — when a continuing guarrant/y — when construed in fa/oor of the promisee.

    January 10, 1877, the defendants executed an instrument whereby they agreed with the plaintiff’s assignors that one Pope, who had purchased or was about to purchase coal of said assignors, should and would pay them such prices therefor at such time or times as might be agreed upon between them and Pope, for ' all coal that might be delivered to him up to the 1st day of January, 1878; and in default of his so doing the defendants agreed to pay for the same, provided the amount so in default should not at any time exceed the sum of $1,000.

      Held, that the guaranty was a continuing one.
    That the proviso that the amount in default should not at any time exceed $1,000 was a limitation upon the defendants’ liability, and not upon the amount of coal to be furnished, and that the fact that the indebtedness due from Pope for coal exceeded at times that sum, did not relieve the defendants from liability upon the contract.
    Appeal from a judgment in favor of tbe plaintiff, entered on tbe report of a referee.

      Chapman & Lyon, for the appellant.

      C. D. Adams, for the respondent.
   Smith, J.:

The action, is on an agreement of guaranty executed by the defendants to McKinney & Albright, the plaintiff’s assignors. The defendant Matthews, alone, was served with the summons, and the judgment is against him only. McKinney & Albright were wholesale dealers in coal at TJtica, and had been selling coal to Alfred O. Pope, a retail dealer at Binghamton. On or about 10th January, 1877, the defendants executed to McKinney & Albright the writing sued on, in which they agreed to and with said firm that Pope, who has purchased, or is about to purchase, anthracite coal of said firm, shall and will pay said firm at such time or times, and at such prices as may be agreed upon between said firm and said Pope for all coal that may be delivered to him up to the first day of January, A. D. 1878, and in default of his so doing we agree to pay for the same, provided the amount so in default shall not at any time exceed the sum of $1,000.” After the instrument was executed, McK. & A. supplied Pope with coal, and on 17th October, 1877, he owed them a balance of $951.66, which he failed to pay. By the arrangement between Pope and the firm he was to pay them cash, on or before the tenth day of each month, for all coal shipped to him during the previous month; and on the tenth day of each of the months of March, April, May and June he owed them for coal covered by the guaranty more than $1,000, the largest monthly balance being $1,533.61. The appellant contends that as the amount for which Pope was so in default exceeded $1,000, the condition of the guaranty was broken and the defendants are not liable for any sum.

The question is, therefore, whether the proviso amounts to a condition that McK. & A. should not trust Pope for more than $1,000 at any time, the breach of which exonerates the obligors. The authorities agree that contracts of suretyship must be read strictissimi juris. But the rule has this^ extent only, that when the true meaning of the contract is ascertained the surety or guarantor has the right to insist that his liability shall not be extended beyond its precise terms. In interpreting the language used, the same rules of construction are applicable to contracts of suretyship as to other contracts. (Gates v. McKee, 3 Kern., 232, and cases there cited by Denio, J..; Rindge v. Judson, 21 N. Y., 64, and cases there cited by James, J.; Hamilton v. Van Rensselaer, 43 N. Y., 244.) A general rule in the construction of contracts is, that where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. (White v. Hoyt, 73 N. Y., 505.) That rule has frequently been applied with all its force to contracts of suretyship. There, courts have said that the words are to be taken as strongly against the party giving the guaranty as the sense of them would admit (Mason v. Pritchard, 12 East, 227; Drummond v. Prestman, 12 Wheat., 515); that in the case of a guaranty, care should be taken to hold the party bound to the full extent of what appears to be his engagement (Douglass v. Reynolds, 7 Peters, 113, per Story, J.), and that instruments of guaranty ought to receive a liberal interpretation — that is, not one forcing the words out of their natural meaning, but a fair and reasonable interpretation, so as to attain the objects for which the instrument is designed. (Laurence v. McCalmont, 2 How. [U. S.], 426.) In the last case cited, Judge Story said: “We should never forget that letters of guaranty are commercial instruments, generally drawn up by merchants in brief language, sometimes inartificial and often loose in their structure and form; and to construe the words of such instruments with a nice and technical care would not only defeat the intention of' the parties, but render them too unsafe a basis to rely on for extensive credits so often sought in the present active business of commerce throughout the world.” He also said: “ If the language used be ambiguous and admits of two fair interpretations, and the guarantee has advanced his money upon the faith of the interpretation most favorable to his rights, that interpretation will prevail in his favor; for it does not lie in the mouth of the guarantor to say that he may, without peril, scatter ambiguous words by which the other party is misled, to his injury.” These extracts were quoted with approbation by Judge Denio in Gates v. McKee (supra). Apply these rules to the case in hand. Clearly the defendants’ undertaking is a continuing guaranty, and it contemplated that McK. & A. were to supply Pope with coal during the year 1877. Without the proviso the guaranty would have made the defendants liable for all the coal so furnished in case of Pope’s default. The proviso was a limitation. Was it a limitation of the amount oi coal to be furnished, as the appellant claims, or of the defendants’ liability, as the plaintiff insists and the referee has found \ Had the guarantors reason to suppose that McK. & A. understood it in the latter sense ? If the question is one of interpretation of the words merely, such supposition seems entirely reasonable, and, in view of the. language, we cannot doubt that it was entertained by the promisors. If it is a mixed question of law and fact, to be determined in view of the language not only, but also of the position of the parties and the surrounding circumstances, the referee has impliedly decided it in favor of the plaintiff, and there is no ground for disturbing his finding. If the language fairly admits of two interpretations, then that interpretation must be adopted which is most favorable to the promisees. Thus inteipreted, the agreement is to pay for all coal delivered to Pope before the 1st of January, 1818, in case of his default to pay, provided the amount of liability by reason of his default shall not at any time exceed the sum of $1,000. The words “at any time” have the effect to make it clear that the guaranty was a continuing one. But for them, it might have been claimed that when Pope had purchased and paid for a thousand dollars’ worth of coal, the liability of the guarantors was at an end. In Curtis v. Hubbard (6 Metc., 186), the defendant subscribed an instrument containing these words: “ I guaranty the payment of all sums which B. may owe C. for goods which he may sell B., provided that the whole amount which B. shall owe C. at any one time shall not exceed $1,100, it being the understanding that I am in no event to 'be liable for more than that sum. * * * And this guaranty is upon the condition that said C. shall, once in every eight months, give me notice in writing of B.’s account with him.” Held, that the proviso that the sum which B. should owe C. at any one time should not exceed $1,100, was not a condition upon the breach of which the defendant’s obligation was defeated, but only a limitation of A.’s liability to C. It is evident, from the opinion of Chief Justice Shaw, that the proviso of itself was regarded by the court as limiting the generality of the undertaking, which would have otherwise been a guaranty for an unlimited amount. The subsequent sentence was treated as simply explanatory of the former, and the circumstance that when the defendant intended to introduce a condition which should defeat the contract it was done in due form and in express terms, was referred to in aid of the interpretation given to the proviso. But it is manifest from the opinion that, independently of the other clauses, the proviso was construed to be merely a limitation of the defendant’s liability.

The case of The Farmers and Mechanics’ Bank of Michigan v. Evans (4 Barb. 487), relied upon by the appellant’s counsel, is distinguishable from the case at bar. There, the bond first stipulated, in effect, that the sums of money to be furnished by. the bank to J. & IL should “ at no time exceed the sum of $5,000,” and then bound the obligors for the payment of all such sums as J. & 3L should receive. There was not in that case, as here and in Carter v. Hubbard, an unlimited undertaking at the outset, followed by a proviso restricting the liability of the promisor, but the limitation was expressly made the condition of the obligation.

These views lead to an affirmance of the judgment.

Talcott, P. J., and Hardin, J., concurred.

Judgment affirmed.


text:
    THE SODUS BAY AND CORNING RAILROAD COMPANY, Respondent, v. CHARLES A. HAMLIN, Appellant.

      Subsoription to stock of a corporation — when the signer is not released by a mutilation of the paper — when he cannot dispute the existence of the corporation.

    The defendant signed a printed paper whereby he agreed to take one share of the capital stock of a railroad company thereafter to be organized, the route of which was described in the paper. Other printed papers, fac sinniles of the one signed by the defendant, were signed by other persons, all of which papers were thereafter delivered to the persons proposed in them as directors with the intention that they’should be used in organizing the company. Thereafter the persons having the said papers in charge cut from all of them, except one, the signatures attached thereto, pasted such signatures upon the remaining paper and filed it with the requisite affidavit annexed thereto in the office of the Secretary of State for the purpose of organizing the corporation.
    In an action brought by the corporation to recover the unpaid balance of the defendant’s subscription:

      Held, that as the defendant’s liability was in no way changed or affected by the mutilation of the paper signed by him, and as the paper was not mutilated by the corporation or by any person for whose acts it was responsible (the directors in what they did having acted as agents of the subscribers), the defendant ant was not released from his liability upon the agreement.
    That the defendant was estopped from claiming that the corporation was not duly organized and had no existence, and that, for that reason, the action could not be maintained.
    Appeal from a judgment, in favor of the plaintiff, entered on the report of a referee.

      Hanford Struble and H. L. Comstock, for the appellant.

      E. D. Mills and George T. Spencer, for the respondent.
   Smith, J.:

This action is brought to recover upon an alleged subscription made by defendant to the capital stock of the Sodus Bay, Corning and New York Railroad Company. In 1872 by an act of the legislature the name of the company was changed to that in which it now sues. (Laws 1872, chap. 296.)

Prior to the organization of the company, and for the purpose of such organization, several printed subscription papers were circulated in the vicinity of the route of the proposed railroad, one of which was signed by the defendant and others, the defendant agreeing therein to take one share of the capital stock of said company and to pay therefor $100. The defendant at the time of such subscription paid ten dollars on account thereof. The several papers were in the form of articles of association as prescribed by chapter 140 of the laws of 1850, under which the company was formed. The line of the road, as described in the paper subscribed by the defendant, was from the village of Corning, by the most direct and feasible route by way of Savona, Bradford, Penn Yan, Geneva and Lyons to Great Sodus Bay, in the county of Wayne, eighty-six miles in length, “ as nearly as may be.” The amount of the capital stock was $1,500,000, consisting of 15,000 shares of $100 each. The several subscription papers were exact counterparts of each other, except that in one of them, which was circulated in the town of Barrington, Yates county, the words “Tyrone, Crystal Springs,” were inserted between the words “ Bradford” and “ Penn Yan ” in the description of the route, and the length of the road was stated to be eighty miles instead of eighty-six. The number of shares subscribed for on the last mentioned paper was sixty-three. That paper was not signed by the defendant. All of said papers were, by the consent of the subscribers, delivered to the persons proposed in them as directors, with the intention that they should be used in organizing the corporation. When the persons having the papers in charge prepared them for filing in the office of the Secretary of State, the signatures, including that of the defendant, were cut off from all the papers except one and were pasted to the paper left intact, and that paper with all the signatures then attached to it, and having annexed thereto the affidavit of the directors as required by statute, was filed in the office of the Secretary of State for the purpose, of organizing the corporation. The paper to which the signature of the defendant was pasted was exactly like the one signed by him. The referee found that the signature of the defendant was so cut from the one heading and pasted to another by the persons to whom had been intrusted the duty of preparing the articles of association for filing; that it was done without the knowledge of defendant, but for convenience simply, and without any idea of changing the defendant’s liability, and that the papers were used for the purposes which the defendant intended. The referee found as conclusions of law that the act of the persons who prepared the articles of association for filing, in cutting off the signature of defendant from the heading to which it was signed and pasting it to another like heading, did not avoid the defendant’s subscription, and that the plaintiff is entitled to recover the amount thereof remaining unpaid. The only question in the case is raised by an exception to the latter findings. We are of the opinion that the referee was right in his conclusions upon the novel question presented. There was a mutilation and partial destruction of the paper on which the defendant’s agreement was expressed, the printed heading having been severed from the signature and disposed of in some way not appearing. The signature was subsequently annexed to another printed heading which was a fac simile of the one which the defendant signed, so that the legal liability of the defendant was not changed in any respect, except that a necessity was created for a resort to parol evidence, to show that the two headings were exactly alike. The fact that certain signatures were thereby affixed to the agreement, which were not on it when the defendant signed, did not affect the defendant’s liability. (Brownell v. Winnie, 29 N. Y., 400.) The obligation of the several subscribers being several and not joint, the case is the same as if the additional signatures had been written on the same paper which he sign ed subsequently to his subscription. Indeed, to quote from the language of a learned judge in a similar case, “no good reason can be assigned why these several (subscription) papers should not be regarded as one instrument. (Per Brown, J., in Lake Ontario, etc., R. R. Co. v. Mason, 16 N. Y., 451.) If the several subscription papers had been annexed together and filed as one, to effect the organization of the company, the proceeding would have been entirely regular.

Here there was not an “ alteration ’’ of the contract, as that term is commonly used, but a mutilation or destruction of the written evidence of it. Such an act, if done intentionally by a party to the contract, or by his procurement, doubtless, would destroy its validity. But if done by a stranger to the contract, it will not have that effect. (Rees v. Overbaugh, 6 Cow., 746; Fullerton v. Sturges, 4 Ohio, 530, 536; Hunt v. Gray, 10 Am. Dec., 232, and note; id., 269, and note.) The vital question then is, whether the persons who mutilated the contract were parties to it, or stood in such a relation to the corporation as that the latter is responsible for their acts. They were not parties to the contract. It purported to be an agreement with the corporation to take and pay for a certain amount of the stock of the corporation. But the mutilation was done before the corporation had come into existence. Until the corporation was formed there could be no delivery of the agreement and it had not taken effect. If the corporation had never been formed, the agreement would have been inoperative. It was said in Fullerton v. Sturges (supra) that an alteration, unless done after the delivery of the instrument and after it has taken effect, will not destroy its validity. The persons who mutilated the agreement were engaged with the defendant in the common object of organizing the company, and the defendant had placed his agreement in their hands to be used by them for that purpose. And in what they did, they acted, so far as appears, in good faith, and for the purpose of furthering the common design. In preparing and filing the papers they acted as the agents of the subscribers. True, the particular act complained of was in excess of their authority, and therefore was not the act of the subscribers, but that circumstance does not make the corporation responsible for what they did. Nor is the corporation chargeable with the act, as having ratified or adopted it, the actors not having assumed to act as the agents of the corporation in mutilating the subscriptions, or in anything they did in respect to the papers. Under the circumstances, we incline to the opinion that the mutilation of the subscription papers signed by the defendant did not release him from liability. The case of Erie and N. Y. City R. R. Co. v. Owen (32 Barb., 616), cited by the appellant’s counsel, is distinguishable from this. There the subscription of the defendant was not filed, and hence it was held that under the statute he was not liable. Here, if the views already expressed are correct, the defendant’s subscription is to be regarded as having been filed in the proper office.

The appellant’s counsel argues that, by reason of the acts complained of, the corporation was not duly organized and had no existence, and for that reason the suit cannot be maintained. The defendant having signed the articles of association for the purpose of organizing the company, and the articles having been filed with his signature attached for that purpose, and being in all respects sufficient, prima facie, under the statute, he cannot question the fact of incorporation by reason of the acts complained of. The rights of third persons dealing with the corporation in good faith cannot thus be impaired. The fact of the incorporation can only be questioned in a direct action by the people.

The rights of the parties who signed the paper which was circulated in Barrington, and which differed from the paper filed with the secretary of state, are not involved in this action. It does not appear but that the amount of stock subscribed was sufficient for the purposes of the organization, exclusive of them subscriptions.

The judgment should be affirmed.

Talcott, P. J., and Hardin, J., concurred.

Judgment affirmed.


text:
    EMILY HALSTEAD, Respondent, v. EDWARD B. NELSON, Appellant.

      Action for slander — what communications are privileged — .a plea of privileged communications is one of justification — Damages—what arre recoverable as.

    This was an action of slander brought against the defendant, the principal of the “Central New York Institution for Deaf Mutes,” for having maliciously and falsely stated to the members of the executive committee of the said institution that the plaintiff had deposited in the post-office a letter addressed to the defendant’s wife, the contents of which were indecent and obscene, by reason of which slanderous words the plaintiff was discharged by the committee from her employment in the institution. The answer contained a general denial, and alleged, as a further defense, that the envelope containing the letter was received through the post-office; that it was addressed in a disguised, but apparently female hand; that the defendant, who was well acquainted with the plaintiff’s handwriting, believed it to have been written by her; that he sent it, together with specimens of her handwriting to an expert in New York, who returned the papers with a report, giving the reasons for his opinion that the address was written by the plaintiff; that the defendant without malice and in good faith, for the sole purpose of doing his duty as the principal of the institution, laid the letter, the expert’s report and the specimens of the plaintiff’s handwriting, before the committee for them to act upon as they should think proper, and that he never oharged the plaintiff with directing the envelope or having anything to do with it. He further alleged in his answer that he would give these matters in evidence in mitigation of damages and as a justification and full defense, and also that all his conduct, sayings and doings in the matter were privileged communications.

      Held, that the communications, if made by the defendant in good faith and without malice, were prima facie privileged.
    That the fact that the answer alleged that they would be proved as a “ justification,” did not prevent him from showing that they were privileged communications.
    That the court erred in refusing to allow the defendant to prove that the report of the expert contained not only his opinion, but the reasons upon which it .was founded, and that he laid the same before the committee at the meeting, and that they acted upon it in discharging the plaintiff.
    That the court also erred in charging the jury; that the plaintiff was entitled to recover for the expense necessarily attending her coming into court to vindicate her character.
    That it also erred in charging that the plaintiff might recover not only the damages already occasioned, but those that might be occasioned in the future by the speaking of the words.

      Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Oneida Circuit, and also from an order denying a motion for a new trial on the minutes.

      Henry A. Foster, for the appellant.

      W. E. Scripture, for the respondent.
   Smith, J.:

Action in slander. The defendant was the principal of the “ Central New York Institution for Deaf Mutes,” situated at Nome in the county of Oneida. The plaintiff was employed in the institution as superintendent of the sewing department, at a salary. The charge imputed to the defendant, so far as is material to the questions raised by the appeal, is in substance that the defendant maliciously and falsely stated to certain persons who were members of the executive committee of said institution, at a time when they were in session as such committee, that the plain tiff on the 19th of January, 1878, deposited in the post-office at Nome, a letter directed to the wife of the defendant, the matter and contents of which were indecent and obscene. The duties and powers of the executive committee were, among other things, to hire and discharge all the employes of the institution except ordinary servants. The complaint alleged that by reason of the speaking of the alleged slanderous words, the plaintiff was discharged by the board from her employment in the institution. The answer contained a general denial, and as a further defense, it alleged, among other things, that about 19th January, 1878, a sealed envelope, bearing the Nome post mark, was received through the post-office at the defendant’s residence, directed on the outside in a seemingly or attempted disguised hand, but apparently in a female handwriting, to the defendant’s wife by name, which, on being opened, was found to contain matter grossly insulting in its character and which gave great pain to defendant and his 'wife ; that defendant had in his possession many specimens of plaintiff’s handwriting, had seen her write frequently, and was pretty well acquainted with her handwriting, and he was of the opinion, when he examined the direction on the envelope, that it was in the handwriting of the plaintiff, although it was attempted to be disguised; that without malice and for the purpose of ascertaining accurately whether the plaintiff wrote said direction, and of getting advice as to the proper course to be pprsued, defendant submitted the envelope and its contents to B. J. Beach, the chairman of and one of said executive committee, and also an attorney and counselor of this court and the defendant’s counsel at the time, and with his advice sent said envelope and its contents with letters and other writings of plaintiff, known by defendant to be genuine, to J. E. Paine of New York city, a skilled expert or detective of handwriting by comparison of hands, for the purpose of obtaining his opinion as to whether the handwriting on the envelope was that of the plaintiff; that said expert examined said writings, and in due time made a report to the defendant, in which he gave his opinion, and the reasons therefor, that the handwriting in all the papers was one and .the same ; that the defendant, relying on such opinion, without malice, and in good faith, for the sole purpose of doing his duty as principal in charge of said institution, and of placing before said executive committee such information as he had on the subject, then, for the first time, laid before said committee the expert’s report, the sealed envelope and its contents, and the specimens of plaintiff’s handwriting submitted to said expert, for the committee to act thereon as they should think proper; and that he never charged the plaintiff with directing said envelope or having anything to do with it. The defendant further averred in said answer that he would give in evidence the matters alleged therein, including those above-stated, in mitigation of damages, and as a justification and full defense to-the action, and he also alleged that all his conduct, sayings and doings in the matter were privileged communications.

At the trial, after the plaintiff rested, the-defendant gave evidence tending to show the matters alleged in the answer, as above-stated, down to and including the sending of the paper to the expert for his opinion. The expert was called as a witness and testified that he carefully examined said papers and came to the conclusion that they were all written by one and the same hand, and that he stated his conclusion in writing and sent it to the defendant. In the course of the trial the defendant offered to prove that the report sent to him by the expert contained not only the expert’s conclusion but his reasons for it; that the expert’s report was laid before the executive committee at their said meeting; and that it was what they acted upon in discharging the plaintiff. The offers and the proof were objected to and excluded upon the ground, as we understand the case, that the defendant having set up the matters so offered as a justification was thereby precluded from showing that his communications were privileged.

The rulings excluding that class of evidence raise the principal question in the case. The plaintiff testified that the defendant said to the committee that the letter was obscene and he knew that the plaintiff wrote and sent it. The defendant contradicted that statement, and there was evidence in the case which would have warranted the jury in finding that the defendant did not charge the plaintiff with writing or sending the letter, but that the only communication made by him to the committee was to lay before them the report of the expert and the papers submitted to him, without expressing any opinion of his own. In either aspect of the testimony the communication, if made in good faith and without malice, was prima facie privileged. If the plaintiff had done the act imputed to her it went to the question of her fitness for the place she occupied, and if the defendant believed, with good reason, that the letter was written and sent by her, it was his duty as the principal of the institution to communicate the matter to the official board, by whom the employes of the institution were hired and discharged. The case falls within the rule that a communication, made bona fide and without malice upon any subject-matter in reference to which the party communicating has a duty, is privileged if made to a party having a corresponding duty, although it contain criminatory matter which without this privilege would be slanderous and actionable. (Thorn v. Blanchard, 5 Johns., 508; Howard v. Thompson, 21 Wend., 319; Cook v. Hill, 3 Sandf., 341; Harrison v. Bush, 22 Eng. L. & Eq., 173.) Any evidence, therefore, which went to show that the defendant had probable cause, and acted in good faith and without malice, was material to the issue, unless the averment in the answer already referred to precluded the defendant from setting up that his communications were privileged. The argument of the respondent’s counsel seems to assume that the word “justification” is used in tlie answer in the sense of an admission of the speaking of the slanderous words charged in the complaint and an assertion of their truth. JM ot at all. The answer neither asserts the truth of the words charged, nor admits, but denies, that the defendant uttered them, and it sets out the communication which it admits he did make, and the circumstances under which it was made, and asserts, in substance, that it was justified by the occasion. A plea of privileged communication is a plea of justification, and is so spoken of and treated in the books. In Weatherston v. Hawkins (1 D. & E., 111, per Ld. Mansfield) : “To every libel there may be a necessary and implied justification from the occasion.” In Ring v. Wheeler (7 Cow., 730), Woodworth, J., cited approvingly the rule laid down in Buller’s N. P., 10 : “ The defendant may, by way of justification, plead that the words were spoken by him as counsel in a cause, and that they were pertinent to the matter in question.” (See, also, Lewis v. Few, 5 Johns., 1; per counsel, arguendo, 14, 16, 17; per Thompson, J., 35, 36; Farnsworth v. Storrs, 5 Cush., 415, per Shaw, C. J.; 2 Add. on Torts, 965, 966.) The defendant was therefore entitled to prove any of the circumstances alleged in his answer which tended to show that his communication to the board was in good faith and without malice. The evidence offered by him as above stated was of that character, and its exclusion was error.

In another point of view it was error to exclude evidence of the contents of the expert’s report, which the board had before them when they discharged the defendant. The plaintiff claimed that she was discharged by reason of words spoken by the defendant. It was competent for the defendant to show, if he could, that the action of the board was induced by the report of the expert, in which not only his conclusion, but the reasons for it were stated; and he made the distinct offer to show that it was upon the communication from the expert that the board acted.

The same erroneous view of the answer appeared in the charge to the jury. The defendant’s counsel asked the court to charge that the defendant being principal of the institution in which the plaintiff was employed, if the jury believe that the accusation charged in the case was made by the defendant in good faith, then the communication was privileged; and whether the jury, upon the evidence, believed that the plaintiff sent the letter or not, an action of slander does not lie.” The judge replied: Ordinarily I must so charge, but not in this case under the pleadings.” To which ruling there was an exception. If the views above expressed are correct, the reason assigned for the refusal to charge as requested was not sound and the refusal was erroneous.

Th,e court also erred in charging the jury that the plaintiff was entitled to recover for the expense necessarily attending the coming into court to vindicate her character. (Hicks v. Foster, 13 Barb., 663, and cases there cited by Marvin, J.)

We are also of the opinion that it was error to charge the jury that the plaintiff might recover, not only her present. damages, but also for future damages, by reason of the speaking of the words. The case is the ordinary one of defamation of character. No special ground for the allowance of prospective damages is alleged or proved, and it is not perceived how a claim for damages of that nature could be maintained. The action is given only for an injury to the plaintiff’s reputation. On that ground it has been held that in cases where the words are not actionable per se, the pecuniary loss which is required^to be shown must be the effect of the injurious imputation, upon other persons than the party bringing the action, and that inability to labor, the consequence of mental depression resulting from defamatory words not actionable in themselves, will not support the action. (Wilson v. Goit, 17 N. Y., 442.) We apprehend the true view to be taken of the matter is,, that in legal theory the reputation of the plaintiff is vindicated and made whole by a verdict in his favor, and thereafter no further injury can result to him from the defamatory words which were the ground of the action.

The judgment and order should be reversed and a new trial ordered, costs to abide event.

Talcott, B. J., and Hardin, J., concurred.

So ordered.


text:
    MARY J. ADAMS, Appellant, v. ARTEMUS L. ADAMS, Respondent.

      Consideration — when the agreement of a wife to discontinue an action for divorce is a good one — Right of the wife to sue on a note given by her husband, founded on such an agreement.

    The plaintiff having left her husband, the defendant, and brought an action against him to procure a divorce on the ground of his adultery, in which prima facie evidence of his guilt had been given, agreed with him to discontinue the action, without costs to either party, and to return to and live with him on condition that he should give his note for $1,000 to her father for her benefit. The note was given, the suit discontinued and the wife returned to and lived with her husband for several years.
    In an action brought by her upon the note after she had again separated from her husband:

      Held, that the note was founded upon a good consideration, and was not void as being against public policy.
    That the note having been assigned to the wife, she could bring an action at law upon it, and that, even if she could not maintain an action at law, equitable relief might be afforded to her under a complaint stating the facts.

      Van Order v. Van Order (8 Hun, 315), distinguished.
    Appeal from a judgment, entered on the decision of a justice of this court dismissing the complaint, on atrial at the Jefferson Circuit before the court without a jury.

      Chas. D. Wright and Levi II. Brown, for the appellant.

      Lansing & Rogers, for the respondent.
   Smith, J.:

This action is upon a promissory note dated 29th January, 1866, for $1,000, payable one-half in five years and the other half in ten years from date, with annual interest after two years, executed and delivered by the defendant to Job Gardner,- and by the latter transferred to the plaintiff.

The note was made under the following circumstances: The parties to this action intermarried in February, 1863, and lived together as husband and wife until April, 1865, when the plaintiff left the defendant and commenced an action against Mm for divorce on the ground of his adultery. The defendant answered, denying the alleged adultery, and issues were settled to be tried. In October, 1865, a female witness who was examined conditionally before a referee, testified to acts of adultery committed by the defendant with her. On the 29th of January, 1866, that action was discontinued, and the subject-matter thereof settled without costs to either party, both parties and the attorneys for the plaintiff therein signing a stipulation to that effect. On the trial of this action, the judge found that in consideration that the plaintiff discontinued the action for .a divorce without costs, and that she agreed to return to and live with the defendant, he made and delivered the note in suit to Gardner, who was the father of the plaintiff, for her benefit. The judge also found that immediately after such settlement and the giving of said note, the plaintiff returned to defendant’s house and lived and cohabited with him until about the 20th of November, 1816, a short time before the commencement of this action, when she left him again, because he charged her on several occasions when they were alone, and once in the presence of one of their servants, with having sexual connection with other men, and amongst others with her own son, by a former husband, who lived with his mother at defendant’s house. The plaintiff paid no part of the costs and expenses of the divorce suit. The learned judge dismissed the complaint, holding that the note was void for want of consideration and as being against public policy, and also for want of legal capacity of the parties to make the contract of which the note was a part.

We are of the opinion that neither of those positions can be maintained.

There was ample consideration to support the agreement. Prima faoie evidence of the defendant’s adultery having been produced in the action for divorce, the plaintiff’s discontinuance of that action without costs, and her condonation of the offense, furnished a good consideration. Presumptively, the plaintiff was entitled to a judgment of divorce, and was no longer under legal obligation to return to the defendant’s house. It is to be assumed, therefore, that her agreement had the effect not only to relieve the defendant from the impending decree which she might have taken against him, and all the adverse consequences that would have resulted from it, but also to restore to him the society and services of the plaintiff as his wife, the right to which he had forfeited by his misconduct. It is not necessary to look further for a consideration for the defendant’s promise. It is difficult to see upon what ground the agreement can be held to be contrary to public policy. Agreements for a future separation are condemned on that ground, but this is the opposite of those. It is an agreement between husband and wife, living in a state of separation, to compose their differences and live together again. To that extent, certainly, it tends to promote the interests of the parties and of the public, and is favored by the law. It is argued by the defendant’s counsel that if a husband can bind himself to pay money to his wife in consideration of her con-donation of his adultery, a wife can do the same in like case, and that to uphold such contracts would lead to an intolerable condition of domestic life. But what objection can there be to allowing a husband who has been unfaithful to make a settlement upon his wife; or an erring wife, if she has a separate estate, to transfer a reasonable part of it to her husband, as a condition of being forgiven and the former relations being restored ? Is it supposed that such an arrangement would carry with it the seeds of future discord between the parties, and for that reason should not be sanctioned by the courts ? The same objection might be urged against all those agreements which the law has upheld for centuries, by which a husband, either before or after marriage, settles an annual income upon his wife or creates an estate for her separate use. We think this ground of defense untenable.

We do not understand that the defense of a want of capacity to contract was made at the trial. It appears from the printed case that the defendant’s counsel stated to the trial court that he abandoned all defense set up in his answer, except the want of consideration and that the agreement was against public policy, and that he relied solely upon those defenses. That statement was probably overlooked when the decision was signed. But, however that may be, we think the capacity of the parties to make the agreement in question results from the right given by statute to the wife to sue for divorce in her own name. (2 R. S., 144, § 39; Code of Procedure, § 114 Code of Civil Procedure, § 450.) Having the right to sue in lier own name she may enter into an agreement to settle her suit the same as any other party. (Kirby v. Kirby, 1 Paige, 565.) And the agreement being one which she had legal capacity to make, we incline to think she may sue upon it at law. But it is not necessary to hold that, for, if remediless at law, she may íot that reason maintain the action on the equity side of the court to enforce the performance of her husband’s contract. That relief may be granted in the action in its present form, it being consistent with the case made by the complaint and within the issue. (Code of Civil Procedure, § 1207.) It is apparent from the opinion delivered by the learned judge who tried the case that his own impressions were that the action could be maintained, but he decided to dismiss the complaint in deference to the case of Van Order v. Van Order (8 Hun, 315), which he regarded as an authority in point. We think that case is distinguishable from this. It does not appear that there was any proof of adultery in the action which was settled by the agreement sued on in that case, or that the divorce action could have been maintained. And it is inferable from the report of the case that the agreement was one for a separation, there being a provision that the husband should have the care and custody of the child of the marriage, and that the wife should release her dower; stipulations, which were out of place, if the parties intended to live together. It is true the case states that the wife agreed to condone ” the adultery, but that expression does not necessarily imply that a subsequent cohabitation of the parties was intended (2 R. S., 145, § 42, sub. 2), and, in view of the other facts of the case, it probably means nothing more than that the wife forgave the offense so far as to discontinue her suit upon the terms stated. Yiewing the agreement as one for a future permanent separation, without proof of a violation of the marriage contract, the case was well decided, but it differs essentially from the case in hand.

Philips v. Myers (82 Ill. 67; S. C., Am. Rep., 295) is a case in point, and it accords with what we have said.

The judgment should be reversed and a new trial ordered, costs to abide event.

Talcott, P. J., and Hardin, »!., concurred.

So ordered.


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    LEVI COUNTRYMAN, Respondent, v. JOHN H. LIGHTHILL, Appellant.

      Branches overhanging an adjoining lot — when not a nuisance, perse — remedy of the owner — when an erroneous judgment for nominal damages will he reversed.

    The fact that the branches of a tree not poisonous or noxious in its nature overhang from five to fifteen feet the land of an adjoining owner does not, per se, render such branches a nuisance, so as to authorize such adjoining owner to maintain an action for damages, in the absence of proof that real and sensible damages have resulted therefrom.
    The adjoining owner may in such a case clip the overhanging branches, especially if the owner of the tree refuses to do so when requested.
    Although a judgment of a Justice’s Court for nominal damages only, will not in some cases be reversed by the County Court, though it is erroneous, yet this rule does not apply to an erroneous judgment in favor of one whose suit was both vexatious and groundless.
    Appeal from a judgment of the Herkimer County Court affirming a justice’s judgment in favor of the plaintiff for six cents damages.
    Action on the case to recover damages resulting from a nuisance. The plaintiff occupied lands adjoining those occupied by the defendant. The complaint alleged that the defendant had standing on his premises a maple tree near the boundary line, the branches of which hung over the plaintiff’s premises from five to fifteen feet, and in consequence thereof damaged his garden, and that the defendant refused to trim said tree on being requested by plaintiff to do so. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the justice overruled the demurrer. 'The only testimony in the case was given by the plaintiff as a witness in his own behalf, and is stated in the justice’s return as follows: “ He,” plaintiff, “ occupies premises in Stark, where he resides; defendant has a maple tree near the plaintiff’s line on defendant’s premises; is three or four feet from the line; plaintiff has berry bushes on his side of the line; branches have been hanging over from said maple tree from ten to fifteen feet; previous to the commencement of this action defendant asked me when I was going to trim my trees on my side of the line. I told him just as soon as he trimmed his; he said he didn’t know that he had any to trim ; I told him if he had none to trim I had none; he said that if I didn’t trim them that day he would trim them for me ; I told him he had no business with them, that I was capable of trimming my own trees; that same day I went away; when I came back the plum trees of defendant were trimmed; I told him I wanted him to trim that maple tree; defendant said he would not trim it, if I wanted it trimmed I should trim it myself; I told him no reason why I wanted that tree trimmedsince the commencement of the action he trimmed the tree ; plaintiff has berry bushes that the shade does not affect from said tree; plaintiff thinks there is a difference in the berry bushes of those in the shade.”
    No opinion was delivered by the county judge, but in a letter written by him to the defendant’s attorney, which j appears in the case, he stated that there being no important right affected by the judgment, and it being only for nominal damages, he thought it his 'duty, under the decisions, to affirm the judgment.

      H. J. Sanson and J. E. Dewey,, for the appellant.

      Geo. W. Smith, for the respondent.
   Smith, J.:

"We are not aware of a precedent •for this action, and, upon principle, we think it ought not to be sustained. The rule is well stated in Scott v. Firth (4 Fost. & Fin., 349; S. C., 10 L. T. [N. S.], 240), that to constitute a case of nuisance — i. e., of actionable wrong — there must be not merely a nominal, but such a sensible and real damage as a sensible person if subjected to it would find injurious, regard being had to the situation and mode of occupation of the property. What is a real and sensible inconvenience if in one place, would be none if in another.” In Crowhurst v. Amersham Burial Board (39 L. T., 355; S. C., 18 Alb. L. J., 515), the defendant having planted on its own ground yew trees, noxious and poisonous to horses, so near to a neighbor’s lot that his horse while feeding therein cropped the overhanging branches and died of the poison contained in what he ate, the defendant was held liable solely on the ground that the trees were poisonous. But it would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil. The neighbor has a remedy in such case by clipping the overhanging branches, especially if the owner of the tree refuses to do it on being requested. (Gale & Whately on Easements [ed. 1840], 210, 211; 20 Vin. Ab., 417, tit. “Trees” E.; Washb. Easements [2d ed.], 677; Add. on Torts, 289, 290, § 266; Crowhurst v. Am. Burial Board, supra.)

The overhanging branches of a tree, not poisonous or noxious in its nature, are not a nuisance, per se, in such a sense as to sustain an action for damages. Some real, sensible damage must be shown to result therefrom. The complaint in this case alleged that in consequence of the overhanging limbs the plaintiff’s garden was damaged. That was not a necessary result, and in what way it was produced was not alleged. The only proof on the subject was, that plaintiff had berry bushes on his side of the line, and he thought there was a difference between those in the shade and those that were not. What the difference was — whether the shaded bushes were injured or benefited by the shade — does not appear. The action was misconceived, and the justice erred in rendering judgment for the plaintiff.

The County Court seems to have supposed that as the judgment was for nominal damages only, it was not to be reversed, although erroneous. There are cases originating in Justices’ Courts in which the appellate courts have refused to grant the plaintiffs new trials for error, or to reverse wrong judgments against them where only-nominal damages could be recovered and the suits were .vexatious. (Stephens v. Wider, 32 N. Y., 351, and cases cited; Terry v. Dudley, vol. 11, The Reporter, 306.) But even in such case a plaintiff may have a new trial or reverse an erroneous judgment, where a principle, or a right, or"its extent is’involved, although he is entitled to only nominal damages and the suit is vexatious. (Herrick v. Stover, 5 Wend., 580, 586; Hyatt v. Wood, 3 Johns., 239; Dixon v. Clow, 24 Wend., 188.) So an erroneous nonsuit will be reversed, although the plaintiff may sue again (Smith v. Sutts, 2 Johns., 9; Wilson v. Foree, 6 id., 111; Schemerhorn v. Jenkins, 7 id., 373), even if no costs were awarded. (Lovell v. Evertson, 11 Johns., 52; Elwell v. McQueen, 10 Wend., 519, 523; Barthelemy v. People, 2 Hill, 255, note a; Nellis v. Tucker, 5 Den., 82.) But we do not know of a case holding that an erroneous judgment in favor of one whose suit was both vexatious and groundless, should be affirmed because the recovery was only for nominal damages. (See Porter v. Cobb, 22 Hun, 278.)

The judgment of the County Court and that of the justice are reversed.

Talcott, P. J., and Hardin, J., concurred. .

So ordered.