author: Merwin, J

text:
    William Duffus, Resp’t, v. Christoph Schwinger et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Evidence—Declarations—Aq-ency.
    The declarations of an alleged agent do not established his agency.

      2. Replevin—Verdict—Value op property.
    In an action of replevin, the value of the property, at the time of the trial, must he found.
    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 a case and exceptions.

      George W. Cothran, for app’lts; Walter S. MacGregor, for resp’t.
   Merwin, J

—This action was commenced on the 25th November, 1890. It is alleged in the complaint that prior to October, 1890, the plaintiff was the owner of three mortgages upon the boat in question, upon each of which default had been made, by reason whereof the plaintiff was the owner of the property, and had the right to sell the same to make the amount of the mortgages. The mortgages are set out in full. It was also alleged that one Baxter had a prior claim for repairs, upon which, on the 14th October, 1890, a suit was commenced and the boat was taken into the possession of the United States marshal;, that on the 16th October, 1890, the claim of Baxter was transferred to plaintiff, and also the possession of the boat, and that plaintiff then took possession by virtue of said transfer, and of his rights under his mortgages; that on the 18th day of October, 1890, at the city of New York, and while the property was owned bv and in possession of the plaintiff, the defendant wrongfully took and converted it to their own use; that the value of the property is $2,000: that before the commencement of the action the plaintiff duly demanded of the defendants the possession and delivery, which were refused. In a second count a wrongful talcing and detention are alleged, and a demand and refusal to deliver, and that the damages for the detention are $500. Judgment was demanded for the recovery of the possession, or for the value» thereof in case a delivery cannot be had, together with $500 damages for detention. This " amount was afterwards, by order of court, allowed to be increased to $2,500. In the answer all the allegations of the complaint are denied, except the demand before suit, and it is averred that the defendants did not have possession at the time of the demand, or at any other time. It is also alleged that- the boat was sunk or destroyed, by reason of a storm, while lying in the waters of New York, and without any fault or negligence of the defendants, and while the same was not in their possession or control.

Upon this appeal no question is made by the defendants about the validity of plaintiff’s mortgages. It is, for the purposes of the argument, conceded by them that there were moneys due on each of the mortgagesthat they were all prior to a mortgage given to the defendants on November 1,1889, and that the plaintiff was entitled to take possession of the boat. It is, however, insisted that the evidence is not sufficient to charge them with the taking or conversion of the boat, or establish the proposition that Sherman Petrie, by whose act or procurement the conversion, if any, took place, was the agent of the defendants, and that on this subject incompetent evidence was received. The main controversy is over the question whether Petrie was the agent of the defendants at the time of the alleged conversion. The claim of the plaintiff is that the defendants sent their mortgage to Petrie, with directions to foreclose it, and that in pursuance of this he took possession of the boat for the defendants, and refused to deliver it to plaintiff. The claim of the defendants is that on the 9th October, 1890, they ■ assigned their property to Petrie, and-Bad nothing whatever to do with it thereafter, and that Petrie was in no respect their agent. The boat was at a pier in New York City. The plaintiff lived at Syracuse, and the defendants lived at or near Tonawanda.

Upon the-trial the plaintiff, after giving proof of his mortgages, and the debts as security for which the mortgages were given, and the mortgage given to defendants to secure the sum of $180, and dated November 1, 1889, gave evidence tending to show that on the 16th October, 1890, Petrie had in his possession the mortgage given to the defendants, and under it claimed to be in possession of the boat in behalf of the defendants, and that on the 18th October, 1890, Petrie, assuming to act as agent for defendants, was in possession of the boat, and sold or directed its sale at auction on foreclosure of defendants’ mortgage, and stated that it was bid in for the defendants, and that upon that day, as well as on the 16th and 17th October, he refused to allow the agent of plaintiff to have possession of the boat. It appeared that nothing occurred between Petrie and the plaintiff or his agent before the 16th October, or after the 18th. The plaintiff then called as á witness one Carter, who testified, among' other things, to a conversation between himself and Petrie on the 11th or 12th October, and also to a conversation on or after the 19th October, in each of which Petrie, in substance, said that he was the agent of the defendants, and authorized to act for them, in the foreclosure. These conversations were in due time objected to by the defendants on the ground that the agency of Petrje could not be proved by the "declarations of the assumed agent, and the objection was overruled, and exceptions duly taken. These declarations were not competent. The fact of agency cannot be proved by the declarations or acts of the alleged agent. Stringham, v. St. Nicholas Ins. Co., 4 Abb. Dec. 320; Marvin v. Wilber, 52 N. Y. 270; Brigham v. Peters, 1 Gray, 139. In Gould v. Town of Sterling, 23 N. Y. 463, it is said that no representation of the agent as to the fact of his agency, or as to the extent of his power, is of any force to charge the principal. In Scott v. Stevenson, 3 Hun, 352, it was held that an authority to transfer a note in behalf of the payee cannot be implied from the fact of its possession by the person assuming to act as agent of the payee in transferring it. In Howard v. Norton, 65 Barb. 161, it was held that representations by a party that he was the agent of another are incompetent for any purpose except to prove that he so held himself out to the person with whom he dealt, and that similar representations to third parties were wholly inadmissible; it being said that such evidence must have influenced the jury in passing on the question of authority, and for that purpose it was wholly incompetent.” This seems to have been the ground on which, in that case, a new trial was ordered. In the present case, Carter, with whom the conversations were held, was an outsider. He did not represent the plaintiff. He had then nothing to do with the plaintiff in regard to the matter here in controversy, so that the conversations cannot be properly called a part of the transaction in question. The evidence was not admissible for the purpose of characterizing any acts between plaintiff and Petrie. Nor, as the case is here presented, is there anything that obviates the error in the ruling, or prevents the defendants from receiving the benefit of the exception. Whether, without this evidence, the plaintiff made a case for the jury, is not important here to determine.

Evidence was given on the subject of the value of the boat at the time of the taking, in October, 1890. There was no evidence of the value at the time of the trial, in May, 1893, except that some circumstances were shown, pointing perhaps to the conclusion that the boat was lost or destroyed soon after October, 1890, so that at the time of the trial it might be deemed to be worthless. The course of the trial indicates that the value of $800, fixed by the jury was the value as determined by them to be on October, 1890. The verdict itself docs not fix the date. Under Code, § 1726, the value to be fixed is the value at the time of the trial. No point seems to have been raised at the trial about it, or on the motion for a new trial, except the general grounds were taken that the verdict was contrary to law, and the damages were excessive. If the value, as fixed, is to be deemed a rinding of the value at the time of the trial, as I am inclined to think it should be, then it should be said that the evidence does not sustain it. In Button v. Chapin, 7 Civ. Proc. R. 278, where the value was fixed at the time of the demand, instead of at the time of the trial, it was held that this was a good ground for a new trial, notwithstanding an exception was not taken.

The damages for detention from October, 1890, to May 1893, were fixed at $2,500. There was evidence on part of the plaintiff tending to show that the use of the boat during the boating season was worth from five to ten dollars a day, so that the figure of the amount for detention might possibly be reached. If, as the jury probably thought, the value of the boat in October, 1890, ivas $800, it would seem quite remarkable that the value of its use for two years would reach the sum of $2,500. The amount of the claims of the plaintiff at the time of the trial, was the sum of $1,732.93. The recovery is for $3,300. Whether, in any event, the plaintiff can recover more than the amount of his claims, is a question that is not discussed by counsel, and need not be here determined. See Townsend v. Bargy, 57 N. Y. 665.

' By reason of the admission of the declarations referred to, and the finding as to the value of the property, there should be a new trial ordered.

All concur.

Judgment and order reversed, and a new trial ordered, costs to abide the event.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Nelson E. Kelly et al., as Administrators, etc., Resp’ts, v. George E. Jay, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Witness—Impeachment—Contradiction.
    A party, who takes the deposition of an adverse party, may show statements made by him contradictory to those in the deposition.
    2. Judgment—Collateral attack.
    Authority of the surrogate to appoint an administrator cannot be attacked collaterally in an action by such administrator, in the absence of fraud or collusion, where the papers are regular and contain all that is required upon such an application.
    3. Pleadings—Demurrer—Misjoinder.
    Where the facts raising the question of the misjoinder of parties appear upon the face of the complaint, the objection must be taken by demurrer.
    4. Appeal—Appealable.
    Order made without notice is not appealable..
    Appeal from a judgment in favor, of plaintiffs.

      John W. Church, for app’lt; A. D. Wales, for resp’ts.
   Merwin, J.

—On the 3d day of April, 1876, Judson H. Barnes, then being the owner of a farm of 165 acres situated in the town of Oolesville, in the county of Broome, executed and delivered to William M. Merrills a mortgage thereon to secure the payment of the sum of $452 in three years from its date, with interest. This mortgage was duly recorded in the Broome county clerk’s office, April 5, 1876. On the 31st day of December, 1891, the mortgage and the bond accompanying the same were assigned by Merrills to the defendant, and the assignment was duly recorded on June 4, 1892. On July 23, 1892, Judson H. Barnes, still being the owner of the farm, died intestate. His heirs at law are parties plaintiff herein, and the administrators of his estate are also plaintiffs. On or about December 25, 1892, the defendant commenced a foreclosure of the mortgage bv advertisement, and in the notice there was claimed to be due $452 of principal and $99.74 interest. The object of the present action is to restrain the foreclosure of this mortgage, have it declared paid and satisfied, and compel its cancellation of record. It is alleged in the complaint that the defendant, at the time he obtained the assignment, was indebted to the mortgagor, Barnes, in the sum of several thousand dollars, and had in his possession several thousand dollars, the property of Barnes, and that the defendant procured the assignment with the funds of Barnes, and in reality for his benefit; also', that at the time of the death of Barnes the defendant was indebted to him in the sum of several thousand dollars, for money which he had received from the sale of lumber and ties and other sources, over and above the amount due on the bond and mortgage, so that at the time of the. death of Barnes the bond and mortgage were not existing obligations or securities in favor of defendant. The defendant, in his answer, claims to hold the bond and mortgage for the full amount; denies that he obtained the assignment with the funds of Barnes, or for his benefit, or that he was at the time of the assignment, or of the death of Barnes, indebted to him; and he alleges that prior to the death of Barnes “he had a full settlement of all matters of deal and difference, of every name and difference, between himself and said Judson H. Barnes, except the mortgage mentioned in the complaint, and a certain mortgage formerly held by the defendant against said Judson H. Barnes, and the same were settled, compromised, and mutually released.” The defendant also alleged in his answer that Barnes, at the time of his death, was a resident and inhabitant of the town of Afton, in Chenango county, and that, therefore, the surrogate of Broome county had no jurisdiction to appoint the plaintiffs Kelly and German B. Barnes administrators of the estate of Judson H. Barnes, and that for that reason they, as administrators, have no right to maintain the action; also, that there is a misjoinder of parties plaintiff, in that the plaintiff administrators are improperly joined with the plaintiff heirs of Judson H. Barnes; also, that plaintiffs have a complete and adequate remedy by action at law.' At the trial it appeared that at the time of the assignment, and for some time before and after, the defendant was the agent of Barnes in getting out timber and ties from the said farm of Barnes, and in selling the same, and receiving the avails. The referee, in substance, finds that at the time of the assignment the defendant had in his hands, of the moneys of Barnes, a sum greater than the mortgage, principal and interest, over and above the value of defendant’s services as agent; that the assignment was obtained with the funds of Barnes, which the defendant had in his hands; that at the time of the death of Barnes, and of the commencement of this action, the defendant had in his hands, of the moneys received by him as agent, and over and above what he had expended as such, and the value of his services, a sum greater than the amount of such mortgage; that Barnes died without ever having any settlement with the defendant of the matters in regard to which the defendant had acted as agent. As matter of law the referee found that the bond and mortgage, and the indebtedness thereon, were on December 31, 1891, by the payment of the principal and interest to 'Merrills by the defendant, paid and canceled; that the defendant received the assignment in trust for Barnes ; that plaintiffs were entitled to judgment directing the defendant to execute and acknowledge a satisfaction, and that the mortgage be canceled and satisfied of record, and that the defendant be restrained from foreclosing the same. Judgment was accordingly entered.

The appellant does not find any particular fault with the law which the referee applies to the facts as he finds them to be. See 1 Pom. Eq. Jur. § 422 ; 1 Perry, Trusts, § 127 ; 2 Jones, Mortg. § 1496; Ferris v. VanVechten, 73 N. Y. 120. But it is strenuously urged that the findings on the facts are not sustained by the evidence. The defendant does not claim that the assignment was taken to him with the knowledge or consent of the deceased, but that he (the defendant) paid for it with his own money, and that afterwards, and about a weék before the death of Mr. Barnes, he settled with him, and accounted for all the moneys he had received, without reference to the mortgage, and agreed with Mr. Barnes to pay the balance which he had in his hands upon a claim that the father of defendant had against Mr. Barnes for board. The main questions of fact were—First, whether the defendant, in obtaining the assignment, used the funds of his principal ; and, second, whether there had been a settlement between defendant and Barnes on or about July 15, 1892. Upon these subjects a large mass of evidence was presented, and much that was conflicting. The referee had the benefit of the personal presence of -the witnesses. A careful consideration of the evidence leads us to the conclusion that the findings of the referee are abundantly sustained.

Before the trial the deposition of the defendant was taken upon the application of the plaintiffs, and on the trial certain portions of this deposition was read in evidence by the plaintiffs, and the balance by the defendant. The appellant claims that the referee erred in thereafter admitting in evidence, on the part of plaintiffs, declarations of the defendant contradictory, to some extent of the statements of his deposition. By § 838 of the Code, it is provided that the testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence. This allowed the plaintiffs to prove the facts of their case by any competent evidence, although such evidence might show the facts different from the statements in defendant’s deposition, and so operate to contradict him. This rule would allow the plaintiffs to show declarations of defendant, although they differed from the deposition. See De Meli v. De Meli, 120 N.Y. 490 ; 31 St. Rep. 704; 2 Rum. Pr. 27; 1 Greenl. Ev. § 443.

The appellant claims that the referee erred in refusing to find that Judson H. Barnes, at the time of his death, was a resident and inhabitant of Chenango county. This was immaterial, unless the defendant had a right, in this action, to contest the jurisdiction of the surrogate’s court of Broome county in its appointment of the administrators (plaintiffs). It is not claimed that the papers before the surrogate of Broome county were not regular, or did not contain all that was required upon such an application. Code, § 2662. The record of the proceedings in the surrogate’s court, resulting in the appointment of the administrators, was received in evidence without objection. The papers themselves were not printed in the case. It is found by the referee that the appointment was regularly made, and that letters were duly issued. No fraud or collusion is charged. So that under § 2473 of the Code the question of jurisdiction, of the surrogate’s court would not, in this case, be an open one. Bolton v. Schriever, 135 N. Y. 65 ; 47 St. Rep. 870.

It is also claimed that there is a misjoinder of parties plaintiff, in that the plaintiffs the administrators are improperly joined with the plaintiffs the heirs of Judson H. Barnes, deceased. This is alleged in the answer. The facts raising the question appear on the face of the complaint; so that the objection, if taken at all, should have been taken by demurrer. Not being so taken, it was waived. Code, §§ 498, 499 ; Patchin v. Peck, 38 N.Y. 39; Sullivan v. N. Y. & R. Cement Co., 119 N. Y. 348, 356; 29 St. Rep. 757. It is not entirely clear that the administrators were not proper parties to the action. 2 Barb. Ch. Pr. 196; 1 Beach, Mod. Eq. Jur. §§ 76, 77. The heirs were seeking to remove a cloud upon their title. That was the burden of the complaint. In the investigation of the subject the claims of the administrators against the defendant were, to some extent, involved. They were interested in the question whether the mortgage was to be deemed paid from the property of the deceased, or whether the defendant would have in his hands so much more of the estate of the deceased to be accounted for. There is some ground for saying that if the mortgage was declared to have been paid the administrators should be in a position to be bound by the adjudication. It may be that the deceased had an option whether or not to consider the mortgage as paid. This he did not exercise in his lifetime, as there was no settlement. It matters not to the defendant whether that option descended to the heirs, or to the personal representatives, as, in bringing this suit, both elect to treat the mortgage as paid. The appropriate remedy for the heirs was in equity. Schoener v. Lissauer, 107 N. Y. 111, 117; 11 St. Rep. 368; Smith v. Reid, 134 N. Y. 578; 48 St. Rep. 156 ; Swarthout v. Ranier, 67 Hun, 250; 50 St. Rep. 814; 1 Story Eq. Jur. § 705. They had a right to bring the action. 4 Rev. St. (8th ed.) p. 2461, § 4.

Our attention is.called to a number of exceptions to rulings upon the admission or rejection of evidence. These we have examined, but find no sufficient basis for a reversal.

The order of January 5, 1893, referred to in the notice of appeal, was an order made by the county judge, under the provisions of the .Code, § 870 et seq., for the examination of the defendant before trial. It was granted upon the application of the plaintiffs without notice. Under it the deposition was taken that was used on the trial. No motion was made to vacate or modify the order. Not being made upon notice, it was not appealable. Code, §§ 1347, 1348, note by Throop to § 1347; People ex rel. Schlehr v. Common Council, 30 Hun, 636.

It follows, therefore, that the appeal from the order should be dismissed, and the judgment be affirmed.

All concur.

Appeal from order dismissed, and judgment affirmed, with costs.


text:
    Charles D. Clark, Resp’t, v. James Costello, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Conversion—Defense.
    Possession under a pledge is a defense to an action for conversion.
    2. Pledge—What is.
    One of two joint owners of a chattel, both of whom are in possession, may pledge his share to his co-owner, and the latter may, by remaining in possession and control, have a valid pledge.
    3. Lien—Waiver.
    A promise to return a chattel to its owner, without any consideration therefor, is not a waiver of the promisor’s lien thereon.
    Appeal from a judgment in favor of plaintiff.

      Alexander C. Eustace and Joseph P. Eustace, for app’lt; Reynolds, Stanchfield & Collin, for resp’t.
   Merwin, J.

—The plaintiff, in his complaint in this case, alleges that he was the owner and lawfully possessed of a sewer excavating machine, of the value of $2,200; that on or about November 15, 1888, at Bast Saginaw, Mich., the defendant wrongfully took' possession of it, and caused it to be conveyed to Amsterdam, N. Y., and there unlawfully converted it to his own use; that plaintiff demanded possession, which the defendant refused. In the answer, besides a general denial, it is alleged that the firm of Costello, Neagle & Co., of which defendant was a member, were in possession of the machine under a partnership arrangement between the said firm and the plaintiff in the business of constructing a sewer at Bast Saginaw; that under this arrangement the plaintiff agreed to contribute to the copartnership business the use of the machine, pay the expense of keeping it in repair, and also pay one-quarter of the loss, if any, in the business, and that the said firm should retain possession of the machine, and hold it as security for the payment by plaintiff of such share of the losses, and for any moneys the firm expended for repairs; that there was a loss in the business, of which plaintiff’s share was about $250; and the firm, also, at the request of the plaintiff, made extensive repairs on the machine, none of which plaintiff has paid for, and the machine is in their possession as security for the same. The proof shows that the machine was used at Bast Saginaw, in the business referred to, which was completed about November 1, 1888, at a loss of about $1,000, and that defendant’s firm paid for repairs on the machine about the sum of $141. At the close of the work the machine was, with the consent of plaintiff, removed by the defendant’s firm to Amsterdam, E. Y. While it was there, and under the control of the defendant, who was there acting for his firm, the plaintiff, on 7th December, 1888, telegraphed to the defendant to ship the machine to him at Elmira, and the defendant replied, “Will ship machine soon as Michigan matter is settled; not before.” This is relied on as a conversion by defendant. The referee finds that there was an agreement between plaintiff and defendant’s firm, by which the latter should have a lien upon the machine to secure to them the payment by the plaintiff of. any sums which they might be obliged to expend for repairs upon the machine, and of his share of any losses which might occur from the prosecution of the East Saginaw work; that there were losses, and defendant’s firm expended moneys for repairs, and plaintiff has not paid for such repairs, or his share of the losses; that by virtue of the agreement above referred to the defendant’s firm acquired an equitable lien on the machine, but that this did not give to the defendant’s firm, or to the defendant, the possession, or the right of possession ; and that at the time of the shipping of the machine to Amsterdam, and at the time of the refusal of the defendant to ship it to Elmira at the request of plaintiff, the defendant or his firm had no right to the possession. The referee therefore ordered judgment for the plaintiff for the full value of the machine.

If at the time of the alleged conversion the defendant’s firm, or the defendant on behalf of his firm, was in possession under a valid, existing pledge, it would be a defense to the action of trover, as the plaintiff did not offer to pay any charges. Everett v. Coffin, 6 Wend. 603, 608; 6 Wait, Act. & Def. 147. To constitute a valid pledge, there must be a delivery of the thing pledged to the pledgee, but what will amount to a delivery depends upon the circumstances of the ease. It is sufficient if there are any of those acts or circumstances which, in construction of law, are deemed sufficient to pass the possession of the property. Story, Bailm. § 297. The possession may be according to the nature of the subject. Wilson v. Little, 2 N. Y, 443. If the pledgee has the thing already in possession, as by a deposit or a loan, then the very contract transfers to him, by operation of law, the virtual possession thereof, as a pledge, the moment the contract is completed. Story, Bailm. § 297; Brown v. Warren, 43 N. H. 430. A delivery subsequent to the contract may be effectual. Parshall v. Eggert, 54 N. Y. 18. One of two joint owners of a chattel—both being in possession-—■ may pledge his share to the other joint owner, and he, by continuing in possession and control, have a valid pledge. 18 Ain. & Eng. Erie. Law, 596, citing Thoms v. Southard, 2 Dana, 475.

The dealings between the plaintiff and the defendant’s firm in regard to the East Sagninaw work were initiated by a written agreement, by one of the provisions of which the plaintiff leased to the defendant’s firm the machine in question, “ which machine the said firm is to use in the excavation of a certain sewer.” etc. The plaintiff agreed to accept, as full payment “ for the use of said machine as aforesaid, one-quarter of the net profits accruing to said, firm of Costello, Neagle & Co. from the prosecution and completion of the said sewer.” If the work did not prove profitable, then plaintiff agreed to pay the firm one-quarter of the loss “ sustained by said firm ” in the work. It was also agreed that the capital necessary for the prosecution of the work should be furnished, three-quarters by the defendant’s firm, and one-quarter by the plaintiff,—the amount to be mutually agreed upon thereafter. After this agreement was made a"question arose between the parties as to the repairs to the machine, and the security the defendant’s firm would have for plaintiff’s share of the loss; and (as the referee, in substance, finds) the defendant’s firm, by virtue of the rights reserved to them in the last clause of their contract, refused to undertake the execution of the work unless the plaintiff would secure to them the payment of his share of any loss that might accrue. Thereupon, an agreement for a lien was made, as found by the referee. The machine was then taken to Bast Saginaw, and the work undertaken. The business was evidently carried on in the name of the defendant’s firm. The .plaintiff was there, superintending the work of the machine. The defendant’s firm, or their agent, was also there. The referee has in effect found that the defendant’s firm was never in possession under the agreement that they should have a lien. This finding is, I think, against the weight of the evidence. Assuming the existence of the agreement for a lien, as the referee finds it, it follows almost necessarily that the possession of the defendant’s firm was in part under it. Under the written agreement, which was never abrogated, the defendant’s firm were in form lessees. This was supplemented by the arrangement for a lien, and then both agreements were carried out together. True, the plaintiff was there; but his possession, whatever it was, was subservient to the rights of the defendant’s firm. Under the evidence, it should, I think, have been held that the defendant’s firm had a valid pledge.

The question then arises whether they have ever released or waived it. It is not found that they have, but there are some facts, that, it may be claimed, look in that direction. The transfer to Amsterdam did not affect it, as that was with the assent of plaintiff. The defendant told plaintiff, while the machine was at Amsterdam, that, if he (plaintiff) wanted the machine, to go and get it. This, however, involved the payment by the plaintiff "of the freight, and plaintiff did not accept the offer. The referee finds that the defendant promised the plaintiff to ship the machine from Amsterdam to the plaintiff, at Elmira. Assuming this to be sustained by the evidence, it would not necessarily follow "that there was a waiver of the lien. It has been held that an agreement to give up a lien, in order to be obligatory, must be based on a legal consideration. Danforth v. Pratt, 42 Me. 50; 1 Jones, Liens, § 999. So it is said that a lien created by contract is not discharged by permitting the general owner to take possession of the property, if it may be done consistently with the contract, the course of business, and the intention of the parties. 1 Jones, Liens, § 998. In Allen v. Spencer, 1 Edm. Sel. Cas. 117, it is said that: “ As between the owner and the holder of the lien, possession is bjr no means essential, except when, by surrounding the possession, the claimant can be fairly understood to have surrendered his lien ; and then the question is not whether he has yielded his possession, but has he voluntarily surrendered his lien ? ”

In the present case the possession was not in fact surrendered, and it should not, I think, be held that the defendant or his firm have waived or released their lien, or are estopped from claiming its benefit. The foregoing considerations lead to the conclusion that the judgment against the defendant for the value of the machine was not right, and should be reversed.

All concur.

Judgment reversed, and new trial ordered; costs to abide the event.


text:
    Charles A. Pitts, as Administrator, etc., Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Negligence—Question of fact.
    Where the facts and surrounding circumstances are such as reasonably indicate, or tend to establish, that the accident might have occurred without negligence on the part of the deceased, the question of contributory negligence is 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, made on the minutes of the court

      D. C. Robinson, for app’lt; Bacon & Aldridge, for resp’t.
   Merwin, J.

—This action is brought for the recovery of damages for the death of Margaret Pitts, the wife of the plaintiff, Charles A. Pitts, at a collision between a passenger train of defendant and the carriage in which the deceased was riding, at about 11 o’clock in the evening of November 30, 1892. at the railroad crossing on Pennsylvania avenue, in the city of Elmira. The claim of the plaintiff is that the collision and death were occasioned by the negligence of the defendant in the management of its train. The evidence is, we think, sufficient to support the conclusion of the jury in this respect.

The main question here is whether the evidence justified the submission to the jury of the question of contributory negligence. The deceased lived, with her husband, a short distance outside of the city; and upon the evening in question they, with some of their friends, had been in attendance at a play at the opera "house in the city. Shortly after 11 o’clock they started forborne. One William Conklin, who was a nephew of the deceased, asked her to ride with him, and she did so, her husband riding with another party. Conklin had an ordinary platform spring wagon, with two seats, and drawn by one horse. There were five in his party. Conklin was the driver, and he, with another man, occupied the front seat; and the deceased, with two other ladies, was on the back seat, the deceased sitting between the other two. They drove along Pennsylvania avenue in a southerly direction, and the train with which they collided came from the easterly direction, and was on the northerly or west-bound track. Upon the easterly side of the street, as they approached the crossing, there were some obstructions to an easterly view. There was a building occupied as a lumber office; there was a number of lumber piles; and there were a box car and some flat cars on. a switch or side track that was laid for the benefit of the lumber yard, and reached to the street. There is evidence that the box car was close to the street. This switch or side track was about thirty-three feet from the west-bound track in a direction at right angles with it, but, by reason of the railroad running atan oblique angle with the street, the distance one would travel in driving on the street from the line of the switch to the same track was about forty-five feet; and there was a rise of about two feet, as the main track was there higher than the ordinary line of the street. The view easterly between the switch and the main track was somewhat interferred with by several telegraph poles a foot in. diameter, some of them having braces, and also by a semaphore, and in the night there were also switch lights and a semaphore light. There were gates at the crossing, but they were not operated after 6 o’clock in the evening, and .there was then there no gateman or flagman. At the collision all the persons in the carriage were killed except the driver. He was called as a witness, and testified that as he approached the crossing, and when he got far enough by the cars on the switch so he could see easterly, he stopped his horse, and looked and listened, looked both ways, up the track and down the track, looked eastward as far as he could, and could see nothing, only some switch lights down the track; that he then drove on on a walk, and was on the track when he first saw the light of the engine, and was not able to get across in time to avoid the collision. He also testifies that as they approached the crossing Mrs. Pitts asked him “ to stop and listen for a train, and see if I could see any, and I did so.” The horse was a gentle one, not afraid of the cars, and Conklin was accustomed to driving. All the parties were familiar with the crossing. There was evidence tending to show that no bell was rung or whistle blown within hearing distance of the crossing, and that the train was going at the rate of about forty miles an hour. Quite a strong wind was blowing from the' northwest. There was evidence on the part of the defendant that, at a point forty-two feet on the street from the crossing, a traveler could see easterly an engine on the track, 1,800 feet distant. This, however, was disputed by the plaintiff, so far as applicable to the night in question.

The absence of contributory negligence may be shown from circumstances. Hoag v. N. Y. C. & H. R. R. Co., 111 N. Y. 199; 19 St. Rep. 80; Chisholm v. State, 141 N. Y. 249 ; 56 St. Rep. 81; Johnson v. Hudson R. R. Co., 20 N. Y. 65. The fact that no one can testify that he saw the deceased look both ways and listen does not necessarily show that she did not do her duty in that regard. Massoth v. D. & H. Canal Co., 64 N. Y. 524; Beckwith v. N. Y. C. & H. R. R. Co., 54 Hun, 446; 28 St. Rep. 130, 292; affirmed, 125 N. Y. 759 ; 36 St. Rep. 1010; Sherry v. N. Y. C. & H. R. R. Co., 104 N. Y. 652; 5 St. Rep. 374. In Tolman v. Syracuse, B. & N. Y. R. Co., 98 N. Y. 198, it is said that if such facts and surrounding circumstances are shown as reasonably indicate, or tend to establish, that the accident might have occurred without negligence on the part of the deceased, the question of contributory negligence is for the jury, although there were no eyewitnesses of the accident. Nor can it be said, as matter of law, at what particular point they should have looked. Greany v. L. I. Railroad Co., 101 N. Y. 419, 427; Petrie v. N. Y. C. & H. R. Railroad Co., 66 Hun, 284; 49 St. Rep. 279. In Shaw v. Jewett, 86 N. Y. 617, it is said: “The plaintiff is not bound to see. He is bound to make all reasonable effort to see that a careful, prudent man would make in like circumstances. He is not to provide against any certain result. He is to make an effort for a result that will give safety,—such an effort as caution, care, and prudence will dictate.”

The distance at which the deceased or the driver could see the headlight of an approaching engine, under the circumstances then existing, was indefinite. There were other lights in the vicinity." If no signals were heard or given, and the wind blew briskly from the other direction, and the train came so silently, so far as they were concerned, at 40 miles an hour, it should not be said, as matter of law, that they could have seen it when they stopped, or should have seen it in time to have avoided the collision. In the Massoth Case it is said that: “It does not necessarily follow from the fact that a skilled engineer can demonstrate that, from a given point in a highway, the track of a railroad is visible from any distance, that an individual in charge of a team approaching the track is negligent because, from the point specified, he does not see a train approaching at great speed in time to avoid a collision.”

See, also, Puff v. Lehigh V. Railroad Co., 72 Hun, 577 ; 55 St. Rep. 91; Parsons v. N. Y. C. & H. R. Railroad Co., 113 N. Y. 364; 22 St. Rep. 697.

We think that the question of contributory negligence was properly left to the jury. It follows that the judgment should be affirmed. All concur.

Judgment and order affirmed, with costs.


text:
    Ellis H. Roberts & Co., Pl’ff, v. John Buckley et al., Def’ts. George F. Vietor et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Assignment foe creditors—Inventory.
    An erroneous statement, in the inventory, oí the amount of debt does not necessarily vitiate the assignment, but may be explained. .
    Appeal from a judgment in favor of some of the defendants

      George F. Danforth and James Dunn, for app’lts ; H. J. Cookinham and William P. Quinn, for resp’t Bulger, as assignee; Maileson & Harvey, for judgment creditors; W. Kernan, for assignors.
   Merwin, J.

—The important questions in this case arise upon the appeal of the defendants, composing the firm of Frederick Vietor and Aehelis, and relate to the validity, as against creditors, of the general assignment of the defendants Buckley and Shirley. There have been two trials. Upon the first trial the assignment was sustained, and the judgment was affirmed at general term. Ellis H. Roberts & Co. v. Vietor, 54 Hun, 461 ; 28 St. Rep 100. Upon appeal to the court of appeals the judgment was reversed, and a new trial ordered. 130 N. Y. 585 ; 42 St. Rep. 729. Upon the second trial the assignment was again sustained. Whether that conclusion was correct is the main question now here.

The charge against the assignment is that it was made with intent to hinder, delay, and defraud creditors. This charge is, as the case now stands, predicated upon the character of the preference in the assignment in favor of Daniel Gf. Major. This subject was considered by the court of appeals, and its decision was based on "the view it took of that preference. Upon the last trial, further evidence was given by the respondents, which, they claimed, bore upon the question of the intent of the assignors. This evidence, the appellants claim, was not competent, or, if competent, was not material, and that the decision of the court of appeals, in substance, required the referee to find the assignment fraudulent. The assignment is dated March 17, 1886, and on that day it was executed, acknowledged, delivered, and recorded. In this assignment there was preferred' a partnership debt of “ about $12,000 ” in favor of Daniel Gr. Major, the consideration of which was stated to be “money loaned.”’ Its form was stated to be “account and notes which assignors aré unable to describe ;” and, under the head of “Date for Interest,” there are stated several items, amounting in the aggregate to $12,000, with a different date opposite to each, and at the end, apparently applicable to all the items, is the expression, “As near as assignors are able to state.” On the 7th April, 1886, the inventory or schedule required by the statute (chapter466, Laws 1877, § 6, as amended by chapter 318, Laws 1878) was filed, being executed and verified by the assignors. In this the indebtedness to Major is stated to be “$12,000, accounts and notes,” and this is followed by a statement of dates and amounts which are identical with the dates and amounts in the assignment; but the qualifying words, “As near as assignors are able to state,” are omitted. It was shown and found upon each trial that, at the time of the assignment, Major had claims against the assignors, on notes or accounts for money loaned, the principal of which was $12,538.75 ; and these, with interest to the date of the assignment, amounted to $14,139.35. As against these claims, there were credits of money paid to Major from time to time, amounting, with interest to the date of the assignment, to the sum of $1,482.97. Deducting this, there was a balance due - Major at the time of the assignment of $12,656.38. The items of Major’s debt, as stated in the inventory died April 7, 1886, with interest to the date of the assignment, amounted, to about the sum of $13,501.70, thus showing an excess of $845.32 over the true amount of the debt. In view of this situation, it is said in the opinion of the court of appeals as follows : As we have seen, the inventory was died twenty days thereafter, and in it the amount and items are stated without qualifying words, thus indicating that at the time the assignors were possessed of the requisite information to correctly describe them. This inventory we are to read in connection with the assignment, and, so reading the instruments, we think that it is apparent that the assignors not only have but intended to absolutely and unqualifiedly prefer the claim of Major to the amount stated.”

As the case stood, the inference of fraud as to the amount of the Major debt was deemed to b^ inevitable, and on that ground the finding of the court below, that there was no fraud, was considered erroneous, and a reversal followed. The additional evidence on the last trial was offered for the purpose of explaining the inventory in regard to the Major debt, and of showing the circumstances under which it was made, and that it was made in the absolute form it was by mistake, and without any intent to defraud. This evidence was competent, Shultz v. Hoagland, 85 N. Y. 464, 473 ; Crook v. Rindskopf, 105 N. Y. 482 ; 8 St. Rep. 66; Fay v. Grant, 53 Hun, 44, 47 ; 23 St. Rep. 571; affirmed, 126 N. Y. 624; 36 St. Rep. 1012; Blain v. Pool, 13 St. Rep. 571; affirmed, 116 N. Y. 651; 26 St. Rep. 982; Ellis v. Myers, 28 St. Rep. 120; 8 N. Y. Supp: 139, unless the court of appeals held that the statement in the inventory was conclusive on the subject. We think that the decision referred to should not be construed to that result. The general expressions in the opinion that might point towards that conclusion are to be deemed as used with reference to the facts of the case as they there appeared. There was there practically no explanation of the manner in which the qualifying expressions of the assignment were omitted in the inventory, and the court gave force to the presumption that the assignors designedly made the amount absolute. The issue before the court of appeals on that subject was whether there was error in the finding that the assignment was not fraudulent, and the precise point decided was that there was error in that respect, and that the evidence did not authorize the finding, and for that reason a new trial was granted. The question whether the inventory could not be explained was not before the court.

It is to be observed that under the statute, as it now is, an assignment is good, although no inventory is ever filed by the assignors. So, if one is filed, the county judge has power, by order, to require or allow it to be corrected or amended. It cannot therefore be said to be an integral part of the assignment. If the statement of the assignor in the inventory is conclusive, then the assignor, for 20 days at least after the assignment is executed and recorded, has the power, at his will, to destroy what might otherwise be perfectly valid. This result should not be yielded to unless it be absolutely necessary. The assignor, by his inventory, cannot make good what would otherwise be invalid. Porter v. Williams, 9 N. Y. 142. So, as said in the Shultz case, if the assignment was executed with an honest intent, no subsequent illegal acts on his part will invalidate it, although they may, in certain cases, be considered on the subject of the original intent.

Assuming, therefore, as I think we must, that the evidence offered by way of explanation was competent, the further question arises whether the situation is materially changed, for if it is not the ruling of the appellate court must be followed. Mygatt v. Coe, 142 N. Y. 81; 58 St. Rep. 408. From the explanatory evidence, it appears that the assignment, including the schedules of preferences thereto attached, was prepared by Mr. Sherman, one of the attorneys for the assignors, from information which he supposed to be correct, and the Major debt was then stated to be $12,000 on account for money loaned, and specific dates and amounts were given for the purpose of the calculation of interest. These papers were presented by Mr. Cookinham to the assignors for execution. It was then stated by them that they were unable to give the correct amount of the debt, or the items thereof, but that the amount of the debt was about $12,000; and thereupon Mr. Cookinham, with the knowledge of the assignors, changed the amount so as to make it read “about” $12,000, the form of the debt so as to make it read account (“ and notes which assignors are unable to describe," and added to the statement of the dates and amounts for interest the expression, “as near as assignors are able to state.” The papers were then executed. The inventory was afterwards prepared by Mr. Sherman from the same information that he had at the time he prepared the assignment, and in the same form as to the Major debt, as he originally prepared it; and he did not then know that any change had been made in the statement of the Major debt, or any qualifying words inserted. The inventory was executed by the assignors, in the presence of Mr. Sherman, and the assignors had then no further or more definite information as to the amount and details of the Major debt than they had at the time the assignment was executed. Their attention was not called to the fact that their indebtedness to Major was stated in the schedules to the inventory without the qualifying words that were in the schedule attached to the assignment, and in verifying the inventory they relied upon their attorneys preparing it in proper form. The referee finds that: “ In stating their indebtedness to Major, and the preference thereof in Schedule C of their . assignment, the assignors did not intend to state, nor did they state, the exact amount due to Major. Nor did they intend to state in said schedule, nor did they state, the items which máde up the indebtedness. But they did intend to state, and did state, about the amount of the debt, and the dates from which interest was to be computed upon certain sums of money, as near as the assignors were able to state them. The assignors, in and by their assignment, and the schedules thereto, intended to prefer, and did prefer, only the debt which was actually due to said Daniel Gf. Major, with interest thereon from the time that interest was actually due and payable.”

He also finds that: “The assignors, in verifying said inventory and schedules, did so relying upon the attorneys to prepare the inventory and schedules in proper form, and in so verifying them acted in good faith, without any intent to hinder, delay, or defraud their creditors, and with the honest intent to set forth their indebtedness to Major, as nearly as they were able, for the true amount due to Major, but without intending to state the precise amount due him, or the precise items which made up the debt, and without any intent to modify the statement of said debt as it was set forth in Schedule 0, forming part of the assignment

The fact that the assignment, or Schedule 0, thereto attached, did not state the exact amount of the Major debt, or the precise dates from which interest was to be reckoned, would not of itself invalidate the assignment. Maack v. Maack, 49 Hun, 507; 18 St. Rep. 721; Bank v. Talcott, 22 Barb. 550 ; Brainard v. Dunning, 30 N. Y. 211 ; Butt v. Peck, 1 Daly, 83 ; Kavanagh v. Beckwith, 44 Barb. 192 ; Browne v. Weir, 5 Serg. & R. 400; Bank v. Richards, 2 Metc. (Mass.) 105; Brown v. Knox, 6 Mo. 302: Burrill, Assignm. § 146 ; Bish. Insolv. § 161. The material circumstance, then, was as to the effect to be given to the positive statement in the inventory as bearing on the intent of the assignors at the time of the execution of the assignment. Unexplained, and with the presumption that the assignors, at the later date, had become familiar with the true facts, it was deemed to so far characterize the original act as to make it, in effect, a positive statement, and so an intentional preference of an amount in excess of the true debt. By the new evidence it is made expressly to appear that at the time of the assignment there was no intent to prefer more than the true debt, and that the positive statement in the inventory was inadvertently inserted, and without any intention to change the qualified statement in the assignment. These were material circumstances, were vital in their character, and it should therefore, I think, be said that the evidence now is materially different from what it was upon the first trial and that the judgment of the appellate court is therefore not conclusive here.

The question whether the assignment was made with intent to defraud creditors was one of fact. In some cases, upon undisputed evidence, the fact may be declared as matter of law; the presumption of an intent to defraud may be deemed conclusive. The present is, we think, not such a case, as it now stands. The evidence authorized the referee to find that the assignors did not intend to prefer Major for more than was due him, and that the assignment was not fraudulent. These questions were primarily for the trial court to determine, and we are not prepared to say that the findings are against the weight of the evidence.

We do .not deem it important to consider the effect of the am-mdment of the inventory made after the decision in the court of appeals. The referee ruled that it did not affect the rights of the appellants. The admission in evidence of those proceedings, if erroneous, was not prejudicial error.

The foregoing considerations lead to the conclusion that the judgment should be affirmed.

All concur.

Judgment affirmed, with costs to be paid by the appellants Yietor & Co. to the respondent, the assignee.


text:
    Mortimer D. Bumpus, App’lt, v. Electa A. Bumpus, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Wills—Construction.
    In arriving at the intention of the testator, all the circumstances surrounding him when he made his will may he considered.
    2. Same.
    The will, in this case, was so construed as to give the widow of testator only a life estate in the property.
    Appeal from a judgment in favor of defendant.

      D. A. King, for app’lt; S. C. Huntington, Jr., for resp’t.
   Merwin, J.

—This action is brought for the construction of the will of Thomas J. Bumpus, who died on the 21st day of February, 1891. The plaintiff is the sole heir and next of kih of the deceased, and the defendant is the widow. He left a will, which is dated January 20, 1881, and which was duly admitted to probate in the surrogate’s court of Oswego county on March 4,1891, and- letters testamentary duly issued to the executors therein named. The will reads as follows: “ Know all men by these presents that I, Thomas J. Bumpus of the village of Pulaski, in the County of Oswego and State of New York, being in my seventy third" year of age considering the uncertainty of this mortal life and being of sound mind and memory do make and publish this my last will and testament in manner and form following : First I give and bequeath unto my lawful wife Electa A. Bumpus the possession and management to control use income rents and profits for and during her natural life of all my real and personal estate goods and chattels where-so-ever the same may be and is situated and of what kind or nature so-ever to use the same or to dispose of at her will or pleasure after my decease. And I, Thomas J. Bumpus do appoint Electa A. Bumpus my lawful wife and Mortimer Delevan Bumpus my lawful and only son as executors or administrators. I hereby revoke all former wills by me made. In witness whereof I have hereunto set my hand and seal this twentieth day of January in the year of our Lord one thousand eight hundred and eighty one.

“Thomas J. Bumpus. [l. s.]”

The attestation clause is in due form, and there are two subscribing witnesses, one of whom is the plaintiff.

The claim of the plaintiff is that the interest of the defendant in the property of the estate is limited to a life estate in the income and profits, and that she has not the right to dispose of the principal of the personal estate, or the fee of the real estate, and is not entitled to the possession or custody of the property. The defendant claims that under the will she became the sole and absolute owner of the estate, upon the theory that a gift of the use during life, with an absolute power of disposition, is, in effect, a devise in fee of the real estate, and an unqualified bequest of the personal property. It was held by the special term that under the will the defendant had the right to the possession and management of the property ; that her interest or right to the property was not limited to the income, but that she was entitled to have, use, and dispose of any portion of the estate that might be necessary for her support and maintenance ; that she has and possesses “the full and unlimited power and right, to sell, assign, convey, dispose of, in any manner that she may deem proper, at her own will and pleasure (except by last will and testament), any and all of the estate, both real and personal, of which said T. J. Bumpus, her late husband, was the owner at the time of his death, without giving any bond or security in any form in regard to said estate, or any disposition of said estate to be made by her, or in regard to use, preservation, occupancy, or control of the same.”

The main question here is over the effect to be given to the expression, “to use the same or to dispose of at her will or pleasure after my decease.” Does this refer to the body of the estate, real and personal, or only to the use of income ? It is a question of intention, to be derived from the will itself, in the light of such surrounding circumstances as may be properly considered. In Stimson v. Vroman, 99 N. Y. 79, it is said that, for the purpose of arriving at the intention, “we may consider all the circumstances surronding the testator when he made the will, such as the situation of his family, and the nature and value of the estate,—not to put new language into the will, but to get out of the language the sense which the testator really meant to embody therein." The declarations of the testator on this subject were not competent. Reynolds v. Robinson, 82 N. Y. 106. The will in question was drawn by the testator himself. He was then about 72 years old, and his wife was about 67. The plaintiff was the only child, and he was married, and had one or two children, and had then little or no property, and was dependent somewhat on his father for support. His father had given him about $2,000 in property about three years before, which had been mainly lost in business. It does not appear what amount of property the testator had at the time of making his will. At his death there was real estate, in value, as admitted by the answer, of about $5,000, consisting in part of two houses and lots. In the findings the real estate is found to be worth about $3,500. There is personal property, as shown by the inventory filed to the amount of about $4,700, but it does not appear how much has been or may be used up in the payment of debts and expenses. It does not appear that there has ever been any accounting by the executors, or settlement of the estate. The executors, as such, are not parties to this action. Looking now to the will, we find that the testator gave to his wife “the possession and management" of all his property, for the purpose of enabling her “to control use income rents and profits for and during her natural life.” Having thus placed in her hands, during her life, “the use income rents and profits,” he then says, “to use the same or to dispose of at her will or pleasure.” The words “the same” refer, we think, to the income and profits and not to the body, of the estate. This would indicate that the interest of the defendant was limited to a life estate, without power to dispose of the fee of the real estate, or use up the principal of the personal estate which would remain after the payment of the debts and the expenses of administration. There is nothing in the surrounding circumstances that authorizes us to reject this conclusion. The fact that the income may not, in the opinion of the defendant, be sufficient to support her, does not affect the question. Nor does a finding, as a question of fact, that the testator intended that his wife might, if necessary, use the principal, control the matter. What the will shall be construed to mean is a question of law.

It is argued on the part of the defendant that the presumption is that the testator, having undertaken to make a will, meant to dispose finally of all his property, and that this presumption should aid her view of the case. On the other hand, it is argued by the plaintiff that the presumption is against an intention to-disinherit the heir, and that this assists his view of the case. These presumptions do not, in the present case, help us. A more pertinent suggestion is that the testator, if he had intended to-give his wife all his property, or that she should have power to-use up the body of the estate for her support, if necessary, could have readily said so. The more natural interpretation of the will, as it stands, is that the testator intended that his wife, as long as she lived, should have the possession and management of the whole, doing with the income what she pleased^ and that at her death the law should regulate the succession.

The decision of the special term, so far as it was held that the defendant, under the will, was entitled to the possession and management of the property, or rather what might remain after the payment of debts and expenses, should not be disturbed. It was also in effect, held that the plaintiff had not made a case for talcing the property out of the defendant’s hands, or requiring her to give security. This finding should not be disturbed, especially in view of the fact that apparently there has been no settlement of the estate, or accounting by the executors. The executors, as such, are not parties, and a judgment here might not conclude the personal representatives of the estate. Collins v. Hydorn, 135 N. Y. 324; 48 St. Rep. 370. In Rathbone v. Hooney, 58 N. Y. 463, it was held that a judgment against a party sued as an individual is not an estoppel in a subsequent action, in which he sues, or is sued, in a representative capacity. The defendant, as executrix, filed an inventory. If she, as executrix, does not properly account for the property, the plaintiff has a remedy in the proper tribunal.

It follows that the judgment appealed from should be modified by declaring that the beneficiary interest of the defendant under the will is limited to the use, income, rents, and profits of the property for and during her natural life, and that she has no right to dispose of the fee of the real estate, or use up the principal of the personal estate, being what may remain after the payment of debts and expenses. The decree should also be modified by striking therefrom the award of costs.

As modified, the judgment should be affirmed, without costs of the appeal to either party.

All concur.

Judgment modified as stated in the opinion, and, as modified, affirmed, without costs of appeal to either party.


text:
    Sherman Petrie, Resp’t, v. Elverton C. Stark et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Sale—'Vendor’s rights.
    Vendor of personal property has a lien upon it for the purchase price, while it remains in his possession awaiting delivery, though the right of property has passed to the vendee.
    2. Same.
    When vendor may resell at the vendee’s risk.
    3. Conversion—What necessary.
    To recover in trover, plaintiff must he in possession, or must have an existing right to take immediate, actual possession, of the property.
    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. »

      Tuttle & Ransom, for app’lts; Hyland & Zabriskie, for resp’t.
   Merwin, J.

—The plaintiff bases his claim in this case on a written contract between himself and Marcellus & Co., bearing date March 27, 1890. In this contract it is provided as follows: “ The parties of the first part (Marcellus & Co.) hereby sell and convey unto the party of the second part (Petrie) all of the ice now being in their ice house, situated and located on the lot purchased by said Gr. W. Marcellus & Co. of Spencer, at Sylvan Beach, Mew York (said ice house being located on Morth Beach, so called, of Oneida Lake), for two dollars per ton, forty-five cubic feet to the ton, house measurement; the same to be measured by the parties hereto on or before March 31, 1890. The parties of the first part hereby agree to complete the ice house containing said ice at once; the same to be double-sided, and filled between boards with straw or tan bark, and the roof to be tight, so as to shed water, and the ice to be properly covered with hay,—to be paid for upon the following terms and conditions, viz.: The said party of the second part is to pay to the parties of the first part two thousand dollars cash down, to be applied and be a payment for the last ice taken from said ice house, and the said party of the second part is to pay parties of the first part for the balance of said ice as fast as same is taken out of said ice bouse: all of said ice to be taken out of said ice house, and paid for by the party of the second part, on or before August 1, 1890.”

At the time of the execution of the contract the plaintiff paid $2,000, in cash, as required by the contract. The measurement was not made by the parties at the date specified, but a measurement was made by Marcellus & Go. at about that time, and the amount found to be 8,422.65 tons. This measurement was submitted to plaintiff, and he, on IVIay 6,1890, in writing, assented to its correctness. In this writing he also stated as follows: “And I do hereby, in consideration of the premises, agree to allow them and pay for said ice, under said contract, at such measurement. Measurement from bottom of sills. If not so, to be made so. ”

At the trial the plaintiff claimed that he went into possession of the ice, and that, prior to August 1st, Marcellus & Co. extended his time in which to take away the ice to September 1,1890. The defendants, however, gave evidence tending to show the contrary of both these propositions. The plaintiff did not take the ice away, and made no further payments. On the 5th August, 1890, Marcellus & Go. served on plaintiff a written notice, stating that as he had failed to take and pay for the ice on or before August 1, 1890, as he had agreed to do in the contract, they would advertise the same for sale, and sell it at public auction to the highest bidder, at the ice house, on the 9th August, 1890, at two p. M., and would hold him responsible for all losses, whether caused from shrinkage of quantity, or the depreciation of prices. Accordingly, at the time and place stated, Marcellus & Co. sold the ice at auction to the highest bidder, and the same wras purchased by defendants at the price of $3,100. It is conceded that the amount of the ice was then 1,607 tons. At the sale, and before it took place, the agent of the plaintiff forbade the sale; stating that the plaintiff owned the ice, and that Marcellus & Go. had no right to sell it. A day or two after the sale the plaintiff called on Mr. Stark (one of the defendants), and demanded the ice, stating that he had come prepared to pay anything there was against the ice; and Stark replied that he had resold the ice to other parties, and could not go back on that sale. The ice was then being reshipped.

At the close of' the evidence it was held by the court that the plaintiff was entitled to recover for the value of the ice, and that the only question for the jury was as to the value, and this was the ■ only question submitted to the jury. The theory adopted seems to have been that under the contract of March 27, 1890, the title to the ice passed to the plaintiff upon the delivery of the contract, and that, therefore, he could here recover for the full amount. In considering this question, we must, as to all the facts, except the value of the ice, take that view of the evidence which is most favorable to the defendants. We must therefore assume that the plaintiff never had possession of the ice, and that there was no extension of the time within which he could take and pay for it. The plaintiff, therefore, was in default at the time Marcellus & Go. assumed the right to sell. In Van Brocklen v. Smeallie, 140 N. Y. 70, 76 ; 55 St. Rep. 263, the doctrine is laid down that the vendor of personal property has a lien, or something more than a lien, upon it, for the purchase price, while it remains in his possession, awaiting delivery, although the right of property has passed to the vendee, and it is said : “The right of the unpaid vendor is deemed sometimes analogous to the pawnees’ right of sale, and sometimes to the right of stoppage in transitu. Whatever it he, it is at least a lien upon the property sold for the purchase price, so long as it remains undelivered, which lien the vendor may enforce by a sale, and then recover any balance of the contract price unrealized.”

In Crooks v. Moore, 1 Sandf. 297, it is said by the court, of a sale of iron : “At the day appointed for the payment, it was the defendant’s [the buyer’s] duty to call upon the seller for a delivery of the iron, pay its juice, and take it away. On his default the seller had a right to sell it, upon notice to him, and to look to him for the deficiency, if any, by way of damages for the breach of his contract.”

In such a case the vendor in possession is said to be the agent of the vendee for the purpose of the resale. Lewis v. Greider, 49 Barb. 606 ; affirmed, 51 N. Y. 231. See, also, Sands v. Taylor, 5 Johns. 395 ; Gilly v. Henry, 8 Mart. (La.) 402. In 3 Pars. Cont. (8th Ed.) 257, it is said: “A vendor of chattels has, as we have seen, a lien upon them, by common law, as long as they continuel in his possession, and the vendee neglects to pay or tender the price. By the sale the general property vests in the vendee, but a lien or special property remains in the vendor, and therefore this special property will be a good defense in an action of trover. A part payment will not divest this lien.”

The same view is taken in Story on Sales (section 282), where it is said that a partial payment will not operate to destroy the lien on all the goods, as every single portion of the property sold is covered by a lien for the smallest fraction of the price. See 21 Am. & Eng. Enc. Law, 605. So, in 1 Jones, Liens, § 840, it is said that the vendor may retain the goods still in his hands, not only for the price of such goods but also for the price of any part of the goods already delivered; citing Ex parte Chalmers, L. R. 8 Ch. 289. See, also, McFarland v. Wheeler, 26 Wend. 467. In Benjamin on Sales (2d Ed. pt. 1, bk. 5, c. 3, p. 654), it is stated, as one of the rules to be deduced from the authorities, that in the case of resale a buyer in default cannot maintain trover against the vendor, being deprived by his default of that right of possession, without which trover will not lie.

This reference to authorities makes it reasonably clear that at the time of the auction sale, upon the facts, as we must assume them to be, the plaintiff was not entitled to the possession of the ice. The plaintiff was in default Marcellus & Co. had a lien, at least, upon all except the last 1,000 tons; and plaintiff’s.claim on that, if he had any superior to the claim of Marcellus & Co. for the balance of the purchase money, could not be made effectual until all the other ice there was taken and paid for. To recover in trover, there must have been possession of the property by the plaintiff, or there must be an existing right to take immediate, actual possession of it. Clements v. Yturria, 81 N. Y. 285, 290. Of the 1,607 tons sold, it is clear that Marcellus & Go. had the right to sell 607 tons. Therefore, the ruling at the trial that the plaintiff could not recover for the whole was not correct, and a reversal would follow. Whether the lieu of Marcellus & Go. extended to the balance of the ice, and for the whole balance of the purchase money, or whether the plaintiff, by failing to make, at or before the auction sale, any specific claim for the last 1,000 tons, lost any claim which he might have had for that against the purchasers at the sale, and was remitted upon that subject to an action against Marcellus & Co., are questions that need not be here decided. Upon another trial they may be developed more fully than they seem to have been at the trial under consideration. The case of Hudson v. Swan, 83 N. Y. 552, is cited on the subject of a waiver by defendants of any benefit under any lien that Marcellus & Co. had. I do not think that case is applicable. The right of Marcellus & Co. to sell was put in issue by the answer, and I find nothing in the pleadings or in the course of the trial that would amount to a waiver of any claim under a lien. The contract and the attendant circumstances which indicated a lien were put in evidence without objection as to the pleadings. Besides, the general denial put at issue the ownership of plaintiff, and also his right to the possession. All concur.

Judgment and order reversed, and new trial ordered; costs to abide the event.


author: Hardin, P. J. Martin, J.

text:
    Mary Senecal, as Administratrix, etc., App’lt, v. Thousand Island Steamboat Company, Limited, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Evidence—Relevancy.
    Previous intoxication is not admissible on the question whether a person was intoxicated at a certain timé.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      Frederick W. Thompson, for app’lt; Porter & Walts, for resp’t.
   Hardin, P. J.

—Plaintiff, upon the trial, produced extensive evidence tending to indicate that there was negligence in the management of the defendant’s boat, and that such negligence caused the loss of life of plaintiff’s intestate. On the other hand, defendant gave extensive evidence in denial of some of the testimony of the plaintiff, in explanation of some of the circumstances relied upon by the plaintiff, and also considerable testimony tending to contradict the evidence given by the plaintiff, and tending to support the theory of the defense,—that the accident was occasioned by the negligence of the officers in command of the Catherine. Appellant’s learned counsel has submitted an interesting and exhaustive brief upon the evidence, in his efforts to demonstrate that the verdict is wrong. After a perusal of the whole evidence, the opinion is entertained that it was a question of fact, for the jury to determine, under all the evidence and circumstances furnished by it, as to whether there was any negligence on the part of the defendant, which caused the collision. An investigation of the evidence indicates that the boat required only two seconds to escape the collision; and the appellant’s counsel submits an interesting argument,—based upon assumptions, to some extent,— and puts great reliance and stress upon the surrounding fixed objects, coupled with the speed of either boat, and the explanation of their respective situations just antecedent to the collision. Although his argument is quite persuasive, we think the questions involved in it were properly submitted to the jury; and we are not prepared to say that the demonstration made by the appellant upon the evidence is so clear and positive that, within the well settled rules of this court, we should overturn the verdict of the jury, as one against the weight of evidence. In Massoth v. D. & H. Canal Co., 64 N. Y. 524, it is said that it was not sufficient to overturn a verdict that a skilled engineer could demonstrate, upon certain assumptions, or upon certain established-points of measurement or of speed, that it was contrary to the evidence thus given. The trial judge, in a clear and extensive charge, presented the evidence bearing upon the controverted questions of fact, clearly pointing out the province of the jury in respect thereto; and after the trial was over he entertained a motion upon the minutes, and presumably reviewed the evidence, and came to the conclusion that the verdict was not against the evidence, or against the weight of evidence. We are not inclined to disturb his action in the premises on the ground that the evidence was so preponderating that it was his duty to set the verdict aside.

- 2 Numerous exceptions were taken during the trial as to the admission and rejection of evidence, and our attention is called to only one exception to the charge by the appellant’s points. After an examination of the rulings in admitting the rejecting evidence and the charge, we are of the opinion that no error was presented which requires an interference with the verdict, unless it be in the rulings relating to the habits of Joseph Senecal, who was the owner and in charge of the steamer Catherine on the occasion of the accident. It seems by the evidence, he was a mom some seventy-two years of age. He was not called upon the trial by either party. Upon one theory put forward in the case, he was chargeable with the act which led to the collision. On the other hand, that theory was disputed, and it was alleged that he was free from negligence; and in referring to those theories the court, in the course of its charge, said: “ The evidence on the part of the defendant, as I suggested, tends strongly to the idea that from some cause or other,—-we cannot tell what, because Senecal is not here to answer,—-for some reason or other, having^by the language of the whistle, indicated all along, down to the very last, his desire to go straight along in his course and keep the St. Lawrence on his right, that suddently when these boats came near together here, for some reason or other, after his second signal, he changed his course, and attempted to, and did, cross right in front of the St. Lawrence’s course. That is what the defendant claims his evidence shows. And if that is so, and if that is the sole cause of this accident, the fact that he—-misunderstanding the signals, or something—did that thing, he alone is to be blamed for it, and the defendant is not 1p be charged with any liability for his death.’’ The quotation already made indicates that the conduct of Joseph Senecal on the night in question was important, and was made a prominent question for inquiry. Mary Senecal, the plaintiff (the widow of the intestate), was called to prove some of the formal facts relating to the condition of life of her husband and family he left behind him ; and during her cross-examination she said that her father-in-law, Joseph Senecal, kept a boarding house, and a bar in his house for the sale of liquors. This evidence was objected to as immaterial and incompetent, and the objections were overruled, and an exception was taken. She then added that he “ had kept a bar for the sale of liquors at his boarding house ever since we were married” (she having stated that she had been married about ten years). Thereupon, the following question was propounded to her: “Q. Do you know whether Jeseph Senecal was in the habit of drinking, himself?” This was objected to as immaterial and incompetent, and in response to the objection the court observed : “I think I will allow it to be answered. Of course, at and immediately prior to the accident. (Exception for plaintiff.)” Thereupon, the following questions were propounded: “ Q. What do you say as to whether Joseph was in the habit of drinking strong liquors ? A. I think he took it. Q. And had been during all the years that you knew him, had he not ? A. I can’t say that he was a heavy drinker. By the Court: Q. He asks you if he had been in the habit? A. I believe so. He had been in the habit of drinking during all the years that I knew him, I believe. I never knew him to be intoxicated. I don’t know that the old gentlemen occasionally drank liquors to any extent that he became intoxicated. ”

This was objected to on the same grounds, and then followed this question: “Q. Have you heard that Joseph Senecal occasionally drank to an extent of becoming intoxicated ? ” This was objected to as immaterial and incompetent, and it was received, and an exception taken for the plaintiff. The witness answered, “I have heard it.” Thereupon, she is further questioned by the court, to wit: “Q. Before his death, had you heard of it, — before jour husband’s death ? A. I don’t know as he ever became intoxicated. Q. The question is, whether, before your husband was drowned, you had ever heard that the old gentlemen sometimes got intoxicated ? A. Not while running his boat. Q. No, but at any time ? He didn’t ask you about the boat. Had you heard that be did sometimes get intoxicated ? A. No, I don’t know as I ever did. Q. Do you mean you have heard of it since ? Because you answered, at first, that you had heard of it. Have you heard since? Is that what yon mean ? Or didn’t you ever hear of it? A. I don’t know as I ever heard of-it.’’

Thereupon, the counsel for the defendant took the witness, and put to her the following questions: “Q. Why did you answer me, then, tnat you heard that he drank to the extent of becoming intoxicated ? A. I said that he took a glass, or he took some. I don’t know that I answered that he became intoxicated. Q. Didn’t you understand my question ? A. You ask me so many questions that I don’t know how I am going to understand them all. Q. * * * Had you heard, prior to the 17th of July, 1890, that Joseph Senecal occasionally drank to the extent of being intoxicated ? A. Ho, sir. Q. When you answered me that you had heard it, what did you mean ? A. Well, I have heard of him drinking, but I can’t say that I know of him getting intoxicated or hurt.”

From the examination which we have quoted, it appears that the witness was permitted to state facts and knowledge as to the habits of Joseph Senecal, and that his condition on the night of the accident was not the subject of inquiry. It appears the witness had no knowledge of his condition on that night, and in her answers did not in any way refer to his then condition. We are inclined to think that the trial judge allowed too great scope in the inquiry as to Joseph’s habits, and that the facts which she stated in the first part of her examination, although modified somewhat by what she stated later, and the testimony given by her relating to his condition at times, -may have been very influential with the jury, inasmuch as the manner in which Joseph Sen ecol managed his boat on the occasion, by the course of the trial, is made a close and critical, as well as a very important, question. In the course of the opinion delivered in Warner v. N. Y. C. Railroad Co., 44 N. Y. 465, it appears that an .important question arose in that case in respect to the acts of a flagman at the time when the accident occurred; and near the close of the opinion of Leonard, Com., he says in speaking of the flagman : “His previous habits of intemperance had nothing to do with the case. If the signal was omitted, the negligence was the same, whether the flagman was drunk or sober. His neglect on a former occasion, or his former intemperate habits, would not be sufficient to create negligence, or be any evidence of it, when this accident happened. The evidence objected to tended * * * to create a prejudice in the minds of the jury and invite punitive damages not directly, arising from the occurrence.”

That case was referred to approvingly in Cleghorn v. N. Y. C. & H. R. Railroad Co., 56 N.Y. 44; and at page 46, Church, C. J., says that the decision was right, and adds, “Previous intoxication would not tend to establish an omission to give a signal on the occasion of the accident.” The learned counsel for the respondent, upon the argument, attempted to break the force of the evidence thus erroneously received, by calling our attention to the charge of the trial judge, wherein he says there is not much question as to the contributory negligence, and that “the more serious question in the case is whether the defendant is guilty of negligence.” We think that is not a complete answer. In determining whether the defendant was guilty of negligence, a very important inquiry arose in respect to the conduct of the master of the Catherine, Joseph Senecal; and wo are inclined to believe that the jury, in scrutinizing the conduct of the master of the Catharine, as revealed by the evidence, might be largely influenced by the testimony relating to his antecedent habits and practices. We do not feel at liberty to say that such testimony was innocuous. On the contrary, it may have been so prejudicial as to have produced the verdict for the defendant. If the foregoing views are correct, the plaintiff is entitled to new trial.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

Merwin, J., concurs.

Martin, J.

—I favor a reversal for the reasons stated in the opinion of Hardin, P. J.


author: Hardin, P. J.

text:
    Peter J. Lally, App’lt, v. Jonas A. Emery, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Evidence—Slander.
    In an action for slander, the defendant may testify that he believed the statement made by him to be true, in case such statement is confined to a period preceding the slander.
    2. Witness—Examination.
    The refusal of a party to answer questions on cross-examination, on the ground that they involve privileged communications, does not preclude him from testifying as to such communications on' the redirect, in order to explain circumstances that had been disclosed on the cross-examination.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes.

      Hannibal Smith, for app’lt; Watson M. Rogers, for resp’t.
   Hardin, P. J.

—Upon a former appeal in this case (54 Hun, 517; 28 St. Rep. 127), it was assumed by this court that a charge to the effect that it was for the jury to determine whether the words used amounted to a charge of crime was proper; and, also, that the words in the charge which left it to the jury to say “whether or not the defendant in good faith, in the line of his duty, with"out malice, stated what he did believing it to be true,” were proper ; and the judgment there under review was reversed on ac- , count of rulings rejecting some evidence offered. The charge to which reference has been made, in respect to the matters quoted therefrom, was approved by this court when the case was here upon a second appeal (59 Hun, 237; 36 St. Rep. 294), and on that occasion it was held, in effect, that if “the words spoken were privileged, still the privilege, if any, was a qualified one; and if they were not spoken in' good faith, or were uttered with actual malice, it would constitute no defense to the action,” and a nonsuit was set aside on the ground “that the case should have been submitted to the jury, and that the court erred in dismissing the complaint." Upon the trial now brought here for review, trie trial judge properly submitted the question to the jury : (1) As to “whether the language used imputed or charged the defendant with the commission of a crimeand in doing so he quoted from the charge delivered by the learned justice who presided at the first trial. (2) In the charge before us, the court also submitted to the jury “whether the occasions and the subject of these conversations were privileged occasions and privileged subjects.” He also said: “You will determine whether this subject was a privileged subject for him to talk to the sergeant about. And the oecasion-r-I do not understand there is any dispute about that; it was at his daily visit to the company, and the occasion does not seem to be claimed public. I do not understand it to be claimed on either side that anybody else was present, except these two men,—the commanding officer of the company, who happened to be a lieutenant, instead of the captain, and the first sergeant.

(3) The trial judge then submitted to the jury the further question, using the following language: “If you find the subject was a privileged subject, and the occasion was a privileged occasion, then the commanding officer was protected in making the statements he did, provided he had probable cause, and acted without malice.”

. He then instructed the jury very carefully in respect to probable cause, and as to malice. Upon the evidence before the court, we are of the opinion that the charge was correct. The attention of the jury was carefully directed to the principles of law which were applicable to the case as presented by the evidence. Hemmens v. Nelson, 36 St. Rep. 905; 13 N. Y. Supp. 175, and cases there cited; and the same case, affirmed, 138 N. Y. 517; 53 St. Rep. 94.

2. When the defendant was upon the stand as a witness, he testified that on an occasion of a game of baseball at Ft. Bennet, in July, 1887, a week or so before he started east, he had a conversation with Lieutenant Lloyd, who then belonged to the Fifteenth Infantry and had served with his regiment in Hew Mexico. He was then asked to state what took place between him and Lieutenant Lloyd in reference to Lally. Objection was made and overruled, and an exception taken, and the witness proceeded to state-what Lieutenant Lloyd informed him in respect to Lally ; and, in the course of the evidence so given, the witness stated that Lieutenant Lloyd remarked, viz. : “The last dealings I had with that man, I was on a court martial that tried him for rape, or attempt to commit rape.” The witness was then asked, “Did you believe the words spoken by Lloyd in regard to Lally ?” This was objected to as incompetent, and the objection overruled, and the witness answered, “I did.” We think no error was committed in receiving the evidence objected to. The answer of the defendant alleged the communciation by Lloyd, to the defendant, of the words in substance as stated, and that the communication of them was before the occasion of the mentioning in the complaint of the uttering of the words named therein; and the answer also contained an averment that, “when said words were so spoken by said Lloyd, this defendant believed them to be true.” Code Civ. Proc. § 536.

In Bush v. Prosser, 11 N. Y. 347, it was held that facts and circumstances which disprove malice may be received in evidence. That case was followed in Gorton v. Keeler, 51 Barb. 581, and in the course of the opinion there it was said : ‘‘Mitigating circumstances are those which tend to disprove malice.” In Willover v. Hill, 72 N. Y. 36, it was held that mitigating circumstances must be set up in the answer, and that reports or information relied upon must be such as had come to the knowledge of the defendant before uttering the words charged in the complaint. In speaking of the interview had with the defendant, relied upon in mitigation, it was said : “To render it proper for any purpose, it should have been confined to a period preceding the slander. ” In Hatfield v. Lasher, 81 N. Y. 246, in the course of the opinion, it is said that certain evidence that was rejected was properly rejected, because “it did not tend to prove that the charge was true, nor did it tend to prove that defendant had information, or had heard reports, which should have, per se, led him to believe that it was true.” Not so in the case before us. The very object of the evidence in respect to the interview with Lieutenant Lloyd was to show that the defendant received'the information prior to the uttering of the words, and to lay the foundation for the statement made by him, in respect thereto, that when he uttered the words proved against him in this case he believed them to be true. See, also, the opinion of the court delivered in this case on the first appeal, 54 Hun, 517; 28 St. Rep. 127.

3.. Appellant’s learned counsel complains of certain rulings made by the court, during the re-examination of the defendant as a witness, in respect to conversations held with his wife in regard to Mary Stuart. Upon looking at the cross-examination made by the appellant’s counsel, it appears that he asked defendant as to conversations he had held with his wife with regard to Mary Stuart, and in response to those questions the witness stated that the subject of the relations “between Mary Stuart and Lally was the subject of conversations between” the witness and his wife. It seems that in the redirect examination the court allowed the conversations that had been inquired into by the appellant’s counsel to be stated with a view of explaining the circumstances that had been disclosed in the course of the cross-examination. In doing so we think the court did not violate the rules of evidence. In Blumenthal v. Bloomingdale, 100 N. Y. 561, the defendant, in the course of the cross-examination, drew out a negotiation, and in the redirect examination the witness was allowed to give the whole of the negotiation; and, in the course of the opinion upon that ruling, Finch, J., says: “If they were entitled to part of it, plaintiff might prove the whole, to prevent or rebut any adverse or damaging inferences.” A somewhat similar ruling was under review in Simmons v. Havens, 101 N. Y. 433, and Rapallo, J., says that the explanation was properly allowed after the developments made in the cross-examination.

Our attention is called to People v. Cox, 21 Hun, 47; affirmed, 83 N. Y. 610, by the counsel for the appellant. In the course of the opinion, delivered by Smith, J., in that case, he said : “ Hndoubtedly, when a statement forming a part of a conversation is given in evidence, whatever was said by the same person, in the same conversation, that would in any way qualify or explain that statement, is also admissible.”

He then, proceeded to show that the rule was inapplicable to the case before the court, as no statement had been made which required any qualification or explanation. Not so in the case before us. The cross-examination had been by the counsel for the plaintiff, in respect to a conversation held by the witness as to Mary Stuart, and as to whether he had not made a declaration in connection with her that he would see that Tally “was court martialed;” also in respect to “alleged relations between Mary Stuart and Tally.” If the declarations called out in the course of the cross-examination had been unexplained, they might have warranted inferences against the witness which his explanation in the course of his re-examination tended to relieve' him from. Numerous other exceptions are found in the record, which have received attention, but they present no error that requires us to disturb the verdict, or to require comments upon. Some criticism and complaint of the charge of the learned trial judge is indulged in by the plaintiff’s learned counsel. The charge seems to us to have be,en clear, explicit and ample. We cannot review the tone of voice or the “emphasis” used by the learned judge in delivering the same to the jury; nor, from a perusal of the charge, are we able to say that he “minimized” the plaintiff’s case as presented by the evidence.

Judgment and order affirmed, with costs.

All concur.