text:
    Jacob S. Friedman, Jr., as General Assignee, etc., Reps’t, v. Isaac Boerman et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Divorce—Agreement to discontinue action for, is meritorious-consideration FOR PROMISE TO PAY MONEY.
    Where an action for a divorce has been commenced in good faith, an agreement to discontinue, standing alone, is a meritorious consideration for a promise to pay money.
    2. Same—Agreement to live separate and apart is against public policy—Vitiates entire consideration of which it is a part.
    An agreement between the parties to live separate and apart from each other, is one of a class condemned by public policy, and forming part of an entire consideration for the payment of money vitiates the consideration.
    3. Same—Agreement to live separate and apart—Rescinded by subsequent cohabitation.
    An agreement to live separate and apart will be considered as rescinded if the parties thereto live together again as husband and wife.

      4. Same—Promissory note—What consideration will not support.

      Held, that the return of money, paid under such a contract, was the return of the consideration of a void contract; that the money became the property of the person to whom it was returned, and that a note subsequently given for the payment of such money was void.
    5. Same—General assignment—Vitiated by preference given to VOID NOTE

      Held, that a preference given to such a note in a general assignment vitiated the assignment.
    6. Same—Reference—Findings op fact—Code Civ. Pro., § 1023.
    The attorney for a party to an action, upon the submission of the case to a referee, submitted to him a statement of the facts which he deemed established by the evidence, with a view of obtaining his rulings upon them, as provided by Code of Civil Procedure, section 1023. The referee having s omitted to mark his allowance or disallowance of the propositions set forth until after making his report' Held, that the party could not by the inadvertence of the referee, be deprived of the right secured him by this section, and that he had not wholly discharged his functions with respect to the case until he noted his disposition of these propositions.
    7. Same—Requests to find—Must be to find proposition established.
    By Code of Civil Procedure, section 1023, the attorney is required to state, in the form of distinct propositions of fact, the fact which he deems established by the evidence. Held, that the propositions must be in the form of facts established, and not in the form of evidence tending to establish them.
    8. Same—Propositions may be stated in detail.

      Held, that it was manifestly the intention of the section that the attorney might so present his propositionsindetail as to clearly lead to the decision wMch he asked to have made.

      G. M. Parke, for resp’t; J. S. L’Amoroux, of counsel; Moses R. Crow, for app’lts; Albertus Perry, of counsel
   Landon, J.

The defendants are judgment creditors of Morris King, and the plaintiff is his general assignee for the benefit of creditors. The assignment was made December 8, 1883. The defendants afterwards brought their action against King, and on the 1th day of January, 1884, caused to be seized upon attachment some of the assigned property, which, upon perfecting judgment, was afterwards sold upon execution.

The plaintiff brought this action to recover for the goods thus seized. The defendants answered, alleging that the assignment was fraudulent against creditors. The referee found for the plaintiff. The assignment, among others, preferred the wife of the assignor in the amount of a promissory note given by the assignor to her, dated January 3, 1882, for $3,000 and interest.

The questions presented by this appeal are whether the findings and rulings of the referee were so far erroneous as to improperly prejudice the defense. The evidence on the part of the defendants tended to show that Morris King, the assignor, prior to June, 1881, had lived in Ballston Spa with his wife; that he had been engaged in business there, but then went to the state of Indiana where he engaged in business, but returned to Ballston in the latter part of December in the same year; that at the date of his note to his wife he was indebted to Pohly & Co., of which firm his assignee was a member, in some sum not stated, also to Schattman Brothers in about $1,000; that he was then destitute of means except the $3,000 which he obtained from his wife; that he settled with Schattman Brothers; that some time afterwards he engaged in the ready-made clothing business at Gloversville; that he bought goods largely upon credit, and in order to obtain some of the credits given him made false representations in regard to the amount of his property and indebtedness.

The referee found that in August, September and October, previous to his assignment, his purchases upon credit were larger than he was accustomed to make. The evidence tended further to show that after the assignment, though others were nominally placed in charge of the assigned property, the assignor was retained by the assignee, and permitted by him to have the same control and management of his store, until the defendants levied their attachment, as before; that the assignee, when inquired of by a creditor respecting the assignment, spoke of himself as a mere figure-head in the matter; that the assigned property was not more than sufficient to pay the preferred creditors, of whom the assignee was one. The assignor was not examined as a witness.

The facts respecting the $3,000 note to the assignor’s wife were found by the referee substantially as follows: In May, 1881, the wife of the assignor commenced an action against him Tor divorce. They were then living apart' from each other, and had been for six weeks. In the same month it was agreed between them that the action should be discontinued, that they should live separate and apart from each other, and that in consideration thereof the husband should pay his wife $3,000; whereupon the action was discontinued and he paid her $3,000. She deposited the $3,000 in bank, and it remained there until January 1, 1882, when she loaned it to her husband, who a few days . afterwards gave to her the promissory note in question, dating it January 2, 1882. During the husband’s absence in Indiana, the wife remained in the same house they had occupied together in Ballston. In the latter part of the year 1881 she visited him in Indiana. They returned to Ballston as husband and wife and were living together as such when the note was given, and continued so to live.

The referee was requested to find that the wife returned the $3,000 to her husband, but he struck out the word returned and inserted the word loaned in its place. He was requested to find that the note given to the wife was not a valid claim against the assignor, but he refused.

We think this was error. Whether the action for divorce was commenced in good faith, and upon reasonable grounds, and how far it had proceeded, the case does not show. If the action had been commenced in good faith, and upon reasonable grounds, the agreement to discontinue, standing alone, would, perhaps, have been a meritorious consideration for the $3,000. Adams v. Adams, 91 N. Y., 381.

When the wife parts with such a cause of action to her prejudice, she may properly be paid for it; but when she parts with it, and at her own solicitation, subsequently is restored to her proper marital relations, what seemed to be to her prejudice, is really to her advantage, and the consideration for the money paid, fails. But the agreement to five separate and apart from each other was part of the entire consideration, and this was an agreement condemned by public policy, and was, therefore, a vicious consideration. Rogers v. Rogers, 4 Paige, 516,

Besides, the agreement to live separate and apart will be considered as rescinded if the parties live together again as husband and wife. Carson v. Murray, 3 Paige, 483; Shelthar v. Gregory, 2 Wend., 422.

The consideration being entire and part being void, because of its original vice, the whole is void. Crawford v. Morrell, 8 Johns., 253; Thayer v. Rock, 13 Wend., 53 ; Baldwin v. Palmer, 10 N. Y., 232; De Beerski v. Paige, 36 id., 537; Saratoga County Bank v. King, 44 id., 87; Dow v. Way, 64 Barb., 255.

When the wife returned the $3,000 to her husband she returned the consideration of the void contract, and the money became her husband’s. The note subsequently given by him was void. The $3,000 were not given by the husband to the wife as a gift, and the note which he gave his wife cannot be upheld as a gift. Whitaker v. Whitaker, 52 N. Y., 368.

It is not necessary to say that the preference given to this invalid note would vitiate the assignment. It may have been preferred in entire good faith. But if the referee had found that it was void, we do not know but that conclusion, taken in connection with the other evidence in the case, would have turned the scale in favor of the defendants.

There was some evidence tending to show that the giving of the note was an afterthought. That afterthought may have embraced the possibility of some such assignment as this, and the scheme may have been to save to the assignor in any event the $3,000 by charging it upon the property turned over to his creditors. The referee, by holding the note valid, did not have occasion to consider this aspect of the case.

Upon the submission of the case to the referee, the attorney for the defendants submitted to him a statement of the facts which he deemed established by the evidence, with the view of obtaining his rulings upon them, as provided by section 1023, Code of Civil Procedure. It seems that this paper escaped the notice of the referee until after he had made and delivered his report. His attention then being called to the omission, he noted in the margin the disposition he made of each proposition and delivered it to the defendant’s attorney, who inserted the same, "with his exceptions to the adverse rulings of the referee, in the appeal book as part of the case and exceptions.

We think the defendant cannot be deprived of the right given him by this section by the mere inadvertence of the referee. Besides the referee did not wholly discharge or exhaust his functions "with respect to the case until he noted his disposition of these propositions.

The requests and responses of the referee and the defendant’s exceptions to them are properly before us. The referee, however, in response to certain propositions, marked them “refused as a finding of evidence merely.” The section cited requires the attorney to state in the form of “distinct propositions of fact,” the “statement of the facts which he deems established by the evidence. ”

' These propositions must therefore be in the form of facts established, not in the form of the evidence tending to establish them. For some evidence may have been given ténding to prove facts material to the decision of the issues and yet not sufficient to prove them. It would be hazardous to attempt to formulate any general rule beyond what the present case strictly requires. We insert two of these requests to find; the first of which was properly refused for the reason given and the second was not.

First. “In the latter part of December, 1881, Morris King and Samuel B. Mount, together, called upon Julius Schattman, of the firm of Schattman Brothers, who had a claim against King for $1,000, for the purpose of effecting a compromise. They represented to him that King was poor and had lost everything; that he had left his wife $3,000 at the time he separated from her, and that, coming back as a poor man, his wife was willing to pay him back the $3,000 in order to effect a settlement with his creditors.”

It is plain that if the referee had found that these representations were made, and yet had not passed upon the facts touched by the representations, he would not have found anything material to the decision.

Second. “That in September, 1883, Morris King pur■chased goods on credit from M. A. Tynberg & Co., and to obtáin such credit represented to them that he was worth between $8,000 and $10,000; that his old affairs were all settled up, and that he owed no one anything of any consequence. Such representations were false.”

These were distinct propositions of fact.

Upon the theory which the defendants sought to establish, that the assignor procured goods upon credit, having in view his ultimate assignment to a friendly figurehead as •assignee, and the preference to himself under color of the note to his wife, and his subsequent management of the assigned property, the fact that the assignor resorted to false representations in order to obtain some of the goods upon credit would be material.

The representation in this proposition is a material fact in itself, while in the former proposition it is only evidence of the fact. Of course it may be said that the entire second proposition is only evidence tending to support the charge of a fraudulent assignment, and that a finding upon that proposition merges all minor propositions leading up to it.

But we do not think that section 1023 should have so narrow a construction. The propositions authorized are "those which the attorney deems established by the evidence, .and it is manifestly intended that he may so present his propositions in detail as to clearly lead to the decision which he asks to have made.

There were other propositions submitted, some of which were properly refused as a finding of evidence, and at least two others that we think ought not to have been so regarded.

If the propositions which ought to have been passed upon had been found in favor of the defendants, they no doubt would have affected the result.

We think the judgment should be reversed.

Judgment reversed, new trial granted, reference discharged, costs to abide the event.

Learned, P. J., and Bocees, J., concur.


source: Caselaw Access Project

author: Mayham, J. Learned, P. J. Landon, J.

license: Public Domain

text:
    William Mosher, Resp’t, v. Horace Russell, Receiver, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Evidence—Exclamations of pain, etc.—When competent.
    In an action for damages for physicial injuries received, the exclamations of pain and suffering by the plaintiff, made at or about the time of the injury, are competent as evidence.

      ■2. Same—Theory of admissibility.
    The ground upon which declarations of this sort are admissible, seems to be either that they constitute a part of the res gesta, or that they must be received from necessity to prevent a failure of proof, or that they are1 involuntary exclamations of pain from the injury at the time of its infliction.
    3. Same—When not competent.

      Held, that the exclamations of pain and suffering, made eight months, after receiving an injury, were not competent as evidence in an action for damages. Learned, P. J., dissenting.
    4. Damages—Future consequences of injury.
    To entitle a plaintiff to recover damages for apprehended future consequences of an injury, there must be such a degree of probability of their accruing as amounts to a reasonable certainty that they will result from the original injury.
    5. Same—Direction to jury—What is erroneous.

      Held, that it was erroneous to direct the jury that in assessing damages they might take into consideration the pain or injury which the “ plaintiff claimed the evidence of the physicians fairly indicate that he will suffer during the rest of his life,” “ and for the pain he is likely to endure in the future.”
    Appeal from a judgment entered upon a verdict at the Albany circuit, 1886. The facts sufficiently appear in the opinion.

      Edward Newcomb, for resp’t; Hamilton Harris, for app’lt.
   Mayham, J.

The defendant appeals from a judgment entered upon the verdict of a jury, for $6000, for alleged injury to the plaintiff, by being hurt by a gate maintained and managed by the West Shore Railroad Company, of which defendant was receiver, across the highway at the railroad crossing near Coeymans, on the 4th of September, 1885. The plaintiff’s proof tends to show that on that day he was riding upon a market wagon loaded with produce, and that while passing under the gate, which was hoisted, the same was let down by the defendant’s employee in such a manner as to collide with the plaintiff and knock, or' scrape, him from the wagon, by reason of which he was injured.

The evidence on the part of the defendant tended to show that the plaintiff, in looking back after passing the railroad, and after passing through the gate lost his balance and fell from his wagon, and that he was not hurt by the gate. Upon this conflict of evidence the jury found with the plaintiff.

On the trial the plaintiff was permitted to prove by Dr. Balch that on the 3d day of Hay, 1886, he examined the plaintiff for the purpose of determining his condition in reference to the injury complained of. And he testified that plaintiff “complained more or less of pain, upon pressure about the neck, and pain when I attempted to-move his head.” The defendant objected to statements made at that time, and the objection was overruled, and the-witness proceeded. “ Pressure upon the head, drawing the head down upon the neck caused pain; the patient winced, twisted, and tried to get away from me.” This was objected to by the defendant, as acts and declarations of the plaintiff made eight months after the injury, and the objection was overruled, and defendant duly excepted.

The objection to this evidence was after the same had been given, and there was no motion to strike it out, but as the evidence seemed to have been given in narrative form, and no point raised that the objection came too late, it was probably in time to raise the legal question as to the admissibility of the evidence offered.

At the time of this examination the doctor found no abnormal conditions of plaintiff, either from his personal examination, or the application of tests by compass points or electricity, except such as appeared from the complaints and wincing of the plaintiff, and the scar on the forehead and ear; but from the evidence of the _ plaintiff’s_ complaints and wincing the jury were left to infer manifestations of continuing effects of the injury, and that must have been the object for which the evidence was offered.

It has long been settled as a rule of evidence, that exclamations of pain and suffering by a party receiving a physical injury were competent, when made at or about the time of the injury. And this rule has been recognized since the enactment of section 398 of the Code of Procedure in 1869, and the various other subsequent acts making parties competent as witnesses in their own behalf. And the same was adhered to in Hogenlocher v. R. R. Co. (99 N. Y., 136), but in that case, as in most other cases upon that subject, the rule was confined to statements, exclamations and acts about the time of the alleged injury.

The ground upon which declarations of this sort are admissible seems to be either that they constitute a part of the res gesta, or that they must be received from necessity to prevent a failure of proof, or that they are the involuntary exclamations of pain from the injury at the time of its infliction. In this case, it could not be claimed that the complaints and writhings, eight months after the injury, were a part of the res gesta that was the injury at the railroad. It cannot be claimed competent from necessity, as the plaintiff was a competent witness. And if his feelings on being examined by Dr. Balch were competent or material evidence, he could have been called to swear to them. It cannot be claimed that it was the involuntary exclamation of pain from the injury at the time of its infliction, for eight months had elapsed since the injury.

In any aspect of the case, we do not see how the complaints and writhings of the plaintiff, made and performed eight months after the alleged injury, can be competent as against this defendant. To treat them as competent evidence would, it seems to us, put it in the power of a party i® manufacture evidence against his adversary that would not only be dangerous but subversive of well settled rules of evidence.

The defendant also insists that the learned justice erred ZEE his charge to the jury upon the question of damages. The learned justice, in his charge to the jury upon that subject, says : “He (the defendant) is entitled to be fully compensated for all loss he has sustained, for all pain he has suffered, not only suffered in the past, but he claims to he suffering now, and which he claims the evidence of the physicians fairly indicate that he will suffer during the residue of his life.”

' Again, after saying in effect that if the jury found by a preponderance of proof “that the plaintiff is entitled to recover, you will award him such fair, just sum as shall fuEy compensate him for the loss he has sustained, for the pain he has endured and for the pain he is likely to endure in the future.”

To these propositions in the , charge the defendant duly excepted.

■ Two medical experts were examined on the trial by the plaintiff, but neither of them expressed any opinion as to the probable future effect of the alleged injury upon the plaintiff. And there appears to be no evidence in the case from which the jury would have a right to speculate or infer that the injury was permanent, or from which the plaintiff was likely to suffer in the future. We think therefore that the direction of the learned justice as to pain or injury which the “plaintiff claimed the evidence of the physicians fairly indicated,- he will suffer during the residue of his life.” And for the pain he is likely to endure in the future ” was within the authorities erroneous.

• 16 Damages are to be proved and none can be allowed except such as are shown by the proof to be, at least, to a reasonable degree of certainty.” Curtis v. R. R. Co., 18 N. Y., 534-542.

In the case last cited the court charged that the bodily pain which the plaintiff was likely to suffer in consequence of the injury could be considered by the jury. And the court of appeals say this was error which would have been .fatal to the judgment if the judge had not subsequently modified the same.

In Strohm v. W. R. R. Co. (96 N. Y., 306), the court gay: “Future consequences which are reasonably to be expected to follow an injury may be given in evidence for the purpose of enhancing damages. But to entitle such apprehended consequences to be considered by the jury, they must be such as in the ordinary course of nature, are reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible are not proper to be considered in ascertaining the damages. It is not enough that the injury received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to develope. To entitle a plaintiff to recover present damages for apprehended future consequences there must be such a degree of probability of their accruing as amounts to a reasonable certainty that they will result from the original injury.”

Tested by these rules, it cannot be said that the evidence in this case justified the charge as to future damages from the alleged injury; and yet the charge was well calculated to lead the jury into a field of conjecture and speculation upon that subject, not based upon the evidence in the case, but upon the claim of the plaintiff for damages for supposed prospective suffering, which might and probably did, influence them in fixing the amount of the verdict.

If we are right in our conclusions upon the points discussed, it is unnecessary to examine the other question raised by the appellant on this appeal, as to the motion for a new trial upon the minutes, on the ground of excessive damages.

The judgment must be reversed and a new trial granted, costs to abide the event.

Learned, P. J.

I concur upon the second ground. But in examining a patient a physician must often depend on the apparent effect produced by pressing upon, or touching some part of the body. If the patient winces, or cries out, apparently with pain, this is reasonable evidence that there is tenderness of that part. And I should be unwilling to say that such indications of pain could not be testified to by the physician as a part of the result of his examination.

Landon, J.

I concur on both grounds. Dr. Balch did not testify that, in his opinion, the plaintiff had any existing disability. _ His examination was valueless unless it led to a conclusion. Any layman could have pressed or twisted the plaintiff, and have seen him wince and heard him complain. I. do not think the exclamations of the patient, in the absence of medical testimony that they were obvious indications of existing disability, were competent.


author: Landon, J. Learned, P. J.

text:
    The People, Resp’ts, v. John M. De Graft, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March, 1887.)

    1. Criminal trial—Evidence—Volume printed by authority of board of supervisors—Laws 1878, chap. 219, § 1.
    The defendant was prosecuted for wrongfully obtaining, receiving and converting to his own use, money of the county, with intent to defraud the county. Held, that Laws of 1878, chapter 219, section 1, providing, among other things, that “ Any act * * * or proceeding of a board of supervisors * * * and any recital of occurrences taking place at the sessions * * * thereof, may be read in evidence on any trial from a volume printed by authority of the * * * board authorized the reception in evidence of such volume printed by the authority of the board. Per Landon, J. Held, per Learned, J., dissenting, that the statute cited did not authorize the reading from such book what purported to be reports of committees, etc. That without the statute the book was not entitled to be read in evidence on such a trial, and that the statute must not be extended beyond its language.
    2. Same—What is prima facie evidence of authority to print.

      Held, that the testimony of the printer of the volume was sufficient to make a prima facie case that he printed it by the authority of the board. Landon, J.
    3. Same—Criminal prosecution—Evidence of wrongful intent.

      Held,, that upon the trial of the defendant for peculation, testimony as to transactions in the year following, and similar in character to those charged, were competent as evidence to show guilty knowledge on the part of the defendant. Per Landon, J. Learned, P. J., dissenting.

      4. Same—Res gestee.

      Held, that the defendant was entitled to the admission in evidence of a conversation tending to exculpate him and forming part of the res gestee. Per Landon, J.
    5. Same—Jury—When question is improperly left to.

      Held, that there being no evidence which could sustain a finding by the jury that the defendant was implicated in the loss of certain papers, it was error to leave the question to the jury. Per Landon, J.
    6. Same—Evidence—Of good character—Erroneous charge as to WEIGHT OF.

      Held, that it was erroneous to charge the jury that good character was entitled to some consideration on their part upon a balanced question, where a doubt intervenes, but that they might not array it against positive or convincing evidence of a crime. Learned, P. J.
    Appeal from judgment of conviction and sentence.
    The defendant was indicted and convicted, upon trial Defore the Schoharie county sessions, for wrongfully obtaining, receiving and converting to his own use, on or about February 1, 1882, the sum of $400 of the money of the county, with intent to defraud the county. The conviction was had under chapter 19, section 1, laws 1875, being the “act to provide more effectually for the punishment of peculation and other wrongs affecting public moneys and rights of property.”
    The defendant was superintendent of the poor of Schoharie county from January 1, 18.81, to December 31, 1883. The county had placed certain poor children in the Albany orphan asylum, and the bill for their support, rendered November, 1881, amounted to $631.50. The superintendent of the asylum sent this bill to the_ defendant. It seems the custom was for the board to audit such bills and pay the money to the superintendent of the poor, who would pay the asylum. The defendant delivered this bill to the board of supervisors, in connection with sundry other bills due other parties upon acccount of the poor, ana in connection with his personal bill against the county. He also submitted to the board his report containing a detailed statement of the expenses of the poor. The aggre; -ate of all the bills presented by him, including the asylum bill and his personal bill, amounted to about $6,400. The aggregate of the audit of all the bills presented by the defendant was $6,319.03. Upon the trial the defendant’s report and his personal bill, as also most of the original record of the proceedings of the board of supervisors for 1877, could not be found. From the printed proceedings of the board of supervisors for the year the “report of the committee on county superintendent of the poor’s accounts and vouchers for the year 1881” was read in evidence. It contained among the items recommended for audit and allowance the following.
    “The amount paid asylums and refuge, $1,031.50.” This amount was audited, and was embraced in sundry checks, amounting to $6,319.03, given by the clerk of the board to the defendant. Of the $1,031.50 the defendant paid the superintendent of the asylum $631.50 and kept the balance. The printed proceedings did not contain a copy of the defendant’s report or of his personal bill.
    To prove that the defendant took or kept the $400 knowingly and with a dishonest intent, the people gave evidence tending to show that the bill of the same asylum for the year 1882 was $552.70; that it was audited at $852.70; that the $852.70 was paid the defendant, who paid the asylum only 552.70.

      James A. Lynes & George H. Hiller, for people; W. Q. Lamont, for def’t.
   Landon, J.

The original bill presented by the defendant • to the board of supervisors for audit in 1881, and his report to the board, were lost. The original records of the board for that year were also lost.

We think the printed copy of the proceedings of the board of supervisors, for the year 1881, was probably read in evidence under chapter 219, Laws of 1878. That act provides, among other things, that “Any act * * * or proceeding of a board of supervisors, * * * and any recitai of occurrences taking place e at the sessions * * * thereof, may be read in evidence on any trial * * * from a volume printed by authority of the * * * board.” Sec. 1. The second section of this act was amended by chapter 328, Laws 1884, so as to make the printed volume properly certified “the book of records” of the board, but the first section was not changed. No doubt this book of records would have the force of the original record, but the first section, which authorizes the “volume printed by authority of the board ” to be read in evidence, remains unchanged.

The testimony of Mr. Bellinger, the printer of the volume, was sufficient to make a prima'facie case that he did print it by the authority of the board. The statute does not require that the printed copy shall be proved to have been compared with the original.

It was proved thereby that a bill of which the true amount was $631.50 was audited by the board and paid the defendant at $1,031.50. It was otherwise proved that this excess of $400 was retained by the defendant.

It was not proved that the defendant rendered this bill at $1,031.50, It did appear that his entire bill as presented to the board was not audited at its full amount, and there was some evidence tending to show that it was reduced about $400.

It was claimed upon the part of the defendant that he did not know how much his original bills were reduced in the aggregate, and, therefore, it did not appear that he knew, when he received the $400, that it was not rightfully his own.

But the people proved that the like transaction occurred the following year, whereby the defendant obtained $300 by means of another increase of the amount of the audit of the bill of the same asylum for that year. If there were no authority in point we should naturally think that the second attempt was hazarded because of the apparent success of the first, and thus we should reach the conclusion of guilty knowledge in the receipt or detention of the money first received. At any rate it seems to bear strongly upon the question of guilty knowledge. We think the evidence was competent. Bielschofsky v. People, 3 Hun, 40; S. C., 60 N. Y., 616 ; Copperman v. People, 56 N. Y., 591; People v. Dowling, 84 N. Y., 478-486 ; People v. Lyon, 1 N. Y. Crim. Rep. 400, S. C., 33 Hun, 623. This case was reversed, but on other grounds, 99 N. Y., 210.

The defendant however offered, but was not allowed, to testify that at the time the checks were handed him by the clerk of the board of supervisors, in which the $400 were included, he asked the clerk what his bills were audited at. and the items where he had been cut in his bill, and that the clerk responded : “You pay the items on this pay-roll (meaning the list in which the asylum bill was carried oat at $631.50), and the balance of the money is yours; that balance is stated in this account at $807.50, and that will show you how much your bill has been cut and how much allowed.”

We have examined the case to ascertain if there is any testimony fairly tending to show any complicity of the clerk and the defendant with each other, or that the defendant had surcharged the asylum bill, or that he had since purloined that bill, or the original records of the board, of supervisors. If such testimony existed, there would be reason to hold that the defendant’s conversation with the clerk, instead of being helpful to indicate the ignorance under which he received $400 too much, was a cover invented to disguise his real knowledge. But there is no affirmative evidence of these acts. We have these facts: first, that the asylum bill was audited for $400 too much the first year; second, that it was audited for $300 to© much the second year; third, that these two sums were included in the aggregate with many other sums, and that the defendant had the benefit of the increased audits both years. It does not appear that the bills were surcharged by the defendant.

If we may indulge in inference of some probability we should infer that the clerk carried the increase into the report and audit both years, without any increase in the original bills. With this assumption the question remains, would the clerk do this without collusion with the defendant? Could the defendant receive this guilty excess in ignorance that it existed ? If the defendant had been permitted to testify to the conversation between himself and the clerk, the answer proposed by his counsel might not have eliminated the difficulty which these questions suggest. But we are to bear in mind that the defendant was entitled to the benefit of the presumption of innocence until his guilt should be shown, and that presumption clothed him with innocence with respect to any collusion with the clerk, with respect to surcharging his bill, with respect to purloining his own bills or the records of the board, until some affirmative evidence tending to show Ms guilt in some of these respects had been given.

We therefore think that, as the case stood, the defendant was entitled to the benefit of the conversation between .himself and the clerk, when the clerk gave Mm the checks in which the $400 were included and covered up. Clearly that conversation was part of the res gestee, and, if honestly had, tended to show that the defendant did not know that he had received $400 too much, and, therefore, did not knowingly take it with a dishonest purpose.

. The defendant’s counsel requested the court to charge that there is no proof that implicates the defendant in the loss of his original report to the board, and in the loss of his personal account rendered to the board. The court declined so to charge, and remarked: “I submit the entire question to the jury as one of the facts of the case.”

The jury were, therefore, at liberty to find that the defendant was implicated in the loss of these papers. Clearly, if they did so find, the conclusion of the defendant’s guilt would be almost irresistible.

There was no evidence to justify the finding.

The conviction and judgment must be reversed and the ease remanded to the Schoharie county sessions for a new trial.

Learned, P. J., concurs in.the result; Mayham, J., not acting.

Learned, P. J.

Concurring in the result, there are some things in the opinion of my Brother Landon with which I do not agree.

Chapter 219, Laws 1878, § 1, speaks of “any act, ordi- ' nonce, resolution, by-law, rule or proceeding,” and “any recital of occurrences,” etc. All of the book produced in evidence, beyond page 50, consists of sundry reports of committees, abstracts of town audits, and the like. I see nothing in the statute which authorizes the reading from a printed book of what purport to be reports of committees, and the like. Yet extracts from these were given in evidence on the trial from that printed book.

The certificate' of the clerk, required by that statute, is on page 50, and certifies that the foregoing is a true copy of the journal, etc. Nothing is certified as to the reports, etc., which follow.

Without the statute the printed book would be no evidence against defendant. We must not extend „ the statute beyond its language, which is limited to the matters which take place in the board, and to those which are done by them.

The people gave evidence tending to show that a year after the commission of the alleged crime the defendant obtained money from the county through a similar increase of an asylum bill. I do not think that such evidence came within the exception, which ought not to be extended, and which permits proof of other offenses of the defendant, in order to characterize the act in question. It would be of no use to discuss this point, or to give my reasons at length.

In this case the defendant’s account, as appears by the report of the committee, consists of twelve items. It seems to be admitted that, as to ten of these items no question was made, and that they were reported as rendered.

The item called his personal account, being for services and disbursements, was rendered at about $1,300, and was allowed at $807.60. The asylum bill of $631.50, which defendant testifies he gave to Dr. Handy, to present to the board, was allowed by the committee at $1031.50. Thus it will be seen that while one item was raised $400, another was reduced about $500. The items remained unchanged, and therefore the total must have been reduced in auditing.

The total of the audit was $6,319.03. ' This total sum was paid to defendant in four checks, no one of which corresponds in amount with any item of the audit; but the four equal the total sum.

How as it appears that the total received by defendant must have been less than his" total claim (taking the asylum bill at $631.50). I fail to see the evidence that defendant knew that he was receiving more than was owing him. I do not speak of his intent, but of the fact. The transaction of the following year is no evidence, in any view, of the facts of the previous year. And I see no proof of defendant’s knowledge of the amount at which the asylum bill was allowed, or of the amount to which his personal bill had been reduced. The payment to him was in gross and did not exceed the amount which he had claimed should be paid him.

I think also that injustice was done the defendant when the jury were charged that good character was entitled to some consideration on the part of a jury upon a balanced question where a doubt intervenes; but they might not array it against positive or convincing evidence of a crime. Upon a balanced question when a doubt intervenes the jury should acquit.

Evidence of good character may create a doubt against positive evidence of the defendant’s guilt. Remsen v. People,, 43 N. Y., 6.

I concur in the result of reversing the judgment and granting a new trial,_


author: Learned, P. J. Mayham, J. Landon, J.

text:
    Eliza Ann Schaffer, App’lt, v. Joseph H. Riseley, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March, 1887.)

    1. Sheriff—Escape—Judgment debtor—Order for discharge of imprisoned—Defects in the allegations in, cured by proof — Code Civ. Pro., §§ 2212, 2203.
    In an action against a sheriff for an escape, the defense was set up that the imprisoned debtor had been legally discharged, pursuant to the directians contained in Code Civil Procedure, section 2212. Held, that the fact; that the petition for the discharge was in writing, and that a schedule was annexed, as required by Code Civil Procedure, section 2203, being shown upon the trial, supplied the want of those allegations in the order of discharge. Learned, P. J., dissenting.
    2. Same—Affidavit required by Code Civ. Pro., § 2204^-Must be MADE ON THE DAY THEREIN DIRECTED.

      Held, that the affidavit required to be annexed to the petition and schedule by Code Civil Procedure, section 2204, must be subscribed and. taken, as therein provided, by the petitioner on the day of the presentation of the petition.
    3 Same—Code Civ. Pro., § 2204—Order for discharge made without JURISDICTION IS NO PROTECTION.

      HeldK that an order for the discharge of an imprisoned debtor which did not recite the fact of an affidavit made and annexed, pursuant to the provisions of Code Civil Procedure, section 2204, when, in fact, such affidavit was not made on the day therein directed, did not protect the sheriff making the discharge as directed.
    4. Same—Jurisdictional facts, if not recited in the order, must be SHOWN ALIUNDE.
    If the order does not recite jurisdictional facts, they must be shown aliunde.

      D. W. Spalding, for app’lt; J. T. Loonan, for resp’t.
   Learned, P. J.

The defendant, a sheriff, is sued for an escape. His defense is that the imprisoned debtor had been legally discharged; and the only question is whether the discharge was such as justified the sheriff in permitting the debtor to go free.

The order of discharge, it is claimed by the plaintiff, does not show jurisdiction in the county judge in failing to recite that the petition was “in writing,” “signed by the party,” with a “schedule annexed.” Code Civ. Pro., § 2203. But it appeared on the trial that the petition was in writing, signed by the party, and with a schedule annexed. This proof supplied the want of those allegations in the order of discharge. Bullymore v. Cooper, 46 N. Y., 236.

The next defect alleged by the plaintiff is that the order does not recite the malting of the affidavit required by section 2204. The proof on this point shows that 4he affidavit was made February 20 and the petition was presented March 9. This section of the Code now expresses that the affidavit “subscribed and taken by the petitioner on the day of the presentation of the petition must be annexed,” etc. In Richmond v. Praim (24 Hun, 578) we were of opinion that, under the Revised Statutes, this affidavit might be previously made. The Code has settled that point otherwise.

Section 2205, which provides for service of a copy of the petition and schedule fourteen days before presenting, says; nothing about a copy of the affidavit. The mistake in this case must have arisen from supposing that a copy of the affidavit must be served, for the service was made February 21. The county judge therefore had no jurisdiction. And as there was no recital of such affidavit in the order of discharge there is nothing to protect the sheriff.

This view has been illustrated by supposing that order of discharge contained no recitals whatever. It would not then protect the sheriff, unless he could prove, in fact, the jurisdiction. And it must be noticed that the affidavit referred to is a part of the very first step by which jurisdiction is acquired.

The doctrine of Bullymore v. Cooper, above cited, is that the order of discharge must show the facts giving the court jurisdiction of the person and the case. So Bennett v. Burch (1 Denio, 141). If the order does not. show these facts, they may be shown aliunde. There is nothing in conflict with this in Goodwin v. Griffis, 88 N. Y., 629. In that case was evidence aliunde, and the case did not rest on the order only. Furthermore, the court held that the imprisoned debtor had not been liable to an execution against the body, and therefore the sheriff was not answerable for the escape.

The defendant insists that the order recites that it was made after hearing the attorney for the plaintiff. But that recital implies no consent on his part. He may have opposed. He was not acting for the debtor.

It is with reluctance that we come to the conclusion that the order of discharge is not a defense, and that the proof of the proceedings shows that they were fatally defective. Undoubtedly the sheriff acted in good faith, and it is hard that he should suffer. But, on the other hand, the plaintiff has rights. She has her judgment, and has a right to collect it by all legal means. The sheriff was bound to see that he did not let the debtor go until an order of discharge was presented which conformed to the law, and showed the jurisdiction of the court.

Judgment reversed. New trial granted, costs to abide the event.

Mayham, J.

I concur in the opinion of Learned, J. The order on its face does not recite jurisdictional facts to authorize the county judge to act in the premises. Code of Civil Procedure, §§ 2204, 2212. Nor does the proof aliunde supply the jurisdictional facts necessary to sustain the order. Bullymore v. Cooper, 2 Lansing, 71, affirmed in 46 N. Y., 236.

Landon, J.

(dissenting)—It is a sad state of things when a court can lawfully punish a sheriff, because the court itself has done wrong. Let it be conceded that the proceedings were not in conformity with the Code, because the affidavit was not made the day the petition and schedule were presented to the court, but on the same day that the petition was made, still the attorney for this plaintiff was heard upon the preliminary application ancLupon the final order. So both orders recite. The plaintiff had her day in court to oppose the order of discharge. She did not object to the jurisdiction, she specified no statutory omission, she opposed the discharge upon the merits, and upon the merits the discharge was made. A certified copy of the order was given to the sheriff. It recited this appearance of the plaintiff’s attorney. It was made by a court having jurisdiction of the general subject, of the person of the insolvent, and of this particular case. Develin v. Cooper, 84 N. Y., 410. The order was such as section 2212, Code Civ. Pro. commanded the sheriff to obey. It was regular on its face. The plaintiff who, upon the merits could make no case against the prisoner, ought not tb be heard in her unconscionable pursuit of the sheriff to urge a defect which, if made before the court at the first hearing, would have been immediately rectified, and which because not then made it is our duty to declare waived.

The judgment should be affirmed with costs.


author: Landon, J.

text:
    Edgar M. Paine and William Bruce, Resp’ts, v. Patrick Ronan, Survivor, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March, 1887.)

    1. Evidence—What admissible as declaration Against interest.
    Without having first proved that parties were partners, as alleged, and that a third party was tlieir servant, with authority to give a certificate of the kind offered in evidence, it was error to admit such certificate of said third party in evidence against the alleged partners as their declaration.

      2. Same—Entries in book —Not admissible against party ignorant AND NOT CONSENTING TO THEIR BEING MADE.
    It was error to allow plaintiffs to prove that they charged the work in question on their hook against the alleged firm, when the charge was made without the knowledge or consent of defendent, who is sued as a member of the alleged firm.
    8. Same—Partnership—Estoppel. '
    Where one of an alleged firm presented the plaintiffs a written request for their services, signed by him in the firm name, and in many other instances the defendant had allowed said party to use the same name. The defendant, in case of his consent to such use, would be liable absolutely to every creditor, and in case of his negligence, he would be liable to the creditors misled thereby.
    4. Same—When party cannot object to failure of proof.
    Where a party has the evidence of a certain fact excluded on the ground that it is immaterial, he will not be heard to complain that what he procured to be held immaterial was not proved.

      Appeal from a judgment entered upon the report of a referee in favor of plaintiffs, in an action to charge defendant for certain work as survivor of an alleged firm.

      W. Frotkingham, for respt’s; J. & J. M. Lawson, for app’lt.
   Landon, J.

We think it was error for the plaintiffs to read in evidence the following certificate:

“I hereby certify that the dredge ‘Niagara’ has been employed the following time at dredging along the dock front, and channel leading to the same, for Messrs. Eonan & Sampson, at ice house, 1884:
August 1, 12 hours; August' 2, 12 hours; August 8, 12 hours; total time, 36 hours.
JOHN SAMPSON,
Superintendent.”

This certificate was not used for the purpose of aiding the memory of a witness, or as a substitute for his testimony of facts now forgotten, but known by him to be true, when he wrote the certificate; but it was used as the declaration of the defendant.

It would not be so used unless it was the act of the defendant. Of course, whatever the defendant did by another he did by himself. If the defendant and William Sampson had been actually partners, and John Sampson their superintendent of their ice-business, it would require evidence that he represented the defendants in the dredging work, in order to make his certificate their certificate, in reference to that work, and this evidence is lacking. But in fact John Sampson was employed by William, and the defendant and William were not partners, as between themselves, but were, as the referee held, ostensibly partners as to the plaintiffs. John as the servant of William, had no authority to give the plaintiff’s a certificate in which Eonan & Sampson were described as their employers. His act was in no sense Eonan’s act. Eonan may have permitted himself to be held out to their customers as a partner with William, and may therefore have permitted William’s servant in the ice-business to be held out as the servant of the ostensible firm, so as to have become hable for the servant’s * dealings with third persons within the scope of his service. But the plaintiffs did no work upon the faith of this certificate. After the work was done they procured John Sampson to make it. At best, it is but his narrative of a transaction already past, and is not evidence against this defendant. Pringle v. Leverich, 97 N. Y., 181. For the same reason the like certificate of John Shea with respect to further work done by thé ££ Niagara ” was also improperly received.

We think it was error to allow the plaintiffs to prove that they charged this work on their books to Ronan and Sampson. The charge was made without defendant’s knowledge or" consent, was plaintiffs ex parte version of the transaction. If the defendant had first given evidence tending to show that no such claim was made against him until after William Sampson’s death there would have been some ground for this kind of evidence, but as it was, it was clearly inadmissible. Peck v. Van Keller, 76 N. Y., 604; Moore v. Meacham, 10 id., 207.

Upon the merits, the defendant rightly urges that since the referee found that Ronan and Sampson were not partners, in fact the defendant could only be held liable to the plaintiffs as partner by way of estoppel. Central Savings Bank v. Walker, 66 N. Y., 424; Cassidy v. Hall, 97 id., 159.

But we think the defendant cannot urge that no estoppel was shown. Sampson, one of the alleged firm, presented the plaintiffs a written request for their services signed by him in the firm name. In many other instances the defendant had allowed Sampson to use the same name. The defendant either consented to this use or suffered it by his negligence. In the case of his consent, according to the rule stated in Poillon v. Secor (61 N. Y., 456), he would be liable absolutely to every creditor; and in case of his negligence he would be liable to the creditor misled thereby.

The plaintiff offered to prove that when they received the request signed in the firm name they made inquiry of third persons respecting the existence of such a firm. The defendant objected upon the ground, among others, that the testimony was immaterial. The objection was sustained. The defendant ought not to be heard to complain that there was not proved what he procured the referee to hold, it was immaterial to prove. But the plaintiffs did prove that they rendered their services relying upon the credit of the supposed firm. These facts then concur; the defendant was held out to the plaintiffs as a partner; many cases exist in which the defendant permitted himself to be so held out; the plaintiffs believed he was truly so held out to them and gave credit accordingly. Whether the defendant’s negligence was not the direct cause of the plaintiffs being misled was a conclusion of fact to be drawn from the facts stated. But as there must be a new trial we need not pursue the subject.

Judgment reversed, new trial granted, reference discharged, costs to abide the event.

Learned, P. J., Mayham, J., concur.


text:
    John D. Grange, App’lt, v. Frank C. Gilbert et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed March, 1887.)

    Pleading—Demurrer — Counterclaim—What mat be pleaded as— Code Crv. Pro., § 501.
    The plaintiff by his complaint alleged that the defendants by wrongfully excavating the channel of Grass river, threatened and were about to divert the water from his mills thereon, and he asks to enjoin them. He alleged his right to the use of said water as it then flowed. The defendants answered by way of counterclaim, and alleged: First, that they were the . owners of the right to. the use of such of the waters of Grass river as for forty years prior to 1865 flowed through a certain canal; that plaintiff’s title was subordinate to such right; that in 1865 plaintiff’s grantor, by wrongful excavations and constructions in the bed of the river, diminished the flow through defendants’ canal-and increased it through his own, and that the plaintiff still maintained his grantor’s wrongful encroachments upon the defendants’ rightful share of the water to defendants’ injury, and that the excavations of which plaintiff complained were proper to restore to each party his proper share of water; and, second, that the plaintiff wrongfully 0 stored and threatened to continue to store logs in the bed of the river, and in season of low water these logs obstructed the natural flow of the water into defendants’ canal to defendants’ injury. The defendants prayed judgment that the plaintiff be enjoined, etc., and for damages. On demurrer by plaintiff on the ground that these answers are not of the character specified by Code Civil Procedure, § 501: Held, that the first was good an^ the second bad.
    Appeal from an order and interlocutory judgment overruling a demurrer to defendants’ answer on the ground that the counterclaim was not within Code Civ. Pro., § 501.

      Chamberlain & Hale, for app’lt; W. H. Sawyer, for resp’ts.
   Landon, J.

The plaintiff, by his complaint, alleges that the defendants, by wrongfully excavating the channel of Grass river, threaten and are about to divert the water from his mills thereon to his damage, and he asks to enjoin them. He alleges his right to the use of said water as it now flows.

The defendants answer by way of counterclaim and allege, first, that they are the owners of tho right to the use of such of the waters of Grass river as, for forty years prior to 1865, flowed through a certain canal; that plaintiff’s title is subordinate to such right; that, in 1865, plaintiff’s grantor, by wrongful excavations and constructions in the bed of the river, diminished the flow through defendants’ ■canal and increased it through his own, and that the plaintiff still maintains his grantor’s wrongful encroachment upon the defendants’ rightful share of the water to defendants’ injury, and that the excavations of which plaintiff complains are proper to restore to each party his proper share of water. Second, that the plaintiff wrongfully ■stores, and threatens to continue to store, logs in the bed of the river, and in seasons of low water these logs obstruct the natural flow of the water into defendants’ canal to defendants’ injury.

The defendants pray judgment that the plaintiff be enjoined, etc., and for damages.

The plaintiff demurs and assigns, for grounds of demurrer, that these answers are not of the character specified in section 501 of the Code of Civil Procedure.

Section 501 provides that the counterclaim, which an answer may contain, “must tend, in some way, to dimmish or defeat the plaintiff’s recovery,” and .must also be a cause of action against the plaintiff in favor of the defendant * * *_ “connected with the subject of the action.”

The subject of the action is not the injury threatened to the rocks or land in the bed of the stream, but the injury threatened to plaintiff’s alleged water rights. The defendants’ first answer is that the water rights claimed by the plaintiff do not, to the extent ‘ claimed, belong to him, but are in part the rights of the defendants, and which the plaintiff, by wrongfully continuing the original diversion of his grantor, now keeps and withholds from the defendants to their injury. The defendants demand that the diversion shall cease and their proper rights be restored.

Row if the defendants establish their position they may altogether defeat the plaintiff’s recovery, for it may be that the only way to grant the defendants restoration will be to permit the excavation, in whole or in part, of which the plaintiff complains. The counterclaim is so “connected with the subject of the action ” that the success of the one inevitably defeats or diminishes the recovery upon the other.

But these views require us to sustain the demurrer to the second counterclaim contained in the answer. The subject of the action is the injury threatened to plaintiff’s alleged water rights by defendants’ permanent excavations. That subject is not touched by an allegation that the plaintiff by storing his logs in the mill-pond or stream also impairs the defendants1’ water rights.

Grant that both causes of action exist, the right to recover by the defendants could not properly defeat or diminish the recovery by the plaintiff.

The injury complained of by the plaintiff is a permanent injury to his water rights; the injury complained of by the defendants is in its nature temporary. These injuries do not affect the same property, and one may be repaired without affecting the other.

The order and interlocutory judgment should be affirmed as to the first counterclaim and reversed as to the second. The plaintiff may withdraw the demurrer as to the first, and reply within twenty days; the defendant may withdraw or amend his answer as to the second counterclaim within the same time.

3STo costs allowed either in this court or below.

Learned, P. J., and Mayham, J., concur.


text:
    Frank M. Jenkins, Resp’t, v. John L. Putnam, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March, 1887.)

    1. Evidence—Examination op a party as a witness before the trial —Code op Civil Procedure, § 873—When should not be allowed.
    The plaintiff's complaint states a cause of action for services and expenditures rendered by the plaintiff to the defendant upon defendant’s employment. The answer is a general denial. The defendant’s affidavit, upon which the order for examination of plaintiff was granted, in addition to the formal allegation required by section 873, Code of Civil Procedure, alleges that the defendant expects to prove by the plaintiff “ that he was not employed by the defendant, as alleged in the complaint.” Held, that in this case the order should not have been granted.
    2. Same.
    Whether, in any case, the Code of Civil Procedure confers the power upon the court to grant an order to permit a party to examine his adversary before trial upon the latter’s alleged case? Qucere.

    Appeal from an order of the special term vacating an order to allow the defendant to examine the plaintiff before trial.
    The plaintiff’s complaint states a cause of action for services and expenditures rendered by the plaintiff to the defendant upon defendant’s employment. The answer is a general denial.
    The defendant’s affidavit upon which the order for examination was granted, in addition to the formal allegations required by section 872, Code Civil Procedure, alleges that the defendant expects to prove by the plaintiff “that he was not employed by the defendant, as alleged in the complaint.”

      C. 8. Lester, for app’lt; John L. Henning, for resp’t.
   Landon, J.

In Adams v. Kavanaugh (37 Hun, 232), the plaintiff sought to foreclose a mortgage. The defendant interposed two defenses: 1. That the interest had been paid; 2. That the mortgage was usurious.

The plaintiff obtained an order for the defendant’s examination. In his affidavit he alleged that he desired to prove by the defendant that the interest had not been paid, and that the mortgage was not usurious. The court held that he was not entitled to the examination. The court held that the plaintiff’s examination of the defendant under section 870 of the Code of Civil Procedure, must be confined to facts which tend to establish the plaintiff’s cause of action, and he could not thus compel the defendant to disclose the facts constituting his defense.

In Fourth National Bank v. Boynton (29 Hun 441), the plaintiff sued upon a promissory note; the sole defense was usury. To this alleged usury the plaintiff was not a party. The plaintiff sought to examine the defendant before trial with respect to the alleged usurious transaction, but the court held that the Code afforded the plaintiff no such right, that the plaintiff could only examine the defendant before trial to establish his own case.

Chapin v. Thompson was in this department. We did not hold that the Code of Civil Procedure did not confer the power upon the court to grant an order to permit the plaintiff to examine the defendant relative to his defense, but held that in that case it ought not in the exercise of a wise discretion to be granted, we do not perceive that the statute necessarily limits the examination to the case alleged in the pleading of the moving party. The 873d section authorizes the judge granting the order in his discretion to “designate and limit the particular matters as to which he shall be examined.” This clause enables the judge to confine the examination to the moving party’s case, or, if “it is material and necessary for the party making the application ” to examine his adversary respecting the latter’s case, then to confine the examination within such limits as may seem to be reasonable.

In the present case, however, it is plain that the defendant wishes to make very much such an examination as we refused in Chapin v. Thompson.

We conclude, therefore, to affirm the order, without passing upon the question whether in any case a party may examine his adversary before trial upon the latter’s alleged case

Order affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., and Mayham, J., concur.


author: Peckham, J.

text:
    Kathleen Hickey, by guardian, etc., Resp’t, v. John P. Taaffe, App’lt.

      (Court of Appeals,

      Filed March 8, 1887.)

    1. Master and servant—Negligence—Duty op master to furnish SAFE MACHINERY

      The duty to furnish safe machinery means machinery that is safe, considering the use for which it is designed. An employer is not obliged to furnish the best possible appliances. His duty is discharged when he furnishes a machine which is reasonably safe and suitable.
    3. Same—Employee assumes risks of employment.
    Plaintiff, a girl of fourteen years, was employed by defendant to feed an ironing machine in his laundry. It had two rollers, the lower one re-valving around gas jets and was hot enough to iron the collars; the upper pressed upon it with a pressure of two hundred pounds. There were no guards in front of the rollers, and no way for plaintiff to stop them except hy calling upon another employee. After working six weeks at the machine, plaintiff, while trying to straighten out a collar, was caught in the machine and her hand was crushed. Held, that plaintiff in accepting this work and entering upon the employment about tiiis machine, assumed the usual risks and perils of the employment and such as were incident to the use of this machine in its then condition, so far as such risks were apparent, and could not recover.
    3. Same—Employment op minors does not change general rule.
    While an employer is bound to give the employee such instructions as will cause him to fully understand and appreciate the difficulties and dangers of his position and the necessity there is for the exercise of care and caution; the fact that she is a minor does not alter the general rule of law upon the subject of employees taking upon themselves the risks which are patent and incident to the employment.
    Appeal fropi judgment general term, supreme court, second department, affirming judgment and order denying new trial.

      JEJsek Cowen, for app’lt; Patrick Keady, for resp’t.

       Reversing 39 Hun, 656, mem

   Peckham, J.

The plaintiff was a young girl employed by defendant in his laundry. At the time of her first coming there, in April, 1882, she was fourteen years and four months old, and was employed by the sister of defendant, who superintended that department of the work, to bunch collars and cuffs, which was a perfectly safe employment. Before going to the laundry she had never worked nor seen machinery used in a steam laundry. She remained at this employment until June 16th of the same year, when defendant’s sister came to her—as she says—and after telling her that the person who fed the machine in question was absent, asked her to go over to it and take her place, which she did, and she was there shown how to put the collars and cuffs through, and was told to be careful and not let any laps go through, any ears, that is, so that no part of the collar should lap over another part.

This machine had a platform in front of it upon which the feeder sat in a chair and placed the collars and cuffs which were to be put through the ironing process on a flat desk in front of her. There were two rollers at the further edge of the desk, one on top of the other; the lower one was hot enough to iron the collars as they passed through, while the upper pressed down upon it with a pressure of about two hundred pounds. The collars were fed to these rollers by the feeder, and as one collar was started in on the left side of the machine and “gripped” by the rollers, another was placed in position by the side of it, and so on until the sixth would just be taken by the rollers as the first one disappeared and the space left vacant for another collar. There was a belt by which the machine was operated, which, however could not be reached by the person feeding, but there was a girl at the rear or other end of the machine where the collars came out who started and stopped it. The heated roller is hollow and revolves around gas jets, and is heated to such a heat that if a collar stopped on it for a minute it would have been scorched brown or burned. If a person’s hand were caught between these rollers it could not be dragged out, and the machine would have to be stopped and the weights which pressed it down would have to be removed from the upper roller. This machine would iron about six hundred dozen pieces in the course of a working day. There were no guards in front of the rollers for the purpose of preventing anything from being drawn between them.

The defendant on his examination said that at one time he had himself placed a lever, or shifter, on this machine, by which to start and stop it; it was overhead on the ceiling, and it could not be reached from where the plaintiff sat, but could be handled by a cord. That lever had been off about two months at the time when the accident occurred, for which this action is brought. Defendant says he found the lever was not convenient, and the old way was the easiest and safest. He says he did not take it off as a matter of economy because the girls used to take too much time in stopping that lever. There never was, at any time, a lever or shifter within reach of the platform where the feeder sat. The machine, as it existed on the day of the accident, was in perfect repair and condition, according to the plan upon which it was built, and it did not appear from the evidence that there was in use any machine moved by steam for ironing collars which had any other, or better, or safer means for stopping it, or for guarding the person who fed it. On the 16th of June, when plaintiff went to work at this machine, she had never used any of the machines in the laundry. She says that no one in the factory ever instructed her as to the dangers of this machine; neither defendant nor anybody else ever gave her any such instructions. Before the plaintiff, no operator or feeder of the machine had ever been hurt, although there were several of such machines in the laundry, and they had been in use several years. One person had been injured, but she was not an operator, and had no proper business at the machine when in operation. For six weeks, or from June 16th to July 26th, the day she was injured, the plaintiff worked constantly on this machine in feeding the collars and cuffs. During this time, she says, defendant had talked to her about her hair being loose or too long, and he told her to keep her hair up in front, because it might get caught in the roller and be burned off. She also said she knew the rollers were so close together that they would, if they caught the hair, either draw it out of her forehead or bum it off by the heat, and she knew this did once occur. She got her own hair caught once, four or five days after she was first employed on it, and she knew then the rollers were hot' enough to iron a collar and she had always been told there was a pressure of the upper rollers on the lower. She also said she knew that if her hand was caught between the rollers of that machine that it would be burned and crushed, and she knew that other girls had had their hair caught and burned off on the machine.

As to the weight of_ the pressure of the upper roller upon the lower she knew it was pressed upon or weighted with weights, which she saw, and she saw the upper roller raised by means of a lever, which was operated by stooping down and making great pressure with the body off the lever, which would then raise the roller. For six weeks she had had the experience of working at and feeding this machine, and had obtained the knowledge above stated, when, on the twenty-sixth of July, the accident in question happened. She gives this account of the manner of its happening: “I commenced on the left-hand side and commenced to put it — the collar—through the machine. ' I caught a collar with an ear on it; I put my finger out to pull it out and my hand was caught and drawn right through; the way it got caught, it was an old collar, my finger got caught in the button-hole and I could not get it out; the machine went quite fast; there was a lap in the ear of a stand-up. collar—gentleman’s collar; I put- my finger out to pull it out and my hand was caught and drawn right through; I tried to get it out; I put my foot out to push off the belting and could not reach it.”

The girl at the other end of the machine heard the cries, and stopped the machine. The plaintiff’s hand was then taken out, the upper roller having been raised, and she was taken home. She was most terribly burned and bruised, and suffered an injury; of a permanent nature, and which may result in the entire loss of her hand, and, perhaps, arm up to the elbow. The plaintiff commenced this action to recover for the injury, and, in her complaint, alleged that the defendant “carelessly and unlawfully set the plaintiff to work on machinery which was dangerous to her life and limb, without informing her of such danger, and of which she was entirely ignorant, * * * and that defendant well knew that said machinery was dangerous and unsafe. That through the gross negligence, carelessness and wrong-doing of the defendant * * * and without any negligence on the part of plaintiff, plaintiff’s right hand was caught in defendant’s machinery,” etc. The plaintiff had a verdict, which was affirmed at the general term, and the defendant appealed to this court.

The counsel for defendant, upon the argument here, very properly, as we think, from the testimony, conceded there was no question of contributory negligence in the case.

The right of the plaintiff to maintain this recovery was placed by her counsel upon three grounds: 1. The duty of defendant to furnish safe, sound and suitable tools and machinery for the use of the plaintiff; 2. The negligence of defendant in failing to warn the plaintiff of the character of the machine, and its dangers from lack of proper appliances to stop it by the person feeding it; 3. The defendant’s violation of the original contract of employment, by taking her from “bunching” the collars, and placing her at work feeding this dangerous machine.

First. The duty to furnish safe machinery means, of course, machinery that is safe, considering the "use for which it is designed, for otherwise very little machinery could be operated.

A steam engine may be built in the best manner, of the best materials, etc., and yet there is the possible danger inherent in the nature of the machine itself, as operated by such an element, which may lead to an explosion that could not be foreseen or guarded against. Nor does the duty of furnishing a safe machine oblige an employer to furnish the best possible appliances. His duty is discharged when he furnishes a machine which is reasonably safe and suitable. Burke v. Witherbee, 98 N. Y., 562. "We are of opinion that the defendant in this case fully complied with all his legal obligations in this behalf. The machine that he furnished was in perfect repair at the time of the accident. There was but one way to stop it, and that was by taking the belt off at a point in the rear of the rollers, in front of which the plaintiff sat. The machine was built on that plan, and was one of a large number of the same kind, and used for the same purpose. There was no evidence that a machine for this purpose had ever been built which could be stopped in any other manner.

The defendant it is true, some time before the plaintiff came to the machine to work it, had himself provided other and additional means of stopping the machine, but, as he says in his testimony, which, upon this point, is wholly uncontradicted, it was round not to work as well as the old way, and these additional means had been removed before the plaintiff was placed as a feeder at the machine. But, even if the means had remained, the plaintiff, after her hand was caught, could not have reached the lever to stop the action of the machinery. The defendant could remove these things, which he had placed upon the machine by way of experiment to test their usefulness and convenience without being, under the circumstances of this case, guilty of any negligence. The same observations apply with added force to the fact that there were no guards in front of the rollers. The defendant had never himself placed any there, and none had been known to have been placed on any such machine in any other factory where used. Indeed it could not be expected that such guards should be placed there, for it is plain that they would materially interfere with the working of the machine.

But the plaintiff, in accepting this work and entering upon the employment about this machine assumed the usual risks and perils of the employment and such as were incident to the use of this machine in its then condition, so far as such risks were apparent. I speak of this as the general rule, and whatever exception there may be to it on account of the youth of the plaintiff, will be spoken of hereafter. But upon the general proposition as to the use of machinery there is no doubt that an employee in accepting service with a knowledge of the character and position of the machinery, the dangers of which are apparent, and from which he might be liable to receive injury, assumes the risks incident to the employment, and he cannot call upon the defendant to make alterations to secure greater safety. Gibson v. Erie Railway, 63 N. Y., 449; Powers v. Railroad, 98 id., 274; Shaw v. Sheldon, decided by this court, not yet reported in regular series.

We see no failure of defendant to comply with his legal obligations as to the first ground of liability maintained by plaintiff’s counsel.

(2.) As to the second, there is no doubt that in putting a person of immature years at work upon machinery, which in some respects may be termed dangerous, an employer is bound to give the employee such instructions as will cause him to fully understand and appreciate the difficulties and dangers of his position, and the necessity there is for the exercise of care and caution; merely going through the form of giving instructions, even if such form included every thing requisite to a proper discharge of his duties by such employee if understood, would not be sufficient. In placing a person of this description at work upon dangerous machinery, such person must understand in fact its dangerous character, and be able to appreciate such dangers and the consequences of a want of care, before the master will have discharged his whole duty to such an employee. Sullivan v. India Mfg. Co., 113 Mass., 396 at 399; Finnerty v. Prentice, 75 N. Y., 615, MS. opinion, Andrews, J., where such rule is recognized as existing in this state. If a person is so young that even after full instructions he wholly fails to understand them, and does not appreciate the dangers arising from a want of care, then he is too young for such employment, and the employer puts or keeps him at such work at his own risk.

Assuming the plaintiff’s statement in this case to be true, that she had no instructions as to the danger of the machine, and that she had never worked at any machinery before, if under such circumstances this accident had happened within a short time of her employment, and because of her unfamiliarity with and lack of appreciation of the dangers attendant- upon the working of the machine, the defendant may well ha,ye been liable for the damages sustained by her on account of such ignorance. But the case discloses whoHy different facts; it is conclusively shown, from her own evidence, already quoted, that she was aware of and fully appreciated and understood the dangers to be apprehended from working the machine, and it is equally clear, and from the same source of information, that she was perfectly competent to discharge this duty of feeding the machine long before the accident occurred.

She had not, it is true, received any instructions as to its dangers from the defendant or his agents, as she says, but she had acquired the information, in fact, from the best of all teachers, that of practical experience. She knew, therefore, all that the instructions of the defendant would have imparted to her. "This was enough. Being of an age to appreciate and having full knowledge of the danger, and at the same time being competent to perform the duty demanded from her, the fact that she was a minor does not alter the general rule of law upon the subject of employees taking upon themselves the risks which are patent and incident to the employment. De Graff v. New York Central, etc., R. R., 76 N. Y., 125; Coombs v. New Bedford Co., 102 Mass,, 572 at 585; Sullivan v. Indian Mfg. Co., 113 Mass., 396-8; King v. R. R. Co., 9 Cush., 112.

The learned judge, in delivering the opinion at general term, while stating that the case was a border one, observes that “it may well be that there were methods of performing the duties which, if duly communicated to the plaintiff, would have avoided the risks of accident.” But tlie plaintiff, in her own evidence, says she was instructed as to the methods of performing the duties which she was placed there to discharge; it is only as to the dangers to be apprehended from the machine, which she says were never imparted to her.

There seems to be still another answer to this part of the plaintiff’s claim, and that is the injury did not occur on account of any act done or omitted on her part because of any want of knowledge or appreciation of the dangers of the machine.

She attempted to straighten out a “lap” in a collar, the further end of which was caught by the machine. Her hand was distant from the rollers the whole length of the the collar, and but for the unfortunate and not to be for-seen accident by which her finger was caught in the buttonhole and from which she could not extricate it in time, the plaintiff’s hand would not have been caught by the rollers. In the act of trying to straighten out this “lap” at the time she did, it is impossible to hold that such act was the least evidence of a lack of appreciation of or familiarity with the dangers of the machine, and it would have been error to submit such a proposition to a jury.

Prima facie it was a perfectly safe act, and would have so resulted but for this accident, which no human being would have thought as possible to occur, and it is not admissible, therefore, to say that the injury to the plaintiff arose from any lack of knowledge on her part, even though .she had received no instruction from the defendant.

Third. The third proposition is not borne out by the facts.

There is no evidence that the father of plaintiff knew that she was going to the defendant’s laundry when she first went, or that he knew the character of the service she performed there. It is plain from her own evidence that she went there to obtain employment such as the defendant or his agents might place her at, and she took her turn at this machine, as far as appears, willingly, and kept it safely for six weeks before she was injured. As there is no basis in fact for the plaintiff’s claim, it is unnecessary to discuss its correctness as a statement of the law.

These are the chief grounds made by plaintiff’s counsel for an affirmance of this judgment, and we have examined all that he has urged with very great care and attention. The case is a most important one certainly to plaintiff, who has without any fault of her own, sustained a most terrible and painful and permanent injury, and her case is one that appeals most strongly to the sympathies of every one. But we do not see how this judgment can stand without overthrowing well-settled and healthful principles of law.

We think the motion for a non-suit should have been granted, and for that reason the judgment is reversed and a new trial ordered, costs to abide event.

All concur except Ruger, Ch. J., and Dakforth, J., dissenting.


author: Rapallo, J.

text:
    Frances B. Wallace and John F. Phillips, Resp’ts, v. Robert H. Berdell et al., App’lts Magaret C. Wallace, as Exr’x, etc., Res’pt, v. Robert H. Berdell, et al., App’lts
    No. 1.

    No. 2.

      (Court of Appeals,

      Filed March 8, 1887.)

    1. Judgment—Restitution op property on reversal op.
    Action No. 2 was instituted after the execution had been issued in action No. 1, for the purpose of setting aside a conveyence of real estate by the judgment-debtor and was successful, and the land was bought in by plaintiffs and other creditors, for a sum sufficient to satisfy both judgments. Execution in action No 1 was discharged of record. On appeal No 2, was reversed, a new trial directed and restitution of the real estate-to C. B., the original grantee ordered, also of the value of the rents and profits. The land was restored, but the rents and profits have not been. An order having been granted requiring the clerk to take the attachment and execution in action No. 1 from the files and deliver them to the sheriff and cancel the satisfaction. Reid, no error, that the fact that the rents-had not been returned to 0. B., did not avail as to plaintiff’s rights against, defendant.
    2. Same—New trial.
    A new trial having been ordered, plaintiff should be restored to the same position which she held at the time of the first trial.
    3. Same.

      Reid, that the judgment by means of which satisfaction was obtained, having been reversed and the property sold under it ordered to be restored, the original attachment and execution were necessarily revived.
    Appeal from an order entered upon the decision of the general term, second department, affirming an order of the special term directing the county clerk of Orange county to» cancel the satisfaction entered upon his docket of the judgment against Eobert H. Berdell, in the action first above entitled, and to remove from the files and deliver to James W. Hoyt, late sheriff of Orange county, an attachment against the property ■ of Eobert H. Berdell, issued in the same action, and an execution issued on the same judgment, and-also directing the said Hoyt to cancel certain portions of his returns upon these papers and proceed to-enforce them.

      Alfred Taylor, for app’lts; Bacon & Merritt, for resp’ts.

       Affirming 41 Hun, 444; 1 N. Y. State Rep., 564.

   Rapallo, J.

In the first of the above entitled actions the-plaintiffs, composing the firm of Wallace & Phillips, recovered a judgment against Eobert H. Berdell for about $9,000, and issued execution thereon-. They had also issued an attachment in the action against the property of the defendant therein.

After the issue of the execution, Wallace & Phillips, instituted action No. 2 for the purpose of setting aside a conveyance of certain real estate which had been conveyed. by William H. Berdell, the judgment debtor, to his son, Charles P. Berdell, and for other relief. They succeeded in that action in the supreme court, and obtained a judgment directing the sale of the real estate for the satisfaction of the amount remaining unpaid upon the judgment of Wallace & Phillips, and that such judgment be declared to be a hen prior to all claim of Charles P. Berdell, and of Lizzie A. Berdell, in whose favor William H. Berdell had confessed a judgment, which was an apparent' hen upon the property. The sale was made accordingly, and the property was bought in by Wallace & Murray, for the benefit of the plaintiffs and other judgment creditors of Berdell, for a sum sufficient to satisfy the judgments. The purchasers entered into possession and retained such possession for several years.

The execution and attachment which had been issued in action No. 1 were returned satisfied, and an entry was •made on the. docket of the judgment in No 1, discharging it of record. Wallace and Phillips having both died, the action was continued in the name of the present plaintiff as executrix of Wallace, the last survivor.

On appeal to this court the judgment in action No. 2, under which the sale had been made, was reversed and a new trial ordered and restitution was afterward ordered to be made to Charles P. Berdell, of the real estate sold, and of the value of the rents and profits during the time the purchasers had been in possession. Restitution was accordingly made of the land, but the rents and profits have not yet been restored.

The present motion was for an order requiring the clerk of Orange county to take from the files in his office the attachment and execution in action No. 1, together with the returns thereto, and deliver them to the late sheriff of said county, and to cancel the record of the satisfaction of the judgment and the returns to said attachment and execution. The motion was granted at special term. The order was affirmed at general term, and this appeal is from such affirmance.

The principal objection made by the defendants to the order is that it was erroneous, in any view, to grant it before the rents were restored. In so far as the order affects the judgment debtor, Robert H. Berdell, by restoring the execution and attachment against him,this objection is not available. He has no interest, as the case now stands, in the rents and profits, and cannot claim that they should be applied in satisfaction of the judgment and execution against him, inasmuch as the purchaser is liable to refund them to Charles P. Berdell, and has been ordered by the court so to do. The plaintiff cannot be bound to credit them on the execution while they are subject to the enforcement of the order of restitution. As to the other defendants, the objection is that a new trial having been granted in action No. 2, they are entitled to insist that the execution has been satisfied, and, therefore, the plaintiff is not in a position to maintain a creditor’s bill. That point operates rather to support the order than to overthrow it. A new trial having been ordered the plaintiff should be restored to the same position which she held at the time of the first trial. If the judgment has been paid, the defendants are at liberty to prove that defense on the new trial, and the amount unpaid, should it become material, can be shown. Certainly Charles P. Berdell, the principal defendant, cannot insist upon the entry of satisfaction being retained on account of the rents collected, while he is pursuing the fund arising from those rents. It is claimed that all that was sold was the right, title and interest of Robert H. Berdell in the real estate sold. That there is no warranty on a sale under execution, and that the debtor is entitled to have the proceeds applied in satisfaction of the judgment, even though the title of the purchaser fails. That would be the case in an ordinary sale under execution where the judgment remained unreversed and restitution had not been ordered.

But in the present case the record which was before us on the appeal in action No. 2 showed that the sale was not on execution, but under the special decree or judgment in that case, and that it was a sale not merely of the right, title and interest of Robert H. Berdell, but of the real estate itself, free and discharged of all claim of Charles P. Berdell and the other defendants in the action. Under such a sale the purchaser would have a right to such a title as the judgment purported to authorize to be sold. The judgment, by means of which satisfaction was obtained, having been reversed and the property sold under it ordered to be restored, the original attachment and execution were necessarily removed, and the order appealed from was proper.

The order should be affirmed, with costs.

All concur. _


author: Per Curiam.

text:
    Mutual Life Ins, Company of New York, Resp’t, v. Henry C. Anthony, Impleaded with National Bank and Loan Co., App’lts.

      (Court of Appeals,

      Filed March 8, 1887.)

    Mortgage foreclosure—Surplus proceeding—Appeal.
    An appeal cannot be had from an order of the general term setting aside the report of a referee appointed to take proofs in a surplus proceeding and ordering a new hearing to he taken before another referee

      John Lansing, for app’lt; Elon B. Brown, for resp’t.
   Per Curiam.

This action was commenced to foreclose a mortgage, and it proceeded to judgment and sale thereunder. The sale produced a surplus, after satisfying the mortgage and several undisputed hens upon the land. The defendants, Henry C. Anthony and the National Bank and Loan Company, as judgment creditors of the mortgagor, presented claims to this surplus, each claiming priority over the other. The court at special term appointed a referee to take proofs and determine as to the claims to the surplus; and he, after hearing the claimants, made a report, in which he found that the National Bank and Loan Company was entitled to the surplus. This report was confirmed by the special term, and Henry C. Anthony, the other claimant, appealed from the order of the special term to the general term, where that order was reversed and set aside, and a new hearing was ordered before another referee, to be appointed by the special term, with ten dollars costs and disbursements, to be paid by the National Bank and Loan Company to Henry 0. Anthony. From this order of the general term the National Bank and Loan Company has brought this appeal.

We are of opinion that the appeal to this court is unauthorized, and should be dismissed. If the inquiry into the right to the surplus be regarded as a special proceeding, then the order of the general term is not final, and hence not appealable to this court. Code, § 190, subd. 3. If the inquiry is to be regarded as one made for the information of the court under section 1015 of the Code, then, even if the order of the general term affected a substantial right, it is not a final order, and, therefore, not appealable to this court. If the reference was ordered under that section to obtain information for the court, then if the court was not satisfied with the investigation and report made by the referee, it could, in the exercise of its discretion, set aside the report and vacate the order of reference, and order a further hearing before another referee; and in this view its order was discretionary, and not appealable to this court.

Under the order of the general term a new referee should be appointed, and a new hearing had before him, and if either party shall then be dissatisfied with his report, or any final order made by the supreme court thereon, an appeal may be brought to this court.

The appeal should be dismissed, with costs.

All concur, except Peckham, J., not sitting.