author: O Brien, J.

text:
    The People, Resp’ts, v. Frank W. Clark, App’lt

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Criminal law—Second offense—Evidence.
    Upon the trial of an indictment for a second offense of forgery, a clerk of the court was called for the purpose of proving the former .conviction from the court records, which showed that two indictments against defendant on the same day had been filed, and that on one only had he been found guilty and convicted. Held, that it was not error for the clerk to state that two indictments had been filed, in answer to the question what the records showed, no objection having been made, exception taken, or motion made to strike out by defendant.

      2. Same.
    Where a conviction is sought on either of two counts of an indictment, evidence which is competent to prove the offense charged in one count is admissible, even if incompetent to prove the offense charged in the second.
    Appeal from a judgment of the court of general sessions of the peace, in and for the city and county of New York, entered upon the verdict of a jury finding the defendant guilty of the crime of forgery in the second degree as a second offense.

      Frank J. Kellar, for app’lt; De Lancey Nicoll (Henry B. B. Stapler, of counsel), for the People.
   O Brien, J.

The indictment contained two counts: the first tor having forged a check, and the second count for uttering the forged paper. The defendant was convicted upon the first count, and the grounds sought to be made available to reverse the judgment of conviction relate to alleged errors in the admission of evidence, and in certain statements made by the learned judge in his charge. The prosecution, upon the trial, showed that the defendant had previously been convicted of the crime of forgery on the indictment admitted in evidence, to which he had pleaded guilty, and upon which the judgment of the court was pronounced against the defendant, and that, in pursuance thereof, he was sent to the New York state reformatory. For the purpose of proving the former indictment and conviction, which was essential to sustain the first count of forgery for a second offense the records of the court were introduced, and, with the minutes of the court in his possession, the witness (a clerk thereof), testified that they showed, with respect to the first offense sought to be proved, that two indictments on the same day had been filed, to one of which the defendant pleaded not guilty, which plea was subsequently withdrawn, and the plea of guilty substituted by leave of the court, upon which judgment was pronounced, and the defendant sent to the state reformatory. This statement that two indictments were found on the same day is claimed to have been error, because on one indictment alone was he found guilty and sentenced. The objection, however, we think untenable, for the reason that the clerk was simply stating from the records, which were competent and admissible in evidence, undoubtedly, in answer to a question as to what they showed ; and at the time the statement was given no objection was made or exception taken, and no "motion afterwards made to strike it out. Nor can we see how it in any way prejudiced the prisoner. In addition to establishing the fact that the defendant was convicted of a former offense of forgery, the People offered evidence tending to prove that the defendant forged or uttered the forged paper for which he was then on trial. For this purpose, testimony was introduced of one of the officers of the National Exchange Bank to whom the check purporting to have been drawn by F.W. Kinsman & Co.,to the order of Frank du Bois, and indorsed with the latter name, was presented by the prisoner, who gave the name of Frank du Bois, and •deposited the check with the bank for the purpose of opening an account therewith. That this check was a forgery was abundantly proved. But in support of the two counts of the indictment as to whether or not the prisoner was guilty of having committed the forgery, or of uttering the forged paper, most of the testimony objected to was given. This testimony consisted of a number "of other checks, which were introduced by the prosecution, and admitted in evidence for the purpose of comparison of handwriting, the witnesses testifying that such checks were written in their presence by the prisoner, and delivered by him. These were objected to upon the ground of being immaterial, irrelevant and incompetent. Having regard to the form of the objection, if these were in any aspect material, relevant, and competent, then the objection falls, and the exception is of no avail. We think that these other checks which the witnesses had seen the prisoner sign were competent, not only for the purpose, as stated by the court, as evidence to go to the jury of the defendant’s personal presence at the various times and places mentioned by the witnesses, in rebuttal of his defense of an alibi, but that they were competent, in addition, upon the question of handwriting, and also upon the second count of the indictment, which charged the prisoner with having uttered a forged check.

It must be remembered that the People were endeavoring to prove one or both counts of the indictment, and, when the testimony was all in, the court presented the question as to whether the defendant was guilty of either of the two counts. Though we should, therefore, take the distinction which the appellant seeks to make as to the scope and effect of the case of People v. Everhardt, 104 N. Y., 591; 5 St. Rep., 793, as permitting the introduction of other forged checks for the purpose of showing guilty knowledge only in cases where the defendant is accused of uttering forged paper, but not in a case of forgery itself, he would not derive much comfort therefrom, because the People were engaged in establishing both counts of the indictment, and if this evidence was competent to establish either count, the objection thereto would not lie. Nor do we think there is any more force in the other objection made, that other exhibits which were introduced for the purpose of comparison of handwriting were incompetent, because whatever may have been the law formerly, by chapter 36 of the Laws of 1880, as amended by chapter 555 of the Laws of 1888, it is provided that “ comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed on the trial to have made or executed the disputed instrument or writing shall be permitted, and submitted to the court and jury in like manner.’’ McKay v. Lasher, 121 N. Y., 482 ; 31 St. Rep., 690; People v. Smith, 121 N. Y, 578 ; 31 St. Rep., 844.

Other errors claimed relate to certain statements made by the learned judge in his charge to the jury. No exception, however, was taken to the charge, or any portion of it; nor do we think, had there been, that there was any error in the charge, taking the remarks complained of in connection with the context and the subject to which they were directed. It will not do in a case to take an entire charge and pick therefrom isolated sentences, and, without having in any way excepted or called the judge’s attention to the subject, seek, by thus taking them out and disconnecting them from the other portions of the charge, after the trial and conviction of a prisoner, to make such available for the purpose of securing a -reversal; and it is only in cases where it can be clearly seen that the statements themselves were erroneous statements of law, and directly tended to prejudice the prisoner, that this court is called upon at all to consider them.

Upon the entire evidence, we have no question of the soundness of the verdict as to the prisoner’s guilt. It was proved in as satisfactory and as conclusive a manner as such a crime can be proven, and the attempt to establish an alibi, we think, was fairly and successfully assailed by the witnesses produced by the People. Under such circumstances, we have for our guide that section of the Criminal Code, § 542. which provides that, “ after hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” Upon this record there can be no doubt of the defendant’s guilt, and with this conviction forced upon us by our examination, in our judgment, there is not a single exception available excepit one. That relates to the admission of a question asked the witness Johnson, as to whether the check which he testified the defendant had handed to him at the time had written upon it the words, “ No account,’’ together with certain figures in pinkish ink. The objection to this question, w'e think, was good because it was entirely immaterial and irrelevant, and, were it not for the overwhelming evidence in the case, could not be held to be entirely harmless. We do not believe, however, that the answer to this one question in any way affected the substantial rights of the prisoner, and, therefore, we think that to disregard this technical error or defect is in consonance, under the facts as here proven, with justice, and complies with the provisions of the Code requiring us to give judgment notwithstanding such technical errors provided the substantial rights of the prisoner are not affected. We think that the judgment of conviction was right, and that it should be affirmed.

Van Brunt, P. J., and Lawrence, J., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    The Jewelers’ Mercantile Agency, Limited, Resp’t, v. The Jewelers’ Weekly Publishing Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Bill of particulars—Fraudulent appropriation of information.
    A mercantile agency brought an action to restrain defendants from publishing information alleged to have been taken from plaintiff’s confidential . sheets and reports; the complaint specifically stated from what source the information claimed to have been purloined by defendants was taken, its character, and how and where the defendants were publishing it.-Defendants made a motion to compel plaintiff to furnish a bill of particulars specifying in detail all of the information alleged to have been appropriated. Held, that the motion was properly denied, as it would disclose plaintiff's evidence, and the particulars, when put in evidence, could not surprise defendant.
    Appeal from order denying motion for a bill of particulars. Leopold Sondheim, for app’lts; Henry K Howland, for resp’t.
   O’Brien, J.

The action is brought by the plaintiff to restrain and enjoin the defendants from appropriating, printing, publishing, or issuing in any way, or for any purpose whatever, information contained in plaintiff’s reference books, weekly correction sheets and reports. The plaintiff carries on the business of a jewelers’ mercantile agency, which consists in obtaining from various sources information as to the places of business, business addresses, details of the business, commercial standing and credit of individuals, firms and corporations engaged in the jewelry trade throughout the country, and in furnishing such information confidentially for the use of subscribers. The defendant, the Jewelers’ Weekly Publishing Company, is a corporation engaged m printing and circulating a weekly publication called “The Jewelers’ Weekly.” In addition to such weekly, the defendant corporation publishes and sells a directory called “A Complete Directory of the Jewelry Trade.”

Plaintiff’s grievance upon which it relies for the relief demanded is that the defendant corporation has appropriated and used, and is continuing to appropriate and use, in violation of plaintiff’s rights, and greatly to its damage, information wrongfully and unlawfully taken from the plaintiff’s reference books, and from the confidential sheets and reports, and publishing and circulating such information in the form of “ A Complete Directory of the Jewelry Trade.” The motion made by the defendants was to compel the plaintiff to furnish a bill of particulars specifying in detail all of the information alleged to have been appropriated and used by the defendant corporation. This motion was denied, and, we think properly so. The defendants fail to apprehend the office of a bill of particulars under our practice. It was never intended by it to furnish to an adversary the evidence which a party might have to prove his claim. The purpose was to limit and define the charges or issuable fact, which an adversary would have to meet, with a view to preventing surprise upon the trial. The theory upon which the bill of particulars here was sought was that it would be necessary for the plaintiff, in order to sustain its cause of action, to prove the errors which, appearing in the plaintiff’s books and proofs, likewise appeared in the defendant’s directory, and which would be available to plaintiff as evidence tending to show the appropriation by defendant as alleged. It should be remembered, however, that pointing out such errors is but evidence to sustain the allegations of the complaint, and it would not be either necessary or essential to maintain plaintiff’s cause of action to point out many such errors. If the plaintiff can show by the evidence of those who copied from the plaintiff’s books, or from witnesses who saw others copying from plaintiff’s books, then resort to the similarity between the two books would be unnecessary; nor would it be essential, to establish the plaintiff’s cause of action, to point out similarity in errors existing in the respective publications of the parties. There is no indefiniteness or uncertainty about the charge made, and to maintain its action the plaintiff must establish the wrongful taking of the information alleged against the defendant. The issuable fact between the parties is not whether errors which appear in the plaintiff’s books appear likewise in the defendant’s publication ; the question at issue is whether the defendant has wrongfully taken and circulated information which belonged exclusively to the plaintiff. This the plaintiff is at liberty to establish, either by pointing out the errors which have been copied from plaintiff’s into the defendant’s publication, or by any other competent proof, and we think sufficient has been said on this point to show that these are not particulars of any claim that is made, but are to be resorted to as evidence by the plaintiff to prove its case against the defendants.

The cases of Newell v. Butler, 38 Hun, 104, and Ball v. Publishing Co., Id. 11, we think, point out the true ground upon which the granting or denial of a motion of this kind should be placed. As said in the former case, Newell v. Butler : “ Where the original pleading itself states the proposition or facts relied upon so specifically and particularly that to require the party pleading to give further information in reference thereto would he to force him to disclose the evidence which he expects to produce to support them, a bill of particulars is uncalled for.” And in Ball v. Publishing Co.: “I think it may be laid down as the result of

the adjudications on the subject that the only proper office of a bill of particulars is to give information of the specific proposition for which the pleader contends in respect to any natuaal and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition.” To summarize, therefore, we think that the charge made against the defendant is sufficiently explicit; that the complaint itself specifically states from what source the information claimed to have been purloined by the defendant is taken, its character, and how and where the defendant is publishing it. The effect of requiring the plaintiff to specify the particular information which the defendant is charged with having taken and published in the directory would be to compel plaintiff to disclose the evidence upon which, in part or in whole, it may rely upon the trial. In a case like this, where the charge is distinctly made which the plaintiff is obliged to establish, if upon the trial the plaintiff can prove that the defendant has appropriated its information, it would necessarily follow that no surprise could result to defendant, because such proof should be possible only from the fact that the defendant had been engaged in doing the very thing with which it is charged by the plaintiff.

We are of opinion, therefore, that the order should be affirmed, with costs and disbursements.

Van Brunt, P. J., concurs.


author: Van Brunt, P. J. O’Brien, J.

text:
    George F. Lough et al., Resp’ts, v. A. Emilius Outerbridge et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Carriers—Discrimination—Injunction.
    In proceedings to obtain an injunction, it appeared that the freight rate of the defendant steamship company of forty cents per barrel between certain places was reasonable; that a steamer called “E.” was able, by reason of certain concessions from the government, to carry freight between the same places for thirty cents per barrel, and that defendant, in order to compete with “E.,” offered to carry freight during the week on which “E.” sailed, for twenty-five cents per barrel, providing the shippers would stipulate to give defendant their exclusive shipments during such week. Defendant refused to take plaintiffs’ freight at twenty-five cents unless they would make the stipulation, and plaintiffs obtained an injunction restraining defendant from exacting the same. Held, that it was error to grant the injunction, the defendant having offered the same terms to all shippers.
    Appeal from an order continuing a preliminary injunction in an action to restrain the Quebec Steamship Company and A. _E. Outerbridge & Company, its agents, from exacting from plaintiffs a greater rate of freight than twenty-five cents per barrel upon about 1,700 barrels of merchandise to be transported from New York to Barbadoes.

      Butler, Stillman & Hubbard (Wilhelmus Mynderse, of counsel), for appl’t; Evarts, Choate & Beaman, (Henry W. Hardon and Tread well Cleveland, of counsel), for resp’ts.
   Van Brunt, P. J.

The Quebec Steamship Company is a foreign corporation, and the firm of Outerbridge & Co., the other defendants, have for several years been its agents in New York. This company has for many years been engaged in trading between New York and the Windward islands, and has maintained a fleet of steamers engaged in the transportation of passengers and merchandise, sailing periodically. Up to December, 1891, the standard rate of freight to Barbadoes was on a basis of fifty cents per dry barrel; at which time the standard rate of freight was reduced to forty cents, which rate the defendants claim is fair and just, and affords but a bare subsistence to the steamers engaged in that traffic. This rate has ever since been maintained upon all sailings and for all shippers, except as hereinafter stated. The plaintiffs were engaged in the export business to the Windward islands to a considerable extent, and claim that from time to time they have been obliged to and have chartered steamers not belonging to the defendants to transport merchandise to their correspondents in the Windward islands, and that such employment has interfered with the monopoly which the defendants have hitherto enjoyed. The defendants, upon the other hand, claim that the plaintiffs did not transport any cargo by ship under charter to them, but that a steamer called the “ El Callao,” engaged in trade between New York and Venezuela, making sailings at intervals of about five weeks, under concessions from the Venezuelan government, which concessions enabled her to maintain the service between New York and Venezuela, offered herself for cargo, and has received and carried cargo, from New York to Barbadoes; that her sailings have been regularly advertised to the trade by the agents of the steamship in New York, who were not the plaintiffs ; that said steamer El Callao was seldom full of cargo which she had to carry between New York and Venezuela, and as, in the regular course of her voyage, she ran near Barbadoes, she was able to carry as freight to Barbadoes, in spaces which would otherwise have been empty, merchandise at rates at which vessels engaged in the regular trade to the Windward islands could not maintain themselves; that the defendant company accordingly, when one of its steamers has sailed from New York at the same time with El Callao, offered in trade competition, with and for the purpose of retaining custom which had been built up by them, to carry freight at the rate of twenty-five cents per barrel for shippers who would give their shipments for that week exclusively to the ship of the defendant company in preference to the El Callao ; and that the rate of thirty cents fixed by the El Callao is one upon which vessels engaged in the regular trade could not maintain themselves. The defendants having refused to receive freight from the plaintiffs at a less rate than forty cents per barrel at the time they were shipping by the El Callao, and having of-fered to take freight at the rate of twenty-five cents, provided they would stipulate not to ship to Barbadoes by steamers other than those of the defendants, the plaintiffs brought this action for an injunction restraining them from exacting from the plaintiffs, for the transportation of some 1,700 barrels by a particular steamer, a greater rate of freight than twenty-five cents per barrel, without further conditions. The plaintiffs obtained a preliminary injunction, which was made permanent, and from the order thereupon entered this appeal was taken.

We do not think this preliminary order should have been granted, as the plaintiffs did not present a case entitling them to relief in a court of equity. It is claimed upon the part of the plaintiffs that they would have suffered irreparable damage were an injunction not issued. It is difficult to see how the impossibility of obtaining redress exists, in view of the fact that, if improper rates of freight were charged and paid by them, the excess might have been recovered in a proper action brought for that purpose. But, further, we are unable to see that any unjust discrimination has been made by the defendants against the plaintiffs. They have offered to the plaintiffs precisely the same terms which they have done to everybody else ; and we have not been able to find any rule obtaining in the case of simple common carriers which prevents them from protecting themselves against their rivals or competitors in trade, so long as substantially the same terms are offered to all. The mere fact that it may be more inconvenient to one to accept the terms than to others does not constitute discrimination. The plaintiffs are studying entirely their own interests, and the defendants have some right to protect theirs.

A large number of authorities have been cited by the counsel for the respondents to support the proposition that a common carrier is bound to accept all freight offered to it, at the same rates and with the same facilities. But an examination of those cases will show, with but one or two exceptions, that the common carrier was a corporation which had exercised the right of eminent domain, and had thereby become a public servant which had exercised the highest right known to the law for the purpose of affording facilities for the transportation of freight; and that, therefore, ithad no right to refuse or to make any terms or conditions in respect to transportation, except fixing the rate of freight, and if this rate discriminated, then they were not performing the public functions for the performance of which they had been allowed to exercise these extraordinary powers. Such stringency of rule does not obtain wheré no such rights have been exercised. Hence there is a manifest distinction between the duties to the public of that character of common carriers who have exercised the right of eminent domain because of their undertaking, and those who have not had conferred upon them any such powers. In the case at bar the defendants are ordinary common earners. They have offered ■to treat the plaintiffs upon precisely the same footing as the other shippers who-were their customers, and, therefore, there is no discrimination.

If any .authority is needed to support what seems to be a self-evident proposition, the case of Steamship Go. v. McGregor, L. B., 21 Q. B. Div., 544, is one singularly in point, notwithstanding the claim upon the part of the respondent that the case at bar and the case cited have nothing in common. It seems to us that the principle which controlled that case was precisely the question which is involved in the case at bar. It is urged upon the part of the respondents that the English case was an action for conspiracy brought by one steamship company against others, alleging an unlawful combination to ruin the plaintiffs’ business, and that, in sustaining the judgment for the defendants entered by direction of the court, the appellate court decided merely that an unlawful conspiracy was not made out. And why ? Simply because no element of unlawfulness was found in the combination which was established. How, what was that combination ? It appears that the plaintiffs were a company of shipowners, trading between Australia and England, taking China by the way, and desirous of participating in the benefits of the transportation of tea during what is termed the “ tea harvest.” The defendants were a number of shipping companies and private partnerships, trading for the most part between England and China, and who, being desirous of keeping this valuable trade in their own hands, to prevent if they could the ruinous lowering of freight, which they contended would follow from absolutely unrestricted competition, entered into what they called a “ conference ” for the purpose of working the China tea trade, by offering a rebate of five per cent, upon all freights .paid by shippers to the conference vessels, such rebate not to be paid to any shipper who shipped tea in any vessels but those belonging to the conference. The plaintiffs in that action thereupon commenced the same, alleging a conspiracy to ruin their trade, to recover the damages alleged to have been sustained. It was held that, there being no element of unlawfulness in the combination mentioned, the action would not lie, and that the defendants had a right to combine with a view of keeping the trade in their own hands, such combination not being entered into with the intention of ruining the trade of the plaintiffs, nor through personal malice or ill-will towards them. It would seem, therefore, that a simple common carrier has the right to adopt such rules as are necessary to protect its trade, so long as those rules apply to all, and do not discriminate. The order should be reversed, with ten dollars costs and disbursements, and the motion for injunction denied, with ten dollars costs.

O’Brien, J.

I concur in the result, but think that the court’s right t.o interfere is not dependent upon the question whether the corporation sought to be enjoined has received any franchise or authority from the state. As stated in Menacho v. Ward, 27 Fed. Rep., 533, it is “ not alone because the business of common carriers is so largely controlled by corporations exercising under franchises the privileges which are held in trust for the public benefit that the courts have so strenuously resisted their attempts, by special contracts or unfair preferences, to discriminate between those whom it is their duty to serve impartially.”

This case, which is relied upon in the court below, I think, upon examination, will be found to support the conclusion arrived at by the presiding justice. The obligation upon a common carrier is well stated by Wallace, J., in that case as follows (at page 582): “ These decisions- proceed upon the ground that the carrier is entitled to take into consideration the question of his own profits and interests in determining what charges are reasonable. He may be able to carry a large quantity of goods, under some circumstances, at no greater expense than would be required to carry a smaller quantity. His fair compensation for carrying the smaller quantity might not be correctly measured by the rate per pound, per bushel, or per mile charged for the larger. If he is assured of regular shipments at given times, he may be able to make more economical arrangements for transportation. By extending special inducements to the public for patronage, he may be able to increase his business, without a corresponding increase of capital or expense in transacting it, and thus derive a larger profit. He is, therefore, justified in making discriminations by a scale of rates having reference to a standard of fair remuneration of all who patronize him. But it is impossible to maintain that any analogy exists between, a discrimination based upon the quantity of business furnished by different classes of shippers and one which altogether ignores this consideration, and has no relation to the profits or compensation which the carrier ought to derive for a given quantum of service.”

In this case it is not disputed but that the rate fixed by the defendants, and which they ask the plaintiffs to pay, is a fair and reasonable rate for the services to be rendered, and the fact that they have made, or propose to make, with one individual what is less than the fair and reasonable rate for the service is no reason why a court of equity should take out of the hands of the carriers the power to regulate their business, and to receive from those asking for the service such fair and reasonable rate as they have established, and require all to pay equally alike. I think the reasoning in the case of Steamship Co. v. McGregor, referred to by the presiding justice, is conclusive, upon the question presented by this appeal, in favor of the view contended for by appellants.


author:
Van Brunt, P. J. O’Brien, J.
     Patterson, J.

text:
    William K. Beard, App’lt, v. Sidell Tilghman et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Pleading—Amendment on trial to conform to proof.
    The court has no power at the close of a case to conform the affirmative allegations in the answer to the proof, where the evidence at the time it was offered, to which the allegations in the answer were made to conform, was objected to, and admitted under exception.

      2. Same—Inconsistent defenses—Evidence.
    A complaint alleged that the bonds in question were deposited with defendants to secure an antecedent debt upon a certain date; the allegation

      was not denied by the answer, but an affirmative defense set up which was inconsistent with it. Held, that' no evidence in support of such defense could be admitted.
    (Patterson, J., dissents.)
    Appeal from a judgment for defendants entered on a direction of a verdict by order of the court at circuit, on the conclusion of the whole evidence.

      Arnoux, Ritch & Woodford (Wm. H. Arnoux and E. M. Grout, of counsel), for app’lt; Charles N. Morgan, for resp’ts.
   Van Brunt, P. J.

I cannot agree with the conclusion arrived at by Mr. Justice Patterson in this case. The court had no power at the close of the case to conform the affirmative allegations in the answer to the proof, for the reason that the evidence at the time it was offered, to which the allegations in the answer were made to conform, was objected to, and admitted under exception. Under these circumstances, the court had no power to conform the pleadings to the proof, because the party whose objection had been overruled had a right to rely upon his exception, and the rights which such exception gave to him could not be taken away by the device of conforming the allegations of the pleadings to the proof offered, such exception having been well taken at the time the proof was offered. If any amendment to the pleadings was necessary, it should have been made prior to the introduction of the evidence if the evidence was objected to, and, for the reasons stated, it is apparent that such a motion could not be made, under such circumstances, at the close of the case.

There is another error which was committed during the progress of this trial, and which is fatal to the judgment. The allegation in the complaint is that the deposit of the bonds in question took place on or about the 10th of October, 1886, to secure an antecedent debt. This allegation is not denied in the answer. It is true that the answer sets up new matter, or an affirmative defense, which is inconsistent with this allegation in the complaint. But it is a well-settled rule of pleading that no proof can be admitted in support of new matter contained in the answer which is inconsistent with an allegation in the complaint which is not denied in other words, a party cannot be permitted, after admitting a fact, to offer evidence to controvert it. This rule is illustrated in the case of Fleischmann v. Stern, 90 N. Y., 110. In that case the action was brought upon a promissory note payable to the order of the defendant, and indorsed by him, and the complaint, after setting forth the note, alleged that it was indorsed to the plaintiff before maturity by the defendant in payment of an indebtedness. The answer did not deny any of the allegations of the complaint, but alleged that the note was made for accommodation, and was indorsed to plaintiff upon a usurious agreement, and demanded a dismissal of the complaint. Held, that the answer did not put the averments of the complaint in issue; and as by § 522 of the Code every, material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true, the defendant was not at liberty to deny the facts constituting the cause of action stated in the complaint, or to prove any state of facts inconsistent therewith; and that the omission to deny was equivalent to a formal admission of the truth of the averments, and was conclusive as such. Mow, in the case at bar, the affirmative defense depends upon the fact of the deposit of these bonds with the defendants in February, 1882, whereas the admission in the pleadings is that they were deposited on or about the 1st of October, 1886. The evidence therefore was clearly incompetent, and, under the pleadings as they existed during this trial, the defendants could not be permitted to show a different state of facts from that which was admitted by their failure to deny this allegation of the complaint. As far as this condition of the pleadings was concerned, there was no attempt at amendment. The motion to conform the pleadings to the proof related to the affirmative allegation in the answer only. I think there was fatal error, and that a new trial should be granted, with costs to appellant to abide event

O’Brien, J.

Fleischmann v. Stern, 90 N. Y., 110, is authority for the proposition that an affirmative defense, though inconsistent with the allegation of the complaint, when not coupled or accompanied by a denial of such allegation, raises no issue. When the objection was first taken to the admission of transactions prior to 1886, upon the ground that such year was the one admitted by the failure to deny, the counsel for defendants saw their position, and made a motion to amend the answer, which was denied. This left the issues as the parties had made them by the pleadings, and, as there was an admission, by the failure to deny, that the bonds were delivered as collateral security in 1886, it was error to permit evidence of transaction in 1882, and plaintiff's objection thereto and exception were good. Conforming the pleadings to the proof, which was done by the court on its own motion, was expressly limited to the affirmative defense. This in no way affected or cured the error committed in allowing evidence contrary to the facts admitted by the pleadings. I, therefore, concur with the presiding justice.

Patterson, J.

(dissenting).—The appeal in this cause is from a judgment entered upon the verdict of a jury directed by the court at circuit. On the trial it appeared that the plaintiff was the assignee of the administrator of one Samuel Gr. Jones, who in 1883 was the owner of ten negotiable bonds issued, by the city of Pensacola, in the state of Florida, and which bonds the said Jones in his lifetime had pledged to one Henry H. Walker as collateral security for a loan made by Walker thereon. While these bonds were thus in possession of Walker, they were delivered by him to the defendants’ firm as margin for a speculative account Walker had with that firm in the purchase^nd sale of stocks and other securities. On the 1st of October, 1886, Walker was indebted to the defendants in a certain sum, and on the 30th of December, 1889, the plaintiff tendered to the defendants the sum which they alleged was due by Samnel Gr. Jones, deceased, to Walker, and ■demanded the return of the bonds and certain coupons connected with such bonds, and the defendants refused to accept the amount tendered, and interest, or to return or deliver the bonds and coupons. The action was brought for the alleged conversion of these bonds and coupons.

The defendants in their answer admit the tender and demand. They deny the allegations respecting the ownership of the bonds by Samuel Gr. Jones, and the relations claimed to have existed between Samuel Gr. Jones and Henry H. Walker with respect to such bonds, and the amount of the alleged indebtedness of Jones to Walker. But they technically admit, by failing to deny, that the bonds, on or about the 1st day of October, 1886, were transferred or delivered by Walker to them as security, without the knowledge or consent of Jones, the owner thereof. They, however, set up affirmatively, as a distinct defense, that in the year 1882 the defendants, then being bankers and brokers in the city of Hew York, in the course of business advanced and loaned to Henry H. Walker certain sums of money, and received from him, to be held as collateral security for the repayment of sums so loaned, the bonds in question and other securities, and that they had no notice, knowledge, or information as to who was the lawful owner or holder thereof, and that, when they received notification that the bonds did not belong to the plaintiff, there was still a balance due from Walker on account of the loan made to him, and that there was still at the time that the answer was interposed an amount due them largely in excess of the aggregate market value of all the securities held by them, including said bonds. At the trial it appeared in evidence that the bonds in question were delivered by Walker to the defendants as margin on a general account Walker had with them, and upon which there was an apparent balance against him at'the time of the delivery of the bonds in a very large sum, exceeding the value of all the securities they held as collateral, and that this speculative account was continued, for several years after 1882, and' that these bonds were continuously held during the whole currency of that account. The date of the deposit of these bonds becomes important in view of one of the questions arising upon the appeal. The learned justice at the trial permitted the defendants to show, notwithstanding the condition of the answer, that these bonds were not transferred and delivered to the defendants on or about the 1st day of October, 1886, but in the year 1882, and that they were held as margin on a general account extending from and before December, 1882, and continuing until the action was brought. It is claimed that, under the condition of the pleadings, it was error on the part of the learned judge to allow this evidence to be given, but it is quite apparent that on the rulings made the whole case was put before the jury on the affirmative defense set up in the answer, and that there was no surprise caused to the plaintiff, for the particular defense was plainly stated and indicated in the answer, and after all the evidence was in an amendment was allowed to conform the answer to the proofs; and, therefore, we think that there was no such error in the ruling of the court in this regard as would compel a reversal of the judgment on the ground claimed. The case of Fleischmann v. Stern, 90 N. Y., 110, we do not regard as controlling this under its special circumstances, and in view of what was done at the trial.

This brings us to the consideration of the substantial question of law presented by the record. On the entire proof, the learned j udge at circuit directed a verdict for the defendants, holding that they acquired a good title to the bonds as against Walker and the plaintiff, and that there was nothing to go to the jury under the issues as framed by the pleadings when conformed to the proofs. With reference to this aspect of the case, it is strenuously urged by the appellant that the defendants, under the pleadings and proofs, are not bona fide holders of the securities, the subject of this action. These are bonds virtually payable to bearer, and it is claimed by the appellant that their use in the particular transaction under consideration is controlled by the general principles of law relating to the diversion of negotiable paper, ana that the defendants could acquire no other or different rights than would have been acquired by them had promissory notes been given them as collateral. We may assume, for the purposes of this appeal, that these bonds are to be treated as negotiable paper would be, and that a pledge of them as security for an antecedent debt of Walker to the defendants would not be valid as against the real owner, except to the extent of an advance actually made at the time of the deposit. But we do not consider, in view of the nature of the transaction had between the defendants and Walker respecting these bonds, that they were pledged for an antecedent indebtedness in the manner or under circumstances that would render applicable the rule respecting diverted paper. It fully appeared that there was a current, unadjusted account of Walker with the defendants, and that it was the ordinary account of a customer with his brokers, who bought and carried for him securities upon margin. There was no liquidated, fixed, or presently enforceable indebtedness at all. It was a transaction not completed, and by which the defendants were bound to carry the account until default was made by Walker in placing with the defendants such money or securities by way of margin as they were entitled to demand. They applied to him for more margin, and- the result of his depositing the securities with them under such circumstances was precisely the same as if they had been originally deposited in the transactions, or for the account which they were carrying, and when this deposit was made the defendants bound themselves to the continuance of the account They could not sell any of the stocks they had bought for Walker, and a consideration sufficient to support the pledge was furnished in their maintaining the account for him. We think the learned judge in the court below was entirely right in his characterization of these transactions as not being ordinary loans, and that “ the plain object of the transaction was to secure the defendants, and to enable Walker to continue his speculative account without submitting to the loss which would result to him had his stocks been sold on a declining market for the want of a sufficient margin.” We must take into consideration the nature of the general account which existed between the defendants and Walker, and, so doing, it cannot in any just sense be said that these negotiable bonds were given as security for. an antecedent debt, but they were furnished to be used as general security on transactions which, although they had originated before the bonds were thus given as security, nevertheless had not reached a point at which an enforceable indebtedness had accrued absolutely, but only one which would have accrued after selling the securities or stocks carried, had Walker failed to furnish money, or otherwise provide margin for the continuance of the account.

It is contended, however, further by the appelant that, even if they did assume the obligation to further carry Walker’s speculative account by receiving the bonds in suit, they were only holders for value to the extent of the liability which they actually incurred at that time by such obligation to hold the securities, and not for any liability arising out of their subsequent transactions. But here again we must have regard to the nature of the transactions had between the defendants and Walker. The bonds in question were not pledged as collateral for any one particular item, but for the whole general account That is distinctly testified to by Mr. Tilghman. It is true that Mr. Walker testified that they were given for no other purpose than as additional security for a loan which he then had with the firm, and upon which they held other securities as collateral. But it is apparent from the account and the transactions themselves that these particular bonds, with other securities, were intended to cover all the transactions that entered into the speculative account at the time they were given, and the pledge was intended as security for whatever transactions might be had under that general account, and the advances made by the brokers on such subsequent transactions, and until they were notified of the real ownership, were on the faith of the pledge of such securities, and, under the peculiar and exceptional situation of the parties, such advances as were made from time to time until the notification referred to was given must be regarded as having been specifically made upon the faith of the pledge. On the whole evidence we are of opinion that the direction of the verdict was correct, and that the judgment should be affirmed, with costs.

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


author: White, J.

text:
    Bridget Keenan et al., Adm’rs, Resp’ts, v. The New York, Lake Erie & Western Railrod Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    1. Master and servant—Negligence.
    A master cannot be held responsible for an injury to his servant, sustained in a place not contemplated, provided or designated by him as a place to work in, no matter throu-jh whose negligence, on the ground that he has failed to furnish a safe place in which to work.
    2. Same.
    The defense that the foreman directed the servant to go to such a place cannot prevail where there is no evidence to show that the foreman was vested with any authority to change or interfere with the work place.
    3. Same.
    Where a sérvant is as well informed as the master concerning the dangerous character of the work and voluntarily proceeds with it, he cannot hold the master responsible for the consequences.
    This is an appeal by the defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      E. C. Sprague, for app’lt; George W. Cothran, for resp’t.
   White, J.

In August, 1889, the plaintiff’s intestate was employed by the defendant as a car repairer in its yards in Buffalo. Three tracks ran parallel and contiguous to each other in those yards; one of them, known as No. 8, was used exclusively for storing crippled cars until such time as the workmen were ready to repair them, when they were transferred from track No. 8 to one of the other two tracks, which were known as Nos. 2 and 21, and the two last named were the only tracks on which any work in the way of repairs was done.

Track No. 8 was open only at its easterly end, and crippled cars were being continuously thrown in upon and taken from that track, without notice or warning being given to any one, and no precautions were taken by the defendant to prevent accidents of the character of the one in question. From five to nine hundred men were employed in the yards.

Workmen on tracks Nos. 2 and 21 protected themselves by flags, and no cars were moved on either of these tracks without notice to the workmen engaged in repairing cars upon them.

Robert Gunn was the superintendent in charge and control of all the business in the yards, and he had an assistant named O’Day. The workmen were divided into gangs, with a foreman for each gang, .who superintended their work, and Thomas Tracy was the foreman of the gang in which the deceased was at work. While deceased was engaged in repairing a car on track No. 2, he had occasion to use a bumper spring in making repairs on such car. He had been instructed to apply to one of his fellow servants, named John Goetz, when in need of material for repairs, and it was Goetz’ duty to procure such material from the supplies in the yards. Deceased applied to Goetz for this spring which he needed, and was informed by him that the defendant had none on hand.

Thereupon deceased informed his foreman Tracy that he needed the spring, and it may be assumed that Tracy directed him to take one from a crippled car which was then stored on track No. 8, awaiting its turn to be placed on one of the other tracks itself for repairs. While the deceased was under that crippled car, engaged m the act of disconnecting the spring required by him, another car was shunted or thrown in upon track No. 8, against the one from which he was taking the spring, with such violence as to force it over his body, causing the injury complained of. The deceased was familiar with the use made of track No. 8, and with the way in which crippled cars were moved upon and off from it.

The whole duty of the defendant to the deceased required it (1) to furnish him a safe place in which to perform his work; (2) to supply him with suitable implements and appliances with which to work; (3) to furnish competent co-servants ; and (4) to provide suitable and proper rules and regulations for the guidance of him and his fellow servants in the performance of their tasks. No well-founded claim can be made that the defendant was derelict in its duty towards the deceased in any of these respects, unless it is chargeable with the consequences of the act of the deceased in placing himself under the car on track No. 8, which ran over and injured him, without protection of any kind against injury, which was liable to and did in fact result from the manner in which the crippled cars were handled on track No. 8.

It seems not to have been contemplated or intended by the defendant that any of its servants should at any time do any work of any kind on track No. 8, except to store cars thereon and remove them therefrom, but that that track should be, as it was, used exclusively for the storage of crippled cars while awaiting their turn for repairs. The statement of the case makes it apparent at once that this was the reason why no precautions were taken as to car repairers with reference to that track, and it must be conceded that the deceased knew it as well as the defendant. If, then, it was not a place provided nor intended for its workmen by the defendant, and they knew it, it is difficult to see how the defendant can be charged with violating its duty by one voluntarily going there to work. No rule or regulation of the defendant required it; but on the contrary its rules required that track No. 8 be used exclusively for the storage of crippled cars.

A master cannot be held responsible for an injury to his servant sustained in a place not contemplated, provided or designated by him, no matter through whose negligence, on the ground that he has failed to furnish a sáfe place in which the servant is to do his work. In such a case the place is selected by the servant, and not by the master. The contention that in requiring the deceased to go to work where he was injured, Tracy, his foreman, was discharging the duty of the master, cannot prevail for the reason that there is nothing in the evidence justifying the conclusion that Tracy was vested with any authority to change, or in any manner interfere with the rules and regulations of the defendant as to the places in which the deceased and his fellow servants were to do their work, and, as we have said before, those rules and regulations provided that all work should be done on tracks 2 and 21, and none on track No. 8. That those rules and regulations were sufficient is conceded for the purposes of this case, because the trial judge so charged the jury, and no exception was taken thereto.

In our opinion no recovery by the plaintiffs can be sustained, on the record as it is before us.

The fact is not only undisputed, but affirmatively testified to by the deceased himself while living, that he knew of the use made of track Ho. 8, and the manner in which crippled cars were handled upon that track. Ho claim is made that the injury complained of was by reason of any variance or departure on the part of the defendant from the methods usually employed in doing business, nor by reason of any variance or departure by authority of the defendant from the rules and regulations made for the government of the deceased and his fellow servants, which are conceded to have been sufficient

The case, therefore, falls within the well settled rule that when a servant is as well informed as the master concerning the dangerous character of the work, and voluntarily proceeds with it, he cannot hold the master responsible for the consequences.

These views necessitate a reversal of the judgment without reference to the question as to what effect, if any, the death of Keenan, as shown by the record, may or ought to have upon the verdict of the jury, which question we do not deem it necessary to consider or decide.

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

Hatch, J., concurs; Titus, Ch. J., not sitting.


text:
    Daniel W. Moore, Resp’t, v. The New York Central & Hudson River Railroad Company, App’lt

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    1. Railboad—Negligence.
    Plaintiff and a companion while driving, in the evening, in a one horse carriage, came to a crossing, where the defendant railroad company had two tracks and another railroad three, and attempted to cross, when they were struck by defendant’s train. It appeared that the view was unobstructed from the direction in which the train came, except as to the glare of an electric light. Plaintiff and his companion testified that when within a few feet of the first track they stopped, leaned forward and looked and saw nothing to prevent their crossing, whereupon they made haste to cross and were struck. The evidence tended to prove that the train was running at a rapid rate, and that no warning was given, and that the crossing was in a populous part of the ci'y. Beld, that the question whether the defendant used due care was properly left to the jury, as was the question whether it gave sufficient warning of the approach of the train, and whether the rate of speed was too great.
    2. Same.
    The fact that plaintiff stopped, looked and listened before attempting to cross the track was sufficient to authorize the jury in finding that he exercised due care and was not guilty of contributory negligence.
    Appeal by defendant from a judgment entered upon the verdict of a jury against it, and from an order denying a motion for a new trial.

      James F. Gluck, for app’lt; John Cunneen, for resp’t.
   White, J.

On the 5th of Hovember, 1889, the plaintiff, with a companion named John Hughes, left East Buffalo about seven o’clock in the evening to come to their homes in the city in a one horse carriage. The sides of the carriage were closed with curtains, which, to some extent, obstructed their view in those directions. Their route lay along Eagle street, which is crossed by the tracks of the defendant’s railroad, and by those of the Lake Shore & Michigan Southern Railroad, the delendant having two, and the Lake Shore three, tracks across the street at that point. The tracks of the defendant are west of those of the Lake Shore. These live sets of tracks and the distance between them covered a space of about seventy-five feet on Eagle street, and they cross the street practically at right angles. The view to the north along the tracks for a long distance from a point about 150 feet east of them was unobstructed, except as to an electric light near the crossing, which, it is claimed, may have affected it to some extent, and it was from that direction that the train came which caused the injury complained of. As the plaintiff and his companion approached the crossing, this electric light and the structure to which it was affixed was, for an indefinite space of time, between them and the coming train. When on or within a few feet of the easterly, or first track to be crossed by them, as claimed by the plaintiff and Hughes, they stopped their horse and leaned forward and looked up and down the track and discovered nothing to prevent their crossing the remaining tracks with safety, whereupon they made haste to cross, and were struck and injured on the second of the defendant’s tracks.

The evidence on the part of the plaintiff tended to prove that the train in question at the time of the accident was being run at a rapid rate of speed, at least twenty-five miles an hour, according to the estimate of one of the witnesses. Evidence was also given tending to prove that no warning of any kind was given of the approach of the train; that the crossing was in a populous part of the city and that that part of Eagle street is much traveled. The defendant was bound to exercise such reasonable precaution in the running of its train as ordinary prudence dictated, to protect travelers along the street from injury, and the question whether it in fact exercised due care on this occasion was prop: erly left to the jury. Negligence on the part of the defendant is conclusively established by the verdict. Thompson v. N. Y. C. & H. R. R. R. Co., 110 N. Y., 636; 16 St. Rep., 869; Swift v. The S. I. R. T. R. R. Co., 123 N. Y, 645; 33 St. Rep., 604.

If it be true, as claimed by the plaintiff, that as he approached the first tracks he did exercise due care to ascertain whether or not it was safe to cross, and having satisfied himself that it was, he was in duty bound to do just what he claims to have done, that is, to hasten across to a place of safety.

The trial judge instructed the jury that the defendant was not charged by law with the duty of having a flagman or person to give warning of approaching trains at this crossing, and that the absence of such a person was a circumstance which they might consider in determining whether or not the defendant operated the train with due care. To this part of the charge the defendant excepted, and in the same connection requested the court to charge that as the plaintiff knew no flagman was kept at this crossing he did not look for one, and that the presence or absence of a flagman in this case on this occasion would be immaterial. The court refused and the defendant excepted to the refusal.

As to the exception to the charge, it may be said that although the defendant was bound by lawn either to ring its bell, blow its whistle, or keep a flagman at this crossing, yet it was bound to give some notice and warning of the approach of this train, and what notice and warning was sufficient was a question for the jury. Proof of the facts as to what precautions were taken was necessary to enable the jury to determine the question. The fact that no flagman or other person to give warning was kept at this crossing was proven by the defendant itself, and, therefore, it cannot complain of its consideration by the jury.

As to the request to charge, the sense of it is that because the plaintiff knew no flagman was regularly stationed at this crossing his conduct would not have been affected or influenced by the presence of one on this occasion, if one had been present.

The effect which the presence of a flagman might have had upon the conduct of the plaintiff, if proper for consideration at all, was for the jury and not for the court.

The charge of the court as to the right of the jury to consider the speed of the train; as to the degree of care incumbent upon the defendant in its management, and as to whether or not the train was late on this occasion, is criticised and excepted to by the defendant’s counsel, but we are unable to discover any substantial error in the charge in any of these respects.

The speed of the train and whether any warning of its approach was given, were questions not only proper, but necessary to be answered by the jury in determining whether or not the defendant was guilty of negligence.

It was the duty of the defendant to give suitable warning of the approach of this train, and to so regulate its speed as to apprise the plaintiff of its approach in time to enable him to avoid injury; and the question as to whether defendant exercised the degree of care required of it on this occasion was, as we think, fairly submitted to the jury.

The counsel for the defendant excepted to the refusal of the court to charge specifically: “ That if the jury believed that they,” Moore and Hughes, “ did not look from the time they struck the Lake Shore track until they got struck, although they had an opportunity of looking, and seeing the train if they had looked, then they must find that the plaintiff was guilty of negligence.”

Upon this subject the court had already charged the jury very fully to the effect that the law imposed upon the plaintiff the duty of listening and looking both ways as he approached this crossing, and that if he could by the exercise of those precautions have discovered the approach of this train in time to have avoided the injury he could not recover, and its refusal to repeat the charge was proper. Raymond v. Richmond, 88 N. Y., 671.

An exception was also taken by the defendant to the refusal of the court to charge that the evidence in the case is undisputed that the horse ran into the train and caused the injury complained of. It is hardly worth while to discuss this question at length, because it is impossible that, as the evidence tended to show, after the accident one of the wheels- of the buggy could have been found on the front of the engine and the buggy have been all smashed to pieces and the horse have had one leg cut off, and that the remains of the buggy could have been found west of the track on which the accident occurred, as the result on an attempt by the plaintiff’s horse to get through or over the train while it was running at the rate of twenty-five miles an hour. We think the jury was alone competent to decide the precise or probable cause of the accident, and that their finding upon that question must stand.

The serious contention on the part of the defendant is that the plaintiff should be held to have been guilty of contributory negligence, notwithstanding his testimony that he looked and listened, on the theory that if he had looked he must have discovered the danger in time to have avoided it. Undoubtedly the duty of looking and listening is a continuous one while crossing a railroad track, and a person so crossing is bound to exercise ordinary sense, prudence and capacity, and to use his eyes and ears so far as he has opportunity; but the circumstances and actual condition of things at the time must be considered in measuring the opportunity. It is urged that because the plaintiff and his companion testified that as they approached this crossing they saw smoke ascending towards the heavens several hundred feet away in the direction of the city, they must have been able to see a like distance up and down the railroad tracks and that the night and the absence of obstruction must have been such as would have enabled them to avoid this accident if they had exercised due care.

When it is remembered that the evening of this accident may have been quite dark; that the view to the north may have been somewhat obstructed by the electric light near the crossing, and its effect upon surrounding objects; that the train which caused the injury may have been drawing to the point of collision at the rate of forty feet or more in each second of time, and that the mind of the plaintiff may not have operated with that rapidity which seems to have been sometimes assumed as necessary in such cases, we cannot, as matter of law, attribute negligence to the plaintiff. While diligence to discover danger in such case may reasonably be required, no absolute, iron-ribbed standard of intelligence or foresight has yet been adopted by the courts as applicable to all men, under all circumstances. We do not deem the Werinowski case an authority against the plaintiff. The facts in that case were noticeably different from those in this one. Among other things it appeared in that case that there was absolutely no obstruction to the vision.

In this case, the electric light and its effect upon surrounding objects may have obstructed the view to the north to some extent. In that case there was no evidence that the person injured looked or listened to or took any precaution whatever to avoid danger. In this case the plaintiff did look and listen as he reached the crossing, and he appears to have taken all the precaution required of him. In that case, the train or engine and tender were moving at the rate of four miles an hour. In this case the train was moving at the rate of twenty-five miles an hour. In that case the party injured was on foot, with nothing to do but look and listen. In this case the plaintiff was compelled to pay some attention to the management of his horse. To hold that the plaintiff was bound to take separate and independent -observatians on his approach to each succeeding railroad track, after or while passing over the preceding one, before proceeding, would involve a proposition which it seems to us no court will care to announce as a rule of law. The jury was justified in finding that the plaintiff took care, with all his senses and all his powers, and was as sure as he might be from sight and hearing, when he arrived at the crossing, that it was prudent to cross, and that he then started to hasten over, as the law required him to do. No reversible error is disclosed by the record, and, therefore, the judgment and order appealed from should be affirmed, with costs.

Titus, Ch. J., concurs; Hatch, J., not sitting.


author: Hatch, J.

text:
    Guiseppe Lazzarone, App’lt, v. Achille J. Oishei et al., Resp’ts.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    1. Release—Duress.
    In an action in the municipal court of Buffalo upon a bond given at the time of the arrest of plaintiff in a civil suit, wherein O. was plaintiff, the defense was that plaintiff had executed a general release of all causes of action against defendants. It appeared that such release was executed upon the promise of defendant O. to get plaintiff out on bail. Plaintiff was-ignorant, and neither read or spoke English, while 0. was an attorney. Plaintiff was arrested under a claim which did not authorize his arrest, and, in order to relieve himself after long imprisonment, executed the release. Held, that the release was void, and plaintiff entitled to recover on the merits.
    3. Service—Municipal court of Buffalo.
    An action upon a bond given upon obtaining an order of arrest is one where plaintiff could file and serve a verified complaint-, and enter judgment thereon without making proof of his cause of action and establishing the damages'sustained, and therefore only a constable or person duly deputized could serve the summons.
    8. Same—Jurisdiction.
    Defendants appeared in court and objected to its jurisdiction on the
    ' ground that the summons was served by a person not authorized, and after the objection had been overruled, litigated the case. Held, that the objection was not waived by such appearance and litigation.
    Appeal from a judgment rendered in favor of defendant by the municipal court of Buffalo.

      Edmund P. Cottle, for app’lt; E. T. Durand, for resp’t.
   Hatch, J.

While the testimony in the court below was conflicting, yet the facts upon which this appeal is to be determined are practically undisputed. It appears that the plaintiff was injured by the Allegany & Kinzua Railroad Company, and thereafter entered into a contract with the defendant, Oishei, to prosecute said company for damages sustained. Oishei, in consideratian o£ the contract, was to receive two-thirds of the recovery; he was to advance money to pay doctors’ bills and other charges and employ an attorney to prosecute the claim. An action was begun against the railroad company under this arrangement, and was pending when the plaintiff, intending to deprive said Oishei of the benefit of his contract, secretly settled said action with the company and refused to pay Oishei anything. Thereupon Oishei made complaint to the police magistrate of the city,upon which a criminal warrant was issued; plaintiff was arrested thereunder and lodged in jail. What the charge made against him was does not appear, but Oishei states that plaintiff was “confined in jail four or five days upon the warrant issued by Justice King, until the civil proceeding could be instituted.” No criminal charge was ever pressed, and plaintiff, having obtained counsel, was taken before the magistrate and discharged, and was immediately rearrested by virtue of an order of arrest, issuing out of the county court of Brie county, in an action brought by Oishei to recover damages for the claimed fraudulent settlement. A. motion was thereafter made to discharge the order of arrest, which was denied, and from such decision an appeal was taken to the general term of the supreme court, where said order was reversed and plaintiff was discharged. While the plaintiff was confined in jail, and after an appeal had been taken from the decision of the county court, but before it was heard in the appellate tribunal, Oishei, at the instance of plaintiff’s wife, visited plaintiff at the jail, and stated to him, among other things: “ If you pay me what you owe me I will let you out right away. I don’t want anything more than what you owe me.”

At another interview Oishei said he would let him out “ on the conditions that he would release my bondsmen and release me from all claims and would pay me the amount that he had obtained from me in the month of December, what disbursements I had been put to. He said he would do that. * * * I told him I would furnish him the necessary bondsmen to bail him out.” After this conversation, plaintiff, while in custody, executed and delivered to Oishei a note for $70, and also executed, acknowledged and delivered a general release of all causes of action against Oishei and his co-defendants. Thereupon a bail bond was executed and plaintiff released. Although the release is not dated, it appears elsewhere that it was in fact executed on the 23d of May, 1891, while plaintiff had been imprisoned since about the 21st day of March previous.

When plaintiff made his settlement with the railroad company, said company executed an agreement, in consideration of the settlement, whereby it agreed to protect plaintiff against any action on the part of the attorney on account thereof. After plaintiff was released on bail be authorized Oishei, in writing, to bring an action for damages on account of his imprisonment, loss, etc., and the action was subsequently brought, and was pending at the time the appeal was heard at general term. During all the time in which these proceedings were taken, after the arrest of plaintiff under the warrant issued by the police magistrate, the attorney now representing plaintiff acted for him; he procured his discharge under the warrant, to his hands came the order of arrest, he made the motion to discharge him therefrom, and upon its denial took the appeal, and subsequently argued it at general term. When he had succeeded there and established a liability upon the bond given upon the order of arrest, he brought this action, and then for the first time was confronted with the release; he learned then for the first time what steps had been taken of which before he was substantially ignorant.

The plaintiff is an Italian, neither reads nor speaks the English language. Oishei speaks both Italian and English fluently; he was not at the time of the first arrest an attorney, but when the release was obtained he was admitted as an attorney and practiced at the bar.

There are many other circumstances not noted here or referred to, all of which are pertinent, but it does not seem necessary to refer to more. The court below held the release a bar to the right of recovery, and rendered judgment for costs against plaintiff; hence the appeal. I should be disposed to hold, in the absence of any authority, that the note and release, taken from plaintiff, under the circumstances of this case, are void, creating no liability against him, and not affecting defendants’ liability upon their bond. Abundant authority, however, establishes such conclusion. There was .in this case duress of imprisonment; plaintiff was imprisoned, first upon a fictitious charge, subsequently was arrested under a claim which did not authorize his arrest, and in order to relieve himself, after long imprisonment, executed the papers. No right of arrest or imprisonment existed in either case and no paper executed to procure his liberty bound him. Foshay v. Ferguson, 5 Hill, 154.

In Evans v. Begleys, 2 Wend., 243, the court held that a judgment entered upon a bond and warrant of attorney executed by defendants while in close custody would be set aside. While in Guilleaume v. Rowe, 94 N. Y., 272, it was said by Judge Danforth : “ The instrument on which he relies was executed by the plaintiff without consideration and while enduring an imprisonment which was illegal. It was, therefore, void for duress * * * and the defendants could acquire no right under it,” citing with approval the cases before cited.

In Scholey v. Mumford, 60 N. Y., 501, it was said by Judge Rapallo in speaking of a person : “When he acts under any species of compulsion the payment is not voluntary.” There the rule was applied in the case of duress of property. The same rule had been before asserted in Harmony v. Bingham, 12 N. Y.. 116.

In Adams v. Irving Nat B'k, 116 N.Y., 613; 27 St. Rep., 733, many authorities are collected, and the rule finally stated to be is “ That whenever a party is so situated as to exercise a controlling influence over the will, conduct and interest of another, contracts thus made will be set aside.” Boutel v. Owens, 2 Sandf., 655.

In the present case it was well known to Oishei that plaintiff had procured counsel at the time he was arrested, a motion had been made, and he had made many affidavits therein; he knew that efforts were being made to set aside the order, and must be presumed to have known that if the order was set aside his liability attached for damages growing out of the illegal arrest and imprisonment. At this juncture he procures the release from any liability upon the bond, obtains a note for seventy dollars, procures bail for plaintiff, and thus having security and release from contingent liability, conceals the same from plaintiff’s attorney, and argues the appeal from the order. If he had succeeded and the order were affirmed, he could immediately clap plaintiff in jail, by causing his bail, which he controlled, to surrender him, and thus plaintiff would have gained nothing, while Oishei ran no risk. Such practices, especially by an attorney, should not be tolerated, certainly not upheld in a court of justice.

Not alone was this the condition, but at the time when the appeal was argued Oishei was, in fact, plaintiff’s attorney in an action to recover damages for plaintiff’s illegal imprisonment, of which he had been the cause. It is quite difficult to see how he could, in good faith, act for the plaintiff to redress a wrong which he had caused, and at the same time continue a right to inflict further injury of the same kind. Perhaps he thought he was aiding the client by perpetually imprisoning him, in order that his damages might be enhanced against the railroad company, as upon no other theory can I see that his services were of use to his client. Plaintiff does not now, nor at any other time has he expressed a consuming desire to look to the railroad company for damages and undergo farther imprisonment. It may be that plaintiff has been guilty of a fraud and a wrong by which Oishei has suffered, but such condition does not authorize such practice as obtained here. The reversal of the order fixed defendants’ . liability for such expense as plaintiff had incurred and such damage as he had suffered, within the limitations of the penalty of the bond. Ferris v. Tannebaum, 27 Abb. N. C., 136; 39 St. Rep., 71.

Upon the merits of this case, therefore, plaintiff became entitled to recover. But while the plaintiff, upon the facts as shown, is entitled to recover, I reluctantly reach the conclusion that the judgment appealed from must be affirmed, for the reason that the court did not acquire jurisdiction of the persons of defendants.

The act creating the municipal court of Buffalo, with respect to the service of a summons with a verified complaint, provided by § 7: “In an action brought in this court, arising on a contract for the recovery of money only, or upon account, the plaintiff at the time of issuing the summons may file with the clerk a written complaint, setting forth, in a plain and concise manner, the facts or items of account constituting the cause of action, specifying the amount actually due from the defendant to the plaintiff, and for which the plaintiff will demand judgment. It then provides that such summons and complaint may be served, by any person of full age, not a party to the action, by delivering to and leaving with the defendant personally a copy thereof. By § 9 it is provided that if default be made in answering the complaint, defendant shall be deemed to have admitted the allegations of the complaint, and the court, upon the filing of the complaint, with due proof of service thereof, shall immediately enter judgment for the amount demanded in the complaint, with costs, etc., without further proof. These are the only cases in which judgment is authorized to be entered without further proving the cause of action. The act was amended in 1891, and now constitutes a part of the charter of the city of Buffalo, but the provisions of law in the aforementioned regard were re-enacted intact. Laws 1891, chap. 105, § 459.

These sections resemble closely the Code of Procedure, except that the latter required the statement of the demand in the summons. Its language was : “In an action arising on contract for the recovery of money only, that he will take judgment for a sum specified therein.” Sub. 1, § 129. And by § 246 it was provided, among other things, for the entry of judgment upon default; if the summons and verified complaint was served, judgment was to be entered in conformity with the demand contained in the summons; if complaint not sworn to or served, then the clerk was required to take proof, etc. It is to be noticed that the sections of the Code, and the municipal court act, are practically identical in language; both say in actions “ arising on contract for the recovery of money only.” These sections have been the subject of judicial construction many times.

In Mason v. Hand, 1 Lans., 66, it was held that when the causes of action arise on a contract for the payment of a sum of money only, if such sum, sued for, was certain in amount or capable of being certainly reached by computation, then the summons was to be issued under sub. 1 of § 129, but that in actions to recover damages for a breach of contract, when such damage depended upon proof extrinsic the contract, then the summons was to be issued under sub. 2, and application for judgment must be made to the court. The court cited with approval Tuttle v. Smith, 14 How., 895, and other cases holding the same doctrine. Bales v. Reynolds, 7 Bosw., 691, approves this rule. In Levy v. Nicholas, 15 Abb., 68 n., it was held, in an action upon an undertaking similar in character to this, application must be made to the court for judgment.

The Code of Civil Procedure, § 420, supersedes the section referred to, but its only effect is to enact in a statute what the courts had before decided. It follows from this construction that the present is not a case where the plaintiff could file and serve a verified complaint, and enter judgment thereon without making proof of his cause of action aliunde the allegations of his complaint, and establishing the damages he had sustained, and, as there is no other provision of law for the service of a verified complaint entered in the municipal court, it follows that plaintiff acquired no legal rights flowing therefrom. When the parties appeared before the judge, defendant objected to the jurisdiction of the court, upon the ground that there was no sufficient service of the summons. This objection raised the question of jurisdictian of the person of the defendant. Reference to the proof of service of the summons shows it to have been served by a person not a constable, but was made by a person such as is provided for where it is proper for the service of a verified complaint. As we have seen, this was not authorized, in consequence of which authority for such service must be sought elsewhere. By § 471, Laws of 1891, chap. 105, it is provided: “No person shall execute the process of the court except the constables duly appointed, and such other persons as may be deputized in the manner now provided by law.” The person making the service was not a constable, and no claim is made that he was deputized in any manner; consequently he was not such person as could execute the process, and the court did not obtain jurisdiction of the person. It is urged that he waived this objection. But it appears that he objected, that the court overruled his objection; he was then either compelled to appear or suffer judgment by default to pass against him. I do not understand that an appearance and litigation under such circumstances has ever been held to constitute a waiver of the question of jurisdiction of the court. On the contrary, every adjudicated case that has fallen under my observation refutes such doctrine. Avery v. Slack, 17 Wend., 85 ; Dewey v. Greene, 4 Denio, 93 ; Horton v. Fancher, 14 Hun, 172 ; Nickerson v. Ruger, 76 N. Y., 283.

It follows that, as the court never acquired jurisdiction, it could render no judgment against defendant. The order entered herein will show that the determination upon the merits is reversed and that judgment of affirmance passes upon the sole ground that there was no proper service of the summons upon defendants. The judgment is, in this respect, affirmed, without costs as to either party in this court.

White, J., concurs.

Titus, Oh. J., dissents, and favors affirmance of the judgment on the sole ground that the court obtained no jurisdiction of the defendant, and not upon the merits.


author: Herrick, J.

text:
    Emma Kelly, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1892.)

    Depositions—Examination before trial.
    A party litigant may, in the discretion of the justice to whom application is made, upon complying with the provisions of the Code in relation thereto, have a general examination of his adversary as a witness before tiial. and such examination is not limited to an affirmative cause of action or an affirmative defense.
    Appeal from an order denying motion to vacate an ex parte order for examination of plaintiff by defendant before trial.
    This action is brought by the plaintiff to recover from the defendant for injuries alleged m the complaint to have been sustained by her on the 19th day of March, 1892, while a passenger upon one of defendant’s trains, said injuries being alleged to have been occasioned by the negligence of the defendant.

      The action was commenced by the service of a summons and complaint on the 13th day of June, 1892. The defendant answered, denying upon information and belief the allegations contained in the complaint setting forth the injury-claimed to have been sustained, and denying upon information and belief that the same were caused through the negligence of the defendant, its agents or servants.
    After the service of the answer, the defendant applied to Hon. Leslie W. Russell, upon the affidavit of Thomas Spratt, its attorney, Doctor Elisha H. Bridges and James P. Kirby, for, and the said judge, granted, an order requiring the plaintiff to submit to an examination by the defendant before trial, such examination td be had before a referee named in said order, and in the presence of physicians to be selected by the defendant or plaintiff, not to exceed four.
    The plaintiff before the day fixed for the examination- applied to the same judge upon all the pleadings, the affidavit of the plaintiff, of C. A. Kellogg, her attorney, Doctor Southwick, her physician, and the affidavit of her sister, for an order to show cause why the order granted to the defendant should not be vacated and staying the examination until the hearing of the order- to show cause.
    Upon the hearing of the order to show cause, which was heard upon the papers upon which defendant’s order was granted, and upon the papers presented upon the granting of the order to show cause, the motion to vacate was denied without costs; the judge, however, modifying the former order made by him for the examination of the plaintiff by providing for adjournments and limiting the examination to plaintiff’s mental and physical condition previous to the injury, the nature of such injury and her subsequent mental and physical condition.
    From that portion of the order denying plaintiff’s application to vacate the order requiring the plaintiff to be examined before trial, the plaintiff appeals.

      C. A. Kellogg, for app’lt; Thomas Spratt, for resp’t.
   Herrick, J.

It seems to me that the affidavits upon which the order for an examination was granted embody all the requirements of §§ 872 and 873 of the Code of Civil Procedure.

And unless in the exercise of his discretion the justice to whom the affidavits were presented determined that the evidence sought was immaterial or unnecessary, or that the examination sought was merely for the purpose of annoyanóe or delay, the defendant was entitled to the order as a matter of right. Watts v. Wilcox, 43 St. Rep., 417, affirmed in 133 N. Y., 672; 45 St. Rep. 930.

A party litigant may, in the discretion of the judge or justice to whom application is made, upon complying with the provisions of §§ 870-872 and 873 of the Code of Civil Procedure have a general examination of his adversary as a witness in the case, as well before as at the trial. ,And such examination is not limited to an affirmative cause of ^action or an affirmative defense. Herbage v. City of Utica, 109 N. Y., 81; 14 St Rep., 845. This case somewhat modifies the law as held in some former cases and as understood by many of the profession.

That discretion is to be exercised on the line indicated in Watts v. Wilcox, supra; and while this court has a right to review such exercise of discretion by the justice, it will not reverse his decision unless it appears very clearly to the court that error has been committed. In this case I cannot see that any such error has been committed.

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

Mayham, P. J., and Putnam, J., concur.


author: Putnam, J. Mayham, P. J.

text:
    The People ex rel. George H. Bush v. Henry B. McKenzie et al.

       The People ex rel. George H. Bush v. Robert H. Fairbrother et al. The People ex rel. George H. Bush v. The Board of County Canvassers of Ulster County.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1892.)

    1. Elections—Marked ballots—Mandamus.
    It is only where an inspector of election or other election officer or duly authorized watcher has, during or immediately after the completion of the canvass, declared his belief that certain ballots were marked for identification, that a peremptory mandamus can be granted to compel the attaching of such ballots to the certificate or statement of the canvass.
    2. Mandamus—Alternative.
    Where the relator does not ask for an alternative mandamus, but proceeds with his argument on the opposing affidavits, he cannot afterwardscomplain that the court did not award an alternative mandamus.

    Appeal from order denying applications for mandamus.

    It was claimed that certain ballots cast in the town of Esopus, Ulster county, at the general election of 1892, were marked for identification, and the mandamus was asked to compel their attachment to the statement of canvass of votes.

      Linson. & Van Buren (J. Newton Fiero, of counsel), for relator; John J. Cloonan, for board of canvassers; G. D. B. Hasbrouck, Charles F.. Cantine and Severyn B. Sharpe, for def’ts.

       Affirming 48 St. Rep., 791.

   Putnam, J.

The order should be affirmed on the opinion of the court below.

The relator was not entitled to alternative writ of mandamus, People ex rel. Hartford Ins. Co. v. Fairman, 91 N. Y., 387.

Order affirmed, with ten dollars costs and printing.

Mayham, P. J.

concur with the conclusion of the learned judge at special term, that a peremptory writ of mandamus should not issue in these cases, because it does not affirmatively appear that “An inspector of election or other election officer, or duly authorized watcher, during the canvassing of the votes, or immediately after the completion thereof, declared his belief that the ballots objected to on this motion were marked for the purpose of identification,” required by § 31 of chapter 262 of the Laws of 1890, as amended by chapter 296 of the Laws of 1891.

It is only when such objection is made that this summary pro- ' eeedmg can be adopted. But the failure to make such objection and thus lay the foundation for this summary proceeding does not render a ballot marked for identification a valid vote, but the statute makes such ballot absolutely void, and no neglect on the part of the inspectors or watchers should be permitted to give validity to a vote denounced by the law as void.

In this case it is positively asserted that these ballots were marked, but the respondent disputes their validity and denies posititively that they were objected to at the time of the canvass.

Here is a sufficient dispute as to the facts to authorize the issuance of an alternative mandamus, if a motion for an alternative writ had been made.

In the People v. Board of Canvassers of Dutchess Co., Earl, J., says: “A candidate intending to proceed by mandamus under § 31 should procure an alternative writ, so that if there should be any dispute about the facts, that can be settled before the peremptory mandamus issue.”

I think in this case an alternative writ, if applied for, should have issued so that the facts in dispute, to wit, whether objection was made, or if not made, whether the marked ballots were voted, and if voted, whether they were marked for the purpose of identification, could be settled.

But the relator in this case cannot have that relief on this motion, as their argument of the questions involved on the conflicting affidavits is in the nature of a demurrer to the legal sufficiency of the opposing proof, People ex rel. Hartford Ins. Co., 91 N. Y., 387, and when that is done the alternative writ will not issue.

Order affirmed, with ten dollars costs.

Herrick, J., not acting.


author: Mayham, P. J.

text:
    The People, Resp’ts, v. Caleb W. Mitchell, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1892.)

    Gaming—Keeping gambling house.
    The only evidence to connect defendant with the gambling rooms in the rear of a building was that he occasionally waited on customers in the cigar store in front belonging to his son, and which connected with the rear rooms by a door; that he said that business was good, and that a sign on the sidewalk bore his name. The building belonged to another person. Held, that the evidence was insufficient to warrant a conviction of keeping a gambling house.
    Appeal from judgment convicting defendant of the crime of keeping a gambling house.

      Edgar T. Brackett and J. S. HAmoreaux, for app’lt; T. F. Hamilton, for resp’ts.
   Mayham, P. J.

We think upon the whole evidence in this case the defendant should have been acquitted, and that for that reason the conviction should be reversed.

The indictment charges the defendant with keeping a gambling house in the village of Saratoga.

The principal witnesses for the prosecution were two hired detectives ; one from Newark, N. J., and the other from the state of Connecticut.

The premises in which the gambling is alleged to have occurred, and in which the gambling devices were placed, was a room in the rear of store No. 396 Broadway, and an upper room over such rear room. The store was separated from these rooms by a door, and was used as a cigar store.

The only evidence against the defendant by the detectives was that he was seen in the front room or cigar store, and that he sometimes waited upon customers to cigars, and that there was a sign on the outside of the sidewalk on which was the defendant’s name, and that on one occasion, while the defendant was in the cigar store, on being asked by one of the detectives how business was, the defendant answered “ pretty good.”

There was no direct evidence connecting the defendant with the rear rooms in which the gambling was carried on. Nor was there any evidence, except as we have referred to, showing that he was connected with or had any interest in the cigar store.

The evidence on the part of the defendant showed' the title to the building in Mary A. Mitchell and the goods in the store in James H. Mitchell, a son of the defendant, and that he conducted the business, and had a United States government license as a retail liquor dealer and a license from the board of excise of Saratoga Springs, dated May 15, 1891, and extending until May 3, 1892. The evidence also showed that James H. Mitchell acquired title to the premises by an assignment of a lease of premises, 398 Broadway, and a bill of sale of the goods, furniture and fixtures therein from one James H. Long, dated September 8, 1890. These facts were proved by the papers in evidence and not disputed by the People.

Upon these undisputed facts it is difficult to see how the jury could find that the defendant was the keeper of this place.

We can commend the zeal of the jury in their attempts to suppress the pernicious practice of keeping and maintaining gambling houses, which are offenses alike against society and law, but in their search for a victim on which to visit their condemnation they cannot be permitted to overlook and disregard the fundamental and elementary principle in the criminal law that holds all innocent of the commission of crime until proven guilty.

There is no evidence in this case to overcome that humane presumption, even if we give full weight to the evidence of the hired detectives and suspects on whose testimony the learned district attorney relies to sustain this conviction.

The conviction must, therefore, be reversed.

Putnam and Herrick, JJ., concur.


text:
    Carrie Wilsey, Resp’t, v. Peter Callanan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1892.)

    Nuisance—Injunction pendente lite.
    In an action to restrain defendant from blasting rock on Ms premises in such manner as to throw them upon and against plaintiff’s premises an injunction pendente lite is proper, especially where the defendant admits that he can carry on Ms business without casting the debris on plaintiff’s premises.
    Appeal from order restraining defendant from throwing stones, by blasting in his quarry, upon the premises of the plaintiff until the further order of the court.

      William G. McHarg (Matthew Hale, of counsel), for app’lt; Andrew Vanderzee, for resp’t.
   Herrick, J.

The defendant is enjoined from throwing stones on the premises of the plaintiff by blasting in his quarry. The affidavits show that stones have been from time to time thrown upon the plaintiff’s premises by the defendant, sometimes crashing into and through her dwelling house.

The plaintiff is not at all unreasonable in asking that such a dangerous proceeding be stopped.

That the court has power to stop it by injunction cannot be questioned. And where, as in this case, the defendant professes to be able to carry on his business without casting the debris of his blast upon the plaintiff’s premises, what substantial objection can he have to the continuance of the injunction? Rogers v. Hanfield, 12 St. Rep., 671.

The injunction does not stop the defendant’s business, it simply prohibits him from doing it in such a manner as renders it a nuisance to the plaintiff, and a menace to life and limbs.

It seems to me under such circumstances it would be an abuse of the court’s discretionary powers as to granting injunctions pendente lite to refuse to restrain the defendant from doing that which is not necessary to enable him to carry on his business, and the "doing of which may result in great injury to the plaintiff.

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

Mayham, P. J., and Putnam, J., concur.