author: Titus, Ch. J. Hatch, J.

text:
    The City of Buffalo, App’lt, v. Ernst A. Clement, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Municipal corporations—Obstruction of highway—Respondeat supe, rior.
    Defendant had a contract to build a house, and sublet the excavation of the cellar and laying of the walls to one B., who was to furnish the material. No arrangement was made as to where he was to procure or deposit such material. B. deposited the material in the street, in violation of a city ordinance. Held, that the relation of B. to defendant was that of an independent contractor, and not of a servant, and therefore the rule of respond-eat superior did not apply, and defendant could not he held liable for B.’s acts.
    Appeal from a judgment rendered by the municipal court of Buffalo.
    Action to recover a penalty for the violation of a city Ordinance-Defendant had judgment dismissing the complaint.

      Philip A. Laing, for app’lt; Lyman M. Baker, for resp’t.
   Titus, Ch. J.

This action is brought for a violation of § 1, of chapter 3, of the ordinances, which provides that “¡No person shall, except in perfectly tight boxes, draw, cart or transport over, or place, leave or deposit in any street, lane or alley, or upon any side or crosswalk within the city, any dirt, ashes, manure, or other substance or material whatever, except such as are permitted by the ordinances of the city, or by resolution of the common council.”

The defendant had a contract with John ¡Diehl to build a house on his lot at 568 West avenue. In the construction of the house the defendant was to use building material consisting of brick, stone, mortar and wood. ¡No permit was obtained from the city authorities to use any portion of the street to deposit material while the building was in process of construction. The defendant sublet the work of excavating for the cellar and laying the walls to one Barnwell, who was to furnish the labor and material necessary for that purpose. Barnwell is a contractor and was to receive for his contract a specified sum. ¡No agreement was entered into by him, or arrangement of any kind made with the defendant as to where he should procure his material, or where it should be deposited during the time he was laying the wall. The defendant claims that he has not violated the ordinance above quoted, because he did not leave the material upon the street, and it was not done under his' direction or by his order; that he let the contract to Barnwell to excavate and furnish all material and lay the cellar walls ; that Barnwell was responsible to him only that hs should properly perform his work under his contract, and that if he violated the ordinances of the city he alone is liable. It appears that" about one-half of the street in front of Diehl’s property was occupied by stone, lime and other material which Barn-well had placed there with a view of putting such material into the cellar wall. So far as doing the work was concerned, the defendant had the undoubted right to give direction as to the proper performance of the work under his contract, and could insist that it should be done according to its terms. Under his contract with Barnwell, so far as can be gathered from the evidence, he could not give direction or order the materials to be procured from any particular quarry or place, or hauled in any particular manner, only so that the material was suitable for the purpose for which it was intended. Barnwell occupied towards the defendant the relation of contractor, independent of him in all things except that the material should be suitable for the purpose and the work properly performed.

Can it be said, then, that as such, contractor the defendant was liable for a violation of the ordinances in the manner of hauling his lime and sand, or for leaving them on the street contrary to the ordinances ?

The possession of the premises remained in the owner except the right of the defendant under his contract to make such use of them as was necessarily incident to a complete performance of it. In order to charge the defendant with the acts of Barnwell the relation of master and servant must either actually or constructively exist. If the owner lived upon the premises and permitted the street to be obstructed by material used in the erection of his building, possibly the owner as well as the person offending would be liable, on the theory that having the right to forbid the act, he permitted another to do it, thereby necessarily giving his consent. But that is not the case before us. The defendant had no right to obstruct the street, had no permit from the city authorities to deposit his material in the street, and could give no permission to any one else to do what he himself could not lawfully do,»and consequently he could not permit or prevent Barnwell in the unlawful use of the street, he having the same right as the defendant to the use of the street and no greater; and hence he cannot be charged with giving his consent to the act of an independent contractor from the mere fact that he saw the material piled on the street and did not order it removed. As between the defendant and Barnwell, the latter had the same right to use the premises as the former so far as was necessary to perform his part of the contract, and so far as the evidence discloses neither, as against the owner, liad the possession.

We are referred to no reported case in this state sustaining the plaintiff’s contention.

The case of Blake v. Ferris, in 5 N. Y., 48, has settled the rule of respondent superior in this state, and it has not been overruled by later authorities, that to charge a party with the negligent act of another, the relation of employer and employee must exist. The act must be of the master acting by his servants or employees. This rule has had recent illustration in the highest court of our state in Butler v. Townsend, reported in 126 N. Y., 105; 36 St. Rep., 508, and in the case of Miller v. N. Y., L. & W. R. Co., 125 N. Y. 118; 34 St. Rep., 607, and the rule as laid down in Blake v. Ferris, supra, applied and enforced.

This ordinance is penal in character and should not be extended beyond the plain meaning of the language employed, as would be required to charge the defendant with liability under the facts of this case.

I think the judgment of the municipal court should be affirmed, with costs.

Hatch, J.

Defendant contracted to build two houses upon West .avenue, in the city of Buffalo; after the execution of the contract, he sublet the excavation for the cellars, furnishing the material therefor, and constructing the wails therein and the foundations upon which the houses were to rest. The sub-contractor entered upon the fulfilment of his contract, and in so doing deposited stone and other materials in the street, for which obstruction, it is claimed, the penalty was incurred. Defendant exercised no control over the excavations, gave no directions' with respect to the deposit of materials or the building of the walls, but the whole thereof was under the direction of the sub-contractor, and the deposit was made by himself and servants subject to his direction.

The ordinance which it is claimed was violated provides:

Section 1. “No person shall place, leave or deposit in any street, lane or alley, or upon any side or crosswalks within the city, any substance or material whatsoever, except such as are permitted by the ordinances of the city or by resolution of the common council.” For a violation of this ordinance a penalty is prescribed. It is quite evident that the object of the section is to prevent any obstruction of the streets and render them convenient and safe for travel. The section is, therefore, to receive such construction as will accomplish this purpose; but as a penalty is attached for its violation, it must be limited in its operation to such matters and persons as fairly come within its lines and cannot be extended by implication or construction. Chase v. N. Y. C. R. R. Co., 26 N. Y., 523; Wood v. Erie R. Co., 72 id., 196; Verona Central Cheese Co. v. Murtaugh, 50 id., 314.

The defendant did not deposit the material in the street; that act was done by the sub-contractor and his servants; he is not, therefore, the person mentioned or contemplated by the section. He gave no directions to deposit the material in the street, and he reserved no right to direct how or in what manner the material should be delivered or the work prosecuted; he was not, therefore, constructively responsible for the act of the sub-contractor or his servants, as he had no control of either. In addition to this, it appeared that there was no necessity for placing the material in the street, as there were vacant spaces by the side of the building where it might have been placed. I am unable, therefore, to see any rule of construction how he can be said to be the person who created the obstruction. It is claimed he should be held responsible on the principle of respondent superior; to uphold such claim would violate established authority, as I view the case. Defendant, as before observed, retained no control over the manner and method which should be adopted in the prosecution of the work; he could no more direct how and when the material should be delivered than he could direct where it should be obtained ; this was all matter subject to the exclusive control and decision of the sub-contractor and about which the defendant was powerless. Under such conditions the doctrine contended for is without force; the liability does not exist. Storrs v. City of Utica, 17 N. Y., 104; Miller v. N. Y., L. & W. R. R. Co., 125 id., 118; 34 St. Rep., 607; Butler v. Townsend, 126 N. Y., 105; 36 St. Rep., 508.

The decision in Burgess v. Gray, 1 C. B., 578, turned upon this principle, for in that case liability was determined to exist upon the ground that defendant had exercised and reserved control over the obstruction and its removal from the street.

The fact that defendant was to procure permits cannot be availed of, as it does not appear that he knew that Barnwell would deposit stone in the street or that there was any necessity for it, as there was not in fact. His knowledge after it was done imposed no duty upon him to get the permit, as the act was not his and he had not authorized it. The same thing is true with respect to his declarations to the street commissioner’s clerk; what he supposed his liability was did not have the effect of establishing it any more than his supposition would have relieved him of liability if it existed. The violation of the ordinance in this case was committed by the sub-contractor, and he alone was liable for the penalty. It follows that the judgment appealed from should be affirmed, with costs.

White, J., concurs.


source: Caselaw Access Project

author: Titus, Ch. J. White, J.,

license: Public Domain

text:
    Frank Foley, Resp’t, v. The Western New York & Pennsylvania Railroad Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Master and servant—Fraud in procuring employment.
    Plaintiff was formerly in the employ of defendant and was discharged; the rules of the company forbidding re-employment in such a case, he sought employment under a different name and was engaged as a brakeman. Upon discovering his identity, defendant immediately discharged him. Held, that as no injury or damage was suffered by defendant by reason of plaintiff's fraudulent conduct, the latter was entitled to recover for the services actually performed by him.
    (White, J., dissents.)
    Appeal from judgment of the municipal court of Buffalo in favor of plaintiff.
    Action for services as brakeman on defendant’s road.

      O. O. Cottle, for resp’t; L. P. Hancoch, for app’lt.
   Titus, Ch. J.

It appears that at one time the plaintiff was in the employ of the defendant, and that for some reason he was dischazged; that he again sought employment under the name of Frank McGuire, and was engaged in the capacity of a brakeman on a freight train. After he had worked thirty-six days it became known to the defendant that he was in fact the Frank Foley whom it had previously discharged from its employ, and he was thereupon immediately discharged, apparently for the same reason as for his first discharge. The defendant refused to pay him for his services while employed as Frank McGuire. He performed his duties under his last employment satisfactorily to the defendant, being prompt and efficient in his work. No complaint is made against him or reason given for his discharge except the fact that he was once in the employ of the railroad and discharged from its service.

No claim is made by the defendant for damages against him while in its employ, either as Frank Foley or Frank McGuire, but it seeks to lie relieved from the payment of his wages on the ground that he falsely represented himself to-be Frank McGuire and fraudulently induced the defendant to enter into a contract with him, when, if his identity had been known, he would not have been employed. No claim is made that the defendant suffered any damage by reason of the false representations, but, having been imposed upon by him, it claims not to be liable to pay for the services performed.

I think that the judgment of the municipal court must .be affirmed. It is a well settled principle of law that where no damage has been suffered by reason of fraud no action will lie, and the law does not take cognizance of a fraud which is not actionable. 2 Parsons on Contracts, 5 Ed., 771; Morgan v. Bliss, 2 Mass., 112.

The defendant has had the services of the plaintiff and has suffered no damages. Concededly his services were valuable and worth what he claims them to be. After he has finished his work, after the contract is completed, it is difficult to see how the defendant can escape liability. The plaintiff was employed for no definite period. He could have left the employment of the defendant without notice. He could have been discharged by it at pleasure, and when either party elects to terminate a contract for labor, indefinite as to the time, it becomes a completed contract McLees v. Hale, 10 Wend., 426. And after a contract has been fully executed, it cannot be repudiated by the party who has reaped the benefit of it. Emmet v. Reed, 8 N. Y., 312.

Suppose the plaintiff had made an arrangement to work one month and left at the expiration of that time, can it be said that the defendant could refuse to pay his wages on the ground that he had fraudulently withheld his name when it had suffered no damage ? And, as this contract was indefinite in character and becomes an executed contract whenever either party elects, then the rule is applicable the same as-if it were fixed and definite.

It is elementary that fraud vitiates all contracts, but this is only in case the party knowing of the fraud desires to avoid the contract. He may rescind the contract and recover the price paid, "or he may affirm the contract and sue for damages. Camp v. Fulver, 5 Barb., 91. But unless the contract is an illegal one for an unlawful purpose it may still be performed and the parties made liable under it. If they wish to avoid it they must elect and take steps to that end; but when it has become an executed contract and the party alleging the fraud has reaped all the benefits from it, he cannot then say to the other party that it is fraudulent and excuse himself from performing on his part; and so the fraud to be actionable must have resulted in a direct and positive injury to the party. Taylor v. Scoville, 54 Barb., 34. It is not claimed in this case that the defendant was damaged or injured in any way by the fraudulent conduct of the plaintiff, and no damages have resulted from it, and hence the fraud becomes immaterial. 3 Hun, 301.

I think, therefore, the judgment of the municipal court should be affirmed, with costs.

"Hatch, J., concurs.

White, J.,

(dissenting.)—This is an appeal from a judgment for ninety-three dollars and thirty cents, recovered by the respondent against the appellant in the municipal court of Buffalo, on October 29, 1891. The recovery was upon a quantum meruit for services rendered by the respondent as a brakeman on the defend ant’s railroad in August and September, 1891. The defendant is a domestic steam railroad corporation. My associates and I agree that the employment of the respondent in which he rendered the services in question was fraudulently obtained by him, by means of false-and fraudulent representations as to his identity, and that immediately upon discovering such fraud the defendant discharged and refused to permit the respondent to continue in its service. Prior to August, 1891, the respondent had been in the service of the appellant and had been discharged from such service for reasons satisfactory to it, apparently growing out of a collision between two trains on its road, on one of which the respondent was at work

At the time of his first discharge the respondent was notified that the rules of the company forbade his re-employment; such was the fact, and he would not have been re-employed if his identity had been known to the defendant when he applied for work and entered its service the second time. The services rendered under the second employment were worth the amount recovered in the judgment appealed from. The respondent claims, and my associates rest, the right to recover the value of the services performed by him on the grounds :

1. That no damage resulted to the appellant by reason of the fraudulent procurement of the contract of employment by the respondent.
2. That although the contract was procured by the respondent by fraud in the first instance, the appellant received the benefit and advantage of its performance, and being unable to restore to the respondent what it had thus received, must pay therefor.

The authorities relied upon as sustaining those propositions, and many other cases, hold in substance, and the law is well settled, that an action for damages founded on fraud cannot be maintained unless actual injury has resulted or may result from the fraud complained of, and further, that when a party claims to have been defrauded, and seeks to rescind a contract for that reason, he must first restore or offer to restore to the alleged fraudulent party such property or benefits,, if any, as he himself may have received on the faith of the contract which he alleges was fraudulent.

Damages, as defined by text-books and adjudged cases, are the indemnity recoverable by a person who has sustained an injury either in person or property, or relative rights, through the act or default of another. So, in the nature of things, no action can be maintained for recovery of damage where no damage has been sustained. Such is the policy of the law. If it were otherwise, unscrupulous persons might find constant employment in bringing suits for real or imaginary fraudulent or tortious acts causing actual injury to no one. A party to an action is not permitted to perpetrate a fraud for his own advantage on the sole ground that another with whom he has contracted intended to perpetrate a fraud upon him; and therefore when a party to an action seeks to recover damages for an alleged fraud, or to be relieved from an alleged fraudulent contract, he is required to exhibit clean hands in court. He who seeks equity must do equity, and so the law, which prevents the recovery of damage for a fraud which has produced none, and requires a party to restore, so far as he can, such property or benefits as he may have received on the faith of a contract which he alleges to be fraudulent before maintaining an action thereon, but prescribes rules of conduct which commend themselves to the judgment of all honest men.

I think that the doctrine of restoration, however, has no application to this case. This is not an action for the rescission of a fraudulent contract, nor is it an ' action to recover damages sustained by reason of the fraudulent conduct of one of the parties thereto, but is an action to recover wages under a contract based on the fraud of the plaintiff, who, by his own ffaud, made restoration impossible ; or, more accurately speaking, the nature of the contract was such as to preclude the application of the rule of law requiring restoration. Furthermore, the law requiring restoration is not absolute, and “ when the party who has practiced the fraud has entangled and complicated the subject of the contract in such' a manner as to render it impossible that he should be restored to his former condition,” the rule has no application. People v. Stephens, 71 N. Y., 527.

Restoration in this case, after the services were rendered and when the fraud was discovered, was, of course, impossible, and the reason for its being impossible was caused solely by the fraud of the plaintiff himself.

The theory of the appellant’s counsel is that no recovery can be had on the ground that no contractual relations existed between the parties within the cases which hold that where the master never intended to employ the servant, and its mind never rested upon him, and as between the two there was no consensus of mind which could lead to any agreement, there was merely the one side to a contract where, in order to produce a contract, two sides would be required. The result must be the same whether that be the correct theory, or whether contractual relations did exist, and I prefer to adopt the latter view of the matter.

Mo principle of law is better or more firmly established than that “ a fraudulent party cannot himself assert his fraud and claim as his right any advantages resulting from it. To permit him to do so would be to contradict the plainest principles of law. Mo man can be permitted to found any rights upon his own wrong.” Such is the law as laid down in all works on the subject, and the reports of decisions to the same effect are many.

It cannot certainly be claimed that the judgment appealed from was recovered upon any basis other than that of the contract under which the services of the plaintiff were rendered, and no contract was alleged or proved other than the one conceded to have been induced by the fraud of the plaintiff. How, then, can the plaintiff maintain an action upon such a contract? There are many cases holding that a party cannot collect pay for services rendered pursuant to a contract which is merely immoral or against public policy. Much less can a party recover for services rendered pursuant to a contract founded on his active and positive fraud.

I am, however, of the opinion that actual damage was sustained by the appellant by reason of the contractual relations created between it and the respondent by the fraudulent act of the respondent, or at any rate that the law will assume such to be the fact.

The statute law of this state makes it a misdemeanor for steam railroad companies to even employ persons for certain positions in their service who possess certain defects of character, or are deficient in certain qualifications as to intellectual acquirements. Not only that, hut the relation of master and servant between a steam railroad corporation and its brakemen involves responsibilities of a most grave and serious nature on the part of the master; the re-' lotion is one of confidence, demanding the utmost truth and good faith between them, and so sedulously is this principle guarded that all departures from it are esteemed frauds upomthe confidence bestowed.

A party has an absolute right to select and determine with whom he will contract, and to refuse to contract with any particular person for reasons satisfactory to himself, and the sufficiency of those reasons cannot be inquired into. Especially is this the case with masters engaged in business as dangerous as that of operating a steam railroad, where negligence or misconduct on the part of an employee may. involve loss of human life as well as pecuniary damage. For its own protection it was perfectly proper that the appellant should adopt the rule or regulation that it did: to reemploy no servant who had been once discharged from its service, and when the respondent by his fraudulent conduct secured such re-employment he violated a right possessed by the appellant which was as sacred and much more vital than that which enables a defrauded party to rescind a contract or restores to the fraudulent party property received on the faith of it; and whenever an injury is done to such a right, actual perceptible damage is not indispensable, but it is sufficient in a case like this to show the violation, and the law will presume damage.

“ The law cares very little what the loss of the fraudulent party may be and exacts nothing solely for his sake. If he so entangles himself that the party defrauded cannot unloose him, the fault is his own, and the law only requires of the defrauded party that he shall so far as he is able undo what has been done in the execution of the contract. This is all that honesty and fair dealing requires, and if it fails to extricate the wrongdoer from the position he has assumed, it is in no sense the fault of his intended victim.” Hammond v. Pennoch, 61 N. Y., 153; People v. Stephens, 71 id., 553.

It is conceded that the claim of the plaintiff is based upon a contract secured by his fraudulent representations; that the defendant was am innocent and defrauded party in the transaction, which it repudiated as soon as the facts became known to it. I think the court should refuse its aid to the fraudulent party in such a case, and therefore that the judgment appealed from should be reversed.

Judgment affirmed, with costs.


author: White, J.

text:
    Mary Beyers, Resp’t, v. Dwight A. Hodge and Erich Hodge, App’lts.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Principal and agent—Ratification of agent’s contract.
    Defendants were agents for the Barber Asphalt Co. One S., who was in their employ, employed plaintiff to circulate a petition for signatures of property owners on which to institute proceedings for the paving of a certain street, and promised to pay $300 therefor. The services were performed and the street paved by said company. Defendants paid plaintiff some money, but upon being informed of the sum promised by S., instantly repudiated his authority in that respect. Held, that there was no ratification, of the promise of S. to pay the sum mentioned, and that plaintiff could not recover thereon.
    Appeal from judgment in favor of plaintiff.

      Brown & Sells, for resp’t; Frank R. Perkins, for app’lts.
   White, J.

The appellants were agents for the Barber Asphalt Company in Buffalo, and their business was procuring contracts for the paving of streets by that company in Buffalo. The appellants had in their service in the summer of 1889 one Andrew Soule. In that year Soule, claiming to represent the defendants, employed the plaintiff to circulate a petition for the purpose of procuring signatures of property owners on which to institute proceedings by the common council of Buffalo for the paving of Bowen street. The plaintiff circulated the petition, procured signatures thereto, and it was used in such proceedings, which resulted in the street being paved bv the Barber Asphalt company. Soule promised to pay the plaintiff $300 for her services.

The defendants are to be held liable, if at all, on the ground that they ratified the contract made by Soule with the plaintiff. The only direct evidence in the case tending to establish such ratification is given by the plaintiff herself. There is, perhaps, enough of it, taken in connection with the acts of the defendants in paying to the plaintiff money, and their making use of the petition circulated by the plaintiff in securing the contract with the city, to warrant the inference that Soule was authorized by them to employ the plaintiff to perform the services which she did perform, but from my point of view the case is utterly destitute of evidence that the defendants ever agreed to pay, or ratified an agreement by Soule to pay, the sum of $300 for those services. Indeed, all the evidence upon that subject is to the contrary. The only time when, according to the plaintiff, anything was said to the defendants about the amount promised her by Soule, they instantly repudiated his authority in that respect.

The complaint in this action is upon a special contract to pay $300, and conceding the plaintiff’s right to recover upon a quantum meruit, she cannot recover under her complaint, because no proof of the value of the services was offered, and the proof made falls short of establishing an agreement to pay $300 by the defendants.

In order to bind the defendants to the payment of $300 as claimed in the complaint, it should appear that when informed by the plaintiff that Soule had promised to pay her that amount they assented to it, and consented to be bound by it; such intent should have been maintained in an unequivocal manner.

The record shows, as we have seen, that when the plaintiff claimed to the defendants that Soule promised her $300, they told her it was too much, and refused to pay it.

It is no doubt true that a principal is bound to disavow the unauthorized act of his agent within a reasonable time after the fact comes to his knowledge. In this case the disavowal was made imqiediately on the claim being made by the plaintiff for $300. It impossible from the record before us to find that the defendants unequivocally or in any way consented or agreed that, the plaintiff should receive $300 for her services.

The judgment appealed from should be reversed.

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


text:
    Charles H. La Friend, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Negligence—Railboad—Evidence—Notice. •
    On the trial of an action for injuries caused by alleged negligence of a railroad company, a letter from the street commissioner to defendant, claimed to have been written in pursuance of a resolution of the common council requiring notice to it to place a flagman at the crossing in question, was admitted in evidence. Said letter had been enclosed in an envelope and deposited in a letter box at the city hall. Held, error; that in the absence of proof of its receipt the notice thus given was not effectual; that the ordinance relating to such notices not specifying the manner in which they are to be served, a personal notice is necessary. ■
    Appeal from judgment in favor of plaintiff, entered upon the verdict of a jury.
    Action to recover for personal injuries sustained at a crossing of defendant’s road.

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

I am of the opinion that while the testimony in the case would have justified the submission to the jury of the question of contributory negligence on the part of the plaintiff, the judgment and order appealed from must be reversed, for the reason that the court erred in admitting in evidence the letter dated December 29, 1884, written by John S. Bidwell to the defendant. The purpose of that evidence was to show negligence on the part of the defendant in not keeping a flagman at night at the crossing where this accident occurred. There could have been no other purpose, because it appears by undisputed testimony that the defendant actually kept a flagman there through the day, but not at night. This letter of December 29, 1884, was intended as a compliance with a resolution of the common council of the city of Buffalo directing the street commissioner to notify the defendant to place a flagman at this crossing pursuant to the provisions of § 5 of chap. 8 of the city ordinances, which makes it obligatory upon all railroads to cause a flagman to be stationed at such crossings within ten days after notice from the common council to do so, and to cause such flagman to remain near said crossing to give notice of the approach of trains. This ordinance imposes a penalty for neglect on the part of a railroad to comply with its provisions. No provision is made by statute or ordinance as to the form of the notice to be given, nor as to the way in which it must be served. This letter was enclosed in an envelope, sealed and addressed to the defendant, and the proper postage was paid thereon. It was then deposited in .a postal or United States mail box in the City and County Hall. The respondent contends that this constituted legal notice to the defendant requiring it to place and keep a flagman at the crossing in question. In the absence of proof of its receipt by the defendant, we do not think that the notice thus given was effectual.

It may well be contended that an effectual notice should embrace an authenticated copy of the resolution adopted by the common council in such a case, or that it should at least contain something to indicate its official character. But if we were to assume that the form of the notice as given was proper, and that the defendant was bound to know its official source and origin if received by it, it would not overcome the difficulty which confronts us, because there was no evidence of legal service of the notice upon the defendant.

The rule in such a case is well stated by Judge Earl in the case of Beakes v. Da Cunha, 126 N. Y., on p. 297; 37 St. Rep., 14. He says: “ Where any statute or the terms of any contract require notice to be given and there is nothing in the context of the statute or the contract, or in the circumstances of the case, to show that any other notice was intended, a personal notice must always be given.” Similar language is used in many instances by the courts of this state. For the purposes of the question before us, the ordinance is a statute, and there is nothing in its context or the circumstances of the case to show that any other • than a personal notice was intended by the ordinance. It cannot be said that the evidence in question was harmless.

The j udgment and order appealed from should be reversed, and a new trial ordered.

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


author: Hatch, J.

text:
    Samuel J. Kirchman, Resp’t, v. Eva P. Lapp, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Conversion—Fixtures.
    Defendant sold a house and lot to plaintiff, but was to remain in possession until the first of May. There were chandeliers in the house attached to gas fixtures in the usual manner, and a brass faucet attached to the boiler, and a necessary part thereof, and there were planks laid in the garden for a walk, a children’s play-house without foundation, made by the children and nailed to the fence, and a growing rose bush. None of these were mentioned in the deed. Held, that the rose bush- and faucet were fixtures, and passed under the deed; that the chandeliers, planks and playhouse were not fixtures, and that defendant was not guilty of conversion in removing them.

      Appeal from a judgment rendered by the municipal court of Buffalo.

      Hayes & Farrar, for def’t; O. C. De Witt, for pl’ff.
   Hatch, J.

Plaintiff purchased of defendant a house and lot At the time of the purchase there was in the house two chandeliers, secured to the gas pipes in the ordinary manner of attaching such fixtures; also, a brass faucet attached to the hot water-boiler, and constituting a necessary part thereof. In the rear part of the lot there was some loose plank or boards laid for a walk; also a small children’s play house nailed to the fence, and upon some part of the lot there was a growing rose bush. No mention of any of these articles was contained in the deed of the premises, nor was any conversation had with respect thereto during the negotiations which led to the purchase, or upon the delivery of the deed. After the sale defendant occupied the premises, free of rent, to April 1st, then leased them at an agreed rent for one month, and upon the expiration of that period left the premises, and either at that time, or during, the period of occupancy under the lease, removed the property before mentioned.

Plaintiff brings this action for damages; claims a conversion of the property by defendant. The court awarded a recovery therefor, and defendant now appeals. It appears from the record that an action was first brought against Edward Lapp, husband of the present defendant, and practically all of the testimony taken in that action. Upon its appearing that he was not a party in interest, the present defendant was brought in and' by stipulation of the parties the testimony so taken was made the evidence in this case. At the close of plaintiff’s case defendant moved for a non-suit upon the ground that plaintiff had failed to prove a cause of action. The' court, in reply to this motion, said: “I so hold as to the gas fixtures. As to the rose bush and as to the faucet there is evidence to show that these were fixtures. As to the plank and play house there isn’t any.” The plaintiff was thereupon recalled and testified that the play house stood in the corner of the fence and was nailed to it. At the close of plaintiff’s examination the court said : “I think the play house is part of the property.” Defendant thereupon renewed his motion for a nonsuit upon the same ground as before, which motion was denied. There is nothing in the record to show that the court • changed its mind in regard to the chandeliers until the direction for judgment is reached, when it is to be inferred that their value was included, for excluding the plank walk, which seems to have been done, and-including the chandeliers, the judgment rendered reaches the amount of plaintiff’s claim, and if not included there is no basis for the amount awarded. In this view we are to see if the judgment can be sustained.

The chandeliers were personal property, and did not pass under the deed. McKeage v. Hanover Fire Ins. Co., 81 N. Y., 38. They were not mentioned in any form, or at any time prior to the delivery of the deed; consequently they remained the property of defendant. After the sale and lease of the property, plaintiff and defendant’s husband had a conversation in which the husband stated: “ I thought I was going to take the gas fixtures along, but I will leave them here for you.” Plaintiff said : “ I guess you will; they belong to me.”

If we assume that the husband had authority to bind the wife, plaintiff acquired no property right or title to the chandeliers by virtue of this promise, nor did he think he did, for he then claimed ownership, thinking, doubtless, that the deed transferred title. It was a mere naked promise without consideration; it could not be upheld as a gift, for there was no delivery ; in no view could it be inferred. It is insisted that there was a delivery of the property and possession given, which evidenced not only an intention, but an agreement to pass the title. The basis of this claim is not true in fact, for the evidence shows that title to the realty • passed prior to April; that defendant was then to occupy the premises free to April 1st, and pay for the following month; consequently plaintiff did not have actual possession of the realty during that time, much less any possession of defendant’s personal property. I am of opinion that defendant had the title and right to remove the chandeliers.

The court also held that the playhouse was part of the realty; this, I think, was error. The testimony disclosed that the playhouse was a small affair, placed upon no foundation, built of pieces of board picked up by defendant’s boy and other children in the neighborhood, nailed together and to the fence, and owned jointly by the children. The bare statement of its character, method of construction and use is all sufficient to rebut any possible idea that it could have been intended or regarded as a permanent structure or fixture which would pass under a deed. McRea v. Central Nat. Bank of Troy, 66 N. Y., 489; Leonard v. Clough, 37 St. Rep., 814.

The faucet, doubtless, passed under the deed ; it was a necessary adjunct to the boiler, and that was conceded to be part of the realty. The rose bush also passed with the title.' The plaintiff, therefore,, became entitled to recover whatever they were worth.

In the most favorable view of the testimony this could not exceed the sum of $5.50.

The judgment appealed from is therefore modified by reducing the recovery to the sum of $5.50 damages and $2.10 costs, and as so modified the judgment is affirmed. No costs allowed to either party in this court

Titus, Ch. J., and White, J., concur.


author: Hatch, J. White, J.

text:
    Henry Knauss. Resp’t, v. Andrew Taylor, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    1. Witness—Credibility—Interested party.
    The court is not bound to believe the testimony of an interested party, although uncontradicted and unimpeached; it rests with the court in such case to determine his credibility.

      .2. Same.
    Evidence sufficient to authorize the court to disregard such testimony. (White, J., dissents.)'
    Appeal f(rom a judgment rendered by the municipal court of Buffalo.

      John T. Gardner, for app’lt; Brown & Sells, for resp’t.
   Hatch, J.

The plaintiff brought this action to recover a bal•ance due on the purchase price of a horse and wagon. Defendant by answer admitted‘the. purchase and balance due, but alleged that plaintiff agreed, at the time of said sale, to take the balance out in a certain specified work; that defendant had since been ready and willing to perform said work. Defendant was awarded the affirmative of the issue and gave the only testimony appearing in the record. Plaintiff was awarded judgment. It is now ■claimed that defendant’s uncontradicted testimony supported the allegations of the answer, and that it was error to render judgment for plaintiff. The testimony of the defendant fairly supports the claim, but with this conceded, it does not follow that the judgment should be reversed. The general rule that positive testimony of an uncontradicted and unimpeached witness cannot be arbitrarily disregarded by the court or jury is qualified where the witness is an interested party. Gildersleeve v. Landon, 73 N. Y., 609; McNulty v. Hurd, 86 id., 547; Zust v. Smitheimer, 34 St. Rep., 583.

Under such circumstances it rests with the court to determine the credibility of the witness. It has the party before it, scrutinizes his appearance and manner of giving testimony, judges of his ■candor and intelligence, nearly all matters which it is impossible for the record to disclose. The balance sued for was concededly due either in work or money. Aside from this the court could well find from the evidence that defendant’s claim to compensation for the advice given plaintiff, set up byway of counterclaim, was extravagant in character and amount; this tended to discredit him; it could also find that he was not ready in good faith to perform the work, for defendant stated that he went to see plaintiff about the work in May “if he was going to have it done, but if not, I wasn’t going to stand any more monkeying, for the convenience of people that were living in it.” All this was matter for the court to pass upon, and it had the right, under-all the circumstances, to disregard the testimony, and arrive at the determination which it did. The judgment should, therefore, be affirmed, with costs.

Titus, Ch. J., concurs.

White, J.

(dissenting.)—I can find nothing in the record of this cause to warrant the rejection by the municipal court of Buffalo of the evidence of the defendant upon the trial to the effect that thirty dollars of the purchase price of the horse was to be paid in services of the defendant, and his readiness to perform them. To that extent I think the defense was established. To my mind the evidence of the defendant on those points was neither unreasonable nor suspicious.

The respondent’s counsel concedes in his brief that “ the contract for the building of the chimney was a * * * promise held out by the plaintiff that if the defendant would purchase the horse the plaintiff would employ the defendant to build a chimney for him.” I am unable to see in such a case how the contracting party can be compelled to pay money, instead of being allowed to perform, the stipulated services, without alleging and proving his refusal to perform them.

Judgment affirmed, with costs.


author: Van Brunt, P. J. Barrett, J.

text:
    Bernard Mc Kenna, Resp’t, v. Ellen Duffy et al., Resp’ts. Charles Spengler, Purchaser, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Judicial sale—Partition.
    A purchaser at partition sale should not be compelled to take title where some of the parties were non-residents who had not been served and the record does not show authority in their attorneys to appear for them.
    2. Partition—Direction as to payment of proceeds op sale.
    A direction in a judgment of partition that the share of each party is to-be paid to the party or to his attorney is irregular, as the Code requires that the costs shall be paid to the attorney, and the balance to the parties, and the judgment must so award them.
    Appeal from order denying the motion of a purchaser at a partition sale to be relieved from the purchase.

      Reeves & Todd, for app’lt; D. Quinn (J. W. Shepard, of counsel), for resp’t Mc Kenna; Jeroloman & Arrowsmith, for def’ts, resp’ts.
   Van Brunt, P. J.

It appears that on the 26th of October, 1884, one John Mc Kenna died intestate in the city of New York,, seized of the premises in question. He left a widow, but no issue; and his only heirs at law were the plaintiff, two sisters and the children of two deceased sisters.

The plaintiff and several of the defendants are non-residents of the United States and have never been served with process of any kind, the complaint being verified by the attorney of record. The-non-resident defendants, however, appeared by attorney. The plaintiff’s attorney having died, an order was made substituting a new attorney without the consent of the plaintiff, as far as the record shows, in violation of the rules of the court.

It is true that the attorney desiring to be substituted stated that he had a cablegram from the plaintiff, wherein he was directed to appear for him and be substituted as his attorney ; but no such cablegram was produced, and if produced would not be a compliance with the rule. This attorney having died, another attorney assumed to appear for the plaintiff without even the formality of a substitution. It further appeared that certain proceedings had been taken to declare the plaintiff a lunatic, which, however, did not result in a final adjudication upon that subject. The purchaser upon examining the title refused to take because of the pendency of the proceedings against the plaintiff; and also because no authority for the attorneys to .appear in the partition suit was shown and the parties, being-non-residents and not served with process, might come in and show an unauthorized appearance and overthrow the judgment; and that upon the record the then present plaintiff’s attorney had no authority to act

Without at all discussing the validity of the objection in respect to the lunacy proceedings, it is sufficient to say that the objection to the title because there is no evidence that the attorneys for the non-residents had a right to appear, is well taken. In the case of Vilas v. P. & M. R. R. Co., 123 N. Y., 440; 34 St. Rep., 67, the rule laid down in this court in the case of Nordlinger v. De Mier, 54 Hun, 276; 27 St. Rep., 16, is expressly recognized, which was to the effect that a judgment obtained against a non-resident who has not been served with process and has not .authorized the appearance of an attorney, will not be set aside as void.

The result, therefore, of compelling the appellant to take this title would be to throw upon him the burden of establishing the .authority of these various attorneys to appear. We do not think that he is bound to take any such risk.

If the parties desire to proceed in this irregular way, as far as non-residents are concerned, they must put upon the record the evidence of the attorneys’ authority to act before a purchaser can be compelled to take the title. The purchaser at a partition sale is entitled to purchase under a judgment which is binding upon ■the parties to the action, and cannot be compelled to take title under a judgment which several of those parties might as a matter of right claim should be set aside. As far as this purchaser is .concerned, the judgment has no more validity than if it had been entered without any proof of service of the summons, or any appearance b\' attorney of the non-resident defendants.

There is another objection to the regularity of the decree entered in this action which, although not taken by the appellant, yet it is proper that this' court should take notice of the same; .and that is the direction in the judgment that the share of each party is to be paid to the party or to his attorney, evidently referring to his attorney of record.

This is in direct violation of the provisions of § 1580 of the Code. By § 1579 it is provided that where final judgment confirming a sale is rendered, the costs of each party to the action and the expenses of the sale must be deducted from the proceeds ■of sale, and each party’s costs must be paid to his attorney. But when it comes to the distribution of the proceeds of the sale after-deducting the expenses and costs chargeable against them, a different provision is made by § 1580, which provides that the proceeds of the sale, after deducting therefrom the costs and expenses, must be awarded to the parties whose rights and interests have been sold, in proportion thereto, and not to the party or his attorney.

The intention is manifest that the costs and expenses are to be paid to the attorney, and the balance of the proceeds to be paid to the parties, and must be so awarded by the final judgment or decree. In the case at bar the award is to the party or his attorney, no regard being had to the distinction made in the sections of the Code above referred to between costs and principal.

The order appealed from should therefore be reversed, with costs and disbursements of the appeal, and the motion granted, •with costs.

O’Brien", J., concurs.

Barrett, J.

The purchaser in his motion papers questioned the authority of the attorneys for the non-residents and stated that he had been unable to find any such authority. That at least put upon those seeking to uphold the judgment the burden •of meeting such doubts by clear proof of authority verified in ■■such a manner as to furnish lasting evidence upon the record. It ■certainly was not the purchaser’s duty to go or send abroad to find and file such record proof.

I also feel that a purchaser should not be required to take title in a case where the plaintiff’s attorney was never apparently substituted by any order of the court and where there is not the slightest record evidence of his right to enter the case at all.

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


author: Van Brunt, P. J.

text:
    In the Matter of Mary Monell, Adm’rx.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Guardian—Appointment of special—Not affected by appointment of general guardian.
    Where the surrogate has once acquired jurisdiction to appoint a special guardian, such appointment is not revoked by the subsequent appointment of a general guardian.
    2. Same—Notice—Code Orv. Pro., § 2631.
    The provisions of § 2531 of the Code, in relation to notice of application for the appointment of a special guardian, have no application, where the surrogate makes such appointment on his own motion, but only to cases where some person other than the infant applies for such appointment.
    Appeal from order of the surrogate denying motion to revoke the appointment of a special guardian.

      T. Darlington, for app’lt; S. W. Fullerton, for resp’t.
   Van Brunt, P. J.

The facts shown upon the record appear to be that the appellant, as administratrix, filed her account and vouchers in the surrogate’s office, and that the general guardian ■of the infants who were interested in the estate appeared and filed objections to the account. A reference was ordered based upon, the objections; and while such reference was in progress the letters of the general guardian were revoked at the request of the sureties upon his bond, and the surrogate immediately thereafter, upon his own motion, appointed a special guardian to protect the interests of the infant on the reference. Subsequently a new general guardian was appointed, and the administratrix moved for the revocation of the appointment of the special guardian, which was refused, and from the order thereupon entered this appeal is taken.

It is contended upon this appeal by the administratrix that the right of the general guardian to appear and protect the interest of the infant is given him by statute, and cannot be taken away until after a judicial investigation showing that the interests of the infant will suffer from the guardian being adverse or incompetent, or some other reason judicially ascertained, in which case the surrogate may appoint a special guardian, and that notice of the application for special guardian must be served upon the infant under § 2531 of the Code; and that under rule 10 of the surrogate’s court the fact whether the infant resides with his parent and approves the application or not must be stated.

It is difficult to see how the powers of the surrogate conferred upon him by statute can be limited by a rule made by himself; and, therefore, it is entirely immaterial what the requirements of the rule referred to may be. It can have no bearing whatever upon the validity of the order appealed from.

It seems to us that the surrogate was not only clearly right in making the appointment of a special guardian upon the removal of the general guardian, but he was in duty bound to do so in order that the rights of the infant may be protected upon this accounting. And there is no provision whatever in the Code which either nullifies .or makes of no effect such appointment of a special guardian merely because a general guardian is subsequently appointed.

It may be true that the general guardian has the right to appear upon the proceedings in progress; but that in no way conflicts with the rights of the special guardian.

In respect to the question of notice, the requirements, of § 2531 have no application whatever to this case, in which the surrogate, upon his own motion, makes the appointment of a special guardian, but only to those cases where somebody else other than the infant or the committee of an incompetent person applies for such appointment. By § 2530 authority is expressly given to the surrogate to appoint a special guardian where there is no general guardian. And as already seen, at the time of the appointment of this special guardian there was no general guardian, or any person to look after the interests of these infants. The surrogate once having acquired jurisdiction to appoint a special guardian, there is nothing in the statute which revokes such appointment simply because he grants the application for the appointment of a general guardian.

The order should be affirmed, with costs.

O’Brien and Barrett, JJ., concur.


text:
    The People, Resp’ts, v. Frank McCormack, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    Homicide—Proof or commission op.
    On the trial of an indictment for homicide there was evidence that deceased, defendant and two others were together just before the shot was fired; that defendant stood in front of deceased and talking in a loud voice, and was in the same position after it was fired; that deceased was shot in the forehead, the direction of the bullet being straight backwards; that the three then left, one going up the avenue and two down; that on an alarm being raised the two ran, and defendant was caught by a policeman, and made various contradictory statements to the officer. Defendant claimed that the murder was committed by a stranger, and that one of his party had gone home before the shot was fired, but the evidence in relation thereto was contradictory. Held, that the facts warranted a conviction.
    Appeal -from judgment of conviction of manslaughter in the first degree, entered in the court of general sessions.

      S. Miller, for app’lt; H. B. B. Stapler, for resp’ts.
   Van Brunt, P. J.

The defendant was indicted in February, 1891, jointly with John and Martin Feely, charged with the crime of murder in the first degree, in the killing, on the 22d of November, 1890, at the city of New York, of one Edward Gillespie, by shooting him with a pistol. The defendant pleaded not guilty, and after a trial the jury found him guilty of manslaughter in the first degree, and from the judgment thereupon entered this appeal .is taken.

The claim urged upon the part of the appellant is that there was not sufficient evidence to justify the conviction of the defendant of the crime charged against him, and that the killing was done by another person whose identity it has not been possible to establish.

The claim made upon the part of the People was that the defendant, John Feely, Martin Feely, and the deceased, had been together for some little time prior to the hour when Gillespie was shot. Shortly before the shot was fired, the Feelys, the defendant and the deceased were standing near the southeasterly corner of Thirty-eighth street and Second avenue; the defendant in front of the deceased, and talking in a loud voice. Immediately after the shot was fired, the parties were standing in the same position, and the deceased fell, being shot in the center of the forehead, about an inch and a half above the eye brows, the direction of the bullet being straight backwards. The other three men then went to the corner; one of them, a tall man, went up towards Thirty-ninth street, and the other two down Second avenue towards Thirty-seventh street A passer-by having been attracted by the flash and the hearing of the pistol shot, came up, saw an object lying on the sidewalk, found it to be the body of the deceased, and saw that he had been shot. When he discovered this, he raised the cry of murder, stop thief.” Immediately upon this, the two men,who had gone down Second avenue andwere proceeding at an ordinary walk, broke into a run when about fifty feet from Thirty-seventh street, the one next to Thirty-seventh street was grabbed by Officer Schneider of the Twenty-first precinct, which was the defendant, and the other man, who was running about ten feet behind him, was John Feely.

Prior to this time neither the defendant nor John Feely had. made any outcry whatever. Immediately after his arrest the defendant pointed across the street to a man walking leisurely along Thirty-seventh street, who he said had shot a man on Thirty-eighth street. When the officer was about to arrest him, he said he was not the man but that the man had gone into a saloon at the corner of Second avenue and Thirty-seventh street; and when the officer went into the saloon the proprietor said he had not-seen a man come in for twenty minutes. When they came out the defendant claimed that a man who was seen by himself and the officer in Thirty-seventh street near Third avenue was the man who did the shooting. On coming to this man- the defendant at first stated that he did not know whether he was the man or not but finally stated he was not the- man. The officer then said to' the defendant “ I think you have been fooling me and giving me a wild goose chase.” To the best of his belief, the officer said, the defendant made no answer to this.

Other witnesses examined upon the part of the prosecution, hearing the pistol shot and attracted thereby, went to the respective windows of their rooms, saw four men in the street, one man fall, and one man go up Second avenue and two down.

It was claimed by the People that from the position of the parties, although no witness saw the shot fired, or the pistol from which the shot came, it must have come from the defendant McCormack. There was some evidence tending to show that McCormack and Gillespie had had some words, and that the defendant had a pistol and had drawn it upon a previous occasion.

■ Upon the part of the defendant it was conceded that John Feely, the defendant and Gillespie were standing together just prior to the shooting. It was admitted that Martin Feely had been with the others during the evening, but it was claimed that they together with one Michael Mahoney were in a barber shop together, and that Martin Feely complained of being sick ; that the five boys left the barber shop together and went around to 310 East Thirty-ninth street, where the Feely boys resided with their parents, and that Martin went upstairs into the house and did not come out again that night. After standing at the door a few moments, John Feely, the defendant and the deceased went up Thirty-ninth street towards Second avenue, and just then one -Wellington, another young friend, came up and remained at the door of No. 310 with Mahoney, while the three others proceeded to the corner of Second avenue and then down the Second avenue. As they were turning the northeast corner of Thirty-eighth street and Second avenue, a tall toan with a light overcoat was standing there with his back towards them and looking down Second avenue, and turning slightly round he called out “Who are you looking at? "

The three still kept on their walk towards the northerly side of Thirty-eighth street, when the tall man said again, “Who are. you looking at ?” Thereupon Gillespie turned back and the other two kept going, down to Thirty-eighth street towards Healey’s saloon. After advancing a few steps they looked around and saw Gillespie and the tall man about an arm’s length apart and in an attitude as if about to strike, while just at that moment another man, shorter and stouter than the one who stood on the corner, and apparently having come across the street, stepped up on the sidewalk near Gillespie, attracted Gillespie’s attention, and placing himself between Gillespie and the other man, raised his hand. Just then the other man said, “ Don’t.” Instantly there was a shot, Gillespie fell upon the sidewalk, the two strangers fled, the short, stout man, who did the shooting, ran up Second avenue and down the south side of Thirty-ninth street towards First avenue, and the other man crossed diagonally to the southwest corner of Second avenue and Thirty-eighth street and down tile west side of Second avenue towards Thirty-seventh street. The defendant and Feely went to the body of Gillespie, and then to the corner and down Second avenue on the east side in pursuit of the tall man, who was then in sight on the opposite side of the avenue, and before they could arouse a policeman he had escaped.

It is urged upon the part of the appellant that it is manifest that the testimony of some of the witnesses upon the part of the People cannot be true. But we think that a very brief examination of some of the prominent features of the case will show that the jury were not mistaken in the conclusion at which they arrived.

In the first place, it was apparent that it was considered of the most vital importance to show that Martin Feely was at home at the time of the shooting. All the witnesses to prove the alibi looked at the clock for the purpose of ascertaining the time when Martin came home on the night in question, and they state that it was from fifteen to twenty-five minutes past eleven, while the shooting took place at about a quarter before twelve, and that he did not go out again that night. In this there is harmony in the testimony of Martin Feely and the other witnesses to the alibi. But both Martin Feely and the other witnesses who were present when he went in contradict themselves in respect to a circum■stance which would be much more apt to impress itself upon their minds than the exact time when Martin Feely came in on that occasion.

Martin Feely says: “I went in and sat down for a few moments, and I got sick and retired into the front room and went to bed a short time after I went up, probably twenty-five minutes or half-past eleven, somewhere around that: I didn’t take notice of the time; I didn’t hear anything before I went to bed; I didn’t see my brother again that night; I heard the shot that night, but I don’t recollect the time; I was sick in the house sitting up in the kitchen with these people; I could not exactly tell where it came from.”

It will thus be seen that Martin Feely goes to bed before the shot is fired, and yet he is sitting up in the kitchen with these people when he hears it

Another witness named Conway states that Martin Feely came in between twenty and twenty-five minutes past eleven; that he stayed there probably about fifteen or twenty minutes; when apparently to the witness he went into the room and went to bed. 'The witness -heard a kind of a noise like a pistol shot, a fire cracker or something of that kind; and the witness further states that he did not know where Martin was when he heard the no-ise; that he had gone towards the room, and he supposed he went to bed.

Mr. Dunn, another witness, testified, that he looked at the clock when Martin came in, and that it was twenty to twenty-five minutes past eleven; that Martin stayed in the room where he was three to five minutes or longer; that it was not over ten minutes ; and that it was at least fifteen minutes after Martin canie in before he heard the noise of the pistol shot.

Thomas Feely, examined as a witness, testified that Martin came in fifteen to twenty minutes past eleven, and that he stayed in the room about three or four minutes and then went to bed in the front room, three rooms from the kitchen, and while Martin was in the kitchen he heard a noise sounding like a cracker pistol.

Annie Feely, the mother of Martin, was examined, and testified that he came into the house between a quarter and twenty minutes past eleven, stayed in the kitchen five or ten minutes, and then went into the front room where he slept; and that while-Martin was in the bed room the witness heard a noise, which was ' evidently that of the shot.

Another witness, Catharine Gavin, who looked at the clock as did all the others, testified that Martin came in between fifteen and twenty minutes "past eleven and that Martin was in the kitchen sitting in a chair at the time of the shot, and he got up and went to his bed in the bed room. And immediately after-wards she said, “ At the time I heard the shot Martin was in his bed.”

Michael Mahoney also testified that he was with the Feelys, McCormack and Gillespie on the evening in question, and that Martin went into the house before the report of the pistol, and there was some other evidence tending to show that Martin did not go out.

It is thus apparent that the witnesses who claimed to have been with Martin Feely at the time of the firing of the shot did not. even agree with themselves as to his then location. The only thing that they appear to agree upon is the fact that they all looked at the clock, but did not see the time exactly the same. For some the clock seems to have recorded between fifteen and twenty minutes past eleven, and for others between twenty and twenty-five minutes past.

There is another feature of this evidence in regard to which a question arises, and that is, if Martin Feely came into the house twenty or twenty-five minutes past eleven, and the shooting took place at a quarter to twelve, what were John Feely, the defendant and the deceased doing during that twenty or twenty-five-minutes ?

We have searched the case in vain to find any explanation as to what was done during that lapse of time.

Furthermore, if the claim advanced upon the part of the defendant is correct, how does it happen that all the witnesses- who saw the group immediately after the shooting agree that it was composed of four men, and that no other men were in sight ?

If the statement made upon the part of the defense is true, such witnesses should either have seen three or five men. If they did not see the defendant and John Feely then they would only have seen three, namely, the tall man, the short man and the deceased. If they saw more than three they must have seen five, for the defendant and Ifeely were together, and they could not have seen one without the other. All these witnesses agree that upon looking immediately after hearing the shot, they saw four men in a group, one of whom fell, one went up Second avenue and two down. If the defendant and John Feely were not of the group at the time of the shooting, and one of the group went up Second avenue and one went down, what became of the third survivor? There is nobody that pretends to have seen him leave the scene of this tragedy.

This condition of affairs can only be explained by conceding the truth of the evidence of Mamie Mahoney that Martin Feely was there, and he went up Second avenue after the shooting, and the defendants and John Feely down. This view is corroborated to absolute conviction by the conduct of the defendant and John Feely. They made no outcry, and called for no assistance, and when an outcry was raised started into a run until they were stopped by the policeman, who, the defendant claimed, was asleep upon his post; the fact that these two men ran away the moment an outcry was raised being established by independent and undoubtedly reliable testimony.

It would seem, therefore, that upon an examination of the salient features of this case but one conclusion could be arrived at, which was that Gillespie was shot by either the defendant, Martin Feely or John Feely, and that from the position which the three occupied to Gillespie, and the position and direction of the bullet wound, the shot must have come from the hand of the defendant

A very large part of the appellant’s brief is taken up by a criticism upon the charge of the learned recorder, and the claim that the case was not fairly presented to the jury.

We have examined the charge and do not find that the duty of the presiding officer was transgressed in any respect.

It is entirely proper that the court should call the attention of the jury to the condition of the testimony, and lay the facts before the jury in such a way that they may see the pertinency and tendency of the testimony, leaving them, of course, to draw the inferences therefrom. And this was all that was done upon the trial of this defendant.

We think there was no reason shown for interfering with the verdict of the jury, and do not see, under the circumstances, how any other result could have been arrived at.

The judgment should be affirmed.

. Barrett and O'Brien, JJ., concur.


text:
    Augusta Stelling, Resp’t, v. Louis R. Grabowsky, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Pleading—Non-joinder—Waiver of objection.
    Where a defect in the parties appears on the face of the complaint an objection on that ground is waived if not taken by demurrer; it cannot betaken by answer.
    3. Contract—Agreement to pat one of two persons.
    As security for a loan defendant executed an instrument by which he promised to pay the amount thereof at any time to F. or to this plaintiff. Held, that it was immaterial whether the instrument was a promissory note or not; that it was a promise for value to pay F. or plaintiff, and F. having died, the plaintiff being in possession of the instrument could maintain an action thereon.
    Motion for new trial, a verdict having been directed in favor of the plaintiff, and exceptions ordered to be heard in the first instance at the general term.

      S. P. Potter, for app’lt; R. H. Smith, for resp’t.
   Van Brunt, P. J.

This action was brought to recover upon an instrument in the following language:

“ New York, June 1, 1884.
“Louis R. Grabowsky.
“After date I promise to pay to the order of Anna R. Feldhausen or Augusta Stelling five hundred dollars, value received, with interest at the rate of four per cent, due any time.
“ (Signed) Louis R. Grabowsky.”

The defendant, by his amended answer, denied each and every allegation of the complaint; denied that the alleged instrument was a promissory note, and averred that on the face of the complaint it appeared that Anna R. Feldhausen or her personal representative was a proper and necessary party plaintiff or defendant-in this action, and that they were not parties, and that the plaintiff was not the real party in interest, and never was the owner and holder of the instrument, and that said Feldhausen was the-sole owner and possessor of the instrument, and continued in possession thereof up to the time of her death, which took place in New York in or about the latter part of the year 1887, and that she never sold, assigned or transferred the same to any person, and that she died intestate, and that no letters of administration were ever granted out of the surrogate’s court to any administrator of her estate; that the loan was made by said Feldhausen, and the plaintiff had nothing to do with it.

Upon the trial it appeared that the plaintiff resided with said Feldhausen, who was her aunt, a number of years, and that the-defendant made an application to the aunt to borrow $500; that the plaintiff did not want to consent to it at first, but that after-wards she did as a matter of friendship, and that she went to the bank and drew out the money, the bank account being in the joint names of said plaintiff and Feldhausen, and gave it to the-defendant, who gave the note for it, all the written part of which is in the handwriting of the defendant. It further appeared upon cross-examination that the plaintiff had lived with her aunt for twenty years; did all the housework and took care of her, and tended the store, a lamp, crockery and oil store; that she was not paid any wages, but what spending money she wanted she got, and that the bank account was in the German Savings Bank, and kept in their joint names. It further appeared from the testimony of the defendant that he paid the interest upon this note to Feldhausen, except the last two payments, which were made to the plaintiff, who signed receipts upon the back thereof.

Upon these facts, the court directed the j udgment in favor of the plaintiff, and ordered the exceptions to be heard in the first-instance at the general term.

It is claimed upon the part of the defendant upon this appeal that the defendant’s motion to dismiss on the ground that the administrator of Anna R. Feldhausen should have been made a. party ought to have been granted. It is apparent that such objection, if it existed, appeared upon the face of the complaint; and therefore should have been taken by demurrer, and if not so-taken is waived.

In fact the answer alleges that the defect appears upon the face of the complaint, and objection is attempted to be taken by answer, which could not be done under such circumstances. One of. the grounds of demurrer is that there is a defect of parties plaintiff or defendant, and it is provided by § 498 of the Code that when such objection does not appear upon the face of the complaint, it may be taken by answer; and by § 499 that if such objection is not taken either by demurrer or answer, the defendant is to be deemed to have waived it It appears distinctly that the objection, being apparent on the face of the complaint, could not be taken by answer, but must be by demurrer, and no such demurrer being interposed the objection was waived.

It is also urged that the alleged note is not a promissory note within the statute; that it is valid as a contract but not as a promissory note because of the contingency; ■ that the defendant has the right to choose which one of the payees he will pay; and it is conceded he is willing to pay the administrator of Mrs. Feldhausen, and that the court erred in directing a verdict for the plaintiff.

We do not see that any of these objections are well taken.

It is entirely immaterial whether the instrument in question is a promissory note or not. It is a promise upon the part of the defendant, for value, to pay to the plaintiff or to Mrs. Feldhausen. It is undoubtedly true that if he had paid this note to either it would have been a discharge as to the other; but he cannot use that option for the purpose of paying neither. The plaintiff is in possession of the note; her joint title thereto is not impeached; she is the sole survivor of the alternative payees and has the right to pursue the defendant for its payment. It is none of the defendant’s business as to whether the money advanced was the money of the plaintiff or of Mrs. Feldhausen. Mrs. Feldhausen chose to permit the note'to be given in that way, and the defendant, of his own volition, cannot alter the contract. It was the manifest intention that either of the payees of that note should be entitled to collect, and that the discharge of either should dis■charge the obligation.

The exceptions should' be overruled and judgment entered in iavor of the plaintiff upon the verdict, with costs.

Barrett and O’Brien, JJ., concur.


author: Barrett, J.

text:
    The People, Resp’ts, v. William N. Loew, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Forgery—Endorsement of check—Evidence.
    Defendant was indicted for forgery in signing the name of his client on the back of a check payable to her which he had procured in settlement of claims against an insurance company. The payee of the check testified that she never authorized defendant to sign her name, but he claimed, to have received such authority from her husband, who transacted all her business and signed her checks. The husband denied this. Held, error to refuse to allow defendant to corroborate his version by the testimony of a witness as to a conversation in which the husband authorized him to endorse the check with his wife’s name when received.
    2. Same—Cross-examination.
    It was error to refuse permission to cross-examine the payee as to any verbal authority given to her husband at any time, on the ground of the existence of a written authority.
    3. Same—Charge.
    It is error in such case to refuse a request to charge that if the jury believe that the husband directed or told defendant to sign the check in the name of his wife, and defendant in good faith believed that the husband had the authority, they should find the defendant not guilty, and such error is not cured by a charge that the jury must find affirmatively that when defendant put the endorsement on the check he did so for the purpose of cheating and 'defrauding.
    Appeal from a judgment of the court of general sessions of the peace convicting the defendant of the crime of forgery in the second degree.

      Albert Bach, for app’lt; Henry B. B. Stapler, for resp’ts.
   Barrett, J.

The indictment charged the defendant with the crime of forgery in the second degree, in that on the 14th day of June, 1887, at the city of Mew York, he feloniously forged the name of C. Shulhoff on the back of a check for $1,750 on the Mational Shoe & Leather Bank; C. Shulhoff being the payee of the check and the defendant having received the check as her attorney in settlement of certain claims against an insurance company. Upon the trial C. Shulhoff, who was Mrs. Clara Shulhoff and the wife of one Richard L. Shulhoff, testified that she never authorized Loew to put her name on the back of the check and "that she never received any of its proceeds. She admitted that her husband acted for her in all business transactions, signing checks and receipting bills, and that in no instance did she sign her name. The defense was that the check was endorsed by the authority of the husband ; and Loew testified to such authority. This again was denied by Mr. Shulhoff, and the question of -veracity was fairly submitted to the jury. The difficulty, how ever, is that the learned court ruled out evidence which was-competent upon this latter issue. If it was competent to show authority from the husband and proper to permit its denial, it-was equally competent to corroborate either side on that head.

Yet, after permitting Mr. Shulhoff to testify that he never knew of the existence of the check at the time it was endorsed and collected, never, in fact, spoke to Loew about it and consequently never authorized its endorsement, the learned court refused to-permit Loew to prove by a witness named David Eeiss that he, Eeiss, heard a conversation between Shulhoff and Loew, in the* latter’s office, in which it was “ understood and agreed that Loew should receive the money arising from the settlement of the insurance, and that when he received the check he, Loew, might endorse it in Shulhoff’s wife’s name.”

Clearly this was error, and as the issue of the husband’s authority was submitted to the jury, the error must have prejudiced the defendant.

We think, too, the circumstances of the case were such that this, issue was material, and that if Mr. Shulhoff actually did authorize Loew to endorse his wife’s name upon the check, he either had authority to permit this, or at least such apparent authority as to warrant the court in submitting the bona fides of the act to the jury.

The defendant was not guilty if he had fair ground to consider that he had authority to endorse the check, and upon that head he had a right to show the circumstances under which the act was done. It was error also to hold the defendant to the strict terms of the written power of attorney which Mrs. Shulhoff gave to her husband. She might have given her husband other and verbal authority at any time, and the defendant should have been permitted to cross-examine her as to any such verbal authority or as to any previous declarations which she may have made with regard thereto. It was error to exclude this cross-examination upon the ground of the existence of a written authority.

It was also error to decline to charge as requested, “ That if the-jury believe that Mr. Shulhoff directed or told Mr. Loew to sign that check in the name of his wife, and Loew in good faith believed that'Shulhoff had the authority, they should find the defendant not guilty.”

We think the proposition was correct, and that the defendant-had a right to its submission in this concrete form. The point was hardly covered by a general statement that the jury must find affirmatively that when Loew put the endorsement on the-check, he did so for the purpose of cheating and defrauding.” This statement was made in response to the request to charge the specific proposition, and the jury may well have inferred that the intent to cheat and defraud was sufficient, even if Loew in good faith believed that Mr. Shulhoff had authority to direct him to endorse the check in Mrs. Shulhoff’s name, and in fact did so direct him.

The judgment should he reversed and a new trial granted.

Van Brunt, P. J., and O’Brtex, J., concur.


author: O’Brien, J.

text:
    The First National Bank of Jersey City, Resp’t, v. John Lindenmeyr, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    Partnership—Limited—Evidence.
    Entries in the books of a prior firm, made before the new partnership was to commence, and which are not shown to have been known to the special partner, are not admissible against him to show that his contribution was not actually paid in cash.

      (Kohler v. Lindenmeyr, 42 St. Rep., 98, followed.)
    Appeal from judgment entered on the direction of the court after a trial of the issues at circuit

      Hamilton Wallis, for resp’t; Lucien Birdseye, for app’lt.
   O’Brien, J.

This action was brought to recover upon a number of promissory notes, for the amount which it was claimed that the firm of P. Lenk & Company was liable. The fact of the indebtedness of P. Lenk & Company is admitted, and the question presented is, whether or not the defendant Lindenmeyr was a special or general partner in that firm. The determination of this question is dependent upon whether the certificate under the limited partnership act was true, which stated that, in addition to an amount contributed by one Huber as special capital, the defendant Lindenmeyr had actually, and in good faith, paid in in cash the sum of $20,000.

To establish the fact of the 'falsity of the certificate, one Weller, a book-keeper, was examined in respect to the entries made in the books of a former firm of P. Lenk & Company, of which firm the defendant Lindenmeyr was not a member and in no way connected or related. That such evidence was clearly improper and incompetent was directly passed upon by the court of appeals' in the case of Kohler v. Lindenmeyr, 42 St. Rep., 98, in the following language : “We are of the opinion that the entries in the books of the old firm, made prior to the time when the new partnership was to commence, and which, so far as appears, was not known to Lindenmeyr, were inadmissible against him.”

The case of Kohler was against this same defendant, and the ■entries objected to in this case and admitted in evidence from the books of the old firm of P. Lenk & Company were in the Kohler case held ground for error sufficient to require a reversal of the judgment

It is insisted, however, that a distinction can be made between this and the Kohler case, by reason of the claim advanced that, in addition to such incompetent evidence, there was sufficient other evidence justifying the direction of the court in favor of the plaintiff, and that if we exclude the incompetent evidence the judgment can be supported by a sufficiency of competent proof. ~We are thus asked to apply the rule laid down in Foote v. Beecher, 78 N. Y., 158, which states as follows: “An error in receiving incompetent evidence, if properly excepted to, can only be disregarded when it can be seen that it did no harm. If the evidence is slight or irrelevant, * * * or if without it the fact is conclusively established by other evidence, * * * it may be disregarded, because it could not have injured the other party.”

Applying this rule most favorably to the contention of the respondent, we fail to see how this judgment can be upheld. The evidence objected to was incompetent, and was neither slight nor irrelevant, and its admission undoubtedly had weight in the disposition made by the learned trial judge of the case. An examination of the testimony of Weller will show that when asked as to whether or not the $20,000 was paid by the defendant into the firm of Lenk & Company in the month of November, 1885, he states, “ Not to my knowledge.”

In determining whether the knowledge of this witness was any or conclusive evidence upon the fact of the payment, reference must be had to the testimony for the purpose of determining "the extent of his knowledge. He did not claim or pretend to have been present at any of the interviews or transactions between the members of the firm about to be formed, or to have any personal knowledge whatever in reference to any of .the transactions as to which entries were made in the books and as to which he was permitted to testify. It is true that he had knowledge, because he handled the two sums of $7,000 and $13,000 received from the defendant prior to the formation of the new firm of •which Lindenmeyr became a member.

It is evident, however, that all the evidence given by this witness, and the extent of his knowledge in respect to the transactions relating to the formation of the new firm of P. Lenk & Company, was information derived entirely from the books, which he was allowed to refer to, use and read in evidence against defendant Lindenmeyr, and against his objection and exception. And except his statement that the $20,000 was not actually paid in in •cash to his knowledge, the case is barren of evidence to establish the falsity of the certificate. In effect, the witness was permitted to testify that the $20,000 was paid in to the old firm months prior to the formation of the special partnership, as appeared by the entries in the books of the old firm, which were clearly incompetent, as already shown; and thence the witness was allowed to deduce the conclusion, and testify to it, that the sums thus credited in the old books which were not repaid to the defendant Lindenmeyr, and which he testified were the same amount with which Lindenmeyr was credited, “ went into the new firm through this operation.”

It is difficult to separate the competent from the incompetent evidence; and we are of opinion that a judgment in a case of this kind which apparently is supported to a great extent upon incompetent evidence should not be allowed to stand.

We are. of opinion, therefore, that the judgment should be reversed, with costs to appellant to abide event

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


text:
    William McClean, Resp’t, v. The New York Press Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Libel—Disorderly house.
    A publication charging that a certain house is disorderly, disreputable, or a bawdy house, refers entirely to the character of the occupants, and is not a libel merely on the house.
    3. Same—Parties.
    The fact that there are other occupants of said house besides plaintiff, does not affect his right to maintain an action for libel, especially where liéis the lessee of the whole house, and therefore responsible for its character.
    3. Same—Mistake.
    The fact that defendant intended to refer to another house, and not to plaintiff’s, is no answer to plaintiff’s right to recover, although it may go-to the question of exemplary damages.
    Appeal from judgment entered upon the verdict of a jury, and from order denying motion for new trial.

      J. W. Boothby, for app’lt; A. Jaretshy, for resp’t.
   Van Brunt, P. J.

This was an action for libel. It appears that the defendant was the publisher and proprietor of a newspaper published in the city of New York ; and that at the times mentioned in the complaint the plaintiff was and now is the lessee and occupant of No. 234 West Thirty-ninth street, in the city of New York, and that in May, "1890, the defendant published in its newspaper a map or diagram on ’ which were located and designated certain private houses, public buildings, schools and churches, including the premises above mentioned, by certain numbers, which numbers were explained in an explanatory note-published at the foot of the map, and in said explanatory note the-number opposite "the plaintiff’s house designated his house, No. 234 West Thirty-ninth street, “disorderly house” (meaningthereby, the complaint alleged, that the premises occupied by the plaintiff were occupied and used as a bawdy house, or house of prostitution.

Immediately after this publication, and down to the time of trial, the plaintiff and his family have been, from time to time, annoyed by visits from persons supposing that the house in question was a house of ill-fame, which had never occurred before the-publication.

The defense was that at the time of the publication complained of the defendant was engaged in an effort to suppress disorderly houses and other unlawful resorts, and that the designation of the plaintiff’s residence was a mistake, and that it was intended to designate No. 238 and not 234; and further that the defendants-corrected the mistake by publication in a later number of the paper.

The case was submitted to the jury who rendered a verdict in favor of the plaintiff; and from the judgment thereupon entered, and from an order denying a motion for new trial, this appeal is-taken.

The grounds urged by the appellant are. first, that the libel was .only the libel of a thing and not of a person; and that therefore unless the plaintiff had shown that he had sustained pecuniary loss as the necessary and natural consequence of the publication he could not recover.

It is manifest that this point is not well taken. The phrase used, it is true, is “ disorderly house.” But a house cannot be disorderly; n house is necessarily staid and sedate. It is only what is in the house that makes it lively or otherwise. Therefore, when a house is spoken of as being disorderly, disreputable, or a bawdy house, it refers entirely to the character of the occupants; and it is their character which fixes the character of the thing. When, therefore, a house is spoken of as disorderly or as a bawdy house, or as disreputable, it is that the occupants are disorderly, are lewd persons, or are disreputable. It is idle in a charge of this kind to talk about it being a libel of the house where a house is called disorderly.

It is further urged that the plaintiff did not prove the libel as •charged referred to him, in that it did not say or infer that the owner or lessee of the house was disorderly, or that such owner or lessee was in any way responsible for the character of the house and that it appeared that there were other people residing in the house at the time of the publication beside the plaintiff, and that he therefore was only one of the people who resided in the house.

We are not aware of any rule of law which provides that where a number of persons are libelled at the same time they are bound to unite in one action in order to get redress. It may be that the defendants are liable for a similar action to every occupant of the house. But the fact that there were other occupants in no way affected the right of the plaintiff to maintain this action.

It appears from the evidence in this case that the plaintiff’s name was upon the front door of the house, and that he was the principal occupant thereof, and had been so for many years, and had resided there with his family, and that he was the lessee of the whole house, and therefore was responsible for its character, and when his house is proclaimed to be a disorderly house, it necessarily implicated him as being guilty of a crime, because every person who occupies a disorderly house is guilty of a misdemeanor.

Even if it be the rule that where a class of persons is libelled an action does not lie by an individual of that class without allegation and proof of special damage, such rule has no application whatever to the case at bar.

The plaintiff was responsible for the reputation of the house in question as the lessee, and having control thereof.

It is further urged that the publication complained of was conditionally or qualifiedly privileged, and that in the absence of any proof of actual malice the plaintiff was not entitled to recover, .and the complaint should have been dismissed upon defendant’s motion.

It is claimed that the article shows that in the publication of it the defendant was engaged in an effort to accomplish a public benefit, and the publication was in the interest of social order and the well being of society in the city of New York; and a large number of authorities are cited, none of which, however, are applicable to the facts of the case at bar. The rule as adduced seems to be that where a communication is fairly made by a person in the discharge of some private or public duty, legal or moral, which he believes to be true, it is privileged. Therefore the public press may comment fully and freely upon all questions and matters of great public interest provided they keep themselves within the limits of an honest intention to discharge a public duty. But in the case at bar the publishers of the newspaper did not believe that the house in question was a disorderly house. On the contrary, they say that they had no intention of referring to this house, but to some other house in the neighborhood.

It has nowhere been decided as. yet that where either an individual or a public newspaper, intending to refer to B., makes a slanderous attack upon A it is a privileged communication. The plea of typographical error does not in any respect alter the situatian. It may go to the question of exemplary damages, but to the right of the plaintiffs to recover typographical errors form no answer. And this view of the case is strengthened when we consider the fact that as privileged communications are exceptions to the general rule which implies malice in a libelous publication, it rests with the person claiming the privilege to show that the case comes within the exception. Byam v. Collins, 111 N. Y., 143; 19 St. Rep., 581. And certainly this is not done by an attempt to show that they believed B. to be a thief, and by mistake made-the charge against A.

The further objection that the complaint alleged that the communication amounted to a charge that the plaintiff kept a bawdy house, and that the court held that it did .amount to that, and admitted evidence to sustain that charge, has no foundation. All that the court did in the trial of the case was to admit evidence of the results of this publication. The article in question charged a misdemeanor, and the words were, therefore, actionable per se,. and the plaintiff had clearly the right to prove what resulted from the publication.

Neither is there any foundation to the claim that it was error to allow the plaintiff’s counsel to recite instances outside of the evidence tending to prejudice the jury. The only reference in the summing up of the counsel which is contained in the record-is a reference to the sad results attending mistakes ; and this was-a legitimate line of argument to show what would be the result of the claimed mistake made by the defendant in respect to the plaintiffs.

We think that the judgment and order should be affirmed,, with costs.

Barrett and O’Brien, JJ., concur.