text:
    The People, Resp’ts, v. James H. Phyfe, Appl’t.

      (Court of Appeals,

      Filed January 17, 1893.)

    Railboads—Teh houb law—Laws 1893, Oh. 711.
    The second and third sections of chap. 711 of the laws of 1893, which declare that ten hours labor within twelve consecutive hours shall constitute a day’s labor in the operation of all steam surface railroads owned and operated within this state, and that for fractional parts of the statutory day the employee shall receive compensation at the same rate proportionately .as for the whole day, are not penal in their scope, and a superintendent of such a railroad who required an employee to work continuously for fourteen and a half hours and refused to pay him any more than the day’s wages cannot be punished criminally under said statute.
    Appeal from judgment of the supreme court, general term, second department, affirming a judgment entered on conviction < misdemeanor under chap. 711, Laws 1892.

      Hamilton Harris, for app’lt; W. Popham Plait, for resp’ts.

       Reversing 48 St. Rep., 350.

   Maynard, J.

The defendant was indicted for a violation of the provisions of chapter 711 of the Laws of 1892, entitled “ An act to provide for a limit of hours of service on railroads.” The indictment in substance charged that tide defendant was on June 1, 1«92, a superintendent of a steam surface railroad operated within this state by a domestic railroad corporation, and that he employed complainant as a trainman on freight trains under his direction at two dollars and ten cents a day, payable at the end of each day, and that he required the complainant to work as and for his day’s work fourteen and one-half hours continuously without any part of such continuous service being caused by any unavoidable accident or delay, and that the complainant demanded pay of the defendant for the four and one-half hours of extra service and labor at the same comparative compensation as he was to receive for his daily pay; and that the defendant refused to pay him any comparative compensation for such extra labor in addition to "the sum of two dollars and ten cents, which he offered to pay him in full for his labor on that day ; and on the refusal of the complainant to receive this sum, the defendant discharged him from the service of the railroad company.' The defendant demurred to the indictment on the ground that the facts stated therein do not constitute a crime, and the demurrer was overruled at the Westchester oyer and terminer, and the defendant plead not guilty, but admitted the doing of the acts set forth in the indictment, and the jury thereupon rendered a verdict of guilty, and the defendant was sentenced to pay a fine of five hundred dollars.

The learned counsel for the appellant has devoted his argument principally to a discussion of the question of the constitutionality . of this enactment; and it is insisted that this statute is an unlawful invasion of the liberty of the citizen, because it seeks unnecessarily to interfere with or limit his right to labor, and to contract ■with others for the fruits of their labor. But the abstract question thus presented is very materially affected by the consideration that the defendant is the agent or representative of a domes-,, tic corporation of a quasi public character, over whose business the' state can lawfully exercise the power of super-vision, and control the details of its management to an extent to which it has never undertaken to go in the regulation of the affairs of private individuals. How far this supervision may be carried without overriding constitutional safeguards is a question of great moment for the People and of vital concern to the vast property rights and interests which must always be affected by its ultimate determination. It is a problem of such gravity that its solution should not be undertaken by any court unless it is directly and necessarily involved in the case upon which its presentation is predicated.

A careful analysis of the structure of this act, we think, will result in an entire failure to find any provision in it which impresses upon the conduct of the defendant as set forth in the indictment the stamp of criminality. The first section declares that no railroad corporation shall permit or require certain classes of employees, who are specially charged with the responsibility for the movement of trains, who have worked continuously for twenty-four hours, to go on duty again until they have had at least eight hours rest. And the last section supplements this prohibition with a provision which makes the disregard of it a misdemeanor. In view of the great danger to, and even destruction of life and property, which might result from the attempt of men who have become enfeebled by prolonged and exhausting effort to control engines and cars when in motion, it might be claimed that it was within the province of the legislature to enact such a law, and make the violation of it a crime; that it was a reasonable exercise of the police power of the state, and was also a lawful assertion of its reserved right to regulate corporations of this character in their relations to the public. But no violation of this section is charged in the indictment, and we are, therefore, not required to decide that question.

"When we examine the two remaining sections-,(2 and 8), we fail to find in them any inhibition upon the action of these corporations either in express words or by necessary implication. The second section merely declares that ten hours labor performed within twelve consecutive hours shall constitute a day’s labor in the operation of all steam surface railroads owned and operated within this state, omitting the provisos and' exceptions, which are not material here. It is but a statutory definition of what shall constitute a day’s labor in certain employments, and would control in any controversy affecting the civil liabilities of the employer in the absence of an express agreement to the contrary. There is no prohibition aimed'at the railroad company against permitting or requiring more hours of labor during the calendar day. In fact, the section authorizes the employment of men to labor at least twenty hours out of every twenty-four. The statement is that ten hours work within twelve consecutive hours shall be a day’s labor, and there may, therefore, be two such days during each calendar day, and an employee working for twenty hours at an agreed daily compensation without any stipulation as to the , number of hours which should constitute a day would be entitled to pay for two days work. Such a provision is eminently fair aud just in operation, and the power of the legislature to enact such a law cannot be successfully controverted. The third section is in harmony with this construction, for it provides that for fractional parts of the statutory day the employee shall receive compensation at the same rate proportionately as for the whole day. Full effect can be given to both sections by construing them according to their terms, and applying them to an adjustment'of the contractual relations of the parties, when they have omitted to prescribe in the agreement for hire the duration of a day’s service. If the legislature had intended to make it unlawful for a railroad company to permit, or require, an employee to work more than ten hours within twelve consecutive hours, we must infer that they 'would have so declared in direct terms. The prohibition in the first section is plain and positive; and the change in the form of expression, when the following sections are reached, is significant; and indicates an intentional omission of the prohibitory feature. The conduct which it is sought by the force of this statute to condemn has heretofore had the sanction of the law, and it is a familiar canon of construction that an intention to change the rule of the common law will not be presumed from doubtful provisions, and the presumption is that no such change was intended, unless the enactment is clear and explicit in that direction ; and if the terms- of the statute will admit of two interpretations, that which will most nearly conform to the rules of the common law is in all cases to be adopted. Eights and liberties which have been enjoyed without question from time immemorial are not to be abridged or denied by legislative action “except by clear, unambiguous and peremptory language.” Sedgwick on Stat. L., 318. We express no opinion as to the extent to which the sovereign power may go in restricting the exercise of what are sometimes termed the natural rights and privileges of the individual parties to the social compact; or how far their freedom of action may be controlled by statutory regulations, especially when dealing with artificial persons whose existence depends upon legislative grace. We are required here to apply that principle of construction, which is coeval with municipal law, that purely statutory offenses can not be established by implication, and that acts otherwise innocent and lawful do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal. The citizen is entitled to an unequivocal warning before conduct on his part which is not malum in se can be made the occasion of a deprivation of his liberty or property. Under a proper application of these familiar rules of interpretation it must be apparent that the second and third sections of this act are not penal in their scope. No prohibitory words are found in them, and no terms employed from which a prohibition can reasonably be inferred. The language used is consistent with an intent to confine them to a regulation of the private rights and civil liabilities of the contracting parties, and when they can be so construed there is no presumption that more was intended. We are not permitted to speculate as to the motive or design of the lawmakers or to search for a hidden meaning or an unexpressed purpose in the enactment.

The order and judgment of conviction must be reversed; the indictment dismissed and the defendant discharged.

All concur, Andrews, Ch. J., Peckham and Gray, JJ., in result.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Harriet S. Rumsey et al., App’lts, v. The New York & New England R. R. Co., Respt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Evidence—Measure op damages.
    Upon the trial of an action for damages resulting from the construction of defendant’s railroad in front of the upland of plaintiffs and thus intercepting their access to the river, the judge refused to allow plaintiffs to show, upon the question of damages, that the land was in condition to lease as a brick yard during the time in question, excepting for the ob- ? struction by defendant, and that tenants were ready to lease it, provided access could be obtained to the river. Held, error ; that such evidence was allowable, and if it appeared that the rental value of the land for such a purpose was in excess of t iat which could be obtained for its use for other purposes, the defendant should pay that difference caused directly by its own wrongful act.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiffs, entered upon verdict.

      Milton A. Fowler, for app’lts; W. C. Anthony, for resp’t.

       Reversing 45 St. Rep., 33.

   Peckham, J.

This case has been here once before, and is reported in 133 N. Y., 79 ; 44 St Eep., 248. The court upon that appeal reversed the judgment in favor of the plaintiffs and granted a new trial, and this appeal is from a verdict in favor of the plaintiffs, taken upon that new trial, under the direction of the court, for six cents damages.

It was assumed upon this last trial that the rule of damages as laid down by this court on the former appeal led necessarily to the result directed by the court.

In this view, we think, there was error.

The rule as laid down by us did not preclude the plaintiffs from showing what was the fair rental value of the property without the presence of the obstruction of access to plaintiffs’ property from the river, caused by the defendant’s railroad.

On the former appeal we held that the plaintiffs could not recover what were speculative damages caused, as they alleged, by the defendant in obstructing the plaintiffs’ use of the premises for brickmaking purposes, when it appeared that plaintiffs had abandoned that use of the land years before the defendant created the obstruction in question, and the premises had not since been in a condition to be' so used even if the obstruction were not there. It-was said, that the basis for an estimate of the damage must be found by reference to the land as it was used during the time embraced in the action. The facts showed that it was assumed the land could not have been used for a brickyard during this time, because of plaintiffs’ long abandonment of such use and the decay of the dock at the westerly end of the culvert, and also the decay of a part of the causeway and the absence of buildings and machinery fit for brickmaking purposes. In such case the possible use of the land for a brickyard was regarded as dependent upon outlays not made, or, so far as shown, not contemplated by plaintiffs, 1 and hence, within the principles of the Tallman case, 121 N. Y., 119 ; 30 St. Rep., 491, that use was not to be taken into consideration.

It was not meant to restrict the recovery to the rental value of the land as actually used and for that purpose only, but any evidence going to show the actual rental value of the land as it was, that is, in the same general condition, would be proper although not restricted to such rental for the use to which it in truth was put during that time. Otherwise, if the land had not been in actual use, then no damage would be recoverable, although the value of the use of the land in exactly the condition it was in might be proved to have been a very large annual sum, if the obstruction were absent. What we intended to hold was the same principle which had been announced in the Tallman case, supra, and thereby to prevent speculation as to what alterations a party might have made in the condition of the land, by which he might have secured large returns by way of rent for such possible use, while in fact doing nothing towards incurring expenses and making such alterations or attempting to realize such wholly imaginary profits.

And this was the extent of our holding when the facts of the case are considered and the language of the court is applied thereto.

The case is now before us in a. totally different aspect The plaintiffs offered to show substantially that the land was in condition to lease for a brickyard during this time, excepting for the existence of this obstruction wrongfully placed by the defendant, which precluded access to and from the' river, and that it was the custom for the lessee to furnish the improvements upon the property necessary to conduct the brickmaking business. The plaintiffs also offered to show there were persons ready and willing to take a lease of the land just as it stood, and in the exact condition it remained in, during the time prior to the commencement of the action, provided access could be had from the land to the river front, and that plaintiffs sought defendant’s permission to allow the lessee to obtain this access to the river, and that it was refused. It seems to us this evidence was proper. The land was ready for use as a brickyard, tenants were ready to lease it for that purpose, provided access could be obtained to the river, and this access was wrongfully obstructed by the defendant, and it refused to remove it or permit such access to be had. Why should such evidence not be allowed ? And if it appeared that the rental value of the land for such a purpose was in excess of that which could be obtained for its use for other purposes, we think, within all equitable rules, the defendant should pay that difference which was caused directly by its own wrongful act. This is not speculation any more than everything can be called speculation regarding' what has not in truth taken place. The tenant did not, in fact, take the lease, but he was ready to, as the proof showed if only this wrongful obstruction were removed, and the obstruction was the illegal act of the defendant. Thus the failure to take the lease was the direct and immediate result of that act which was wrongful on the part of the defendant, and which it ought to be held responsible for.

The rule as enforced by the trial court is, as it seems to us, exceedingly unjust. Although the land may have been entirely St to be used for a brickyard, but for this one difficulty, and though its use for that purpose might be very valuable, yet because of the obstruction, although wrongfully placed there by defendant, it cannot be so used, and the value of the land for the use it was actually put to may not have been in the slightest degree diminished bv this obstruction; therefore, according to the rule laid down by the trial court, the plaintiffs would have proved no damage, and hence would be dismissed with the nominal verdict of six cents. This cannot be the law and we are confident no principle has been laid down by this court which leads to such great hardship and injustice.

The trial court, we think, fell into error in this application of the rule of damages, and the judgment must, for that reason, be reversed and a new trial ordered, with costs to abide the event.

All concur.


author: O’Brien, J.

text:
    George E. Woods, Supervisor of the Town of Stockbridge, App’lt, v. The Board of Supervisors of Madison County, Resp’t.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Town bonds—Sinking fund.
    Chapter 907 of the Laws of 1869 required the treasurer to invest the taxes, except those for school and roads, collected from railroads, within certain bonded towns, for thirty years, to form a sinking fund for the redemption of the railroad bonds. Chapter 296 of the Laws of 1874 provided that all the property of the corporation should be subject to taxation for all purposes, and that the collectors of said towns pay over all moneys received for county taxes to liquidate interest and principal of the bonds. Held, that the ease did not come within the rule that a former statute is to deemed repealed by implication when a subsequent one, though not purporting to amend or repeal the former, is so repugnant to the first act that both cannot operate together, or where the later statute was evidently intended to furnish the whole law on the particular subject, but the general law of 1869 had full operation upon the state taxes and the investment of the same for one purpose, and the act of 1874 operates upon the county taxes and their application for another purpose.
    3. Supervisors—Powers of—Waiver of statute of limitations.
    A board of supervisors has the power to pass a resolution by which they expressly stipulate and agree not to interpose the defense of the statute of limitations to any sum found due a certain town from railroad taxes.
    Appeal from judgment of the supreme court, general term, fourth department, ordering judgment in favor of plaintiff for taxes levied and collected from the N. Y. & O. M. E. E. Co., and which the county failed to invest as a sinking fund for the redemption of bonds, as required by the statute.

      Henry C. Coman, for app’lt; John E. Smith and Charles A. Hitchcock, for resp’t.

       Reversing 40 St. Rep., 986.

   O’Brien, J.

The facts in this case were agreed upon and submitted to the general term under the provisions of § 1279 of the Code. The town of Stockbridge, in the county of Madison, through the plaintiff, its supervisor, sought to recover from the ■county certain taxes levied and collected in the town from the New York & Oswego Midland Eailroad Company, for the benefit of which corporation the town had issued its bonds under the provisions of chapter 898, of the Laws of 1866. The taxes so levied and collected, the plaintiff claims, have been diverted, by the action of the board of supervisors and the treasurer of the = ounty, from the use of the town to general county purposes, con-i /ary to the provisions of chapter 907, of the Laws of 1869, as ¿amended by chapter 283, of the Laws of 1871.

The general term held that the plaintiff was entitled to the relief demanded only with respect to the county taxes collected and diverted within six years prior to the commencement of the action. The principle upon which the decision rests seems to be that the state taxes collected from the railroad within the town are not within the statute, and the county could lawfully apply them to general purposes, and that as to all taxes collected in the years 1882 and 1883 the plaintiff’s claim was barred by the statute of limitations.

The right of towns that have issued bonds in aid of railroads, and which are still outstanding, to reclaim taxes collected from the railroad within the town, but diverted to general purposes, is well settled. Clark v. Sheldon, 106 N. Y., 104; 8 St. Rep., 537 ; Strough v. Supervisors, 119 N. Y., 212; 28 St. Rep., 967; Crowninshield v. Supervisors, 124 N. Y., 583 ; 37 St. Rep., 96; Kilbourne v. Supervisors, 62 Hun, 210; 41 St. Rep., 838.

In this case, however, it becomes necessary to determine the effect of certain special statutes, applicable to the railroad in question and the towns issuing bonds in its aid, upon the general law. By § 16 of chapter 398, Laws of 1866, the statute under which the bonds of this town were issued, the property of the railroad was exempted from all taxation for state, county, town or municipal purposes, until a single track was completed and in operation, but the exemption was not in any event to extend beyond the period of ten years. The next statute that must be considered is the general law, chapter 907, Laws of 1869, as amended in 1871, already referred to, the fourth section of which enacts as follows:

“ All taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad * * * shall be invested by said treasurer and by him held as a sinking fund for the redemption of the bonds so issued.”

This provision became at once applicable to every municipality that had issued bonds which were outstanding under any law in aid of the construction of any railroad within its borders; but as the railroad, in aid of which the town in question had issued its bonds, was then by law exempt from taxation, it could not apply until the exemption was removed by lapse of time or otherwise. This event happened upon the passage of ch. 296, of the Laws of 1874, the first section of which expressly repeals the exemption and provides that thereafter all the property of the corporation shall be subject to taxation for all purposes. The provisions of the act of 1869 above quoted immediately took effect and became applicable to this town and to the taxes collected from the railroad within its limits. But the act of 1874 contained another provision from which the principal argument in support of the judgment under review is deduced. It was provided that the collector of taxes in each town that had issued bonds in aid of the railroad should pay over to the commissioner of the town, within five days after collection, all moneys collected by him for county taxes which had been assessed upon the property of the railroad within the town, tobe expended and applied by the commissioner in payment of the interest on the bonds, or the principal. It is urged by the learned counsel for the defendant that as the act of 1874 first removed the exemption from all taxation from the railroad property, and at the same time provided for the disposition of the county taxes, collected on the property within the town, it must be deemed to contain the whole law on the subject applicable to the towns that had issued their obligations in aid of this particular railroad, or that the two enactments are so repugnant to and inconsistent with each other that the act of 1869 must be deemed to be repealed as to the towns embraced within the purview of the act of 1874, as both provisions cannot operate at the same time. This position, we think, is untenable. The act of 1869 required the treasurer to invest the moneys collected from railroads within the bonded towns, and thus to form a sinking fund for the redemption of the bonds. All taxes collected from railroad property within such towns were thus tied up for future use, and current expenses, including the current interest on the bonds as the same fell due, had to be provided for by taxation on other property. When the act of 1874 was passed the railroad was evidently in the hands of a receiver, and the obligations which the towns .and municipalities had assumed began to press upon them in a manner perhaps not yet fully realized. Hence the legislature was induced not only to repeal the exemption but to modify the act of 1869, as to these towns, by providing that the county taxes collected from the railroad within the towns, instead of being invested, should be used to pay the current interest on the bonds, as it became due, leaving the general law to have full operation upon the taxes collected for state purposes. The case does not come within the rule that .a former statute is to be deemed repealed by implication when a subsequent one, though not purporting to amend or repeal the - former, is so repugnant to the first act that both cannot operate together, or when the later statute was evidently intended to furnish the whole law on the particular subject. Lyddy v. Long Island City, 104 N. Y., 218; 5 St. Rep., 665. When some office or function can by fair construction be assigned to both acts, and they confer different powrers to be exercised for different purposes, both must stand, though they were designed to operate upon the same general subject. People v. N. Y. C. P., 101 N. Y., 195. The repeal of a statute by implication is not favored, and courts will not declare such a result except in a case reasonably clear, and where all the conditions necessary to such a conclusion are present. In this case it is quite clear that the general law of 1869 can have full operation upon the state taxes and the investment of the same for one purpose, and the act of 1874 operates upon -.he county taxes and their application for another purpose, and - 1ms they are reconciled and effect given to both. An action for rliis purpose must be brought within six years from the time when the taxes were diverted or misappropriated, as the cause of .action accrues by that act, and is then complete, Sirough v. Supervisors, supra, and as to the taxes for the years 1882 and 1883, in respect to which the plaintiff was defeated," that period had elapsed, and the claim was prima facie barred. But on the 18th day of November, 1887, and again on the 23d of November, 1888, the board of supervisors of the county, as organized at these dates, passed resolutions, the first referring to the tax of 1882, and the second to the tax of 1883, in which they expressly stipulated and agreed not to interpose the defense of the statute of limitations to any sum found due the town on account of the taxes in question, and the remaining question is as to the legal effect of such action. The learned counsel for the defendant contends that the board was without power to bind their successors by such action, or to waive the defense. The resolutions were passed before the bar of the statute had run against the claim for the years mentioned, and they are identical in language, except with respect to the year for which the claim was made. They recited in substance that the bonded towns claimed to be entitled to the taxes collected upon the railroad property within their respective limits for these years, and that the county was indebted to them therefor, and that the towns had made demand upon the board for the restoration of the same, the service of which upon the board was admitted. Then follows the stipulation and agreement above mentioned, which is expressed to have been made for value received. It is not suggested that-there is any defect in this instrument, either in form or substance, that would render it insufficient for the purpose intended, if the board had the power to enter into it. The same resolutions were passed with reference to the taxes of 1884 and 1885, but the statute had not run against the claim for these years when this action was commenced. It is stated as a fact in the case argued upon that the plaintiff, relying upon the validity of such resolutions, refrained from bringing an action in time for the recovery of the taxes for these years, which, but for such stipulations, he would have done. If the county, through its board of supervisors, can waive the statute like an individual, this would seem to be a writing signed bv the party to be charged, and containing a sufficient acknowledgment of the debt and a promise to pay the same within the meaning of the Code. Code, § 395 ; Chemung Canal Bank v. Supervisors, 5 Din., 517; Shapley v. Abbott, 42 N. Y., 443; Anderson v. Sibley, 28 Hun, 16; Mosher v. Hubbard, 13 Johns., 510.

Boards of supervisors represent the county in its corporate capacity and have power to bind it to the extent conferred by statute, and when any act of such board is challenged as beyond its power, or not binding upon the county, resort must be had to the specific powers enumerated in the statute which such board may exercise. But in such cases the body is not confined to the exercise of the precise act contained in the grant of power, but, from the nature of the case, as well as upon settled principles, it possesses and may exercise such incidental powers, not expressly enumerated or mentioned in the statute, but which are fairly and reasonably necessary and proper in order to give effect to or carry out the powers expressly conferred. Dillon on Mun. Corp., § 89 ; Brady v. Mayor, etc., 1 Barb., 584; Supervisors v. Bowen, 4 Dans., 24. Boards of supervisors are expressly empowei’ed by statute 41 to examine, settle and allow all accounts chargeable against the county, and to direct the raising of such sums as may be necessary to defray the same.”- It cannot be doubted that the board hacl power to settle and allow the plaintiff’s claim and to restore the money which had been appropriated to the benefit of the county at large, instead of investing or using- it for the benefit of the town as required by the statute. Nor can it be doubted that, in this suit, the defendant could have most effectually waived the defense of the statute of limitations by honestly, and without collusion, refusing to plead it. Having the power to audit and settle the claim and to bind the county in that respect, it is difficult to discover any sound reason in law or in morals for the contention that the stipulation in question is not also within the scope of their necessary incidental powers. The board may have been in doubt as to their powers or duty to pay or audit, and by the stipulation it procured time and induced the plaintiff to delay legal proceedings. Under such circumstances justice requires that the defendant be held bound by the stipulation in the same way as if made between individuals for a like purpose. It was said by Church, Ch. J., in Buffalo v. Bellinger, 76 N.Y., 393, that “ a municipal corpora-ion has public and private attributes, and its rights and duties are regulated accordingly. In protecting its property, in collecting its debts, and in general in transacting business of a private character, when not otherwise provided by statute, it may avail itself of the rights and remedies afforded to an individual.” The defendant has capacity to sue and be sued, to audit, settle, pay or compromise claims against it, and this fairly implies power to agree upon terms of payment and to waive by proper agreement the defense of the statute of limitations as to claims not bárred. This power was exercised in this case for the purpose of relieving the county from actions at law in each year as the time for bringing such suit was about to expire, and we think the bar of the statute is thereby avoided. This result is fairly within the rule, which is conceded, that a county, through its board of supervisors, can exercise only such powers as are expressly conferred by statute, or such incidental powers, not expressly enumerated, as are necessary to carry out the express powers, and, moreover, it is supported by those general principles of equity and justice which are binding upon all corporations as well as upon individuals.

The judgment should be reversed and judgment ordered for the plaintiff for the entire claim, with interest, in conformity with this opinion, with costs in this court to the appellant.

All concur.


author: Earl, J.

text:
    Frances H. Duclos et al., Pl’ffs, v. Mary S. Benner, Ex’rx, et al., Def’ts.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Will—Trust—Premium on bonds.
    Testator created a trust in favor of his widow by setting apart $30,000, or one-third of the appraised value of his estate, as she might elect, on which she was to receive the “income, interest, profits and earnings thereof.” The trustees of the estate in 1878 bought $40,000 of U. S. four per cent bonds and ten years later sold them for over $51,000. There was no finding that $30,000 was set apart for the widow, or that she made any election until 1884. Held, that the widow was not entitled to a proportionate share of the increase upon the investment.
    2. Same—Interest.
    The widow, who was also executrix, had only received four per cent upon $30,000, and claimed to be allowed the difference between that rate and the legal rate of interest. Held, that as she had the management of the estate and did not or could not make it earn more than four per cent, she could not equitably claim more.
    3. Same.
    By a clause of said will testator directed that “should he, my grandson, die without leaving lawful issue him surviving, the share which would have gone to or been held for his benefit, shall belong to and be divided among my surviving children and the lawful issue of those who shall have died, in the sarnie manner as hereinbefore provided.” Held, that the final clause did not mean that the shares of the surviving children should he taken and held by trustees in trust for them and their issue, as provided in the will, but that it should “ belong to and be divided among ” the surviving children.
    Appeal by both parties from a judgment of the supreme court, general term, first department, modifying and affirming a judgment entered on decision construing the will of Hiram Benner, deceased.

      C. Bainbridge Smith, for pl’ffs; J. A. Shoudy, for def’ts.

       Reversing 42 St. Rep., 929.

   Earl, J.

On the 9th day of July, 1876, Hiram Benner, an inhabitant of the city of New York, died, leaving real and personal property of the value of about $100,000. He left a will which was subsequently admitted to probate, in which he devised and bequeathed all his estate to his executors and trustees in trust as follows: To set apart for the occupation of his widow and minor children a house with the furniture therein; to set apart and invest sufficient of his estate to yield and pay an annual income of $500 to his mother, Hannah Benner, during her life; to set apart and invest $30,000, or one-third of the appraised value of his personal estate, as his wife might elect in writing, and pay over to" her the “ income, interest, profits and earnings thereof ” during her life half yearly; to divide the residue of his whole estate, real and personal, into six equal parts, and pay the income of one-sixth to his son, Charles H. Benner, during his natural life, and upon his death to divide that one-sixth among his lawful issue him surviving, per stirpes and not per capita ; to pay the income of another sixth part to his daughter, Frances Duclos, during her natural life, and upon her death to divide that share among her issue in the same way; to pay to his wife for the support, maintenance and education of his daughter, Ella Benner, the income of another sixth part during her minority, and upon her attaining the age of twenty-one years, or upon her marriage, to pay over to her that share; and there was a similar provision as to each of his daughters Ida and Mary Benner. His executors and trustees were also directed to pay to his son-in-law, Frank M. Bonta, for the support and education of his grandson, Hiram Benner Bonta, the income of another sixth part during his minority, and upon his attaining the age of twenty-one years to pay to him his share of the estate. He then provided in the third clause of his will that upon the death of his wife the share of his estate set apart for her use should become a part of his residuary estate and be disposed of among his children and grandchild respectively and their issue, “ in the same manner as above provided, namely, one-sixth part to each of my said children, Ella, Ida and Mary, and their representatives, and the income of one-sixth part to my son, Charles H. Benner, and my daughter, Frances Duclos, respectively, and my grandson, Hiram Benner Bonta, during his minority, with reversion to the lawful issue of each of them surviving; and upon the death of my said mother, the share or portion set apart for her use and benefit shall also form a part of my residuary estate, and be disposed of in like manner.”

In the fifth clause he provided as follows: “ Should any of my children die before me, leaving lawful issue, such issue shall take and receive the principal of the share which the parent would have received, or would have had the benefit of; but should either of my children die without leaving lawful issue him or her surviving, the-share -which would have gone to, or been held for the benefit of the one só dying, shall -belong-to and be divided among my surviving children and my said grandson and the lawful issue of those who shall have died, in the same manner as herein-before provided. .Should my said grandson die leaving lawful issue him surviving, such issue shall take and receive the principal of the share which he would have received or would have had the benefit of, but should he die without leaving lawful issue him surviving, the share which would have gone to or been held for his benefit, shall belong to'and be divided among my surviving children and the lawful issue of those who shall have died, in the same manner as hereinbefore provided.”

He appointed his wife and Frank M. Bonta executors and trustees, and his wife guardian of the person and estate of his three minor children, and they took upon themselves the trusts and duties under the will.

This action was commenced in August, 1889, by the plaintiffs, who are the children of the testator by his first marriage, against Mary S. Benner and Frank M. Bonta, individually and as trustees under the will, and also against the three minor daughters of the testator and all the living children of the plaintiffs, who were also minors, for an accounting by the executors and trustees, and the determination of the rights of the parties under the will. Answers were interposed by all the defendants, and tlie action was brought to trial at a special term, and, after hearing the evidence, the trial judge, among other facts, found that Hannah Benner, the mother of the testator, died on the 18th day of February, 1882, and Hiram Benner Bonta, the grandson of the testator, died on the 21st day of May, 1888, without issue; that on the 5th day of November, 1878, the trustees bought, with the money belonging to the estate of the testator, $40,000 of United States four percent-bonds at one-fourth of one per cent premium, which premium, amounting to $100, was charged to the expense account and paid out of the moneys belonging to the estate, and that the trus- ■ tees, on the-28th day of November, 1888, sold these bonds for the sum of $51,287.50, being $11,187.50 in excess of the amount paid for them.

One of the matters in controversy between the parties is as to what should be done with the sum thus realized upon the sale of the bonds in excess of their cost. Mrs. Benner claims that $8,465.62 of that sum belongs to her, as the profit from the $30,000 invested for her under the will. The claim was contested by the plaintiffs upon the trial and not disallowed by "the trial judge. None of the evidence given upon the trial is in this record, and the appeal is based solely upon the findings of fact and of law and the exceptions thereto contained in the record.

It is not necessary to determine what the precise rights of the widow would have been in this increment, $8,465.62, if the $30,000 of government bonds had actually been set apart for her under the will, or if $30,000 in money had been invested for her in those bonds under the will. Then she would have been in a position to make the claim that she is entitled to this increment, and facts would have been before the court upon which her claim could be determined. But there is no finding, and there is no inference from the facts found, that $30,000 of the bonds were at the time they were purchased set apart under the will for her benefit. On the contrary, she did not make any election to have $30,000 set apart and invested for her under the will until December 8, 1884, and the necessary inference is that prior to that- time no sum had been set apart and invested for her. Indeed she could not have had bonds of the par value of $30,000 set apart for her at any time, as they were always worth more than that sum. Even if she elected in 1884 to have her $30,000 under the will set apart and invested in these bonds, it does not appear what, if any, was the increase in their value after that date. The-trial judge found that the trustees did not at any time, as directed by the will, divide the rest and residue of the estate into six equal parts, and the inference is that the whole estate was kept together. Suppose these bonds had been lost, or had depreciated in value, or had in any way become worthless, it is very clear that the loss could not upon the facts found in this record have been cast upon the widow.

The fact that she always took to herself annually the interest at four per cent upon $30,000, the same interest which the bonds bore, does not furnish any reliable evidence that she elected when the bonds were purchased to treat them,to the amount of $30,000, as set apart for her. For aught that appears in this record that was all the interest she received, and all that was produced by the estate. There is no finding in the case that the interest she took annually was actually the interest received from these bonds. Her case is not aided by the fact that she made her election to have the $30,000 set apart for her in 1884. That election could not relate back. Having omitted to make any election prior to that time, and either having previously set apart for herself some other $30,000, or not having previously set. apart anything, and thus having omitted to act under the will as to the $30,000, she cannot now claim upon any equitable principles that that election should relate back to the time when the bonds were purchased. She had at all times the entire management and control of the estate, was free to act in reference thereto, and was responsible for what was done or omitted to be done.

There was, therefore, no basis whatever for the claim that the sum in controversy was the profit or income of any portion of the estate set apart or invested under the will for the benefit of the widow, and the trial judge did not err in denying her claim.

She appealed from that portion of the judgment which disallowed her claim to the $8,465.62, and the general term held that bonds to the amount of $30,000 should be regarded as having been set apart for her, and treated the sum of $8,465.62 as an increment or accretion to the fund invested for her, and decided that the whole proceeds received from the sale of $30,000 of bonds should be invested for her benefit so that she would receive the annual interest upon the increment as well as upon the $30,-000, arid it modified the judgment of the special term in this respect. For the reasons we have stated we think the general term erred in this modification.

It is further contended by the widow that even if the general term erred in its view of the law applicable to her claim, as she has received only four per cent upon $30,000, she should in any event be allowed the difference between that rate and the legal rate of interest. Such an allowance would be in contravention of the will, and there is no basis for it in the absence of any finding that more than four per cent was earned. She had the management of the estate, and if she did not or could not make it earn more than four per cent she cannot equitably claim more. Upon the record as it now appears, however much we might desire to favor the widow, we find no ground upon which we can uphold the decision of the general term.

The trial judge found that upon the death of Hiram Benner Bonta the share of the estate to be set apart for him was to be divided into five equal parts, and that two of those parts should be paid to these plaintiffs absolutely, and the other three shares to the daughters Ella, Ida and Mary, who had become of age. The general term held that in making that disposition of the share set apart for Hiram Benner Bonta the trial judge erred, and that the two-fifths thereof, instead of being paid absolutely to the plaintiffs should have passed to the trustees in trust for the plaintiffs, like their other two-sixths shares, as provided in the will. In this we think the general term erred, and in the disposition of that share we agree with the special term. The particular clause to be construed is as follows: “Should he, my grandson, die without leaving lawful issue him surviving, the share which would have gone to or been held for his benefit shall belong to and be divided among my surviving children arid the lawful issue of those who shall have died, in the same manner as hereinbefore provided.”

The general term held that the words “in the same manner as hereinbefore provided ” meant that the shares of the plaintiffs should be taken and held by the trustees in trust for them and their issue, as provided in the will. We do not think that that is the natural construction of those words when read in connection with all the provisions of the will, and that it does manifest violence to the intention of the testator. He had ordered his estate to be divided into six shares and that the one-sixth for each of the plaintiffs should be held by the trustees and the income thereof paid to them during their lives and that at death these shares should go to their lawful issue per stirpes and not per capita. He had provided in the third clause of his will that, upon the death of his wife, the $30,000 to be held in trust for her should become part of his residuary estate and be disposed of for the benefit of his children, grandchild and their issue in the same manner as provided in reference to' each sixth part of his estate, to wit: One-sixth part to each of his children, Ella, Ida and Mary, and their representatives, and the income of one-sixth part each to his son and daughter, the plaintiffs, during their lives, and to Hiram Benner Bonta during his minority, with reversion to the lawful issue of each of them surviving; and upon the death of his mother the portion set apart to produce her income was to be divided in the same manner. So, as to the sum set apart for the mother and the widow, according to the present contention of the trustees, there would be in portions of the estate separate trusts during the life of the mother and the life of the widow, and then a trust as to one-sixth thereof for the life of Hiram Benner Bonta, and a further trust of one-fifth of his share during the lives of each one of these plaintiffs; and thus there would be an illegal suspension of the absolute ownership of that portion of the estate for more than two lives; and it was to avoid such a complication and contingency that in the clause we are to construe it was provided that, upon the death of Hiram Benner Bonta, without issue, the share set apart for him “should belong to and be divided among ” the surviving children. That is not appropriate language if the shares of these plaintiffs were to go into the hands of trustees, to be held by them in trust for the plaintiffs, and then to be paid to their issue after their deaths. The direction is that it shall “ belong to and be divided among ” the surviving children. That language is so plain and explicit and the purpose of it so obvious when all the will is read, that we think it cannot receive any other construction than that given to it at the special term. The words “in the same manner as hereinbefore provided” may have their full significance by referring them to the division among issue per stirpes and not per capita.

Without dwelling further upon the provisions of the will and fortifying the conclusions we have reached by any further criticism of its language, we are of the opinion that the will was properly construed at the special term.

The judgment of the general term should be reversed, and that of the special term affirmed, without costs to the defendants and with costs to the plaintiffs, to be paid out of the estate other than the $30,000 set apart under the will for the widow.

All concur.


text:
    In the Matter of the Probate of Will of Mary Snelling, Deceased.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Will—Probate—-Undue influence.
    The fact that deceased was a woman of advanced age, somewhat enfeebled in body and mind, and that she gave her property to strangers, instead of her collateral relatives, from motives of gratitude or personal attachment, does not show that she was wanting in intelligence sufficient to comprehend the condition of her property and the scope and effect of the testamentary provisions.

      2. Same—Expert evidence. .
    Proponents, after taking fifty printed pages of evidence, called two physicians, who testified that they had read the whole of the testimony of two witnesses named, and then, under objection, they were allowed to answer ■ the following question: ‘ ‘Assuming their testimony to be true and basing your opinion upon such testimony, what would you say as to the mental condition of Mary Snelling, say in June, 189U? ” Held, error. t

    8. Same—Interest of witness.
    The interest which witness has in the subject of the controversy is a material inquiry, as it bears upon the question of credibility, and where a witness has received, or has been promised, any reward for giving testimony in a case, the fact may be shown upon cross-examination, and if denied, admissions or declarations out of court to that effect may be proved.
    Appeal from judgment of the supreme court, general term, second department, affirming decree of surrogate admitting will to probate.

      L. R. Beclcley, for app’lts ; Thomas Young, for resp’ts.

       Reversing 44 St. Rep., 477.

   O’Brien, J.

The will of Mary Snelling, who died in the year 1890, was admitted to probate, after a contest before the surrogate, which was instituted by her nephews and nieces, her only next of kin, on the ground of incapacity and undue influence. She was about eighty-four years of age and possessed of a small personal estate which she bequeathed to the persons, husband and wife, with whom she lived at the time of the execution of the will, which was but a few months before her death. The property came to her from her husband, who died in 1885. Subsequent to his death she lived with various persons in the neighborhood as a boarder, and during this time it appeal’s thatshe made several other wills in favor of parties with whom she lived or boarded for short periods of time. Her management of the property and the frecpient change of purpose on her part in disposing of it by will, irom time to time, in favor of different persons with whom she temporarily resided, and to whom she was more or less attached, for the time, would seem to indicate that she had no fixed plan with reference to her estate and possessed no great intelligence i.n business affairs. Still it was not shown conclusively that she lacked the capacity necessary in a person of her age and condition in life to dispose of her property by will, or that the will in question was the result of undue influence. The fact that the deceased was a woman of advanced age, somewhat enfeebled in body and mind, and that she gave her property to strangers, instead of her collateral relatives, from motives of gratitude or personal attachment, does not show that she was wanting in intelligence sufficient to .comprehend the condition of her property and the scope and effect of the testamentary provisions. So long as her mental powers enabled her to understand and appreciate the amount and condition of her property and to comprehend the nature and consequences of her act in executing the will, she was at liberty to dispose of her own in such manner as seemed best to her, providing the disposition was her own free act. What the law terms undue influence is not established by proof tending to show that the testator acted from motives of affection or gratitude, though the objects of her bounty were strangers to her blood. The influence or moral coercion, or by whatever other term designated, must be such as to overpower the will of the testator and subject it to the will and control of another, in which case it assumes the character of fraud. Horn v. Pullman, 72 N. Y., 276; Clapp v. Fullerton., 34 id., 190; Hollis v. Drew Theological Seminary, 95 id., 166; Marx v. McGlynn, 88 id., 370,

The evidence given upon the trial before the surrogate, viewed in the most favorable light for the contestants, was conflicting, and the findings that the deceased was possessed of sufficient capacity to make a will, and that the will was not the result of undue influence, are conclusive upon us with respect to the objections made against its probate. But the record discloses certain rulings by the surrogate in the course of the proceedings before him which, in view of the nature of the questions involved in the trial, cannot be overlooked. On the hearing, two witnesses were produced by the contestants for the purpose of sustaining the objections made to the probate of the will, who testified at great length to various acts, conversations and transactions of the testatrix, tending to establish undue influence and incapacity. This testimony extended over some years prior to the execution of the will, and much of it had no bearing upon the issues, as may well be inferred from the fact that it covers over fifty printed pages in the record. The proponents then called two physicians, who both testified that they liad read the whole of the testimony of the two witnesses referred to above, giving the names of these witnesses, and to each of them in succession the following question was propounded: “Assuming their testimony to be true, and basing your opinion upon such testimony, what would you say as to the mental condition of Nancy Snelling, say in June, 1890?” This question was objected to by the counsel for the contestants; and while the form in which the objection was made is quite inartistic, there can be no doubt as to what was intended, and, we think, was sufficient to challenge the competency of the testimony sought to be elicited. The surrogate overruled the objection, and an exception was taken. The witness in each case then answered: I should say she was perfectly sane.” It is needless to enter upon any reasoning or discussion to show that this question was improper, as this court has more than once condemned this method of eliciting opinions from experts. Reynolds v. Robinson, 64 N. Y., 589, 595 ; People v. McElvaine, 121 id, 250; 30 St. Rep., 977 ; Link v. Sheldon, 136 N. Y., 1; 48 St. Rep., 820. And it would be difficult to imagine a plainer breach' of the rule than is presented by the question propounded to the witness in this case. The principle is not changed by the circumstance that all the testimony embraced within the sweeping terms of the question was before the court, or by the fact that the mass of testimony upon which the opinion was based came from witnesses of the opposite party. The necessity of a specific question, at the time of the examination of the witnesses, covering all the facts, or assumed facts,.upon which the opinion of the expert is required, is as apparent in such a case as in any other.

One of the subscribing witnesses to the execution of the will was a neighbor of the persons, husband and wife, in whose favor the will was made, and she attended at the time the will was executed, at the request of the wife, who was one of the beneficiaries under the will. About the time of the hearing upon the contest before the surrogate this subscribing witness was visited by a woman who, under an assumed name and without disclosing her real purpose, had been procured by the contestants or their counsel to elicit admissions from her for use upon the trial. The subscribing witness after having testified to what took place at the execution of the will, and that the testatrix was at the time apparently rational, was subjected to a long cross-examination with reference to the interview with the visitor above referred to for the purpose of laying a foundation for impeaching her testimony. $Tony of the questions put to the witness in the course of this exceedingly prolix and discursive examination were properly excluded by the surrogate. She was asked, however, in substance, if Mrs. Cook, who was one of the beneficiaries under the will and interested in its probate, and who had procured her to attend as a witness to the will, had not promised her money or some reward in the case, and she answered the question in the negative. Subsequently the woman who sought the interview in the interest of the contestants was called as an impeaching witness, and in various forms was asked if the subscribing witness had not so stated in the interview, and other questions tending to impeach her, which were excluded under exception. The interest which a witness has in the subject of the controversy is a material inquiry, as it bears upon the question of credibility, and where a witness has received, or has been promised, any reward for giving testimony in a case, the fact may be shown upon cross-examination, and, if denied, admissions or declarations out of court to that effect may be proved. The relations which the witness bears to the case are so far relevant to the issue as to admit proof of contradictory statements by way of impeachment when the proper foundation is laid. 1 Grreen. on Ev., § 450; Newton v. Harris, 6 N. Y., 345; Starks v. People, 5 Denio, 106.

Many of the questions propounded to the impeaching witness were so framed that their purpose or meaning was not quite clear, or they were so intermingled with other matters that they were properly excluded, but with respect to the interest which the subscribing witness had in the establishment of the will, the contestants were not permitted to make such inquiry as they were entitled to. The very questionable methods used to procure the impeaching testimony might well affect its credibility with the surrogate, but could not affect its competency. An error in admitting or excluding evidence in such a case is not sufficient to reverse the decree of the surrogate, unless it appears that the party against whom the ruling was made was necessarily prejudiced thereby. Code, § 2545.

The rulings referred to related to important testimony in the case, and, at least in some degree, must have been prejudicial to the contestants. For these reasons, the judgment of the general term and the decree of the surrogate should be reversed and a new trial granted, costs to abide the event.

All concur.


author: O’Brien, J

text:
    Frederick P. Forster, Resp’t, v. David Scott, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

      ■ i. Constitutional law.
    The legislature has nó power under the constitution to enact that whenever land as exhibited upon such map is taken for street purposes at any time after the filing thereof, no compensation shall be made to the owner for any improvements put upon the land during the time between the filing of the map and the condemnation proceeding. Such a provision deprives . the owner of his right to build on his lot and impairs its value, and to that extent is void as to him, and creates no incumbrance.
    Appeal from a judgment of the New York superior court, general term, granting judgment compelling defendant to accept title and pay $1,000 without costs according to terms of submission of controversy submitted without action.

      Rollin H. Lynde, for app’lt; Henry A. Forster, for resp’t.

       Affirming 44 St. Rep., 212.

   O’Brien, J

The question in this case is in respect to the plaintiff’s rights under a contract made by him with the defendant June 18, 1891, whereby he agreed to sell and the defendant to purchase a parcel of vacant land in the city of New York, at a price specified, subject to, but without assuming a mortgage thereon of $4,000. The plaintiff on his part agreed to convey the premises to the defendant by a full covenant warranty deed, sufficient to vest the title in fee simple free from any lien or incumbrance except the mortgage. At the time stipulated in the contract the plaintiff tendered to the defendant a deed in the required form and containing the proper covenants, which the defendant declined to accept for the reason that upon searching the title he had discovered that there was such an incumbrance upon the land that the plaintiff was unable to convey a good title as required by the contract. The facts were agreed upon and submitted to the general term under the provisions of § 1279 of the Code, where it was held that no lien or incumbrance, aside from the mortgage, existed or attached to the land by reason of the. facts so stated, and directed judgment for the plaintiff that the defendant accept the deed tendered and pay the purchase price. The facts, st> far as they are material to the point involved, are these: On the 18th of October, 1890, the department of parks of the city of New York, under the provisions of chapter 68JL of the Laws of 1886, filed a map of a proposed street or avenue which entirely covers the plaintiff’s lot. The map so filed complies^ strictly, with respect to form and substance, with all the provisions of law on the subject. The proposed street has not been opened and no proceedings have been taken to open it or to acquire the title to plaintiff’s land by condemnation.

Section 677 of the consolidation act provides as follows with reference to damages for taking lands for such streets when the same are finally opened : “No compensation shall be allowed for any buildings, erection or construction which at any time subsequent to the filing of the maps, plans, or profiles mentioned in § 672 of the act, may'be built, erected or placed in part or in whole upon or through any street, avenue, road, public square or place exhibited upon such maps, plans or profiles." The plaintiff’s vacant lot derives almost its entire value from the fact that it is possible to use it for building purposes. -The facts, therefore, present two-questions:

(1) Whether, assuming the statute to be valid, a lien or incumbrance was created and attached to the land in question by the filing of the map by the park department, and (2) whether the legislature - had .power under the constitution to enact, as it virtually did, that whenever land thus exhibited upon the map is taken for street purposes,' at any time after the filing thereof, no compensation shall be made to the owner for any improvements put upon the land during the time between the filing of the map and the condemnation proceeding.

An incumbrance is said to import every right to, or interest in, the land,' which may subsist in another, to the diminution of the value of the land, but consistent with the power to pass the fee by a conveyance. 1 Bouvier’s Law Diet, p. 696 ; 2 Greenl. 'Ev., § 242 ; 3 Washburn on Real Property, 659-, § 14.

Any right existing in another to use the land, or whereby the use byt-he owner is restricted, is an incumbrance within the legal meaning of the term. Wetmore v. Bruce, 118 N. Y., 319 ; 28 St. Rep., 687.

It was conceded by the general term that the public authorities might, or might not, appropriate the land according to their pleasure, notwithstanding the filing of the map; and further, that in case the owner, after the map was filed, made improvements upon it, he did so at the peril of losing the enhanced value of the land resulting therefrom. These propositions seem to be correct, but we are constrained to differ with that court in the conclusion that such a situation does not impair the value of the property and amount to an incumbrance within the meaning of the contract. If the law was valid, it virtually imposed a restriction upon the use of the property, because it enacted that it could not be used for building purposes, except at the risk to the owner of losing the cost of the building at some time in the future. We are also constrained to differ with the general term in regard to the validity of the statute in so far as it enacts that the owner of land exhibited upon the maps is not entitled to compensation for improvements subsequently made. This statute is-of somewhat ancient origin, and it was said in some of the cases that it was first enacted at the solicitation of the landowners in order to enhance the'value'of théir property. In re Furman Street, 17 Wend., 658; In re Wall Street, 17 Barb., 639; Seaman v. Hicks, 8 Paige, 660. ,

However that may be, in the aspect in which the question.is now presented, we think it is, in conflict with the provisions of the constitution for the protection and security. ■ of private property. The constitutional guarantees against the appropriation of private property for public use, except upon just compensation, as well as that against depriving the owner of its enjoyment and possession without due process of law, have been the subject of much judicial discussion in the manifold aspects in which the questions have been presented in the numerous cases. These provisions have been so thoroughly expounded and their application, meaning and practical scope so minutely explained that it would be very difficult to suggest now any views which could be called new, and a restatement of propositions, so often before sanctioned by' courts and judicial writers,.is quite needless. This case is governed by a few principles so well- settled and understood that they are elementary, and nothing can be added to their force or application by illustration or extended discussion. The validity of a law is to tie determined by its purpose and its reasonable and practical effect and operation; though enacted under the guise of some general power, which the legislature may lawfully exercise, but which may be and frequently is used in such a manner as to encroach, by design or otherwise, upon the positive restraints of the constitution. What the legislature cannot do directly, it cannot do indirectly, as the constitution guards as effectually against insidious approaches as an open and direct attack. Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment, that materially affect its.value, without legal process or compensation, it deprives him of his property within the meaning of the constitution. All that is beneficial in property arises from its use and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. It is not necessary, in order to render a statute obnoxious to the restraints of the constitution, that it must in terms or in effect authorize an actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner. Though the police and other powers of government may sometimes incidentally affect property rights, according to established usages and recognized principles familiar to courts, yet even these powers are not without limitations, as they can be exercised only to promote the public good, and are always subject to judicial scrutiny. Wynehamer v. People, 13 N. Y., 378 ; People v. Budd, 117 id., 1; 26 St. Rep., 533; Gilman v. Tucker; 128 N. Y., 190; 40 St. Rep., 71; People, v. Albertson, 55 N. Y, 50; In re Jacobs, 98 id., 98; People v. Otis, 90 id., 48; People v. Gillson, 109 id., 389; 16 St. Rep., 185 ; Munn v. Illinois, 94 U. S., 141; Henderson v. Wickham,, 92 id., 259 . Id., 275 ; Brimmer v. Rebman, 138 id., 78; Chicago, etc., v. Minnesota, 134 id., 418; Bohan v. Port Jervis G. L. Co., 122 N. Y, 18; 33 St. Rep; 246; Cooley on Con. Lim. (6th ed.), 207, 670.

As the plaintiff in the case at bar was virtually deprived of the right to build upon his lot by the statute in question, and as this circumstance obviously impaired its value and interfered with his power of disposition, it was to that extent void as to him and created no incumbrance upon it.

It follows that the judgment of the general term was correct in its result, though we have not been able to concur in the grounds upon which it was made, and, in affirming its action, we have preferred to place our reasons upon other grounds.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Daly, Ch. J.

text:
    The People, Plff’s, v. James Hassan and Joseph Finnerty, Def’ts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Recognizance—Forfeiture.
    Where a principal has been surrendered by his sureties after forfeiture of the recognizance and been convicted, but has appealed and is out on bail pending such-appeal, the judgment entered on the forfeiture will not be vacated except "upon proof that there was no lack of evidence through the delay caused by the default.
    Application to vacate judgment entered upon forfeiture of recognizance.

      J. H. Sliner, for motion; L. Hanneman (Delancey Nicoll, of counsel), opposed.
   Daly, Ch. J.

The principal was surrendered by his bail, after forfeiture, and has been tried and convicted, but has appealed and is out on bail pending the hearing of such appeal. Under such circumstances, we must have proof that the People have lost no rights by the failure to originally produce the prisoner for trial. The appeal may be upon questions of fact, and we must know that there was no lack of evidence through the delay caused by the default There is not even the ordinary certificate of the district attorney to that effect, much less the proofs required in People v. Carey and Marslers, 5 Daly, 533, to which we refer the petitioner’s counsel.

Application denied, with leave to renew upon further proofs.

Bischoff and Pryor, JJ., concur.


author: Pryor, J.

text:
    The Globe Yarn Mills, Resp’t, v. William H. Bilbrough et al., App’lts. (Three Cases.)

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

      1. City court of New York—Jurisdiction.
    Plaintiff, a foreign corporation, brings these actions against defendants, a domestic corporation, residing at Cohoes, upon drafts drawn by them upon a firm in New York city, payable there and in Troy, acceptance of which was refused. Held, that the city court of New York had jurisdiction of the actions.
    2. Attachment—Affidavit.
    An affidavit made by a person who acted for the treasurer of the plaintiff and conducted the transactions with defendants, that “the plaintiff is entitled to recover the amount of the draft over and above all counterclaims and offsets known to plaintiff or deponent,” is sufficient to sustain an attachment.
    Appeal from orders of the general term of the city court, affirming orders denying motion to vacate attachments.
    Plaintiff is a foreign corporation. Defendants move on the papers upon which the attachments issued.

      Kneeland, Stewart & Epstein (Ira B. Stewart, of counsel), for app’lts; Eaton & Lewis (Arthur P. Hodgkins, of counsel), for resp’t.

       Affirming 46 St. Rep., 273.

   Pryor, J.

The grounds upon which the orders are impugned are: As to action No. 3, that it is beyond the jurisdiction of the court, and no evidence appears to warrant the attachment

Action No. 3 is on a negotiable note made at Cohoes and payable at Troy. The cause of action did not arise in the city of New York; neither of the parties resides here, nor was the summons served in the city.

Appellants argue that because, upon this condition of fact, the court of common pleas would not have jurisdiction of the action, it is a necessary inference that the city court also is without jurisdiction. But, the conclusion is a non-sequitur. It may be an anomaly, but it is not a legal impossibility, that the appellate tribunal should not have original jurisdiction of a matter which is within the cognizance of the subordinate court. It is within the power of the legislature to perpetrate a legal solecism; and the question of jurisdiction must be solved by reference to the statute.

Of any action for a sum of money not exceeding two thousand dollars, “ against a natural person or a foreign or domestic corporation,” the city court has jurisdiction. Code, §§ 315, 316. By § 1779, “ an action may be maintained by a foreign corporation, in like manner, and subject to the same regulations as where the action is brought by a domestic corporation, except as otherwise specially prescribed by law.” It is not controverted that the city court has jurisdiction of an action by a domestic corporation, and it is not pretended that any special provision of law restricts the concession of jurisdiction as to foreign corporations. It is not denied that the defendants are resident in the state of New York, nor that the summons was duly served upon them pursuant to § 3170 of the Code. Upon this state of facts there is no escape from the conclusion that the court below has jurisdiction of the action.

In defeat of the attachments in all the actions, the appellants contend that the affidavit is insufficient, in not showing by competent and adequate evidence that “ the plaintiff is entitled to a sum stated therein, over and above all counterclaims known to him.” Code, § 636. The affidavit is in three actions, is made by the same person, and touching the point in question is as follows: “ The plaintiff is entitled to recover the amount of the note ” (in action No. 3), “of the draft” (in actions Nos. 1 and 2), “ with interest thereon, over and above all counterclaims and offsets known to the plaintiff or deponent." It is observed that, as to counterclaims and offsets, the affirmation is positive and absolute, not upon information and belief; and appellants’ contention is, ti¡:' it is not shown that the affiant has any knowledge of the plains iff’s business, general or specific, or any. connection therewith, and, therefore, his positive statement as to no counterclaim or offset can. have no weight.”

The statute does not require an affidavit that there are no counterclaims ; but only that there are none hnown to the plaintiff. The statement of the affiant as to his own knowledge is, of course, free from criticism; but, not his knowledge, but the knowledge of the plaintiff is in controversy. The plaintiff, being a corporation, can have no knowledge; and, therefore,-the question issas to the knowledge of officers most likely to be informed as to the corporate liabilities.

The instruments in suit were given for goods sold by the plaintiff to the defendants, and so of themselves import an absence of any counterclaim. It is common knowledge that in the transactions, of trade buyers usually give notes or drafts only for the balance of account; and the presumption thus arising from the general course of -business between mercantile men afforded the affiant some ground, not of belief, only, but of knowledge, that no counterclaim existed against the debt in action. Furthermore, the affiant got the instruments from the plaintiff’s treasurer, to whose order, indeed, they were payable; that officer is presumed to be familiar with the financial condition of the plaintiff; and hence, here is another avenue of intelligence by which the affiant might have come to know if any counterclaim existed against the plaintiff’s demand.

Having the means of knowledge, and deposing positively to the fact, the inference is that the affiant had knowledge of the fact.

Since,-then, it is only in case the affiant could not have had knowledge of the fact that his positive affirmation'is insufficient and inadmissible, and as here he might have hnown the fact in the sense that all- save pedants employ the word,'namely, a conviction of a fact upon satisfactory evidence, have known it in the only way possible to ascertain that no counterclaim existed, that is, by a process of inquiry and inference, we hold the affidavits to be competent and adequate to sustain the orders.

The statute is remedial, and should not be nullified by a literal construction. Upon such construction a corporation plaintiff could never obtain an attachment; for a corporation is incapable of knowledge. Upon such construction an affidavit by plaintiff’s treasurer, even, would not suffice, for he cannot be supposed" to know but that upon matter subsequent to-a sale a counterclaim may not have arisen, as for breach of warranty, or some other agreement, express or implied, of the corporation. In granting provisional remedies courts do not proceed upon the technical rules' of evidence regulating the final determination of the rights <pf parties on a trial. They allow affidavit evidence ; they dispense with cross-examination ; -they are content with prima facie proof. If from the evidence before them an inference of the requisite fact may be drawn sufficiently cogent to satisfy their judgment, it is enough to-authorize the order. Code § 636.

The proposition upon this which opinion proceeds is sustained by authorities cited by the appellants themselves. “ The true rule is, that the statement? in affidavits will be presumed to be made on personal knowledge except where it appears affirmatively or by fair inference that they could not have been, and were not made on such knowledge.” Van Brunt, P. J., in Crowns v. Vail, 51 Hun, 205; 21 St. Rep., 208.

“ An affidavit by an agent must contain something to enable the court to see how he did or could know the facts, or which showed the relations between him and the plaintiff to be such as to raise a presumption that he might have personal knowledge as to the fact. The provisions of the statute must be substantially observedL” Buhl v. Ball, 41 Hun, 61, 64; 2 St. Rep., 270. “ The witness will not be allowed to testify to a fact positively, when it is plain he can have no actual knowledge on the subject.” Ellison v. Beernstein, 60 How, 145. An affidavit for attachment,

made by the president of plaintiffs’ bank, averring that there are no counterclaims within his knowledge to the demand sued on, is-sufficient without showing that the affiant had knowledge of all the transactions between plaintiff and defendant out of which counterclaims might have arisen.” Essex Bank v. Johnson, 40 St. Rep., 919 (general term, supreme court, first department). “It is not necessary now, in order to secure the benefit of the provisional remedy of attachment, to do more than establish- a prima facie case; and this is accomplished when upon all the allegations the court can perceive on sufficient proof that a demand is due over and above all counterclaims.” Lee v. La Compagnie, 2 St. Rep., 612 (general term, first department, supreme court).

The motion to vacate the attachments proceeded upon the-papers on which they issued. Thus, none of the allegations in those papers being denied, the plaintiff, in support of .the orders, is entitled to the benefit of all legitimate inferences from the facts shown; i. e., that no counterclaim exists against the demand in suit.

Orders affirmed, with costs and disbursements.

Daly, Ch. J., and Bischoff, J., concur.


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    John Henry Barry, App’lt, v. The Second Avenue Railroad Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Negligence—Evidence.
    In an action for personal injuries, it appeared that plaintiff, a boy of four, was. knocked down by defendant’s street car and injured so seriously that it became necessary to amputate his foot. A physician was called by plaintiff and testified that he had advised an amputation at once, but'the-boy’s parents would not consent, and on cross-examination was asked, under objection and exception, the reason which prompted such advice,.

      and answered, that if done at once it would have been necessary to amputate but a small portion of the foot. Held, that such question, if not tending to establish a defense, was certainly relevant to the question of damages.
    3. Same.
    A question as to the distance within which a car might be stopped, asked of a “master mechanic, who never drove a car,” was properly excluded.
    2 Same.
    In such case, the exposition of the word “old-timers,” i.e., that the horses were aged and infirm was proper in rebuttal of the plaintiff’s evidence that they had been driven so far and so furiously.
    Appeal from judgment on a verdict, and from order denying motion for a new trial.
    Action for injury to plaintiff, by collision with a car, while he was crossing the defendant’s railway track in the street.

      Cantor, Linson & Van Schaick, for app’lt; Merrill & Rogers (Payson Merrill, of counsel), for resp’t.
   Pryor, J.

We do not see how, consistently with familiar rules, we can reverse this judgment.

The issues were submitted to the jury'on conflicting evidence, and upon a charge with which the plaintiff’s counsel avowed his “perfect satisfaction.’’

Nor is there any such preponderance of proof in favor of the plaintiff as would authorize us to set aside the verdict as against the weight of evidence. It may be that, in view of the apparent discrepancy between the testimony of plaintiff’s chief witness on this and on a former trial, the jury declined to credit his story; but, the trutsworthiness of his evidence presented a question peculiarly for solution by them, and we are incompetent to interfere with their decision.

Appellant impeaches the judgment for error in the rulings upon evidence; but, despite the forcible argument of his counsel, we are constrained to the conclusion that none of his exceptions are tenable.

The testimony of Dr. Fivey, to which exception is taken, if not tending to establish a defense, was certainly relevant to the question of damages. The witness answered, “By doing this operation the child could have stood as I stand now, perfectly erect, and could have worn a false foot with perfect safety and repose.” It appears the parents objected to the amputation; and the plaintiff being non sui juris, their objection was his objection. The defendant was not chargeable with an aggravation of the injury by his act. Then, too, the witness had testified in chief for the plaintiff that he suggested amputation, and it was clearly proper, on cross-examination, to allow him to be asked the reasons of his advice.

The exception to the exclusion of the evidence as to the distance within which a car might be stopped, is not well taken, because it is not apparent that a “master mechanic, who never drove a car,” is an expert in the matter as to which the witness was interrogated, and because it seems from the evidence of both parties that when the driver saw the boy he was too near to prevent the collision with him.

The exposition of the meaning of the word “ old-timers,” i. e., that the horses were aged and infirm, was proper in rebuttal of the plaintiff’s evidence that they had been driven so far and so furiously.

We observe no error in the record, and we cannot say that injustice is done by the verdict.

Judgment and order affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


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    Frank E. Blackwell, App’lt, v. John E. Bainbridge et al. Resp’ts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Appeal—Dismissal of complaint, when improper.
    Where it is not certain that a plaintiff might not recover on another trial, it is error for an appellate court to dismiss the complaint and render absolute judgment for defendant.
    2. Principal and surety—Release—Extension of time.
    In an action against sureties on an undertaking for costs in a proceeding in a United States Circuit Court, it appeared that, by mistake, no stay was-granted in the United States court and judgment entered for costs as well as the principal debt, and a motion to stay its enforcement denied. An agreement was entered into between the parties that the judgment should be satisfied on payment of a certain sum, a condition not yet performed, and the release placed in escrow. Held, that such agreement, during its pendency, did not operate to prevent execution of the judgment and collection of the debt, and that defendants were liable on the undertaking.
    Appeal from order and judgment of the general term of the city court-, reversing a judgment for plaintiff at the trial term, and directing a dismissal of the complaint and judgment for the defendants.
    Action on an undertaking for costs upon a stay pending a motion for a new trial.

      Frank F. Blackwell, for app’lt; David Leventritt and James W. Monk, for resp’ts.

       Reversing 47 St. Rep., 130.

   Pryor, J.

In dismissing the complaint and rendering absolute judgment for the defendants, the general term of the court below committed undeniable error; for it is not certain that the plaintiff might not recover on another trial, and in such case another trial is his legal right. Guernsey v. Miller, 80 N. Y, 181; King v. Barnes, 109 id., 267, 283; 15 St. Rep., 52; Foot v. Ins. Co., 61 N. Y, 571; Capron v. Thompson, 86 id., 418, 421; Gawthrop v. Leary, 89 id., 622 ; Goodwin v. Conklin, 85 id., 21, 26; Whitehead v. Kennedy, 69 id., 462.

It follows, therefore, that the judgment of the general term must be reversed; but, whether the judgment on the verdict should be affirmed, depends upon the absence of error against the defendants on the trial of the cause.

The action is against sureties on an undertaking for costs in a proceeding in the United States circuit court for the southern district of ISTew York; and the defense apparent on the trial is, substantially, a denial of non-performance of the undertaking; an accord and satisfaction between the creditors and principal debtors; and a release of the sureties by a suspension of the right of the creditor to enforce his claim against the principal debtor.

The undertaking is coupled with a condition of defeasance; namely, “ if said report is vacated, set aside or a new trial granted, this undertaking to be void and of no effect.” The order requiring the undertaking and the recitals of the undertaking exhibit that it was given to stay judgment pending a motion to set aside the repoi't of the referee and for a new trial in the federal court action. The concession is, that the motion has not been made, and consequently, that the report has not been set aside, nor a new trial granted but the defendants maintain that the motion is still available ; that the order upon the motion, if made, may set aside the report and award a new trial, and that so the undertaking may yet be avoided.

We are of the opinion that the proposition is untenable.

The contention of the plaintiff is that, since the undertaking was ordered for no other purpose than to effect a stay of judgment pending a motion for a new trial, and judgment for costs as well as the principal' debt has been duly entered, and a motion to stay its enforcement' has been denied upon the express ground that being regularly entered it cannot be set aside, avoidance of the undertaking by performance of the condition of defeasance is now a legal impossibility; and that so the action is well' brought. ■

And such is our conclusion; but, as the point was ruled in ’b favor of the plaintiff on the trial, and is not challenged in the able opinion of the general term below, we are dispensed from argument in its support.

There has been no satisfaction of the judgment in the federal court; an accord, but not a satisfaction; for the agreement between the- parties to the judgment was, that it should be satisfied only by payment of the $5,000 (a condition not yet performed), .and the reléase was placed in escrow to take effect only on tho fulfillment of that condition.

Appellants - contend further, that, in any event, the agreement operates,' during its pendency, to prevent execution of the judgment" and collection of the debt for which they are sureties; and that so they are discharged from liability to the plaintiff. Assum- / ing the 'agreement to be upon a sufficient consideration, still its •effect is not to suspend execution of the judgment; so far the contrary, that it makes express provision for proceedings in its enforcement pending the agreement.

Partial payment upon the judgment does not entitle these defendants, sureties on an undertaking for costs, to a pro rata abatement of their liability. Ives v. The Merchants Bank, 12 How., U. S., 159; Babbitt v. Finn, 11 Otto, 7; Wood v. Fish, 63 N. Y., 250.

Ho errror having occurred on the trial of prejudice to the defendants, it results that the judgment on the verdict must be affirmed.

Judgment of tlie general term reversed, and judgment of the trial term affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


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    Halsey Fitch et al., Resp’ts, v. Alexander A. Kennard et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Sale—Contract.
    In an action for damages from breach of. an alleged contract by defendants to ship a car of eggs in Chicago, on a certain night, to plaintiffs in New York, the broker testified that defendants represented that the eggs would be shipped that evening, “ whether we bought or not,” and that he consummated the sale with plaintiffs the next day “with the understanding that the car was then in transit,” and plaintiffs testified that it was upon the faith of such assurance that they bought the eggs. Held, that the representation so relied and acted upon constituted an agreement for infraction of which defendants were responsible in damages.
    2. Same—Evidence.
    The contract of . sale and purchase was negotiated by a firm of brokers, through D., an employee. Upon the trial defendant K. and other witnesses were asked to give the conversati m at the time of the contract of sale between defendants and D., and the evidence was rejected upon the ground that D. was the agent of defendants, and that so they were concluded by his testimony. Held, error, that even if D. was the broker of defendants they had a right to contradict his version of the transaction.
    Appeal from judgment of the general term of the city court, affirming a judgment on a verdict.

      Abraham, Gruber, for app’lts; J. George Hammer, for resp’ts.

       Reversing 46 St. Rep., 271.

   Pryor, J.

The action is for damages from breach of an alleged contract by defendants to ship a cargo of eggs in Chicago, on the night of the 18th of March, 1891, to the plaintiffs i.n Hew York. The shipment was not made till the 19th of March.

The single question in controversy is: Did the defendants agree to ship the eggs on the night of the 18th of March ?

By the plaintiffs’ own evidence it appears that the broker negotiated the sale on the 18th of March, and consummated it on the 19th. Indeed, it is not apparent how the sale could have been made on the 18th, seeing that it was not until the 19th that the plaintiffs gave the broker authority to accept the defendants’ offer, i. e., to buy; and that it was not until the 19th that he communicated his authority to the defendants, the sellers. The “ purchase ticket,” i. e., the contract of sale, executed by the. broker and given to the defendants, was not so executed and delivered until the 19th. Assuming, then, an agreement to ship on the 18th, that agreement was necessarily provisional, and dependent on the consummation of the sale: and since the sale was not, in fact, consummated till the 19th, without more, there could have been no binding agreement to ship on the 18th. Suppose that after the negotiation on the 18th, and the then agreement to ship that night, the sale had gone off; would the plaintiffs have had a claim of damages against the defendants for failure to ship on the 18th ? After the miscarriage of the sale, plaintiffs could have had no right to the possession of the eggs, and defendants could have been under no obligation to ship on the 18th or at any other time. Whatever “ understanding,” therefore, may have existed between the parties to ship on the-18th, was necessarily cancelled by the failure to consummate the sale until the 19th.

But upon all the evidence the case presents another aspect, and warrants a different conclusion.

The broker testifies, in behalf of the plaintiffs, that the defendants represented that the eggs would be shipped that evening (the 18th), “ whether we bought or not; ” and that he consummated the sale on the 19th “ with the understanding that the car was then in transit.” The case then, is this: pending defendants’ offer to the intending buyers, they represented that the eggs were then in car, and would be shipped that evening (the 18th March),' so as to be delivered in New York “in due time; ” and upon the faith of that assurance the plaintiffs bought and paid for the eggs. We are of opinion that the representation so relied and acted on constitutes an agreement for infraction of which the defendants are responsible in damages to the plaintiffs. Hawkins v. Pemberton, 51 N. Y., 198.

But, appellants impeach the judgment for error as well in the exclusion as in the admission of evidence.

The contract of sale and purchase was negotiated by Davis & Company, of whom one Dodd was an employee, and who, in fact, made the contract. The issue in the case, we repeat, was whether the defendants agreed to ship the eggs on the 18th, and surely under their denial they were at liberty to controvert the evidence of the plaintiffs and disprove the alleged agreement. Nevertheless, when the defendant Kennard and other witnesses were asked to give the conversation at the time of the contract of sale between defendants and Dodd, the evidence was rejected, and upon the ground that Dodd was the agent of the defendants, and that so they were concluded by his testimony. It is our opinion that, on the undisputed evidence, Dodd was the broker of the plaintiffs and that the defendants negotiated with him for themselves ; "but assume otherwise, and still it is clear to demonstration that defendants had a right to contradict Dodd’s version of the transaction. If the broker of the defendants, they were not bound by his testimony ; nay, not even had he appeared as their witness. The law is not so unjust as to sacrifice a principal to the perjury of his agent, when the principal has in his hands the means of exposing the perjury. It will not avail on an appeal, as thought the general term of the court below, to argue that the Questions were too general, or that the offer was to show an inconsistent statement by Dodd without affording him a previous opportunity of. explanation.

The exclusion of the evidence in the trial court went upon the sole and specific ground that Dodd was defendants’ agent to sell; and upon that ground the evidence must stand or fall in this appellate tribunal, unless the evidence was in no aspect of the case competent, or could not be made so. Briggs v. Wheeler, 16 Hun, 583 (directly in point), and Tooley v. Bacon, 70 N. Y., 34, 37. We may add, that the questions could not have been made more definite without leading the witnesses ; and that were the objection proper the ruling could not be sustained upon the authority of Stacy v. Graham, 14 N. Y., 492, an adjudication in no respect applicable to the point in discussion.

Respondents answer that the contract of sale was in writing, and so was not open to paroi contradiction. The “purchase-ticket ” did probably constitute a contract of sale, but it was not produced or proved in evidence. The telegram of Davis only communicated the offer of defendants to sell a car-load of eggs, accompanied with the statement of Davis that they “ leave tonight.” The bill of lading acknowledged the receipt of the eggs and expressed the terms upon which they were to be carried, but contained no agreement of sale between the sellers and the buyers. We fail to find in the record any written contract of sale.

We incline to the opinion that the court below erred also in the admission of evidence ; but we forbear discussion of other exceptions, since the one sustained requires a reversal of the judgment.

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

Daly, Ch. J., and Bischoff, J., concur.