text:
    Sally A. Conderman, App’lt, v. Caleb Conderman, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Divorce—Action for—Trial by jury of the question of adultery —Is A MATTER OF RIGHT—Laws 1787, CHAP. 69—2 R. L., 197—2 R. S., 145, § 40—Constitution 1846, art. 1, § 2.
    The power of granting divorces on account of adultery was first transferred from the legislature to the court of chancery by Laws 1787, chap. 69, and there was a subsequent enactment on the subject, 2 R. L., 197, which was afterwards embodied in 2 R. S . 145, § 40. By these statutes the right to trial by jury of the question of adultery was given in such cases and existed at the time of the adoption of the constitution of 1846 By art. 1, § 2, of said constitution it is provided that the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever; hut a jury trial may be waived in all civil cases in the manner prescribed by law. Held, that trial by jury of the question of adultery was, in actions for divorce, a matter of right.
    2. Same—Settling of issues under Code Civ. Pro., § 070—Not a matter OF DISCRETION.
    By Code Civil Pro , § 970, the party may, upon motion, apply to the court for an order directing the questions of fact arising upon those issues to be distinctly and plainly stated for trial by jury, and upon the hearing of the application the court must cause the issues to be distinctly and precisely settled. Held, that this is not a matter of discretion with the courts.
    3. Same—Direction imperative on court—Code Civ. Pro., % 1757.

      Held, that the right to trial by jury in such cases took with it the duty of the court to reader such right available according to the course and practice prescribed, and that the provisions of the statute were imperative that the court, by order, direct the trial by jury and cause the issues to he framed for that purpose.
    4 Same—Right to make application cannot be controlled by rule of practice—Rule 39 of general rule of practice not applicable.

      Held, that the right to make the application, and the imperative requirement that it be granted, wore not the subject of qualification or limitation by a rule of practice, so as to reduce it to a matter of discretion of the court if not made within ten days after issue, and that rule 31, of the general rules of practice, did not apply to this class of cases.
    5. Trial by jury—Manner of waiver- prescribed by Code Orv. Pro., §1009—Rule 31 of general rules of practice does not have effect to produce waiver.

      Held, that the law has provided, by Code Civ. Pro., § 1009, the manner-in which trial by jury might he waived, and that the rule could not have the effect to produce a waiver of the right if not exercised within the time limited.
    Appeal from order of Monroe special term, denying the plaintiff’s motion for direction that certain issues of fact be framed and tried by jury.

      Daniel L. Benton, for app’lt; J. H. & C. W. Stevens, for resp’t.
   Bradley, J.

The action is for divorce, upon the ground of alleged acts of adultery of the defendant, which are denied by the answer of the latter. The plaintiff, on notice, moved the court for an order directing such issues to bn tried by jury and that they be framed for such purpose. The motion was denied, on the ground that the application was not made within ten days after the issue was perfected, without prejudice to a renewal of the motion addressed to the discretion of the court. The plaintiff appeals.

The trial by jury of the issues of fact upon the question of the alleged adultery is a matter of right preserved by the constitution, which provides: “The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” Art. 1, § 2. The trial by jury of the question of adultery, when put in issue in an action for divorce, has been used ever since the power was given to the courts of this state to grant relief in such cases.

This power was first transferred from the legislature to the court of chancery by Laws of 1787, chap. 69.

In 1813, there was a further enactment on the subject (2 R. L., 197), and afterwards it went into the revision of the statutes. 2 R. S., 145, § 40. The right of trial by jury in such cases was given by the statutes referred to, and was an existing right at the time of the adoption of the constitution of 1840, and therefore comes within the provision before referred to of that instrument. Batzel v. Batzel, 10 J. & S., 561; S. C., 54 How., 139; Dietz v. Dietz, 2 Hun, 339; Morrell v. Morrell, 17 id., 324. The trial by jury is a matter of right. The method before the Code was to send feigned issues to the jury for trial, for which the present statute has provided as a substitute that in such cases the §arty may upon motion apply to the court for an order irecting the questions of fact arising upon those issues to be distinctly and plainly stated for trial by jury, and “upon the hearing of the application the court must cause the issues * * to be distinctly and plainly stated.” Code Civ. Pro., § 970. This is not a matter of discretion with the court.

The right of trial by jury in this case takes with it the duty of the court to render such right available according to the course and practice prescribed. And hence the provisions of the statute are imperative that the court by order direct trial by jury and cause the issues to be framed for that purpose. Id., § 1757. But in actions in equity where a party is not as of right entitled to a trial by jury, the court may in its discretion upon or without application of a party, direct that one or more questions be tried by jury and cause issues to be framed for such trial. Id., § 971. The limitation of time for making such application as matter of right, given by rule 31 of this court, is applicable to the cases embraced within the provisions of the section last referred to and those in which specific issues are not requisite for the trial, and cannot have the effect to qualify the right to make the application and to have it granted in an action like this where the right of trial by jury exists, and the framing of issues is essential to enable the party to have a trial of the issues in that manner.

The rules of practice authorized are such as are not inconsistent with the statute. Code Civ., Pro., § 17. And they cannot have the effect to modify it or provide a practice not in harmony with it. Rice v. Ehele, 55 N. Y., 518; Glenny v. Stedwell, 64 id., 120; French v. Powers, 80 id., 146; Palmer v. Phenix, 22 Hun, 224.

The right to make the application and the imperative requirement of the statute that it' be granted, do not seem to be the subject of qualification or limitation by a rule of practice, so as to reduce it to a matter of discretion of the court if not made within ten days after issue. Nor can the rule have the effect to prodnce a waiver of the right if not exercised within such limited time. The constitution preserves the right of trial by jury in such case, unless waived in the manner prescribed by law. The law provided the manner that it may be waived. Code Civil Procedure, § 1.009.

it is unnecessary to hold that it cannot be done in any other way.

The right of trial by jury does not appear, to have been waived by the plaintiff.

The order should be reversed, with ten dollars costs and disbursements, and the application remitted to the special term to proceed theron.

Smith, P. J., Haight and Lewis, JJ. concur


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Matter of the Application of the New York, Lake Erie and Western Railroad Company, Resp’t, for the Appointing of Commissioners to examine the proposed route of the Pittsburg, Lackawanna, Northeastern Railroad Company, in the Town of Mayland, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Railroads — General railroad act—§ 38, surd. 6, provides, for POINTS AND MANNER OF CROSSING.
    The line or lines, grade or grades, points and manner of crossing and connections between railroads are determined under the General Railroad Act, section 38, subdivision 6.
    3. Same—Specific provisions control those more general.
    The subject of crossing existing railroad tracks being specifically provided for, and the proceedings by which the points of crossing are to be determined being pointed out by the statute, the general provisions in regard to the location of the route and the right of property owners to object to such location, are not applicable to the manner of crossing, and cannot deprive existing roads of any of the protection which the provisions in regard thereto afford them
    3. Same—§ 22 has no application to matters between railroads.
    The provisions of section 22 of said act have no application to such cases.
    Appeal from an order made at chambers by a justice of the supreme court, adjourning proceedings and granting leave to the petitioner to serve and bring in other parties; and also from an order made by the same justice appointing commissioners to examine and determine whether the appellant’s proposed route should be changed under section 22 of the Railroad Act as amended.

      Frank S. Smith, for app’lt; D. C. Robinson, for resp’t.
   Haight, J.

The respondent presented a petition to a justice of this court at chambers asking for the appointment of commissioners to examine the appellant’s proposed route and the route to which it is proposed to alter the same; and that an order be made changing such proposed route. The grounds stated in the petition for such change are in substance that the appellant’s route, as designated, crossed the petitioner’s tracks at grade, and that they should cross either at an over or under grade; that the route as designated crossed at an extremely acute and dangerous angle; that it made sharp curves upon each side, making the operation of the road extremely dangerous; and that it crossed within 2,300 feet of the respondent’s railroad station, and within 400 feet of its switches into the main track; and that the crossing was near a sharp curve on the main line of the respondent’s road, which would endanger the trains of the petitioner, its passengers and property. Upon the return day of the notice an affidavit was read and filed to the effect that one Josiah Gray had a life estate in lands that would be affected by the proposed change, and that he was the sole occupant and possessor thereof; that thereupon the judge made an order adjourning the proceedings and permitting the petitioner to serve the petition and notice upon Gray and such other person as may be discovered to have interests in the lands affected by the proposed alteration with like effect as if such persons had been served within the fifteen days limited by the statute. Upon the adjourned day the judge made an order appointing commissioners. Before making such order the appellants moved to have the proceedings dismissed upon the ground that necessary parties had not been served within the time limited by the statute and that the judge had no jurisdiction to grant the prayer of the petition upon the ground that the petitioner cannot apply for the appointing of commissioners under section 22 of the general railroad act as amended. Appeal was taken from both orders.

Section 22 of the Railroad Act, being the section under which this petitioner moved for the appointment of commissioners, among other things provides that any occupant or owner of land over which such route passes, feeling aggrieved by the proposed location, may, within fifteen days after receiving.written notice, etc., give ten days notice in writing to such company and to the owners or occupants of lands to be affected by any proposed alteration, of the time and place of an application to a justice of the supreme court in the judicial district where such lands were situated by petition duly verified for the appointment of commissioners to examine tho said route, etc. Sub-division 6 of section 28 of the act, among other things, provides that if the two corporations cannot agree upon the amount of compensation to be made or the line or lines, the grade or grades, points and manner of such crossing and connections, the same shall be ascertained and determined by commissioners. It further provides that the commisioners shall have full power to determine whether the crossing or crossings of a railroad before constructed shall be beneath, at or above the existing grade of any such railroad, and upon the route designated on the map of the company seeking the crossing required to be filed by section 22 of the act or otherwise. This provision is the provision under which the line or lines, the grade or grades, points and manner of crossing and connections, between railroads, are determined. The commissioners are given power to determine whether or not the crossing shall be permitted upon the route designated on the map of the company seeking the crossing. In the case of the Boston, Hoosac Tunnel and Western Railroad Company to acquire the right across the railroad of the Troy and Boston Railroad Company (79 N. Y., 64,) it was held that the points of crossing were not necessarily fixed by the notice of the location of the new route and the failure of the company owning the previously constructed road to object to such location within fifteen days. The subject of crossing existing railroad tracks being specifically provided for, and the proceedings by which the points of crossing are to be determined, being-pointed out by the statute, the general provisions in regard to the location of the route and the right of property owners to object to such location are not applicable to the manner of crossing and cannot deprive existing roads of any of the protection which the provisions in respect to crossings afford them. It would thus appear that nothing done by the commissioners, appointed to change the route under section 22 of the act, would be binding upon the commissioner appointed to determine the place and manner of crossing the existing railroad. It would consequently follow that nothing could be accomplished by proceedings under the former section. This view was suggested by Tracy, J., in delivering the opinion of the court, in the case of the application of the Lake Shore and Michigan Southern Railroad Company to change the route of the New York, Lackawanna and Western Railroad Company (89 N. Y., 442). He quotes with approval the decision in the Boston and Hoosac Tunnel case, supra, arid says: “Where the proposed route of a railroad company, as located by the filing of its map, crosses the track or tracks of an existing company, it may well be doubted whether the last named company can apply for the appointment of commissioners under section 22 of the General Railroad Act, as amended by the Laws of 1871, chapter 560, section 1, to change the route of the road proposed to be constructed. Section 28 of the same act would seem to provide the means of determining all questions involved as between railroad companies where one seeks to carry its line across the line of the other.”

Wc are aware that proceedings to change routes have in several cases been heretofore instituted under section 22 of the act, and that such proceedings have been sustained in the general term; but the question as to the power so to do does not appear to have been expressly raised or considered.

In view of the more recent decisions of the court of appeals, we are inclined to the opinion that the rights of existing railroads are fully protected and can be determined under the provisions of section 28 of the act, and that the proceedings were improperly instituted under section 22. This conclusion renders it unnecessary to consider the question raised by the appeal from the order permitting other parties to be brought in.

Orders reversed, with ten dollars costs, in one appeal only, and disbursements; and motion to appoint commissioners denied, with ten dollars costs.

So ordered.

Lewis, J., concurrs; Bradley, J., not sitting.


author: Smith, P. J.

text:
    The People of the State of New York, Resp’ts, v. James Ouley, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Criminal law—Larceny—Penal Code, § 528—What evidence necessary FOR CONVICTION.
    By Penal Code, § 528, a person who with intent to deprive or defraud the true owner of his property * * secretes, withholds or appropriates to his own use * any money or personal property * * or, having ia his possession, custody or control as a bailee, servant or agent * * any money or property * * appropriates the same-to his own use, is guilty of larceny, Held, that on a trial for the crime of larceny, it was incumbent on the prosecution to maize a case which precluded beyond a reasonable doubt the hypothesis of the defendant s innocence.
    3, Same—What is defense—Penal Code § 548.
    By Penal Code, § 548, it is provided that upon an indictment for larceny, it is a sufficient defense that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable.
    8. Same—Question wrongly submitted to jury.
    There being no proof as to part of the property that the defendant received it without the consent of the owner, and that part being of such value as to render the defendant guilty of the crime charged in the indictment if wrongfully appropriated Held, that the question of his guilt as to that part was wrongfully submitted to the jury, and it not appearing from the record that the verdict of conviction was not rendered on that ground, that the conviction could not be upheld
    4. Same—Allowance of immaterial question is erroneous.

      Held, that the allowance of a question which was immaterial and which tended to prejudice the juryagainst the defendant, was erroneous.
    5 Same—Impeaching testimony of witness—What necessary qualification.

      Held, that a witness not shown to be acquainted with the defendant’s general reputation for veracity, was not competent to impeach his testimony.
    Appeal from a judgment of the court of sessions of Erie county, convicting the defendant of the crime of grand larceny in the second degree.

      Iracy C. Becker, for app’lt; George T. Quimby, dist.att’y5 for resp’t.
   Smith, P. J.

The indictment contains two counts. The full count charges the defendant with stealing one watch of the value of eighty-five dollars, one chain of the value of forty dollars, two rings of the value of twenty-five dollars each, twelve spoons of the value of one dollar each, and three hundred and fifty dollars in money of the value of $350, the property of Douglass Ouley. The second count charges him with receiving like property of like value theretofore stolen from said Douglass Ouley, by some person unknown, the defendant knowing it to have been stolen. The conviction was under the first count only.

It appeared at the trial that Douglass Ouley was a resident of Westfield, Chatauqua county; that he died on the 6th of July, 1884; that he was sick about five months and confined to his house for that period before he died; that the defendant, who was his brother, came to his house about four weeks before his death and remained there till he died; and that while defendant was there, Douglass received $1,030 pension money, a part of which he caused to be deposited in the Erie County Saving Bank. The herein amount deposited was not shown by the prosecution, but the defendant testified in his own behalf that nis brother requested him to take the pension money and deposit it in the bank, and get some money; that he deposited $700 of the money in his brother’s name, and brought the balance home, ana gave him $200 of it, and he told defendant to keep the balance. It further appears that subsequently Douglass signed some blank checks and gave them to defendant, with directions to get money out of the bank, and that the defendant caused said checks to be filled up, and drew out the balance of the money, $350 of which he retained for his own use. He claimed to have been authorized by his brother to retain it, and upon that point the following testimony; was given:

On the part of the prosecution, Mrs. Ouley, the widow of Douglass, testified that about the seventeenth or eighteenth of June her husband drew four blank checks and gave them to James, in her presence; that he then had $450 in the bank; that witness asked her husband if he was going to have the whole amount drawn from the bank, and he said “No, he was going to have him draw a hundred dollars, the balance was to remain there till after his death for I (witness) would need it; he would sign the checks for fear he would get so weak he could not write. ” She also testified that she afterwards saw three of the checks in defendant’s overcoat pocket. Upon this testimony, the prosecution claims that the defendant by filling up the blank check for $450 instead of $100 as intended and directed by Douglass, drew the entire balance, and appropriated $350 dollars thereof to his own use, with intent to deprive or defraud his brother of the same.

The defendant testified that he resided in Illinois, and was telegraphed to come to his brother; that he had previously had dealings with his brother, and the latter was indebted to him in several hundred dollars in respect to certain transactions, which he detailed on the stand; that there was no occasion when his brother gave him four blank checks and told him to draw $100 and leave the balance there for his wife; nothing of the kind; that after the balance in the bank was reduced to $700, his brother gave him, at one time, a check for $100, which he got and gave to his brother; that on the 15th of June his brother gave him a check for $150, on which he drew the money, and that on the 20th June his brother gave him another blank check and told him to draw the balance of the money in the bank; that he did so and brought the money home, and his brother gave it to him, and said, “You can have that on what I owe you.” Two checks were put in evidence by the prosecution, one dated 15th of June, for $150, the other dated 20th of June, for $450. This is, in substance, the testimony bearing directly upon the question as to the manner in which the defendant obtained possession of the §350 alleged to have been stolen.

As to the watch, chain and rings, Douglass had those articles in pawn with one Madison; he informed the defendant of the fact, and told him to go and redeem them, and directed his wife to give defendant the pawn tickets, which she did; defendant redeemed the articles and kept them in his own possession. Mrs. Ouley testified that her husband’s direction to defendant was, to take some of the.pension money and redeem the articles. She also testified: “I don’t intend to say that my husband said to go and redeem the watch and rings and bring them there; I suppose he intended he would bring them back.” The defendant testified that he used his own money to redeem the property; that he took the articles home and showed them to his brother for identification, and his brother said to witness, “You nan have them; I don’t think I shall ever wear it again;” and witness thereupon took them, and has kept them ever since. A witness, John Garaher, testified that in a conversation with Douglass respecting the watch, in the spring of 1884 Douglass said it was going to his brother James if he outlived Douglass. The wife of the last witness testified that in the winter or fall before his death Douglass came to witness’ house and said that he had made a will, and said he had given to his brother James his watch and other articles which he named. Mrs. ■Ouley also testified, on cross-examination, that the day, or the day after, the watch was redeemed she asked defendant if he had the watch, chain and rings, and he said he had, and on her asking him if he would let her have them, he said perhaps she would see them and perhaps she would not, and that she did not tell her husband of this conversation.

In regard to the spoons, there was no positive proof, on the part of the prosecution, that the defendant took them, but the defendant admitted, on the stand, that he had them and he testified that they originally belonged to his mother and on her death they were left with his father, who gave them to Douglass, telling him he could have them as long as he lived, and when he died he would give them to defendant; that two or three weeks before his death he sent defendant for a drawer or till to his trunk, which defendant brought to him, and that Douglass took the spoons out and handed them to defendant, telling him they were their mother’s spoons and that he was to take care of them.

Mrs. Ouley testified that her husband, prior to his sickness, had kept' his business relations almost entirely from her, and, as she expressed it, did his business in rather an underhanded way.

There are some collateral circumstances shown by the testimony, upon which counsel have commented in their briefs, to which it is not necessary to advert at present; the foregoing statement presents substantially, all the material testimony bearing upon the question, whether the offense alleged in the first count of the indictment was proved. By section 528 of the Penal Code a person who, with intent to deprive or defraud the true owner of his property * * secretes, withholds or appropriates to his own use * * any money or personal property * * or having in his possession, custody or • control, as a bailee, servant or agent * * any money or property * * appropriates the same to his own use, is guilty of larceny.

Section 548 provides that, upon an indictment for larceny, it is a sufficient defense that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable.

It was, of course, incumbent on the prosecution to make a case which precluded beyond reasonable doubt the hypothesis of the defendant’s innocence. The question whether the defendant had a bona fide claim to the property appropriated by him, depended almost entirely upon transactions between himself and his brother, in respect to-which the prosecution was unable to make direct proof, in consequence of the death of the brother, with the exception of the interview between them in respect to the blank checks, at which Mrs. Ouley was present. With regard to-that interview, the jury had the right to decide that Mrs. Ouley’s version was correct, if they believed her testimony, and consequently to conclude that in respect to the $350 of money, the defendant was guilty, unless they believed his statement of what occurred between his brother and himself concerning the money when he returned with it-from the bank.

But in regard to the other property, what evidence is. there that the defendant came by it, or retained it wrongfully and feloniously? He was told to redeem the watch, chain and rings, and he did so. His retention of the property is not shown to have been unauthorized. The suggestion of Mrs. Ouley that he was directed to bring them to the house is plainly a mere inference of hers; there is no-proof that a direction to that effect was given. He did not conceal the fact that he retained them; when asked the-same day, or the next, by Mrs. Ouley if he had done so, he admitted it; and he, in effect, denied her right to them. The fact that she omitted to inform her husband of his possession of, and claim to, the property, is some evidence that she did not then think that the defendant was violating the instructions given him by her husband.

As to the spoons, there is no proof whatever on the part of the prosecution of the circumstances under which the defendant got them, whether with or without, the consent of his brother.

So that, if the testimony of the defendant be entirely disregarded, there is no evidence that the defendant took or withheld the property, other than the money, with a criminal intent, or even without the consent of the owner. But the court distinctly submitted it to the jury to find whether the defendant was guilty in respect to that property, i. e., the watch, etc., rings and spoons; and for aught that appears in the appeal book, the verdict may have been rendered on that ground alone, those articles having been proved, without contradiction, to exceed twenty-five dollars in value.

Now, considering the friendly relations that existed between these brothers, as disclosed by the evidence on the part of the prosecution, the extent to which Douglass availed himself of the services of his brother during his illness; the admitted reticence of the deceased in regard to communicating his business affairs to his wife, the principal witness for the people; the frankness of the defendant towards her in respect to his possession of and claim to the property that he had redeemed, and the other circumstances of the case, it would be a dangerous precedent to hold that this conviction can be sustained in, the absence of evidence as to whether or not the defendant obtained or withheld the possession of such property without the consent of his brother. Ordinarily, the bare possession of stolen property may be sufficient to call on the possessor to explain how he came by it; but there must first be proof that the property was taken feloniously from the owner, and of proof of that nature the present case is barren.

Upon this branch of the case, we think injustice has been done to the defendant, for which there should be a new trial.

Mrs. Ouley, on her direct examination, was asked the following question: “When this money was drawn out of the bank, and when the watch and chain and rings were taken away, and the spoons were taken, was that practically all the personal property there was left in the city of Buffalo belonging to your husband?” The question was objected to, the objection was overruled, and exception was taken, and the witness answered: “Yes, sir; I think it was everything.” It is difficult to conceive of any legitimate bearing the question had upon the issue, and it is obvious that the answer, by suggesting that the widow had been made destitute by the practices of the defendant, may have excited the sympathies of the jurors to the defendant’s prejudice. The limiting of the inquiry to property in the city did not, as the respondent’s counsel contends, make the question unobjectionable, there being no evidence that the deceased had personal property elsewhere at the time of his death. We think the ruling was erroneous.

Witnesses were called by the prosecution to impeach the general character of the defendant for truth and veracity. F. M. Wright testified that he was a deputy sheriff at West-field; that he knew defendant in his boyhood; had seen him more or less for the last two years at Westfield; perhaps half-a-dozen times; never had dealings with him; and arrested him a few days before the trial. The witness then stated in substance that he had had conversation about the defendant with persons who knew him; associated with him and had business with him at Westfield. He was then asked, “Do you know what his reputation is among the people he has resided with while you have known him ? ” His answer was, “Yes, sir: among those whom I have had occasion to speak with.” Defendant’s counsel objected on the ground that the witness has not shown himself competent to testify as to the reputation of the witness. The objection was overruled and an exception taken. And the witness then said from what he had known of the defendant’s reputation, as he had stated, he could not believe him under oath.

As we understand the testimony of Mr. Wright, he was not shown to have had any acquaintance with the speech of people generally concerning the defendant’s character for truth at Westfield or elsewhere. He did not profess to have such acquaintance. His answers may have been true, even if he had heard only two persons speak of the defendant in his life. The objection that he was not shown to be competent was well taken and should have been sustained. Greenlf. Ev., vol. 1, § 461, and cases there cited.

The judgment and conviction should be reversed and a new trial ordered, and the proceedings remitted to the court of sessions of Erie county. The order to state that the reversal is upon the facts as well as the questions of law presented by the exceptions considered in the opinion.

Haight and Bradley, J J., concur; Barker, J., not voting.

So ordered.


author: Bradley, J.

text:
    George H. Thornton, et al., Resp’ts, v. Richard T. Tuttle, Mary J. Olin, individually and as Ex’rx, et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Attorney and client—Authority of attorney—Scope of.
    As to such matters as come within the conduct and management of the action in which he is employed the relation of an attorney to his client is that of agency.
    3. Same—Authority extends to employment of stenographer to take TESTIMONY.
    The method of taking evidence with a view to completeness and accuracy as well as expedition, is a matter for the judgment of the attoi ney. The use of stenography is neither unusual or unreasonable And ordinarily the employment of that means to take the testimony, and the furnishing of a long hand copy, would come within the scope of the attorney's authority.
    3. Same—Authority not limited by rule of court as to method of TAKING TESTIMONY.
    So long as the evidence may be made available in court for the purposes for which it is taken the authority of" the attorney is not qualified by the fact that the rules of the United States circuit court contemplate that the testimony in equity cases will be taken by the examiner, and the deposition of witnesses read over to and signed by them respectively.
    4. Same—Secret instructions qualifying authority—do not affect RIGHT OF PARTY EMPLOYED.

      Held, that the right of action of a stenographer, for compensation for taking testimony in an action, at the reguest of the attorney, for a party, was not affected by any secret instructions given by the client qualifying the authority of the attorney.
    5. Evidence—Conclusion as to consistency of.
    In an action for the recovery of compensation for services performed as stenographer. Held, that it was within the power of the referee to conclude that conversations had, in the presence of one of the plaintiff’s about presenting the question to the court, as to which of the parties should pay these charges, his affidavit made with that view, and his correspondence as to the claim andas to the means of having it allowed in view of the explanatory circumstances, appearing in the evidence were not inconsistent with the plaintiffs’ claim.
    Appeal from judgment entered upon report of a referee against the defendants.

      J. B. Adams, for app’lts; Charles A. Pooley, for resp’ts.
   Bradley, J.

The action is brought to recover for services of the plaintiffs as stenographers alleged to have been performed for the defendants upon the employment in their behalf by their attorney in the action in which the services were performed. The action was in equity in the United States circuit court for the Northern district of New York, in which the defendants in this action were complainants, and Mr. Duell was then- solicitor and counsel The defendants were Loomis and Tolies, and Mr. Stewart was their counsel. The defendants there asserted and desired to establish that there was privity between the complainants in such action, find the complainants in another action pending in the United States circuit court for the Western district of Michigan, in which Reed and others were complainants and Chase and others defendants, and on their application a reference was directed to a special examiner to take testimony on that question and report it to the court. And this order directed that it should be taken at the expense of the defendants in that'action.

They proceeded to take the proofs, and to aid in that respect, and at the request of their counsel, Mr. Stewart, the plaintiff Thornton (a member of the firm of Thornton, Briggs & Close) took the testimony on their part, with the consent of the plaintiff’s solicitor, as appears by a stipulation entered by the' stenographer in the minutes, by which it was “stipulated that the testimony may be taken by a stenographer, and signed by the witnesses upon the stenographic notes, and that the.reading of the testimony by the witnesses is waived.” On the close of the proofs on the-part of the defendant in that action, the complainants proceeded to take testimony in their behalf at Perry, N. Y.; Kalamazoo, Mich., and Cleveland, Ohio; and it was taken by the plaintiff Thornton. The defendants in that action paid him for taking the testimony put in by them. And they and the complainants refused to pay for talcing that introduced by the letter. It is for compensation for taking this that this action is brought, and the recovery had. And the referee has found that after the close of the proofs on the part of the defendants in that action, Mr. Duell, acting as such attorney and counsel for these defendants, employed Thornton as such stenographer to take the testimony of the witnesses then to be examined in their behalf before the examiner, and agreed with him that his clients, the defendants, would pay him for so doing, and that in pursuance of such employment the plaintiff Thornton took stenographic notes of the testimony offered by them in that action, and furnished the examiner and Duell longhand copies thereof. And he further found that Mr. Duell. had been instructed by his clients not to employ a stengrapher; that the only authority he had was conferred by his_ employment as attorney in the action; and that the-plaintiffs had no knowledge that such instructions had-been given to him; and that they relied upon his authority as such attorney to charge his clients by such employment.

_ The evidence, although sharply conflicting on the question of the employment of the plaintiffs, was sufficient to permit and support the facts so found by the referee.

The relation of an attorney to his client is that of agency-in respect to such matters as come within the conduct and. management of the action in which he is employed.

The method of taking evidence with a view to completeness and accuracy, as well as expedition, is a matter for the judgment of the attorney, relating to the trial of actions, and to the preservation and presentation of the proofs for consideration.

The use of stenography for that purpose is neither unusual or unreasonable. And, ordinarily, the employment of the means to take the testimony in that manner and to furnish a long-hand copy of it thus taken would come within the scope of the authority of the attorney as such. And the liability for the service be that of the client. Judson v. Gray, 11 N. Y., 408; Bonynge v. Field, 81 id., 159, Bonynge v. Waterbury, 12 Hun, 534; Sheridan v Genet, id., 660; Covell v. Hart, 14 id., 252; Harry y. Hilton, 64 How. 199

The fact that the rules of the United States circuit court contemplate that the testimony in suits in equity cases will be taken by the examiner, and the depositions of the seve ral witnesses read over to and signed by them respectively, does not, we think, qualify the authority of the solicitor in his relation to his client in respect to the means employed to take the evidence, so long as it may be made available in the court for the purposes for which it is taken. The plaintiff Thornton was advised of the stipulation made by the counsel for the parties, and entered it in the minutes at the commencement of taking the proofs.

And it is likely that he then understood that Mr. Duell consented for his clients that it be taken by the stenographer, with the understanding that he should, without expense to them, be supplied with a copy of the testimony so taken. But the referee has found, and such finding has the support of the evidence, that after the defendants m that suit had put in their testimony the stenographer was discharged from further attendance by their counsel.

And that it was then and shortly thereafter that he was employed as before mentioned to take the proofs to be given on the part of the complainants. Such was the employment and the services performed pursuant to it, as found by the referee, which constitute the subject of this action. The plaintiff Thornton says he had no knowledge, and it does not appear that he did, before the trial of the order of reference, which directed the payment by the defendants in that action of the expenses of talcing the testimony. And it may not have defeated the plaintiffs’ recovery if he had. The plaintiff Thornton had the right to assume, unless in some manner advised to the contrary, that the attorney who employed him had the authority which his relation as such to his clients imported. And his right of action against them was not affected by any secret or confidential instructions given by them to him qualifying his authority.

The conversation had in the presence of Thornton about presenting the question as to which of the parties should pay these charges to the court, his affidavit made with that view, and the correspondence on his part upon the subject of the claim, and in relation to the means of having it allowed, the referee, in view of the explanatory circumstances appearing in the evidence, was at liberty to conclude were not inconsistent with the claim made in this action by the plaintiffs.

There seems to be no serious dispute about the value of the services. And there is evidently no statutory rate of fees or charges prescribed applicable to the services in question.

The findings of the referee upon the conflicting evidence must be deemed conclusive. No other question seems to require consideration.

The judgment should be affirmed.

Haight and Lewis, JJ., concur.


text:
    Lizzie Griswold, Resp’t, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

      1. Negligence—Railroad—Contributory negligence—Leaving moving train.
    There is no legal excuse for a passenger attempting to leave the car of a train while in motion, and when it is done voluntarily the passenger assumes the hazard, and any injury sustained by him is deemed, in some degree, the consequence of his own negligence, and he is without remedy.
    3. Evidence—Value op for jury to decide.
    Where the value of testimony was dependent largely upon the credibility to which it was entitled, and that inquiry involves the consideration of the interest of the witnesses and the conflict of their statements .with those of other witnesses, it is a matter for the jury to determine, and their verdict will not be overruled as being against the weight of evidence.
    8. Same—Evidence op medical experts as to result op injury.
    In an action for damages for injuries, caused by defendant’s negligence, it was competent to show the consequences which would follow in future from such cause, and as bearing upon that it was proper to take the judgment of medical experts as to the probable result. But the inquiry to be competent must relate and be confined to the particular inquiry in question and to the consequences attributed to it, which will follow and affect the person who suffered it Strohm v. B. T., L. B. and W. B. JR. Co., 96 N". Y„ 305, distinguished.
    4. Same—Difficulty op expressing an opinion only affects its value.
    The mere matter of the degree of intelligence, with which an opinion is expressed, and the difficulty of doing it, unless so great as to exclude the opportunity for medical opinion, goes to the value rather than the competency of the evidence.
    5. Same—How future injury proved—What the basis
    The future consequences of an inquiry must have a degree of probability amounting to a reasonable certainty, to be the basis of the estimate of damages, and the evidence of such results must necessarily rest somewhat upon the judgment of experts

      Appeal from judgment entered on verdict of Orleans circuit, and from order denying defendant’s motion on case and exceptions for a new trial. The action is brought to recover damages for personal injuries alleged to have been suffered by the plaintiff and occasioned by the negligence of the defendant And she recovered a verdict for $2,000.

      W. H. Adams, for app’lt; Isaac S. Signor, for resp’t.
   Bradley, J.

On the evening of April 4, 1884, the plaintiff, at Rochester, took passage upon the defendant’s train for Albion, her place of residence.

The train arrived there between eleven and twelve o’clock, and in alighting from it the plaintiff fell, and it is alleged that the injuries complained of were occasioned by the fall, and that it was caused by the failure of the defendant to stop its train a reasonable time to enable her to get off, and in starting it up suddenly and with a jerk while she was in the act of doing so, and thus throwing her from the steps of the car to the ground, or onto the platform of the depot. The evidence on the part of the plaintiff tends to prove that the train did not stop at the station a sufficient time for her to get off. And there is evidence to the effect that the time was one minute and that it was two minutes. The train was upwards of a half an hour late, which may account somewhat for a purpose not to allow any unnecessary delay in it passage.

It was the duty of the defendant to afford by its stops at stations a reasonable opportunity for passengers to leave the train with safety. And at the same time reasonable diligence on their part was required. Some other passengers left the train without difficulty there on that occasion. And while there was evidence tending to prove that sufficient time was given to passengers to alight from it, the question presented was one of fact, upon which the evidence was sufficient to support the conclusion that the defendant did not give a reasonable or proper time for the passengers to get off the train before starting it, and that in this respect the defendant was in fault and chargeable with negligence.

It is contended by the learned counsel for the defendant that the plaintiff not only failed to establish the fact that she was free from contributory negligence, but that it appears that she was not, and that her fall was occasioned by her own fault. There is evidence to the effect that the train had started and was in motion, and that she knew it while she was on her way out of the car, and before she had passed through the door on to its platform. And some to the effect that the train started while she was at the car door and on the platform, and before she had proceeded to go down the steps to alight. There is no legal excuse for a passenger to attempt to leave the car of a train when in motion, and when it is done voluntarily" the passenger assumes the hazard, and any injury sustained by him is deemed in some degree the consequence of his own negligence, and he is without remedy. Morrison v. Erie R'y Co., 56 N. Y . 302; Burrows v. Erie R'y Co., 63 N. Y., 556.

The evidence going in support of the plaintiff’s case in this respect, rests mainly upon her testimony, and that of her husband (who was at the train to meet her), which is that she got out of her seat and started with her packages for the door of the car, and was met by her husband, who took her packages and said to her, “ Hurry up; ” that the train was late, and proceeded out of the car, and she followed him closely; that when he had reached the lower or last step of the car, and she the first or upper one, the train started, and with a jerk that threw or jerked him and her from the steps, and thus caused her to fall. If this was true, the conclusion was permitted that the plaintiff was without negligence. Their evidence is to the effect that the plaintiff proceeded to leave the car with reasonable diligence, and heard and saw nothing indicating a purpose to start the train, or by way of caution to her not to attempt then to alight, and that this sudden movement given to the train, which caused her to fall, was without any warning that came to her hearing.

The evidence of one witness who was a passenger, and left the train at Albion, is that she followed the plaintiff out of the car, and on her way out and when standing in the car door, the latter said to her: “Be careful, the train is going;” and that the train was then moving. Another witness, standing outside, says she saw the witness last referred to inside the car, going towards the door, when the train started and was moving; that she did not see any one ahead of her, or notice anybody other than such witness. There is other evidence tending to prove that the train started before the plaintiff proceeded to go down the steps of the car. It is forcibly urged on the part- of the defendant, that the evidence on this subject is such as to require the conclusion of the court that the verdict in that respect is against the weight of the evidence. We think the court is not justified in overruling the finding of the jury on the question of contributory negligence. That was a question of fact which could not properly have been taken from the jury. The proposition upon which the plaintiff’s right to recover depended had the support of some evidence, and that not a mere “ scintilla of evidence ” or surmise, but was found in the affirmative, and in terms direct—statements, in the testimony of witnesses.

The value of this testimony was dependent largely upon the credibility to which it was entitled. And that inquiry involved the consideration of the interest of the witnesses and the conflict of their statements with those of the other witnesses. These are well recognized matters for the determination of the jury, and peculiarly so, by reason of the opportunity they had to see the witnesses on the stand and hear them testify, and take such aid as those means might furnish in estimating their character and credibility and in measuring the value of their statements. The finding that the plaintiff was not chargeable with contributory negligence is not so against the weight of the evidence in the view which the jury was at liberty to take of it, as to permit interference with the verdict in that respect. Thurber v. H. B. and F. R. R. Co., 60 N. Y., 326; Stackus v. N. Y. C. and H. R. R. R. Co., 79 id., 464; Payne v. T. and B. R. R. Co., 83 id., 572; Greany v. Long Island R. R. Co., 101 id., 419.

The amount of damages which should be allowed to the plaintiff, when it was determined that she was entitled to recover, was dependent upon the extent and effect of the injury which she received on the occasion, and from the cause before mentioned.

This was also a question of controversy and of conflict of evidence. She had some years before been afflicted with a physical difficulty or disease, from which she had not entirely recovered, but which was still liable to afflict.

And there was some medical expert evidence, that the condition of which she complained may have come from such previous organic trouble, while the evidence of the members of the medical profession who had examined and treated her, was to the effect that the injury in question caused a serious physical condition, attributable to no other cause, and that her previous infirmity was not likely to develop symptoms which followed such injury.

Much evidence was given by the plaintiff and others on this subject, in view of all which we are not able to say that the jury over estimated the amount of damages she had sustained and was entitled to recover. A medical witness on the part of the plaintiff was asked a question, which embraced more, but in view of what followed and of the answer given, it maybe treated as this inquiry, “ From what you know of the condition of this woman from the time this existed and your examination, what is the probability of her recovering from the injury?” This was objected to as “speculative and hypothetical,” and exception was taken to the ruling permitting the answer. The witness answered: “It is impossible for a man to foretell what the result of such a trouble would be?’ And the further question, “What, in your judgment, will probably be the result as to whether she will probably recover from it or not?” being asked, followed by the remark of the court: “He simply asks you whether you think she will recover.” The witness answered: “Judging from the symptoms, as they are manifest, I think there is no evidence of recovery. There is not much probability under the circumstances.” The defendant’s motion to strike out the latter part of the answer having been denied, exception was taken.

And another medical witness was asked: “Tell what, in your judgment, would probably be the result—whether she would probably recover from it ? ” The objection to which was overruled and exception taken. The witness answered: “I should think it was rather improbable that she would recover entirely. Taking into consideration the time that has elapsed, and the fact that she was not better now that she was immediately after the injury, it is my idea that she would not get better.”

These witnesses had, by examination and treatment of the plaintiff, become somewhat familiar with her condition, and the symptoms which represented it, up to the time of the trial, which was had one year and six months after the injury. It was competent to show the consequences which would follow in future from such cause, and as bearing upon that we think it was proper to take the judgment of medical experts as to the probable, result. Lincoln v. Saratoga and S. R. R. Co., 23 Wend., 425; Filer v. N. Y. C. R. R. Co., 49 N. Y., 42, 45; Strohm v. N. Y., L. E. and W. R. R. Co., 96 id., 305; Buel v. N. Y. C. R. R. Co., 31 id., 314.

By the questions to which the objections were taken the witnesses were called upon to express their judgments of the probable result of the particular injury in question, not what might follow it,' nor whether she might or might not recover, but whether, in their judgment, she would probably recover from the effects of the injury. The future consequences of an injury must have a degree of probability amounting to a reasonable certainty to be the basis of the estimate of damages, and the evidence of such results must necessarily rest somewhat upon the judgment of experts. And while they cannot express with absolute certainty the developments and future results which will come from the cause and its immediate effects, experience may enable the witnesses to intelligently have and express their opinions of the probable continuance and the ultimate consequences of a defined physical condition resulting from an injury.

In the Strohm Case the court are not understood by us to have held that the opinion of medical witnesses of the probable future effect of an injury was not competent, but that the error of the trial court there was in permitting the witness to state what a certain kind of injury might, in his opinion, develop in future; that it is not sufficient that certain consequences may, or are likely to follow, because evidence to that effect is merely speculative. This view of that case is strengthened by the fact that Filer v. N. Y. C. R. R. Co.(49 N. Y., 42), is cited thereby the court without criticism. The inquiry, to be competent, must relate and be confined to the particular injury in question, and to the consequences attributable to it which will follow and affect the person who suffered it. That was the inquiry in this case. And while the answer following the first question, that it was impossible for any man to foretell what the result of such a trouble will be,” evinced some difficulty on the part of the witness in determining the future consequences of the plaintiff’s injury, we think it did not disqualify him to express his judgment on the subject if he had any The mere matter of degree of intelligence with which an opinion is expressed, and the difficulty of doing it, unless so great as to exclude the opportunity for medical opinion, goes to the value rather than to the competency of the evidence.

No other question seems to require consideration.

The judgment and order should be affirmed.

Haight, J., concurs.


author: Childs, J. Angle, J.

text:
    Albertus Larrowe, Resp’t, v. Herman J. Lewis, et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1887.)

    Contract—When not varied by custom—Railroad ties
    The plaintiff’s assignor contracted to buy of the defendants railroad ties at an agreed price, no provision being made as to “firsts” and “seconds.” There was an established custom among dealers in railroad ties by which “seconds" only sold for half the price of “ firsts."’ Held, that because of this custom there could not be interpolated into the contract a provision for the purchase and sale of a class of ties not embraced therein, at a price different from that agreed upon by the parties.
    Appeal from a judgment entered on the report of a referee in Livingston county.
    On the 23d day of May, 1881, one T. J. Reynolds made and entered into a contract with the defendants, who were co-partners doing business under the firm name of Lewis Brother’s, for the purchase of a quantity of railroad ties. The contract was in writing and of which the following is a copy:

      May 23, 1881.

      Messrs. Lewis Bros •
    Gents—I will give forty-seven cents for your white and yellow oák, and thirty-seven cents for black ash, cherry, red oak, chestnut, butternut and slippery elm ties, piled up on the flats helow the mill. You to give me all you can get during the season, suitable for rafting. Ties to be counted and paid for before put in the river. You to put them in the river as directed by me.
    T. J. REYNOLDS.
    We accept your offer.
    LEWIS BROS. '
    Subsequent to the execution of this contract, Reynolds paid to the defendants on account thereof the sum of $3,000, and accepted and removed from the defendants premises a large quantity of ties, and thereafter prepared a statement of the account between the defendants and himself respecting such dealings, from which it was made to appear that he had paid to the defendants the sum of $483.12 over and above the contract price for all ties received by him. This account and demand for such overpayment was assigned by Reynolds to the plaintiff, who brought this action to recover the amount thereof. The referee reported in favor of the plaintiff for the amount claimed, and from the judgment entered on such report this appeal is taken.

      E. A. Nash, for resp’t; E. W. Packard, for app’lt.
   Childs, J.

In the statement of account, prepared by Reynolds, showing an over-payment for ties, the defendants were charged with the moneys paid on the contract and credited with ties received as “firsts” and “seconds.” the “firsts” at the price stipulated in the contract and the “seconds” at one-half the. contract price, and thus the over-payment, to recover which this action was brought, is made to appear.

Upon the trial one W. H. Hallock, a dealer in railroad ties, was called as a witness by the plaintiff, and testified that the seized tie used by the Delaware, Lackawanna and Western Railroad, was eight feet long, eight inch face and six inches thick, flattened, with both" sides of even thickness.”

_ He was then asked, “How are the ties of less dimensions than the specifications of a road, designated ? ”

Answer: “They are hilled to railroad companies as second class ties; they are classified as “firsts” and “seconds.”

Question: “ How do they differ as to price ? ”

Answer: “That depends on the railroad; on the D., L. and W. Railroad, and most railroads, a second class tie only brings one-half the price of a first class. On some branches of the Erie railroad it is different. That is the rule on all the other railroads in Western New York, of which I have any knowledge, except the New York Central.”

It appeared, from the testimony of the defendants, that they understood that it was the custom of railroad companies, in the purchase of ties, to classify them as first and second quality.

Upon this testimony the referee bases his report for the plaintiff, as appears by his findings of fact and conclusions of law, stated in his report as follows:

Ninth. That said Reynolds and said defendants were familiar with the known and established customs and rules relating to the inspection of railroad ties in the locality of Portage and in Western New York.

Tenth. That, according to the customs and rules aforesaid, a tie known as “second” is taken and established at one-half the price of a tie known as “first,” of the same kind of timber or class.

And I find as conclusions of law:

First. That the defendants were bound to accept, under their contract with Reynolds, of an inspection and price of different classes of ties, according to the known and established rules and customs among railroads and dealers in and manufacturers of railroad supplies and ties in Western New York.

Upon these findings and this conclusion judgment is directed for plaintiff for the amount, and upon the basis as, claimed by him in the statement of account before referred to.

It requires no argument in support of defendant’s claim that the judgment cannot be sustained on the theory adopted by the referee as disclosed in his findings.

Under the contract in question the defendants were re quired to furnish and deliver to the plaintiffs’ assignor merchantable and probably first-class railroad ties, of the kinds of timber specified, and he was required to accept all such ties offered, and pay therefor the stipulated price, having the right to inspect such ties for the purpose of selecting such as he was required to accept in performance of the defendants’ contract. No element of uncertainty is' found in the contract; the language employed is neither technical, indefinite or equivocal, therefore the testimony quoted was improperly received under the objection and exception of the defendants, and such ruling would afford good ground for a reversal of the judgment were it necessary to place our decision upon that ground. Bradley v Wheeler, 44 N. Y., 495; Lombardo v. Case, 45 Barb., 95.

The referee, as we have seen, bases his decision upon a custom which he finds to be established among dealers in railroad ties, and because of the existence of this 1 c custom ” interpolates into the contract a provision for the purchase and sale of a class of ties not embraced therein, at a price different from that agreed upon by the parties.-.

The defendants had the right to contract for the sale of first-class ties only, reserving all other qualities, if any, for some other market or purchaser, and the court had no power to extend this contract so as to embrace matters not within the contemplation of the parties or covered by its terms. Such is the effect of the decision of the referee, and it finds no support in the language of the contract or the law of the land.

Testimony was given by the plaintiff tending to show that the defendants, at the time of the inspection and delivery of the ties, consented to the classifications “firsts” and “seconds,” and that the ties should be accepted and paid for on that basis. The defendants controverted this testimony and insisted that they refused to acquiesce in such classification, but, on the contrary, at all times claimed payment at the contract price for all ties accepted by Reynolds, and the referee, at the request of defendants, has found “that defendant at times claimed that under the said contract with Reynolds, he was obliged to pay them the price agreed upon for all ties suitable for railroad purposes of any class, and also those sawed under his and Griffin’s suggestions, and defendants refused to and did not at times recognize or consent to the classifications of said ties so made by said Tallman, and so notified said Reynolds and said Tallman.”

This finding emphasizes the intention of the referee to rest his decision solely on the ground of “custom,” as stated in his report, and to hold that this important modification of the contract was worked out by the ‘c custom ” referred to, and without the agency or consent of the parties thereto, this disposition of the case cannot be sustained upon any theory warranted by law

Other questions were raised on the argument of this apappeal, but as a new trial must be had it becomes unnecessary to examine or pass upon the same, as they will necessarily be considered and disposed of on the trial.

The judgment should be reversed and a new trial ordered before another referee.

Costs to abide event.

Haight, J., concurs; Bradley, J., concurs in the result.

Angle, J.

—The original written contract was executory, and it has so been practically understood and construed by the parties. The law implies in every such contract for the sale of merchandise that it shall be of merchantable quality and such as will bring at least the average price. Howard v. Hoey, 23 Wend., 350; Sprague v. Blake, 20 id., 61; Hamilton v. Ganyard, 3 Keyes, 45.

The contract only covered railroad ties of that character. The vendors could not under it be required to deliver, nor could the vendee be required to accept ties of an inferior character.'

The controlling question in this case arises with reference to the ties known as 15 seconds.” The evidence is conflicting as to the character of these ties and as to the number of them that were “seconds;” but the referee has found that certain numbers were “seconds,” and we are not at liberty to reverse such finding upon the evidence.

The referee was not specifically requested on behalf of either party to find upon the issue made by defendants’ denial of the allegations in the complaint to the effect that the defendants, after the making of the written contract, delivered to Reynolds certain quantities of railroad ties called “seconds,” which Reynolds agreed to take of defendants at prices by them agreed upon. There was evidence upon both sides as to this issue on the part of plaintiff tending to show that it was agreed upon at one-half the price of firsts; on the part of the defendants there is evidence tending to show that at the time of the inspection and classification of the ties spoken of in the evidence the defendants insisted that under the contract they did not know anything about “ firsts ” or ‘ ‘ second ” class ties. On the part of plaintiff, Reynolds (his assignor) denies that anything of this kind was said in his presence.

The referee finds upon the issue (fifth finding of fact) that the ties were inspected, and upon such inspection it was found that there were certain ties (specifying the numbers) known and accepted as firsts, and certain num - bers (specifying them) were known and accepted as seconds or half ties. The referee also finds with regard to Tail-man’s inspection that the defendants in general acquiesced in the inspection made by him. But the subsequent findings and conclusions of the referee are not based upon and consistent with the above findings.

He finds that “the defendants refused to, and did not at times, recognize or consent to the classification of said ties so made by said Tallman, and so notified said Reynolds and said Tallman.” See also finding f, g, h, in defendant’s ninth request to find, and the ninth and tenth findings of fact, and the first conclusion of law, which are examined in the opinion of Justice Childs, and upon which he concludes that a new trial should be had, a conclusion in which I concur.

Judgment reversed and new trial ordered before another referee, with costs to abide the event.