text:
    In the Matter of the Will of Joseph F. Johnson, Deceased.

      (Surrogates Court, County of New York,

      Filed February, 1894.)

    1. Will—Execution .
    A will may be proved by the evidence other than the testimony of the subscribing witnesses.
    2. Same—Competency.
    A mind partially clouded by drink may execute a valid will.
    3. Same.
    The fact that the testator had an epileptic fit does not raise a presumption of disability after he has recovered from the attack.
    4. Same—Undue Influence.
    The act of a party addicted to intemperance, in disposing of his property, will not be invalidated on the ground of undue influence exercised over him by the inmates of his family, through kind offices springing from attachment or affection.
    Application for the probate of a will.

      Henry Kropf for ex’r; Christian G. Moritz (Henry Hoyt of counsel) for Miza J. Johnson ; Fernando Solinger and Charles H Beclcett for contestants.
   Fitzgerald, S.

Objection were filed by the father of decedent to the admission to probate of the paper propounded as his will. The first question that arises affects the validity of its execution. The subscribing witnesses, Boilings and Kelly, prove compliance with all the formalities required by the statute except that Bollings does not recollect a declaration by the testator that the paper was his will, or a request for him to sign it as a witness. Be admits, however, that he was requested to sign by the proponent, Mr. Drake, who superintended the execution of the paper. It is evident that Bollings did not regard the event as of sufficient importance to charge his memory with all the details connected with the execution. Be did not recall the fact that on the same occasion he had signed another will— that of the testator’s sister —and his memory was at fault in respect to the time of the execution. Bis recollection was that it took place between nine and ten o’clock in the morning, whereas, it was not until late in the afternoon. Kelly’s testimony is sought to be discredited, because inconsistent with statements in a certain affidavit that he made long after he had signed the will as a subscribing witness, and also because of contradictions in the testimony he gave upon collateral matters.

To provide against the infirmities of memory and the possible hostility of subscribing witnesses, the law, by a long line of decisions, has established that the execution of a will may be proved by other evidence. This principle is recognized in section 2620 of the Code of Civil Procedure. In the matter of Cottrell (95 N. Y. 829) both subscribing witnesses testified, not only that the formalities requisite for the due execution of a will were not complied with, but they denied that either was present at the time of the execution of the will, or signed the attestation clause. Yet the court held, on proof of the circumstances surrounding the preparation of the instrument, the genuineness of the testator’s signature, and the recitals in an attestation clause in his own handwriting, that the surrogate has sufficient facts to justify him in finding a valid execution. In the case at bar, there is not only a full attestation clause, but the testimony of the witness Drake, a reputable man, engaged in an extensive real estate business in this city, who, though not an attorney, has had experience in the drawing of wills and legal papers pertaining to real estate transactions, leaves no doubt that all the acts necessary for the valid execution of a will were performed, even without the confirmatory testimony of Miss Battjer and Freibly, who were present when the will was executed. . I could not hold the contrary except on the assumption that the will was the result of a conspiracy, to support which five witnesses had been guilty of perjury.

The execution of the will having been established, the issues as to testamentary capacity and undue influence will be considered.

Joseph F. Johnson was still a young man at his death. He had been addicted to the excessive use of intoxicating liquors for many years; had come to be a drunkard, and had suffered from delirium tremens, and some months after the execution of the will he was an inmate of the Inebriate Home. His men tal powers were probably never robust, and had been weakened by his excesses.

Drunkenness may so becloud the mind as to make it incapable of doing an intelligent act. But the disability ends when the exciting cause is removed. In this it differs from insanity, which once shown to exist, is presumed to continue until there is proof that intelligence and reason have asserted themselves. A drunkard may execute a valid instrument within a day, or even less, from a time when it would be conceded that he was incapable. In each case the question to be determined is, whether at the time he was sober, or if not, whether his mind was so affected by drink that he was not sufficient master of himself to give expression to' his real wishes. One may be so indifferent to his interests that he will neglect his estate, or, if not indifferent, his habits of intemperance may disable him from earing for it, and even make it necessary for a committee to be appointed that his estate be not wasted. It does not follow that he does not know that he has an estate which he can bestow, of what it consists, or that he has not a preference as to who shall receive it after his death. A clear mind is needed to conduct a complicated business transaction. A mind partially clouded by drink may execute a valid will. The proofs are positive that on the 23d day of October, 1891, when the will in question was prepared and executed, Johnson was sober. Making due allowances for the defective memory of witnesses and their possible disposition, by reason of interest or prejudice, to vary their narratives from strict truth, the weight of evidence is that he had then been sober for some days if not weeks. He was ill on that day and also on the day previous. If Johnson’s mind was so weakened that he could not conserve his estate, yet, if he could recollect its nature and extent, and those for whom, following the usual impulses of men, he would provide, he had the capacity to make a valid testament. It is not questioned that on October 23, 1891, he knew that there were two houses on Avenue 0, and certain property at Sugarloaf, that had came from his mother’s family, and that it was within his power, as incident to his ownership thereof, to give it to his father, to his sister, or both, or to a stranger.

It is not necessary to refer to the many cases in this state in which the wills have been sustained, and which are far more suggestive of testamentary incapacity by reason of drunkenness of the testators than the one under consideration.

I will only cite the leading case of Peek v. Carey, 27 N. Y. 9, and the recent decision in the Matter of William A. Reed, 2 Connollv, 403.

The fact that Johnson had an epileptic fit does not raise a presumption of disability after he had recovered from the attack. Contestants claim that it occurred on the morning of the day the will was signed. If so, I am satisfied from the evidence that it did not affect his capacity in the afternoon. The opinion expressed by Dr. Lines, who was called as an expert, but who never had seen Johnson, and that of Hollings, the subscribing witness, that that testator was incompetent to make a will are outweighed by others, who proved acts and words that showed his capacity.

¡Nor is the allegation of undue influence sustained by the proof. On the morning of the day on which he signed the paper Johnson .sent for Mr. Drake, not once, but twice, and, after his arrival in response to the second call, he stated to Mr. Drake his wishes in respect to the disposition of the property, and asked that a deed should be prepared by which his estate should go to his sister. After discussion he acquiesced in the suggestion that a will be also prepared. Late in the afternoon Mr. Drake returned with the papers. Both were read to Johnson, who stated them to be in ■accordance with his wishes. On the same occasion a reciprocal will and a reciprocal deed were executed by his sister to him.

Certain previous declarations are shown to have been made by ■Johnson that his estate was to go to his father. If he had executed a will containing that provision, it was his right, even capriciously, to revoke it. But his declarations never took the form of a will or other legal paper. They probably expressed his feelings at the time they were made, but had no further significance. There is abundant.proof of other declarations by him showing indifference, if not hostile feelings for his father. He stated that his father had committed a criminal assault on his sister in her childhood. Such an act would have furnished a reasonable motive for the father’s disinheritance, as would the belief of the testator in the statement he had made, and this irrespective of its falsity, provided that such belief was not an irrational one or the result of an insane delusion. No evidence has been presented controverting the statement, or showing that it was the product of unreason •or of such a delusion.

On the question of undue influence exercised on a drunkard in the procurement of a will, the rule laid down in Gardner v. Gardner, 22 Wend. 526 is still the law. It was held there that “ the act of a party addicted to intemperance, in disposing of his pro- . perty, will not be invalidated on the ground of Undue influence exercised over him by the inmates of his family. Where the influence arises from kind offices springing from attachment or affection, and that to vitiate the act the influence must be shown to have arisen from threats, force or coercion destroying free agency, and the boon to have been obtained by such coercion or by importunity that could not be resisted producing compliance for the ■sake of peace.’’ In Williams Will, 19 N. Y. Supp. 778; 46 St. Rep. 791 the general term in the third department held that the fact that the will disinherited kindred was not alone evidence of undue influence, nor the fact that the memorandum for the will was prepared by the person who was to be largely benefited thereunder and who was active in procuring its execution. ¡Nor was the fact that the will was not in accordance with the testator’s previously expressed intentions, although it may have an i mportant •bearing in connection with other facts ; but, without such facts of a pertinent and forcible character, a change in purpose in making a testamentary disposition would not invalidate the will.

Much of the testimony adduced on both sides on the trial refers to matters more or less remote from the day of the execution of the will, and was of such a character as to justify the suspicion that the question of Johnson’s mental soundness on that day was not free from doubt, but it did disprove the statements of other witnesses showing that at the time of the execution of the will testator was of sound and disposing mind. The conveyances and reconveyances and the mortgaging of the property, the acceptance by Johnson of eight dollars a week—less than half the income of his share of the property—and afterwards a pittance of thirty cents a day out of the income when Mrs. Reilly had, under such anomalous circumstances, become possessed of the legal title to the real estate, the continuance without protest for years after he had attained majority of a guardianship begun when he was a child, and other facts proven show a weakness of mind, but are not inconsistent with testamentary capacity. They suggest a suspicion of undue influence. They do not prove its exercise, and under all the circumstances of the case I do not believe it was exercised. A few hours after the testator signed the paper he spoke with satisfaction of the disposition he had made of his estate. Subsequently he expressed the same satisfaction. Later he asked if the will had been recorded, supposing that such an act was proper and necessary to give it effect. He lived for more than a year after its execution, during which time no expression of a desire to change it is shown. I am satisfied that the paper expressed the deliberately formed wishes of a capable testator.

It may be admitted to probate.


source: Caselaw Access Project

author: Ward, J.

license: Public Domain

text:
    Charles Kinyon, individually and as administrator of, etc., et el., Pl’ffs, v. Albert Kinyon, Def’t.

      (Supreme Court, Niagara Equity Term,

      Filed February, 1894.)

    1. Contract.—Fraud.
    Equity will not permit a party to assert that a fraud has heen perpetrated upon himself, in order to avoid the performance of his own contract, and still retain all the fruits of such contract.
    2. Same—Valid.
    A deed to a son, in consideration of his renouncing all claims upon the other property of his father, is valid, though made to his father and not to any person capable of taking after his death.
    3. Same.—Condition.
    The father can impose, as a condition to deeding his son the property, the release of all claims to his personal property, where, though the son claims, the father does not concede, that he was entitled to a conveyance as a matter of right.
    4. Same.—Fraud,
    A party cannot rescind a contract, where, after knowledge of the fraud, he puts it out of his power to restore what lie has received.
    5. Same.—Family arrangements.
    An arrangement between father and son, where all the children are present and acquiesce in the transaction, will be sustained by a court of equity.

      Action to enforce an agreement of the defendant releasing all claim to the property of John Kinyon his father.

      G. W. Laskey (David Miller, of counsel), for pl’ffs; George D„ Judson, for deft.
   Ward, J.

On and prior to the 4th day of April, 1885, John Kinyon, a farmer in Niagara county and owning several farms conveyed to his four sons, the parties to this action, all of his real estate, a portion to each son. He conveyed to his son, Albert Kinyon (the defendant), what was known as the Home Farm, situate in the town of Ridgway, Orleans county, consisting of about- ninety-one acres of land. This conveyance was made at the house of John Kinyon, Jr., where the father and all the parties to this action had assembled, and the father stated to the defendant in the presence of the others that Albert had had two thousand dollars more than any of the other children and that if he deeded him this farm he should .require of him an agreement not to make any claim to the other property of the father, and to release all claims to such property. This the defendant agreed to do and then and there and before the delivery of the deed to him, executed and acknowledged an instrument in'writing dated on the 4th day of April, 1885, which after reciting the deed from his father and describing briefly the property conveyed concluded with this statement: “Now, therefore in consideration of such conveyance being made and given to me as aforesaid, I do hereby renounce, release, give up, and set over unto my said father all my right, title, claim, interest and demand whatsoever in and to all and every part, parcel or share, in and to his real and personal estate which I may or will have at or upon his death in expectancy by reason of being a devisee or legatee under any will he has made, or may hereafter make, or by reason of being one of his next of kin. Accepting the land herein above referred to as conveyed to me by him this day.

Thereupon the deed was duly delivered by the father to the defendant and this instrument in writing delivered by the defendant to the father, and the defendant had the benefit of the use of the real estate thus conveyed until February 18, 1888, when the defendant and his wife conveyed the premises to their son, Lewis. The deed to the defendant was recorded in Niagara county clerk’s office.

On the 19th day of December, 1886, the father, John Kinyon, departed this life intestate. The plaintiff, Charles Kinyon, was appointed administrator of the estate of his father on the 28th of December, 1886, and on the 17th of December, 1888, he filed a petition in the surrogate’s office of Niagara county, for a judicial settlement of his accounts as such administrator and, upon citation being issued and returned, the parties herein appeared before the surrogate and the question arose whether the defendant should have a distributive share of the personal property of the deceased which was about $3,400 or whether he was barred from such share by the instrument executed on the 4th of April as aforesaid, the defendant claiming a share and that the instrument was void and the administrator claiming that it was binding. The surrogate declined to decide the question for want of jurisdiction and this action was brought by the plaintiffs.

The complaint set forth the facts substantially as above stated and demanded as a relief that the defendant be adjudged to have been fully paid his share in the estate of the deceased, and that the instrument given by him was binding and effectual as against him and any share or interest that he might claim in the estate of the deceased and barred him from the same and for other relief.

The defendant answered alleging various matters as a defense among which were that in equity the farm that had been sold to the defendant belonged to him, and the father had no right to impose as a condition of this conveyance that the defendant execute the instrument which he did and that the same was void for want of consideration and that the father had been induced by the plaintiffs to impose such a condition upon the defendant through fraud, collusion, and undue influence, and that the instrument was void and could not be enforced, and contained an admission in effect that the defendant had received the farm upon the arrangement set forth in the complaint and contained no offer to return the property received by the arrangement or to rescind the contract in any manner, and there is no question of damages in the case. On the trial the defendant took the position through his counsel that he did not want to rescind the transaction and return what he had received but that he proposed to keep the farm and stand upon the ground that the release was void for the several reasons alleged in the answer and could not be enforced. The cause was first tried at the Niagara special term in Novem-her, 1891, and the learned judge who tried the cause held that the said instument was void and of no force or effect and that the defendant, Kinyon, was entitled to a distributive share of the said personal estate. Judgment was perfected upon that decision and the plaintiffs duly appealed to the general term, and in October last the gene'ral term of this department handed down a decision in the case reversing the judgment of the special term and directing a new trial with an opinion which is reported in 25 N. Y. Supp. at page 225 ; 55 St. Rep. 247; and this is a new trial of the action.

By a reference to this opinion it will be seen that the court ordered a new trial for the purpose of disposing of certain equitable questions which are within the scope of the case.

The statement above made would seem sufficient to dispose of the questions involved. The defendant has the fruit of the transaction and refuses to surrender it. He, in effect, says true the condition upon which I obtained this farm was that I was never to assert a claim to the personal property, but my contract is void and I can be heard in a court of equity to repudiate the means by which I obtained this property and still keep it. This cannot be done.

In equity, if one accepts the benefits of a transaction he must submit to the burdens by which those benefits were secured. He will not be permitted to say that he is not bound by those burdens. He is estopped from so doing. He is estopped because it would be bad faith in him, and would work a fraud upon the other party. If he wishes to say that he has been defrauded or overreached in the transaction and claim to be relieved from it, he must ask that the whole transaction be set aside, returning what lie has received or at least offering to do so, provided that it is in his power so to do, then equity will listen to his claim and if he is wronged, do him justice; but it will not permit him to assert that a fraud has been perpetrated upon himself in order to avoid the performance of his own contract and still retain ail the fruits of that contract. Havens v. Sackett, and another, 15 N. Y., 365, 369 ; Gould v. Cayuga County National Bank, 99 N. Y., 333 ; Same case reported in 86 N. Y., 79 ; Kibbe v. Bowen, 50 N. Y. Supr. Ct. 422 ; Duff v. Hutchinson, 10 N. Y. Supp. 857; 32 St. Rep. 949; Matter of Peaslee, 73 Hun, 113; 56 St. Rep. 134.

In the last case the court gives a1 clear and exhaustive review of the cases upon the subject and uses this language: “ it is a well settled proposition in law as well as in equity that he who accepts and retains a benefit under an instrument whether a deed, will or other writing is held to have adopted the whole and to have renounced every right inconsistent with it.”

And see Chipman v. Montgomery, 63 N. Y., 234; and Mills v. Hoffman, 93 N. Y., 181; Parker v. McCluer, 5 Abb. N. S., 97. Estoppel at page 108. In this last case a verbal agreement between the father and the son that the son should have a certain piece of land in full for his share as heir of the estate of his father was sustained as an advancement, and the court held that the other heirs of the father would be estopped from asserting to the contrary.

The general term in this case held in effect that the instrument executed by the defendant is valid in equity and could be enforced, as an assignment or release although made to the ancestor himself, and not to any person capable of taking after his death. Kinyon v. Kinyon, 25 N. Y. Supp. 228; 55 St. Rep. 247.

This view is also well supported by the authorities cited by the Court.

The father had the legal title to this land and claimed the right to dispose of it and proposed to deed it to the defendant if he would renounce all claims upon the other property of the father. The defendants consented to this and the papers were executed and exchanged. The deed and release constituted but one paper in equity and was a part of the same transaction, and cannot be disconnected and must stand or fall together.

Counsel for the defendant claims that the deed and contract were separate instruments and not dependent upon each other, and the contract being void should be disregarded, as he claims that the proof on this trial shows, and that although the father had the legal title to this farm it belonged in equity to the defendant, and as that was so the father could not impose as a condition to deeding him the property the release of all claims to the personal property and cites Vanderbilt v. Schreyer, 91 N. Y., 392, and other cases.

The difficulty with the position is that the father did not concede that the son was entitled to a conveyance as a matter of right but in effect he denied that that was so and imposed a condition upon the defendant to which he agreed.

The defendant thus conceded the right of the father to impose this condition and it is not therefore a case where the party concededly had no right to impose a condition as appeared in the last case cited. Whether the defendant had a right to this land that a court of equity could ripen into a title was a question of fact not then decided. The most that the.defendant can claim in this regard, is that it was a disputed and unsettled matter between the parties which was disposed of by the transaction of the fourth of April of the court in Vanderbilt v. Schreyer, supra, at page 400 concedes that in such a case, the rule there laid down has no application.

The defendant also claims that the plaintiffs by fraudulent contrivances and undue influence induced the father to impose ' this condition upon him, and also that he was induced to accept the deed and execute the release through the advice of the plaintiffs Charles and George, that he signed whatever papers the father required and to have no controversy with him.

The defendant fully understood the contents and effect of the papers at the time they were executed and there was no misapprehension on his part as to what he was doing, and has again to meet the difficulty before suggested that he does not propose to rescind ,the transaction but to affirm it. Indeed it appears that on the 18th of February, 1888, 14 months after the death of the father when it is reasonably supposed that he must have been fully informed of any fraud that had been practiced upon his father or upon himself that he conveyed the farm to another and actually put it out of his power to restore what he had received and to disaffirm the transaction.

The question as to whether the defendant had an advancement from his father by means of this transaction is before us. The general term reached the conclusion that this was one of the questions which the trial court should consider and 1 have accordingly given it consideration.

It appears from the whole evidence that the father did intend that the property conveyed to the defendant should be in full of any share of the father’s property to which the defendant would be entitled' upon his decease. I do not deem it necessary to go into an analysis of the evidence, or the taking of an exact account of the distribution of theproperty of the father among the sons up to the the time of his death. It is enough for our purpose that the fáther and the defendant in effect contracted as between themselves that the farm received by the defendant should be received by the defendant as his full share of the property of .the deceased, and that there was sufficient consideration to support that arrangment in equity.

Indeed, in view of the conclusions before reached it is hardly necessary to consider the question of advancement at all. It was conceded upon the trial that the father although of advanced years was capable of transacting business and understood the nature and quality of his acts, and the evidence showed that he comprehended the kind and extent of his property and the claims of his children upon him. There was an utter failure of evidence to show that the father was coerced or improperly induced to enter into the arrangment in question by the plaintiffs or any of them. Whether if that were the fact it would avail the defendant here in any event is unnecessary to decide. It is sufficient to say that it was not proved.

Again the evidence tends to show that this was a family arrangement ; the father and all the children were present and acquiesced in the transaction of April 4th. Such arrangments are frequently sustained by a court of equity.

Chitty’s Practice 67.

First Turner’s Chancery Reports 13.

The remaining question is what relief, if any, the plaintiffs are entitled to in this action. The surrogate’s court of Niagara county awaits the decision of this court as to the effect of this instrument before making distribution of the personal property of the deceased.

It follows that from the conclusions above reached :

First, That the deed and contract as between the parties to them are to be construed and taken together as constituting one transaction.

Second, That the defendant is stopped from questioning the validity of the instrument given by him and from refusing to carry out its provisions, and is estopped from asserting any rights, claim or interest in the personal property of the deceased.

Third, That in equity the instrument is valid and effectual for the purpose for which it was executed and is binding upon the defendant.

Fourth, That the conveyance of the farm by the father to the defendant was intended by the father to be and did constitute an advancement to the defendant of his share of the father’s property.

Fifth, That the plaintiffs are entitled to judgment accordingly, with costs of this action. The costs however to be paid out of the personal property of the deceased.


author: Daly, C. J.

text:
    George H. Walker et al., Resp’ts. v. Philip G. Hubert, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Evidence—Parol.
    Parol evidence is admissible to show the actual consideration of a writ ten contract.
    Appeal from a judgment in favor of the plaintiffs.

      J. A. Dennison, for app’lt; Clark & Sanborn, for resp’ts.
   Daly, C. J.

According to the testimony of the defendant, an agreement was made between the plaintiff Walker, Frohman and himself by which the plaintiff would hire an office in. his building and Frohman would receive 10 per cent, commission on all orders for printing he could obtain for the plaintiffs and this agreement was the consideration of defendant’s entering into the contract upon which he is sued in this action. Frohman testified to the same effect and added that the commissions he was-to earn were to apply to the last payments of the defendant’s contract and that he was not to receive any cash. This testimony the court struck out on the ground that it contradicted the terms-of the written contract between the plaintiffs and defendant which provided that payments were to be made by the defendant promptly, as the printing was used. When the case was submitted to the jury one of the questions they were directed to consider was, whether it was the intention of the plaintiffs that Frohman’s commissions were to be applied to the payment of this claim ; it being the contention that Frohman was a stranger to the contract between the parties and that payments by him would not. inure to the benefit of defendant unless there was some evidence showing that it was the intention of the parties to have it so. The question was left to the jury upon a proper statement of the law, but inasmuch as the court had stricken out the testimony of Frohman which went to show the intention of the parties, the defendant was deprived of his own material evidence upon this issue.

The answer set up the agreement for commissions and that they should be applied in payment of sums due from the defendant upon the contract in suit. Unless the defendant was a party to that arrangement he could not avail himself of it, for payment by Frohman without the privity of defendant would have been payment by a stranger, and this would have been of no advantage to the defendant.. Atlantic Dock Co. v. The Mayor, 53 N. Y., 64. The testimony of Frohman was directly to the point that it was the agreement between himself, the plaintiff Walker and the defendant, that he was not to be paid in cash, but that his commissions and the rentals were to apply to the last payments of the contract in suit. This made the defendant a .party to the arrangement and entitled to the benefit of it and the striking out of the testimony deprived him of the evidence offered to establish his contention upon the point in dispute.

For this error the judgment should be reversed and a new trial ordered, with costs of the appeal, to the appellant to abide the event of the action.


author: Bischoff, J.

text:
    William R. Tobin, Resp’t, v. Manhattan Savings Institution, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Appeal—Dismissal op Complaint.
    A defect in the proof, existing at the close of plaintiff's testimony, is cured by evidence thereafter adduced by either party.
    2. Savings Bank—Duty.
    A provision in a pass book that, while the officers of the bank will en- • deavor to prevent fraud on depositors, all payments made to any person producing the pass hook will be valid, does not relieve the bank from the exercise of ordinary care to prevent fraud by the person presenting the pass book.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiff at trial term and also an order denying defendant’s motion on the minutes for a new trial upon the grounds specified in § 999 of the Code of Civil Procedure.
    Action by plaintiff, a depositor, to recover moneys deposited by him with the defendant savings bank. The latter claimed to have paid the moneys upon a draft or withdrawal slip purporting to have been signed by plaintiff, but the signature to which plaintiff alleged to be a forgery.
    ' Ira D. Warren, for app’lt; Frederick B. House, for resp’t.
   Bischoff, J.

The judgment of affirmance of the court below precludes any review on this appeal of the weight of the evidence, and the only exception which is available to inquire whether there was any evidence to support a verdict for plaintiff is the one taken on defendant’s behalf to the denial of a motion to dismiss the complaint made when the cause was finally submitted. A defect in the proof existing at the time of a like motion at an earlier stage of the trial is cured by evidence thereafter adduced by either party, Meyers v. Cohn 4 Misc. R. 185, 186; 53 St. Rep. 223.

Plaintiff, by occupation a bricklayer, was a depositor of the defendent savings bank, and at the time, of opening his account in September, 1889, received a passbook in which among other things was printed the following: “The officers and clerks will endeavor to prevent frauds on depositors, but all payments made to any person producing the proper deposit pass book shall be good and valid payments.’’ Plaintiff kept his pass-book locked up in his trunk at his boarding house. On April 22d, 1892, having occasion to use it, he discovered that the book had been purloined and replaced by some person unknown to him, from the fact that there appeared- therein an entry of the withdrawal of nine-hundred and sixty-three dollars on April 13th, 1892. Upon inquiry at the bank on the next succeeding day the teller exhibited to plaintiff a draft, or withdrawal slip, the date of which corresponded to the date of the entry which was admittedly in the handwriting of the assistant teller, teller, Curran. The draft purported to have been signed by plaintiff and the bank claimed to have paid out the amount on the faith of it to a person who presented the pass book with the draft. Plaintiff, however, insisted that the signature to the draft was a forgery; and, upon the bank’s refusal to refund the amount, he instituted this action to recover the aggregate amount deposited by him, less the conceded withdrawals, which exceeded the amount of the disputed draft by three hundred and twenty-five dollars and forty-four cents. The jury awarded him the amount demanded.

Notwithstanding an agreement between the depositor and the bank to the effect as stated in the printed condition in plaintiff’s deposit pass book the bank continues liable for the moneys deposited if with the exercise of ordinary care it could have prevented the perpetration of a fraud upon it by the person presenting the pass-book. Saling v. German Savings Bank, 15 Daly, 386; 27 St. Rep., 975; Appleby v. Erie Co. Savings Bank, 62 N. Y., 12; Allen v. Williamsburgh Savings Bank, 69 N. Y., 314; Smith v. Brooklyn Savings Bank, 101 N. Y., 58; Kummel v. Germania Savings Bank, 127 N. Y., 488; 40 St. Rep., 252. If no such agreement is had the bank is absolved from liability to the depositor for return of the moneys deposited only upon payment to him or his order. Plaintiff testified that the signature to the disputed draft was not written by him or by his authority. This evidence therefore required submission of the question of genuineness to the jury assuming that there was no agreement to the effect as above mentioned. Assuming, however, that the evidence conclusively established the agreement it was nevertheless a question of fact to be determined by the jury upon sufficient evidence whether, or not, the bank did omit the exercise of ordinary care at the time of the payment of the disputed draft. If there was such evidence defendant’s motion for dismissal of the complaint was propérly denied.

We are of the opinion that the facts are reasonably open to an inference that the bank did not use ordinary care to prevent the perpetration of the fraud upon it. The want of ordinary care arises from the omission to do what an ordinarily prudent person would have done under like circumstances. An ordinary, universal, and main, if not the main, test of identity of drawer and depositor, is the identity of the signature to the draft with the signature of the depositor retained by the bank. This test is applied by a comparison of the several signatures. If the teller had testified that such a comparison was made in the present instance his testimony would not have been conclusive of the fact, though it remained unchallenged by other testimony, since it was that of a person interested in the event of the action. Canajoharie National Bank v. Diefendorf, 123 N. Y., 191; 33 St. Rep., 389. But it nowhere appears to have been made. Both, Bird, the teller, and Stiles, the secretary of the bank, and witnesses for it, admitted on cross-examination that there was “ marked ” and “ striking ” dissimilarity between plaintiff’s signature in the bank’s signature book and the signature to the disputed draft, and the testimony of both witnesses developed the.fact in the presence of the jury, that the discrepancies were readily discernible upon comparison. Whether, or not, the discrepancies were casually discernible, or required more than ordinary application for detection, was eminently a question of fact to be determined by the jury from the evidence and an inspection of the several signatures, and if they concluded that the discrepancies were obvious to casual or ordinary examination, they might still further conclude that if the teller had compared the signatures he would have detected the discrepancies, and that thus there would have been excited within him sufficient suspicion to have induced him to use greater caution before accepting, or paying the disputed draft, or that, having failed to observe the discrepancies, he did not avail himself of the ordinary caution of comparing the several signatures, and so was remiss in. the observance of ordinary care. Though the tiral judge might have differed, upon an inspection of the several signatures, from the subsequent conclusions of the jury, the evidence required submission to them if it was legitimately susceptible of conflicting views. For the same reason we are precluded from saying that there was no evidence, or no sufficient evidence to sanction a verdict for the plaintiff.

Defendant’s exception taken to rulings relative to the admission and exclusion of evidence appear to be without merit Articles XIX to XXTX both inclusive, of defendant’s charter and by-laws, are omitted from the record of this appeal. This may have been accidental, but since the charter and by-laws, so far as they do appear, are neither relevant nor material to the question litigated on the trial, it is not competent for us to say that the trial court erred in excluding them. The judgment should be affirmed.

Judgment affirmed, with costs.


author: Van Wyck,

text:
    Mount Morris Electric Light Company, Resp’t, v. Horse and Cattle Show, App’lt.

      (New York City Court, General Term,

      Filed February 19, 1894.)

    Appeal—Evidence,
    The admission of improper evidence, bearing only upon questions which were taken from the jury by the charge of the court to which no exception was taken, furnishes no ground for reversal.
    Appeal from a judgment entered on a verdict in favor of the plaintiff.

      Jay & Chandler, for app’lt; Foster, Hotaling & KlenTce, for resp’t.
   Van Wyck,

J.—The defendants were about giving an open air exhibition of their horse show at night on their up-town grounds, and employed plaintiffs to furnish the electric light for the exhibition. Plaintiffs’ proof shows that the agreement was first, for them to construct such plant as was necessary to furnish fifty-two arc electric lights upon these grounds and to be paid $300 for such construction and $1.50 per lamp per night ; that by mutual consent it was further agreed that the number of lights were to be increased to ninety-two at the same rate per lamp, and they were to be paid the cost of the construction of such additional plant as was made necessary by this increase; that the cost of constructing this additional plant was $470.68 and that defendants were indebted to them in the sum of $1,996.73, which includes these two items of construction, the price of furnishing the light and the costs of certain other changes made at defendant’s request. The defendants’ own evidence shows that these ninety-two lamps were up and lit duri.ng the six nights of the exhibition, for their witness, Huidekoper, a director, says at folio 107: “I was there all the time, almost entirely, during the exhibition, except some time, not in the morning. I was always there afternoons and evenings. The light was the best that could be done, but not satisfactory," and at folio 114, “ I suppose they were lit there during the six nights of the exhibition. They went out a great deal, probably half a dozen times or more for a minute at a time; ” and Hyde, another one of defendants’ directors and witnesses, says, at folio 128: “I don’t think it did much more with niney-two lights in a place (their exhibition grounds) of that size than to make darkness visible.” The defendants did not offer to prove that the ninety-two lights were not put up or kept lit during the six nights of their exhibition, or that the cost of the plant for the first fifty-two lights was fixed at $800, or that the reasonable costs of the plant for the thirty-nine or forty additional lights Was $470.68. However, as to this last item, defendants contend that plaintiffs’ proof was not sufficient, and it must be admitted that it is quite meagre, and could and should have been, made more forcible; still, the evidence of plaintiffs’ witness, Young, after being very much weakened on his cross-examination, is, “I had charge of the construction while the work was being done there. I know of my own knowledge that every one of these lights were put there, I was up there three nights, and I know that all of the men were employed there that were returned on the pay roll,” folio 70, and again, at folio 57, “ I don’t know exactly how much material was used in that thing, I figured it up afterwards, I could not swear to a foot of wire at the time of construction. I knew at that time the number of poles used there, but I cannot now recollect,” and he swore positively on direct, that the reasonable costs of putting up the additional thirty-nine or forty lights, was the $470.63. This evidence was not contradicted in any way by defendants’ proof, and moreover, the judge in his charge, without objection or exception from defendants, instructed the jury as follows: “ There is but one question for you to determine, and that is, what was the contract between these parties ? If the contract was, as is claimed by the Electric Light Company, that they were to furnish the defendants a. certain number of lights and material, and do certain work, why, then, your verdict must be for the plaintiffs in the sum of' $2,102.55,” "the full amount claimed, with interest. And these instructions are justified by the record, which clearly shows that the only really disputed question on the trial was, whether or not. the plaintiffs had guaranteed that these number of lights would be sufficient for the defendants to give exhibitions at night upon their grounds. This question was hotly disputed and was determined adversely to defendants by the jury, who were properly instructed in the charge as follows: “ The defendants, however, claim that the contract Was not only to furnish a certain number of lights, but that the lights should be sufficient to give nightly exhibitions on their grounds. And if you believe that to have been the contract, and that plaintiffs failed to give light sufficient for such exhibitions, why then your verdict must be for defendants.” There was no exception to the charge,' and the ^defendants only made one request and which was charged as requested. The. plaintiffs certainly forced the record with much evidence which has no proper place in this case, but none of such evidence had any bearing or weight in the determination of the question as to what the contract between the partiesw as. And as all other questions upon which it might have had such bearing or weight were taken away from the jury by the judge’s charge, not excepted to, an affirmance of the judgment and order, with costs, must follow.

Ehrlich, 0. J. and Fitzsimons, J., concur.


text:
    Elias Wolf, Resp’t, v. Simon Buttner, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Contempt—Fine.
    To authorize the imposition oí a fine, and infliction of imprisonment in default of its payment, in proceedings to punish as for a civil contempt of court, it must be ascertained and determined that the misconduct complained of defeated, impaired, impeded or prejudiced the right or remedy of a party to an action or special proceeding.
    3. Appeal—Default.
    A final order, if made on default, is not appealable.
    3. Same.
    An appeal will lie from an order, affirming an order denying a motion to vacate a prior order taken by default.
    Appeal from an order of the general term of the city court of New York which affirmed an order, made on default, adjudging the appellant judgment-debtor in contempt for alleged disobedience of an order in proceedings supplementary to execution ; and which further affirmed an order denying the appellant judgment-debtor’s motion to vacate the order adjudging, him in contempt.

      William N. Loew, for appl’t; Maurice B. Blumenthal, for resp’t.
   Bischoff, J.

To authorize the imposition of a fine and infliction of imprisonment in default of its payment in proceedings to punish as for a civil contempt of court, it must be ascertained and determined that the misconduct complained of defeated, impaired, impeded, or prejudiced the right of remedy of a party to an action or special proceeding. Code of Civil Procedure, § 14, Cleary v. Christie, 41 Hun, 566 ; 4 St. Rep. 117 ; Fischer v. Raab, 81 N. Y. 235; Sandford v. Sandford, 2 St. Rep. 133. This the order of March 6,1893, which puiqiorts to adjudge the judgment-debtor and appellant guilty of misconduct constituting a contempt, omitted, and because of that omission it was fatally defective. True, the order specifically determined that the judgment-debtor had disposed of his property and failed to appear for examination, pursuant to an order in proceedings supplementary to execution, but it does not appear that the property dispose of was applicable toward the payment of the judgment upon which the proceedings were founded, or that the examination of the judgment-debtor, had before the institution of the contempt proceedings, was inadequate for the maintenance and preservation of the judgment-creditor's right or remedy. The order was a final one, since it imposed the payment of a fine and directed the judgment-debtor’s imprisonment in default of the payment of the fine. Code Civ. Pro. §§ 2281, 2283 ; Clark v. Goodridge, 44 How. 234. It was not appealable, however, because made upon the judgment-debtor’s default in appearance after service upon him of due notice of motion. Code Civ. Pro. § 1294; Keller v. Feldman, 2 Misc. R. 179; 49 St. Rep. 718; McMahon et al. v. Rauhr et al., 47 N. Y. 67. It was error therefore on the part of the general term of the court below to entertain and determine an appeal therefrom.

The order of March 27, 1893, which denied the judgment-debt- or’s motion to vacate the order of March 6, 1893, let the last mentioned order unconditionally in full force and effect, and was therefore equally a final order. The same is to be said of the order of the general term of the court below, in so far as it affirmed both orders of the special term. The fine imposed and the imprisonment directed by the order of March 6, 1893, being unauthorized from the facts determined, the order denying the judgment-debtor’s motion to vacate it, and the order affirming the last mentioned order, affected a substantial right. Hence, the judgment-debtor’s right of appeal from the order of affirmance to this court is indisputable (Code Civ. Pro. § 3191, subd. 3).

The order dated March 6, 1893, and made at special term, should be vacated and set aside, and the appeal therefrom be dismissed ; and the order of affirmance .made at general term of the court below should be reversed. Ho costs of this appeal are allowed to either party.


author: Newburger, J.

text:
    Chaim Lechowitzer, Resp’t, v. Hamburg American Packet Company, App’lt.

      (New York City Court, General Term,

      Filed January 18, 1894.)

    Carriers—Special provision.
    By the mere acceptance of a ticket, a passenger is not bound by a special provision therein, which limits the liability of the carrier for loss of baggage.
    Appeal from a judgment in favor of plaintiff.
    Wheeler, Cortis & Godkin, for app'lt; Nicholas Albinhoff.\ for resp’t.
   Newburger, J.

This action was brought to recover for baggage claimed to have been lost on the steamer Sorrento while on a trip between Hamburg and Hew York. On the 19th day of August, 1891, the plaintiff took passage on said steamer at Hamburg for Hew York. He gave his railroad check for his baggage to the ship’s officials, for which he received a slip, and the officials obtained his baggage and 'put it on the steamer, where it was afterwards seen by the plaintiff and his witness. Its loss and value was not disputed. Defendant’s defenses were that the baggage was not delivered to it, and not lost in its custody; that there was no proof of negligence on its part; and that the steamship Sorrento did belong to the defendant, and that even if it were proved that it did, the plaintiff was traveling under a contract ticket which limited the defendant’s liability in any event to 200 marks. The trial justice, in his charge to the jury, among other things, said: “If you. believe that this ticket received by the plaintiff contained the printed matter, as appears upon the ticket offered in evidence by the defendant, and that plaintiff either-read or that it was explained to him, that the plaintiff is bound by this limitation, and cannot recover from the defendant for more that is limited in this contract.” The plaintiff’s attention must have been called to it, or he must have assented to it in some particular, but the mere fact of the paper not having been read to him would not exempt him from the terms of the contract.” In other words, it was not necessary to have it read to him, and if it was explained to him, or if, by any means, he assented to its terms, he would be bound by it equally as if he had read it.” Fols. 109,110. Exception was taken by the appellant to this part of the charge. We think that this was a proper statement of the law of this case. It is not denied that the defendant if liable at all, is liable for the full value of the baggage unless the common law liability has been modified by contract with the plaintiff whereby the defendant’s liability would be limited to 200 marks. Ko such contract arises in law from the acceptance of a receipt or ticket under the circumstances of this case. They do not justify the inference that the plaintiff agreed to be bound by the special contract in the receipt. There was no negotiation or agreement that the plaintiff should receive any reduced rates for himself and family, nothing from which the court could hold that the plaintiff assented to the special contract. The cases cited by the learned counsel for appellant. Wheeler v. Ocean Steam Navigation Co., 22 St. Rep. 590; Steers v. Liverpool, N. Y. & P. S. S. Co., 57 n. Y. 1; Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y., 460; 51 St. Rep. 269, were cases in which the court held that the circumstances thereof, to wit: Experience in travelling, reduced rates, discussion as to the disposition of the boxes and trunks would warrant the court in inferring that the passengers had knowledge of the contents of the contract. Ko such assumption is warranted by the evidence in this case. For these reasons the judgment must be affirmed with costs.

Fitzsimons, P. J., concurs.


author: Newburger J. McCarthy, J.

text:
    Edgar F. Kirwan et al., Resp’ts, v. Edward F. Byrne, App’lt.

      (New York City Court, General Term,

      Filed January 18, 1894.)

    Sale—Correspondence.
    To create a binding contract by correspondence, the acceptance of the offer must be absolute and in accordance with its terms.
    Appeal from a judgment in favor of plaintiffs.

      T. C. E. Ecclestine, for app’lt; Shepard, Terry, McKelvey & Prentiss, for resp’ts.
   Newburger J.

This is an appeal by defendant from a judgment for plaintiffs entered upon a verdict directed by the court, and from an order denying a motion to set aside said verdict. The complaint is for damages for breach of a contract by defendant to sell and deliver to plaintiffs fifteen hundred boxes of coke tins. The answer alleges that no contract whatever was made, although certain negotiations looking towards the making of one, took place between the plaintiffs and the defendant, in which the defendant was not a principal but an agent and broker for others. Defendant is a metal broker which fact was known to the plain, tiffs. On May 16th, 1891, he wrote plaintiff the following letter-

New York, 16th May 1891.
“ To Messrs. Kirwan & Tyler, Baltimore. Gentlemen: lean offer you, subject to prior sale, 1,500 boxes, i. e.. 14x20, Bessemer Steel Coke Tins for June delivery at Locust Point, at $4.95 cash on delivery. This is a very low price, but having offered them to other parties, and having only a limited quantity to sell, I can only offer them to you subject to prior sale.
Yours very Resp’ly, Ewd. F. Byrne”
and plaintiff replied by telegram, May 18th, as follows:
“ Baltimore, May 18th, 1891.
Mr. E. F. Byrne, 54 Cliff Street, New York. We accept your offer 16 th, if full weight plates. Kirwan & Taylor.

Was the reply by the plaintiff such an acceptance of defendant’s order as to constitute a contract ? The offer was explicit, and if the answer of the plaintiff had ended after the word “ sixteenth ” .a contract would have been made between the parties. The answer by plaintiffs however, was a qualification of their acceptance to wit, if full weight plates. This qualification left the transaction in such a state that, if the plaintiffs did not find the plates full weight, they were at liberty to refuse to accept them. It made the acceptance depend upon facts not contained in defendant’s proposal. To create a binding contract by correspondence, the law requires the offer to be accepted by the party to whom it may be made as it shall be contained in the offer itself. An offer of a bargain by one person to another implies no obligation upon the former until it is accepted by the latter according to the terms in which it was made. Until the terms of the agreement have received the assent of both parties, the negotiation is open and imposes no obligation upon either. Mayer v. McCreery, 9 St. Rep., 114; affirmed 119 N. Y. 434; 29 St. Rep. 690; Brown v. N. Y. C. R. R. Co., 44 N. Y., 79. The subsequent correspondence between the parties made no change of benefit to the plaintiffs. For these reasons the judgment must be reversed and a new trial ordered with costs to defendant to abide event.

Fitzsimons, J. concurs.

McCarthy, J.

I cannot concur with my associates. I think this does constitute a contract, but then the action ought to be brought against the principal.


text:
    Court of Appeals,
    January 16, 1894.
    Charles B. Hibbard, Resp’t, v. Commercial Alliance Ins. Co. of New York, App’lt.

      George Wilcox, for app’lt; Lucius McAdam, for resp’t.
   Memoranda of cases in which no opinion was written.

No opinion. Order affirmed, with costs. All concur. Affirming 53 St. Rep. 517.


text:
    West Side R. Co. of Elmira, Resp’t, v. New York, L. E. & W. R. Co., App’lt.

      D. O. Robinson, for app’lt; Frederick Collin, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Affirming 54 St. Rep.


text:
    Matter of Thomas F. Ryan.

      Otto Horwitz, for app’lts; L. Laflin Kellogg, for receiver.
   No opinion. Order affirmed on opinion below, with costs. All concur. Affirming 53 St. Rep. 726.


text:
    Henry E. Wessels et al., App’lts, v. Gustavus A. Boettcher, Resp’t.

      Joseph A. Shoudy, for app’lts; Noah Cromwell Rogers, for resp’t.
   No opinion. Appeal dismissed, with costs. All concur. See 56 St. Rep. 885.


text:
    John S. Keyes et al., App’lts, v. Barbara Ellensohn et al., Resp’ts.

      Fdwao'd C. Perkins, for app’lts; Isaac N. Miller, for resp’ts.
   No opinion. Appeal dismissed, with costs. All concur. See 55 St. Rep. 486.


text:
    Brown, Resp’t, v. Buffalo Creek R. Co., App’lt.

      George F. Brownell, for app’lt; M. Fillmore Brown, in pro. per.
   No opinion. Judgment affirmed, with costs. All concur, except Earl and Gray, JJ., dissenting.


text:
    William F. Smith, Resp’t, v. John T. Ijams et al., App’lts.

      Fh’ancis Lynde Stetson, for app’lts; A. Britton Haxens, for resp’t.
   No opinion. Judgment affirmed, with costs, on the two grounds first mentioned in Judge Barrett’s opinion below. All concur. Affirming 53 St. Rep. 915.


text:
    Daniel Hunt, App’lt, v. Ellen Gleason et al., Resp’ts.

      Wm. Popham Platt, for app’lt; John H Clapp, for resp’ts.
   No opinion. Order affirmed, and judgment absolute ordered against defend, ants, with costs, on opinion below. All concur. Affirming 51 St. Rep. 752.


text:
    Matter of Joshua Raplee’s Will.

      John Gillette, for app’lts; Wm. 8. Briggs, for resp’ts.
   No opinion. Judgment affirmed, on opinion below, with costs. All concur. Affirming 50 St. Rep. 239.


text:
    Nicholas Sauerborn, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.

      8. W. Jackson for app’lt; Alonzo P. Strong, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Affirming 52 St. Rep. 784.


text:
    Charles E. Stokes, App’lt, v. Henry Weston et al., Resp’ts.

      John D. Teller, for app’lt; Frank 8. Coburn, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion in general term. All concur. Affirming 53 St. Rep. 544.


text:
    Matter of Lorenzo M. Sheldon’s Will.

      H. J. Cookingham, for app’lt; Joseph Mann and Chas. E. Smith, for resp’t.
   No opinion. Judgment affirmed, with costs personally against appellant. All concur.


text:
    John L. Gross, Resp’t, v. William L. Moore, App’lt.

      Herbert Kettell, for app’lt; Cephas Brainerd, Jr.; for resp’t.
   No opinion. Order affirmed, with costs, on opinion of general term. All concur. Affirming 53 St. Rep. 657.


text:
    John S. Hulin, App’lt, v. Norman B. Squires et al., Resp’ts.

      E. Countryman, for app’lt; R. A. Parmenter and Edwin A. King, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion of general term. All concur. Affirming 44 St. Rep. 334.


text:
    Matter of Levi W. Boardman.

      Wm. N. Noble, for app’lts; 8. T). llalliday, for resp’ts.
   No opinion. Order affirmed, with costs. All concur, except Earl, J., not voting, and Bartlett, J., not sitting.


text:
    Bridget Ward, App’lt, v. Rochester Electric Ry. Co., Resp’t.

      Quincy Van Voorhis, for app’lt; Theodore Bacon, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Bartlett, J., not sitting. Affirming 43 St. Rep. 84.


text:
    Matter of Elizur Foote et al.

      Jas. F. Malcolm and Jas. B. Lockwood, for app’lts; John Belahunty, for rasp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Affirmining 51 St. Rep. 815.


text:
    Matter of Augustus Nelson’s Will.

      E. C. Neil, for app’lt; (Jimence H. Frost, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur, except Bartlett, J., not sitting. Affirming 51 St. Rep. 938.


text:
    Eastman, App’lt, v. State, Resp’t.

      L. H. Nortlvrup, for app’lt; 8. W. Rosendale, Atty. Gen., for the State.
   No opinion. Judgment affirmed, with costs. All concur, except Bartlett, J., not sitting.


text:
    McDonald, App’lt, v. State, Resp’t.

      L. H. Norihnvp, for app’lt; 8. W. Rosendale, Atty. Gen., for the State.
   No opinion. Judgment affirmed, with costs. All concur, except Bartlett, J., not sitting.


text:
    United States Trust Co. of New York, Resp’t, v. Philip V. R. Stanton et al., App’lts.
   No opinion. Motion for reargument denied. See 54 St. Rep. 816.


text:
    Filed January 23, 1894.
    Mary E. Post, App’lt, v. Henry Isham et al., Resp’ts.

      Alfred Ely, for app’lt; Frederic A. Ward, for resp’ts.
   No opinion. Judgment affirmed. Affirming 54 St. Rep. 232.


text:
    William S. Williams. App’lt, v. Robert Lindblom et al., Resp’ts.
   No opinion. Motion to dismiss denied, with $10 costs. See 52 St. Rep. 930.


text:
    Matter of Frederick D. Hodgman.
   No opinion. Motion for reargument denied, with $10 costs. See 55 St. Rep. 800.


text:
    Filed January 30, 1894.
    Susan B. Yerkes, App’lt, v. Charles McFadden et al., Resp’ts.

      John M. Roe, for app’lt; O. P. -Hurd, for resp’ts.
   No opinion. Order as to sale affirmed, with costs. All concur. Affirming 49 St. Rep. 920.


text:
    City of Syracuse, Resp’t, v. John Cornwell et al., App’lts.

      Louis Mm'shall, for app’lts; G. L. Stone, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Earl, O’Brien, and Bartlett, JJ., dissenting. Affirming 54 St. Rep. 937.


text:
    John B. Solley, Resp’t, v. John B. McGeorge, App’lt.

      L. A. Ohandler, for app’lt; E. Luther Hamilton, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Affirming 56 St. Rep. 882.


text:
    Allen C. Dalzell, App’lt, v. Fahy’s Watch Case Co., Resp’t.

      Edmund T. Oldham, for app’lt; Wm. A. Jenn&r, for resp’t.
   No opinion. Appeal dismissed with costs. All concur. See 55 St. Rep. 159.


text:
    Brewster, App’lt, v. Wooster, Resp’t.

      Wm. H. Arnoux, for app’lt; Thomas G. Shearman, for resp’t.
   No opinion. Order affirmed, with costs. All concur.


text:
    Filed February 6, 1894.
    Kibler et al., App’lts, v. Miller et al., Resp’ts.

      J. M. Humphrey and Wm. B. Hoyt, for app’lts; Philip A. Laing, for resp’ts.
   No opinion. Judgment affirmed on opinions below, with costs. All concur.


text:
    Mann’s Boudoir Car Co., Resp’t, v. Shaw, App’lt.

      Ghas. E. Patterson, for app’lt; G. W. Gotterill, for resp’t.
   No opinion. Judgment affirmed on opinion below, with costs. All concur, except Andrews, O. J., not voting, and Finch and Peckham, JJ., dissenting.


text:
    Matter of Roxalana Williams’ Will. Norman Carpenter, Resp’t, v. Emery Hall, App’lt.

      R. A. Parmenter, for app’lt; Ohas. E. Patterson, for resp’t.
   No opinion. Judgment affirmed with costs. All concur. Affirming 46 St. Rep. 791.


text:
    James Walter Chrystal, App’lt, v. Troy & B. R. Co., Resp’t.

      R. A. Parmenter, for app’lt; T. F. Hamilton, for resp’t.
   No opinion. Judgment affirmed on the previous opinions of this court in this case. 105 N. Y. 164; 6 St. Rep. 833; 124 N. Y. 519; 36 St. Rep. 699, with costs. All concur.


text:
    Edward Pettingill, Resp’t, v. Town of Olean, App’lt.

      Frederick W. Kruse, for app’lt; Alfred Spring, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Affirming 48 St. Rep. 96.


text:
    New York Rubber Co., App’lts, v. John Rothery et al., Resp’ts.

      B. F. Lee, for app’lts; II. H. Husiis, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur, except Gray, J„, dissenting. Affirming 53 St. Rep. 56.


text:
    Hartwell Abbey, Resp’t, v. Levi H. Mace et al., App’lts.

      Mourtin J. Keogh, for app’lts; Albert A. Abbott, for resp’t.
   No opinion. Judgment affirmed, on opinion below, with costs. All concmr. Affirming 46 St. Rep. 764.


text:
    People, Resp’t, v. James Connor, App’lt.

      F. M. Danaher, for app’lt; John D. Lindsay, for the People.
   No opinion. Judgment affirmed on opinion of Follett, J., below. All concur, except Andrews, C. J., and Earl and Bartlett, JJ., dissenting.

Affirming 52 St. Rep. 83.


text:
    Charles E. Stokes, App’lt, v. Henry Weston et al., Resp’ts.
   No opinion. Motion for reargument granted, without costs.

See 57 St. Rep. 866.


text:
    Filed February 9, 1894.
    Horace J. Allen, Resp’t, v. George C. Clark, App’lt.

      Louis Hashrouck, for app’lt; B. H. Beary, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Affirming 49 St. Rep. 175.


author: Per Curiam.

text:
    Supreme Court, General Term, First Department.
    Filed January 12, 1894.
    Joel Sammet, Resp’t, v. Louis Monsheimer, App’lt.
    Appeal from an order striking out the answer as frivolous.

      W. Bernard, for app’lt; B. Bien, for resp’t.
   Per Curiam.

We are clearly of opinion that the answer stricken out is not frivolous; The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.


text:
    Filed February 16, 1894.
    Matter of St. Nicholas Terrace,
    Appeal from an order confirming the report of the referee.

      John G. Shaw, for app’lts ■; James A. Leering, for resp’ts.
   Per Curiam.

For the reasons assigned in the opinion in Re Opening St. Nicholas Terrace, 58 St. Rep.-, the order herein should be reversed, and the case sent back to the referee for the purposes mentioned in that opinion, with costs to appellants, to be paid out of the award.


author: Pratt, J. Barnard. P. J., (dissenting.)

text:
    General Term, Second Department.
    Filed December 1, 1893.
    Edward A. Anderson, Resp’t, v. Anna Anderson, App’lt.
    Appeal from special term.

      William J. Oarr, for app’lt; Gharles J. Patterson, for resp’t.
   Pratt, J.

The only questions being of fact, and the trial judge having seen the witnesses and personally heard the testimony, a very strong preponderance of evidence against the decisions would be required to enable us to interfere upon appeal. We do not think it can be said that the judgement is unsupported by any testimony. The trial judge believed the evidence of the plaintiff, and we can not say he was wrong in so doing. The judgment does not reflect upon the appellant, who was not a party to the duress. Judgment affirmed, without costs. Dykman, J., concurs.

Barnard. P. J., (dissenting.)

The parties were married on the 18th of October, 1883. The papers show that the. plaintiff was the putative father of an illegitimate child to be born of the defendant. The parties, and the families of the parlies, were both Roman Catholics. The defendant made her condition know to the priest, and he saw the plaintiff. He denied his offense, and the priest told him that the father and brother of the girl were resolute, fierce men, who would avenge the destruction of her honor. Subsequently, the plaintiff confessed his guilt to the priest, and said he was willing to marry the defendant and make the child legitimate, but that he would not live with her. They were married. The proof of threats is very 'slight, and is not unusual in cases similar to the one under consideration. There is apparent no real threat which was at all likely to result in violence. Passionate words would be natural, where the social wrong was so great, from father and brother, The consent was at last given from a sense of duty, and all threats defied beyond legitimizing the unborn child. The lapse of time is so great that equity should not sever the bond. It was over eight years after the marriage that the complaint was made. The judgment should be reversed, with costs, and a new trial granted.


author: Dykman, J.

text:
    Filed February 12, 1894.
    Newman W. Warsawer, Resp’t, v. Horace L. Hotchkiss et al., App’lts.

      T. Henry Dewey for app’lts; Baldwin F. Sirauss, for resp’t.
   Dykman, J.

This is an appeal from so much of an order made at the special term as relates to the name of the agent of the defendants who gave to the assignee of the plaintiff the false and fraudulent information alleged in the third paragraph of the complaint. We think the proper disposition of the case was made at the special term, and that the order should be affirmed, with $10 costs and disbursements. All concur.


author: Mayham, P. J.

text:
    General Term, Third Department.
    Filed February, 1894.
    Sarah E. Davenport, App’lt, v. The Pennsylvania Fire Insurance Company, Resp’t.
    Appeal from a judgment entered in favor of the defendant upon the report of a referee.

      John A. Thompson, for app’lt; Thomas Watts, for resp’t.
   Mayham, P. J.

We think that the conclusion of the referee in this case was correct and that the judgment should be affirmed. Judgment affirmed with costs. All concur.


author: Herrick, J.

text:
    Filed February 13, 1894.
    In the Matter of the Application of John K. Pruyn for the Appointment of a Trustee for the Holders of Certain bonds Secured by a Mortgage Executed by the Saratoga Gas and Electric Light Company, February 1, 1887.
    Appeal from an order denying an application to vacate an order. Appeal from an order setting aside an order appointing trustees" under a'mortgage.

      Edgar T. Brackett, for app’lts; Ilornblower, Byrne & Taylor, (J. Byrne and II. A. Taylor, of counsel) for resp’t.
   Herrick, J.

After a careful review of the facts and authorities in these cases, I can See no reason for a reversal of the order made therein, and no occasion to write an opinion: The orders should be affirmed, with ten dollars costs, and printing and other disbursements in each.

Mayham, P. J., concurs. Putnan, J., not acting.


text:
    Francisco Wood, Resp’t, v. The Town of Gilboa, App’lt.
    Appeal from an order refusing to set aside the verdict and judgment, and' grant a new trial for irregularity.

      Gilbert & Andrus (O. L. Andrus, of counsel), for app’lt; Krum & Grant, for resp’t.
   No opinion. Order affirmed with costs and disbursements.


text:
    Filed March 1, 1894.
    H. Coonly Green v. Daniel C. Easton.
   No opinion. Motion for re-argument denied with $10 costs.


text:
    Sidney E. Maders v. William I. Whallon.
   No opinion. Motion for re-argument granted.


text:
    In the Matter of the Accounting of William H. Ryalls.
   No opinion. Motion for re-argument granted.


text:
    Hiram C. Roblee, v. William Barss.
   No opinion. Motion for leave to go to court of appeals denied with $10 costs.


text:
    In the Matter of Proving Last Will of William O’Brien, Deceased.
   No opinion. Motion to dismiss appeal denied with $10 costs.


text:
    Rebecca Sutherland v. Troy and Boston Railroad Company.
   No opinion. Motion for re-argument denied, with $10 costs.


text:
    Carl Glocker v. Spencer Optical Works.
   No opinion. Motion for leave to go to court of appeals granted.


text:
    New York Superior Court, General Term.
    Filed December 29, 1893.
    Thomas M. Dillingham, App’lt, v. Clarence W. Barron, Resp’t.
    Appeal from an order permitting defendant’s attorneys, to withdraw their appearance.
    A'. J. Worcester, for app’lt; Warren & Hatch, for resp’t.
   Order affirmed, with $10 costs and disbursements, upon the opinion of the court below.


text:
    Filed February, 1894.
    Minna Knoch, App’lt, v. Marie E. H. Von Bernuth, as Executrix, etc., Resp’t.
    Appeal from a judgment of the special term, dismissing the complaint.

      Edward Grosse (John W. Goff and Charles Goldzier, of counsel,) for app’lt;

      Ja/tnes McGregor Smith, (Austin Abbott, of counsel,) for resp’t.
   Per Curiam.

The judgment is affirmed, with costs on the opinion of the learned court below. Bee Knoch v. Funke, 47 St. Rep. 503.


text:
    New York Common Pleas, General Term.
    Filed February 5, 1894.
    Martin Reynolds, App’lt, v. Thos. Patten, imp. etc., Resp’t.
    Appeal from judgment of the city court.
   Motion for reargument granted.


text:
    Alfred Epstein, Resp’t, v. Chas. Hodgetts, App’lt.
    Appeal from city court.
   Motion of a leave to go to the court of appeals denied with $10 costs.


text:
    Franz Wagner, Resp’t, v. Herbert M. Kingsley et al., App’lts. Ernest Schmieder, Resp’t, v. Same, App’lts.
    Appeal from judgment of the fourth judicial district.
   Motion for leave to go to the court of appeals denied with $10 costs.


text:
    Sarah Riordan, Resp’t, v. The First Presbyterian Church of Tremont, App’lt.
    Appeal from judgment of the city court.
   Motion for leave to appeal to the court.of appeals denied with $10 costs.


text:
    The People of the State of New York, Pl’ff, v. Joseph O’Donnell et al., Def’ts.
    Motion to vacate judgment entered on a forfeited recognizance.
   Per Curiam.

Motion granted. The certificate having been furnished as required by this court on a former application and it appearing from all the papers that the defendant has been convicted and the county has suffered no loss, the judgment of forfeiture is hereby vacated.


text:
    The People of the State of New York, Pl’ff, v. Carlton H. Betts et al., Def’ts.
    Motion to vacate judgment entered on a forfeited recognizance.
   Per Curiam.

Neither the record of forfeiture, nor a copy of the judgment nor a certificate of the district attorney is annexed to the papers presented herewith; the application to vacate the judgment of forfeiture must therefore be denied. See The People v. Lasher, 34 St. Rep. 624.


text:
    Wm. R. Tobin, Resp’t, v. Manhattan Savings Institution, App’lt.
    Appeal from judgment of the city court.
   Motion for leave to appeal to the court of appeals denied with $10 costs.


text:
    James Flanagan, as Exec. &c., App’lt, v. Patrick Fox, Resp’t.
    Appeal from judgment of the city court.
   Motion for leave to appeal to the court of appeals granted.


author: Lyman, J.

text:
    Annie Seaman, Resp’t, v. The T. A. Snider Preserve Co., App’lt.

      Daniel 8. Decker, for app’lt; H. G. Whipple, for resp’t.
    Appeal from judgment of the first district court.
   Lyman, J.

Motion for reargument denied with $10 costs.


text:
    W. D. Wilson Printing Ink Co., Resp’t, v. Austin E. Ford, App’lt.
    Appeal from judgment of the city court.
   Motion for leave to appeal to the court of appeals denied with §10 costs.


text:
    Annie Haines, Resp’t, v. Denman Thompson, et al., App’lts. Charles Swain, Resp’t, v. Same, App’lt.
    Appeal from judgment of the city court.
   Motion for reargument denied with $10 costs.


text:
    Filed February 28, 1894.
    Leib Shapiro, App’lt, v. Peter Steuerwald et al., Resp’ts.
    Appeal from judgment of the ninth district court.
   Judgment reversed, new trial ordered, with costs to appellant, to abide the event.


text:
    Max Rothman, Resp’t, v. Prudential Ins. Co., App’lt.
    Appeal from judgment of the fourth district court
   Judgment affirmed, with costs, to respondents.


text:
    Ignatz Weiss, Resp’t, v. Joseph Goodman, App’lt.
    Appeal from judgment of the fourth district court.
   Judgment affirmed, with costs.


text:
    East Side Jewelry Exchange, App’lt, v. Jacob Horowitz, Resp’t.
    Appeal from judgment of the fourth district court.
   Judgment affirmed, with costs.


text:
    Fanny Denton, etc., Resp’t, v. Henry C. Weeks, App’lt.
    Appeal from judgment of the second district court.
   Judgment affirmed, with costs.


text:
    Filed March 1, 1894.
    John Stewier, App’lt, v. Gustav P. Bofinger, Resp’t.
    Appeal from judgment of the fourth district court.
   Judgment affirmed, with costs.


text:
    Benjamin F. Conway, Resp’t, v. Frederick Keppy, App’lt.
    Appeal from judgment of ninth district court.
   Judgment affirmed, with costs.


text:
    The Metropolitan Steam Laundry Co., Resp’t, v. John Chatfield, App’lt.
    Appeal from judgment of the sixth district court.
   Judgment reversed, new trial ordered, costs to abide the event.


text:
    Cornelius Leary, Resp’t, v. Louis Lubecker, App’lt.
    Appeal from judgment of the first district court.
   Judgment affirmed, with costs.


text:
    John Duffy, Resp’t, v. Peter McAvoy, App’lt.
    Appeal from judgment of the third district court.
   Judgment affirmed, with costs.


text:
    Filed March 5, 1894.
    Frank A. Stevens et al., App’lts, v. Maria W. Andreas, Resp’t.
    Appeal from report of referee.
   Motion to dismiss appeal for non-service of printed papers. Motion granted.


text:
    Bertha Stearn, App’lt, v. Louis Hesdorfer, Resp’t.
    Motion to affirm judgment for non-service of printed papers on appeal.
   Motion denied, without costs.


text:
    Filed March 6, 1894.
    Lyman C. Vrooman, App’lt, v. Houston, West Street & Pavonia Ferry R. R. Co., Resp’t.
    Appeal from judgment of the city court.
   Judgment affirmed, with costs.


text:
    Morris Robinson et al., Resp’ts, v. Charles Lewis et al., App’lts.
    Appeal from judgment of the city court.
   Judgment affirmed, with costs.


text:
    Filed March 7, 1894.
    Michael H. Haverty, App'lt, v. New England Piano Co., Resp’t.
    Appeal from order.
   Order affirmed with costs.


text:
    Jacob Appell, App’lt, v. Theodore W. Stemmler, Resp’t.
    Appeal from judgment of the eighth judicial district court.
   Judgment reversed, new trial ordered, costs to appellant to abide event,


text:
    George E. Austin, App’lt, v. Mark M. Nichols, Resp’t.
    Appeal from judgment of the first judicial district court.
   Judgment affirmed with costs.


text:
    Filed March 8, 1894.
    Jas. R. Nichols & Ors, App’lts, v. Albert W. Harris, Resp’t.
    Appeal from order.
   Order affirmed with costs.


text:
    John Chas. Goebel, Resp’t, v. Isabella C. Goebel, App’lt.
    Appeal from order.
   Order affirmed with costs.


text:
    Lewis Sylvester et al., Resp’ts, v. Solomon M. Jacoby, App’lt.
    Appeal from order of special term.
   Motion to dismiss appeal for non-service of printed papers. Appeal dismissed with $10 cost and disbursement, to abide the event of the action.


text:
    Robert C. McBride, App’lt, v. Geo W. Venable, et al., Resp'ts.
    Appeal from order.
   Order affirmed with costs.


text:
    Igustz Weiss et al., Resp’ts, v. Joseph B. Morrell, App’lt.
    Appeal form order of the city court.
   Order affirmed with costs.


text:
    Same v. Same.
    Appeal from order of city court.
   Order affirmed with costs.


text:
    Filed March 9, 1894.
    Henry Hosford, Resp’t, v. Chas. A. Seddon, App’lt.
    Appeal from order.
   Order reversed with costs.


text:
    The People ex rel. Michael Brady, App’lt, v. Jas. J. Martin et al. Commissioners &c., Resp'ts.
    Appeal from order denying motion for a writ of mandamus.
   Order affirmed with costs.


text:
    Eli Bennett, App’lt, v. Barbara Hart, Resp’t.
    Appeal from judgment.
   Judgment affirmed with costs.


text:
    Filed March 12, 1894.
    John C. McQuhae, Resp’t, v. Charles Lehman, App’lt.
    Appeal from order of special term.
   Order affirmed with costs.


text:
    Filed March 14, 1894.
    Mary Whitker, Resp’t, v. Forty-Second St., Manhattanville & St. Nicholas Ave. R. R. Co., App’lt.
    Appeal from judgment of this court.
   Appeal dismissed, with costs.


text:
    Filed April 2, 1894.
    Sarah J. Burby, Resp’t, v. William J. Roome, App’lt.
   Per Curiam.

The motion fails to comply with rule 16 of this court. Denied, with $10 costs.


text:
    New York City Court, General Term.
    Filed January 18, 1894.
    Munczi Lajos, Resp’t, v. The Eden Musse American Company, Limited, App’lt.
    Appeal from a judgment in favor of plaintiff.

      Seligman & Seligman, for app’lt; Dittenhoefer & Berber, for resp’t.
   Newburger, J.

This action was brought to recover one hundred and fifty ($150) dollars, claimed to be due arising from deductions that had been made by the defendant from the salary that became payable to plaintiff. The answer, among other defenses, alleged that the contract sued upon is void as being within the statue of frauds. On the trial of the action the defendant moved at the conclusion of plaintiff's case as well as at the end of the trial to dismiss the complaint on the ground that the contract is within the statute of frauds, as not to be performed within one year, and, therefore, no recovery can be had on any such oral contract, which motion was denied and exception taken. The trial justice properly denied the motion to dismiss. There was a complete contract between the parties by reason of the correspondence and telegrams between them. A careful examination of the printed case fails to disclose any errors on the trial that would warrant us in disturbing the judgment herein.

Judgment affirmed, with costs. All concur.


author: Ehrlich, C. J.

text:
    Filed February 8, 1894.
    Edward C. Center, Resp’t, v. Moritz Lippman, App’lt.
    Appeal by defendant from judgment enuered on verdict of jury in favor of plaintiff.

      J. J. Gleason, for app’lt; Johnes & Wilcox, for resp’t.
   Ehrlich, C. J.

The trial judge properly submitted to the jury the question whether the eighty dollars referred to in the answer was reserved and taken by the plaintiff for the loan and forbearance of the money, or whether it was not to pay for the trouble and labor in investigating the value of the securities offered and in raising the money. The jury found in favor of the plaintiff, thereby negativing all idea of usury. We think the verdict was right, and as no errors were committed on the trial, the judgment appealed from must be affirmed with costs. Fitzsimons, J., concurs.


author: Fitzsimons, J.

text:
    Philip Waldheim, Resp’t, v. Abraham Sonnenstra, App’lt
    Appeal from a judgment in favor of plaintiff.

      Hayes & Greenbaum, for app’lt; Simpson & Werner, for resp’t.
   Fitzsimons, J.

The plaintiff’s testimony certainly shows that he failed to comply with the covenant in the guarantee which provided that defendant should be notified by postal card if Ginns did not pay $5 each week on account of the goods sold. But the testimony also shows that defendant after Ginn’s default waived that provision. Therefore the judgment was right, and must be affirmed with costs. All concur.


text:
    Jochm Hein, App’lt, v. John Wilkins, Resp’t.
    Appeal from a judgment in favor of defendant.

      August P. Wagener, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   Fitzsimons, J.

The complaint alleges that plaintiff’s two infant daughters entered defendant’s employ as house servants. That they had in defendant’s house, clothing of the value of $400. That the clothing was destroyed by fire and that defendant recovered from an insurance company the value thereof, and refused to pay the same over to plaintiff, who as father, owned his daughters’ clothing, hence this action. The trial justice dismissed the complaint. He did right in doing so. There is no evidence showing that defendant received money from any insurance company for the clothing which plaintiff’s daughters had in his house; in fact the evidence entirely failed to support the complaint and was rightfully dismissed.

Judgment affirmed, with costs. All concur.


text:
    Filed March 9, 1894.
    Thomas G. Hague, Resp’t, v. Henry D. Cone, App’lt.
    Appeal from a judgment entered on a verdict.

      Burr ill, Zdbriskie & Burrill, for app’lt; H. O. Machín, for resp’t.
   Newburger, J.

This is an appeal from a judgment entered on a verdict. This action was brought to recover for a balance of moneys loaned, advanced and paid out. The answer of the defendant admitted the loans and advances, but pleaded payment and a counter-claim for $2,500, the amount of a note defendant alleged he gave to the plaintiff to get discounted for him, and which he appropriated to his own use. The plaintiff claimed that said note was given. to and applied by him on an account for services rendered the defendant. A •careful examination of the record, and of the briefs submitted fails to disclose any error that would warrant us in disturbing the judgment herein.

Judgment affirmed, with costs. Van Wtck, J., concurs.


text:
    William H. Hook, Resp’t, v. Parke Davis & Co., App’lt.
    Appeal from a judgment in favor of the plaintiff.

      Chambers & Boughton, for app’lt; Burr & Delacy, for resp’t.
   Newburger, J.

This action is brought to recover damages for a wrongful •discharge. It is claimed by the appel7ants that the only error committed on the trial was in the rejection by the trial justice of certain evidence offered by the defendant on the trial. A careful reading of the printed case fails to disclose any error on the part of the trial justice that would warrant us in disturbing the judgment herein.

Judgment affirmed, with costs. McCarthy, J., concurs.


author: Daly, C. J. Bischoff, J.

text:
    Mary A. Walsh, Resp’t, v. James J. Matchett, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Appeal—Jury.
    An open and public communication by the court to the jury, in the presence and hearing of a representative of the appellant, even if irregular, is not reversible error.

      2. Same.
    Such act, if irregular, will not affect the verdict, if it is clear that the appellant was not injured thereby.
    3. Same.
    A failure to object until after the verdict was received, where the appellant had prior knowledge of the fact, waves the irregularity, if any.
    Appeal by defendant from an order setting aside a verdict and granting a new trial.

      Q-eorge S. Hamlin for app’lt; Hatch <& Wiclces, for resp’t.
   Daly, C. J.

The action was for personal injuries received from falling through a coal hole in the sidewalk, and the plaintiff had a verdict for $1,000 which she evidently deems inadequate for she has moved to set the verdict aside upon the ground of an alleged irregular communication made to the jury, by the trial judge, after the adjournment of the court and the departure of the plaintiff and her counsel.

The communication complained of was an instruction, asked for in due time by the counsel for defendant, but which the judge had overlooked in charging the requests of both sides. The omission was-called to his attention before the jury retired and while the clerk of the plaintiff’s counsel was present, who did not, however, call the court’s attention to the absence of the plaintiff's counsel, but, to quote his affidavits, “assumed the responsibility of requesting the stenographer to note an exception upon liis minutes to the charging of the jury in the absence of the counsel for the plaintiff and of the plaintiff after the court had adjourned.” The instruction was thus given openly and publicly in presence, as it was to be assumed, of a person representing the plaintiff and who was plainly competent to protect her interest.

A sealed verdict was ordered and the next morning was handed in, opened and read and recorded in presence of plaintiff’s counsel, who was then in attendance and who immediately moved to set it aside upon the ground of the irregularity in question. The trial judge after a full hearing upon affidavits granted the motion, although having a doubt as to whether the plaintiff had not waived the irregularity.

The communication to the jury having been open and public and in the presence and hearing of a representative of the plaintiff, no question of public policy, nor of the due and impartial administration of justice, arises, as in the case of instructions given secretly, or without the knowledge of counsel, Watertown Bank v. Mix, 51 N. Y. 559 ; Plunkett v. Appleton, 41 N. Y. Supr. 169 ; Bunn v. Croul, 10 Johns. 239, and similar cases; and if it were irregular to give instructions after the adjournment of the court, (and I think it was not in this case, it being so openly done that both sides had notice), such irregularity will not affect the verdict if it is clear that the plaintiff was not injured thereby. In Mahoney v. Decker, 18 Hun, 365, reviewing the foregoing cases, it was held that an instruction to the jury, which could not prejudice a party, would not affect the verdict, although delivered in the absence of counsel.

It is clear that the instruction worked no harm to the plaintiff. It was as follows: “If the jury find from the evidence that the covering to the coal hole had been in the same condition for many years as at the time of the alleged accident, and that it had never been displaced, or any accident happened on account of it, this will be evidence that it was not defective or insufficent.” As the jury found in favor of the plaintiff for $1,000, it is established that they held the coal hole cover to be defective or insufficient notwithstanding the instruction, and the plaintiff was not affected in any manner by it, and the irregular mode of imparting it to the jury, if any, is no ground for setting aside the verdict. People v. Flack, 57 Hun, 96 ; 32 St. Rep. 215.

It seems equally clear that the plaintiff waived the irregularity, if any there were, in failing to make objection until after the verdict was received. 'Her counsel was in court next morning and present when the jury assembled and delivered their sealed verdict. The defendant’s counsel states that immediately after the verdict was rendered the plaintiff's counsel read the affidavit of his assistant upon which the motion for a new trial was made, and this is not denied, so that it would appear that he knew of the facts before the verdict was rendered. A party is not allow to take the chances of a favorable verdict and yet reserve the right to impeach it for known irregularities. Lippus v. Columbus Watch Co., 13 N. Y. Supp. 317 ; 36 St. Rep. 629 ; Fox v. Hazleton, 10 Pick. 277 ; People v. Flack, 57 Hun, 96 ; 32 St. Rep. 215.

I think, therefore, that the order setting aside the verdict and granting a new trial should be reversed: (1) because there was no irregularity; the instruction having been given openly and publicly to the jury in presence of a representative of plaintiff's counsel; (2) because the instruction so given worked no injury to the plaintiff; and (3) because .any irregulary in giving it was waived.

Order reversed, without costs.

Bischoff, J.

(dissenting) This action tvas one to recover damages for injuries sustained through defendant’s alleged negligence, and was therefore one in which the parties were of .right entitled to a trial by jury. The Code of Civil Procedure, § 976, provides that an issue of fact, triable by a jury, must be tried at a term held by one judge only. Obviously this requires the trial to proceed at a term of the court.

The court is “ an organized body, with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this by its officers, viz.: attorneys and counsel, to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure order in its proceedings,” Burrill’s Law Dict.; People ex rel. Choate v. Barrett, 30 St. Rep. 728 ; and a term of the court is “ a definite and fixed period, prescribed by law, for the administration of judicial duties.”, Anderson’s Law Dict. 1022 ; Horton v. Miller, 38 Pa., 271. The judge and officers of the court are, of course, constituents of its organization, but they are not the court except when regularly convened at the time and place prescribed by law for the exercise of their several functions, People ex rel. Choate v. Barrett, supra. The mere assemblage, therefore, of a judge and officers of the court at times other than the terms of the court, though at the place designated by law for holding it, is no more than a collection of officers whose acts under assumed authority are coram non judice, and void. Brumley v. State, 20 Ark., 78 ; Wightman v. Karsner, 20 Ala., 451 ; Greenwood v. Bradford, 123 Mass., 297 ; Hawes’ Jurisdiction of Courts, Sec. 27. The term of the court is a synonym of the session of the court, Anderson’s Law Dict., 942 ; Bouvier’s Law Dict., 515 ; Am. & Eng. Ency. of Law, Vol. 22, p. 208 ; and the interval between the time when the court temporarily adjourns, and the time when it reconvenes, is no part of the term. Com. v. Gove, 151 Mass., 392 ; In re Gannon, 69 Cal., 541; see also People v. Fancher, 50 N. Y., 288. Hence the provision of the Code, of Civil Procedure that the trial must be had at a term of the court implies that the trial must proceed before the court, after it has convened, and while it is actually in session.

The charge of the trial judge in part of a jury trial. When, therefore, plaintiff’s counsel departed from the court-room after the court was regularly adjourned for the day, he had the right, for the reason hereinbefore stated, to assume that the trial was suspended and that no further proceedings would be had therein until the court had reconvened at the time to which it was adjourned, though the judge and other officers of the court remained in the court room. For the same reasons it was irregular on the part of the trial judge, after the adjournment and in the absence of plaintiff’s counsel, and without the latter’s previous assent, to further instruct the jury at the request of defendant’s counsel. Section 992 of the Code of Civil Procedure is not in conflict with the views above expressed. That section merely provides that a jury trial must be regarded as continuing until the verdict is rendered, but nowhere authorizes proceedings in the trial except before the court after it is properly convened and while it is in actual session.

What has been said renders it unnecessary to inquire whether counsel may frustrate the giving of further instructions to the jury by voluntary departure from the court room while the court is in actual session. That he cannot has been held in Cornish v. Graff, 36 Hun, 160, and Higgins v. Downer, 67 How. 65.

Nor can plaintiff be said to have waived the irregularity because her counsel was in possession of information of all the facts constituting it at the time when the court reconvened on the next succeeding day and did not ask to have a mistrial declared, an'd a new trial directed, until after the verdict was proclaimed. In Moore v. N. Y. Elev. R R. Co., 24 Abb. N. C. 77, 80 ; 29 St. Rep. 146 ; Lippus v. Columbus Watch Co., 13 N. Y. Supp. 319 ; 36 St. Rep. 629 ; Valiente v. Bryan, 66 How., 302; Gale v. N. Y. Cent. R. R. Co., 13 Hun, 6 ; People v. Flack, 57 Hun, 96 ; 32 St. Rep. 215 ; Riche v. Martin, 1 Misc. R., 285 ; 48 St. Rep. 757 ; and other reported like cases, it appeared that the deliberations of the jury had not yet terminated in a verdict when counsel for the party complaining of the irregularity in the trial was aware of the facts constituting it. The court in those cases properly held that under the circumstances the conclusion of the trial by rendition of the verdict without objection, where there was ample opportunity to make it, constituted a waiver, and that a party should not be encouraged to speculate upon the chance of a favorable verdict with furtive design to avail himself of the irregularity only if the verdict should prove to be unsatisfactory to him. In the case at bar, however, the court at the time of the adjournment had directed the jury to"return a sealed verdict. Such a verdict had been actually delivered to the clerk and the jury dispersed before plaintiff’s counsel became aware of the facts constituting the irregularity. The trial, therefore, was substantially ended at the time. The jury could not be reconvened to reconsider their verdict. Nothing but the formal proclamation and record of the verdict remained. Besides, we should assume in support of the propriety of the order appealed from, in the absence of facts in the record of this appeal to the contrary, that the learned trial judge who granted the order was justified in his conclusion that the motion for a new trial was made as soon as it could be, and if that was 'so, no waiver can be predicated of the fact that it was not made until after the verdict was proclaimed.

The order appealed from should be affirmed with costs.