author: Brown, P. J. Dykman, J.

text:
    John Adamson, Resp’t, v. Nassau Electric Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Municipal corporation — Action by taxpayer.
    A taxpayer cannot maintain an action to set aside the grant of a franchise by a city to a street railroad company on the ground that the franchise was granted as a matter of favoritism and for a less .compensation than the city could have obtained from another company, unless such grant was procured by fraud or corruption.
    2. Same — Property.
    The right of a city to give its consent as a condition precedent to the construction and operation of a street railroad therein, is not property of the city, within chap. 301 of 1892:
    3. Same — Privilege sold at public auction.
    The requirement of chap. 65 of 1886 that the privilege of constructing a street railroad shall be sold by the city at public auction, is dispensed with by chap. 565 of 1890.
    Appeal from a judgment in favor of plaintiff.

      F. L. Backus, for app’lt Coffey; James C. Church, for app’lt
    Nassau El. R. Co.; Grout, De Fere & Mayer, for resp’t Adamson;

      Albert G. McDonald, Corp. Counsel (Edward M. Grout, Jesse Johnson and Albert G. McDonald, of counsel), for resp’t City of Brooklyn.
   Brown, P. J.

— The decision of the learned judge who heard this case at the special term, is that “the court has found that such consents were granted by the common council of the city fraudulently, and as a matter of favor to the defendant companies, and for a less sum than could be secured for them in the exercise of reasonable diligence.” There is no allegation in the complaint that the aldermen were corrupt, or that the consents were the product of corruption; and the learned counsel for the plaintiff upon the argument expressly disavowed any claim to uphold the judgment upon that ground. An examination of the complaint and the testimony shows that the theory upon which the action was tried and decided was that the granting of the consents to the defendant companies “for a less sum than could be secured for them in the exercise of reasonable diligence” was a waste of the city property and in that sense a fraudulent act; and that such is the sense in which the term “fraudulent” is used in the decision will appear from the allegation of the complaint and the opinion of the judge who tried the case. ' The material allegations of the complaint are that the Union Street-Railroad Company, in or about the months of June or July, 1892, “offered to compensate the city for the fair market value of the right to construct and operate a railroad through the said streets, such compensation to be fixed by the common council, or determined by a sale of the said right at public auction ; ” that in May, 1893, it, in substance, repeated said offer; that in June, 1893, it requested the committee “ to fix the terms and conditions upon which the grants of the consent of said city would be made, so that competitors might be enabled to frame their bids ; ” that it offered to pay for such grant certain named sums per mile, and requested, if any other or better offer was made, it be informed thereof, “so that it might increase its money offer and bid in conformity with such other proposition ; ” that the common council “wrongfully, in violation of their official duties * * •* and illegally and in waste of the property, funds effects, and estate of said city,” passed the resolution complained of. It is further alleged “that the right to construct, operate, and maintain a street-surface railroad over the streets and avenues * * * is a part of the property, funds, and effects of the city of Brooklyn, for which more could be realized by said city than is provided for in said resolution, and that by the constitution and laws of the state the granting of said" right to construct and operate a railroad on the said streets was vested in the mayor and common council for the said city, and in order such grant might be made for the best attainable price, and for the pecuniary advantages of said city; * * * and the said power to make such grant was part of the property of said city, and could not be awarded for a price while any one was ready to pay a better price therefor.”

The opinion states the two propositions of fact essential to be established by the plaintiff were “(1) that the franchises were granted for a less sum than could be obtained from a competing company; (2) that such franchises were given in bad faith, and as .a matter of favoritism to the defendant companies.” It is evident from the opinion delivered at special term and from the argument of counsel for the plaintiff that the decision was based upon the case of Adamson v. Union R. R. Co., 74 Hun, 3 ; 56 St. Rep. 214. That case may stand as an authority for the interference of the courts with municipal affairs upon the precise facts there existing, but if it is to be deemed an authority that the courts may, in a taxpayer’s action^restrain the execution of ordinances and laws passed by municipal authorities in matters committed by the constitution of the state to their judgment and discretion, it is in conflict with well-settled principles of law and I shall in this opinion endeavor to show that the act of the municipal authorities of the city in granting the consent to the defendant companies violated no provision of law and was a valid exercise of power and being legislative in its character, is not subject to the review of the courts. The facts which will permit the maintenance of an action by a taxpayer against municipal officers, and authorize the courts to interfere in the administration of municipal affairs and restrain officials within the limits of their powers, are quite well settled by recent decisions of the court of appeals.

In Talcott v. City of Buffalo, 125 N. Y. 280; 34 St. Rep. 871, the court said:

“We have referred to the origin of this statute under which the action is brought, the title of the act of 1872 and the language used by the legislature subsequently, when re-enacting it in 1881 and 1887, for the purpose of ascertaining whether it was intended to authorize a taxpayer to maintain an action against the members of the common council in a city, and the administrative officers thereof, for the purpose of restraining officials, acting within the limits and scope of their powers and discretion, such as is alleged in the complaint in this action, and we¡are of the opinion that it was not. Full force and effect can be given to the statute by confining it to a case where the acts complained of are-without power, or where corruption, fraud, or bad faith, amounting to fraud, is charged.”

And in Ziegler v Chapin, 126 N. Y, 842; 37 St. Rep. 490, it was again said:

“We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.”

In Tohott's Gase, the acts sought to be enjoined were within the power and discretion of the common council, but were not charged to have been corrupt or dishonest. A demurrer to the complaint was sustained on the sole ground that the contract entered into by the city officials was illegal and void.

The decisions in the cases cited followed logically the rule that in the review of a legislative act the courts are confined to the consideration solely of the question of power. In People v. Draper, 15 N. Y. 533, after referring to the constitutional restraints upon legislation, Judge Denio said:

“ If a particular act of legislation does not conflict with any of the limitations or restraints which have been referred to, it is not in the power of the courts to arrest its execution, however unwise its provisions may be, or whatever the motive may have been which led to its enactment."

In People v. Flagg, 46 N.Y. 401, in speaking of the power of the courts to correct legislative abuses, Chief Justice Church said : “But when power is conceded, we have no right to inquire into the motive or reason for doing a particular act."

Such is the universal rule arising out of the form .of our government, and settled by a long line of authorities, and it is fully applicable to the review of acts of municipal corporations done in the exercise of governmental powers. Judge Cooley, in his work on Constitutional Limitations (page 209), says:

“ And the sainé presumption, that legislative action has been devised and adopted on adequate information and under the in fluence of correct motives, will be applied to the discretionary action of municipal bodies and of the state legislature, and will preclude in the one case as in the other, all collateral attack.”

And in Milhau v. Sharp, 15 Barb. 213, in speaking of the power of the common council of the city of New York, it. was said:

“ As far as it acts in the exercise of its public political powers and within the limits of its charter, it is vested with the largest discretion ; and whether the laws are wise or unwise, whether they are passed from good or bad motive, it is not the power of this court to inquire."

That in granting the assents to the defendant companies the mayor and common council were exercising a legislative power is too plain to require argument. The power to grant or withhold consent to the construction of a street railroad does not emanate from the legislature, but is devolved upon the municipal authorities by the constitution. The provision of the constitution is a restriction upon the legislature, and forbids,the enactment of any law authorizing the construction or operation of a street railroad, except upon the consent of the local authorities having control of the street or highway upon which it is proposed to construct the road, or, in lieu thereof, the determination of commissioners appointed by the general term that such radroad ought, to be constructed and operated. The power thus given is governmental, and to the extent that it is held and exercised the local authorities are clothed with sovereignty, and are as independent in its exercise as is any other department of the government; and, in my judgment, the court can no more inquire into the motives which governed or controlled the lawful exercise of the power than it could inquire into the motives which induce the governor to give his assent to an act of the state legislature. The only question, therefore, which the court was permitted to investigate and decide in this case was whether the granting of the consents to the defendant companies was a legal act. As I have already pointed out, the plaintiff alleged it to be illegal, and this assertion was founded upon the allegations (1) that the power to make such grant was a part vof property of the city, and (2) that it could only be awarded to the person offering the highest price therefor. Whether the right to grant consent to the use of the' streets can be deemed the property of the city within the meaning of the acts of the legislature authorizing taxpayers’ actions would seem not to be a very pertinent inquiry in view of the constitutional provision empowering the common council to do the very thing complained of. But the contention that the right to grant the consent to operate a street railroad is property of the city cannot, I think, be sustained. The law is quite well settled that a municipal corporation has no private estate or interest in the public streets within its borders. While it is said to hold the title to the bed •of the streets, its title is that of a trustee for the people of the whole state. This was expressly decided in People v Kerr, 27 N. Y. 188, it being there said by Judge Weight that the trust of the city was publici juris, held, not for the benefit of the people of the city alone, but for the people of the whole state, as the agent of the state and a part of its governmental machinery; and Judge Emott, in the same case, speaking of the title of the city of New York to the streets, and the power of that corporation over the same, said :

“ This is a trust for the benefit of the public; not of the adjacent proprietors, nor of the inhabitants or citizent of New York alone, but of the whole people. * * * The title thus vested is as directly under the power and control of the legislature for •any public purpose as any property held by the state, or by any public body or officer ; and its application cannot be changed by a corporation which, in respect to such property, at least, is a mere agent of the sovereign power of the people.”

This rule has, since that case was decided, repeatedly been •stated by the court of appeals. The absolute control of the streets, and the direction as to their use, is in the legislature. The constitutional provision which requires the consent of the local authorities to the construction and operation of a street railroad has not abridged this legislative power. It has only qualified or regulated it. The legislature may still grant the use of the streets subject only to the condition that the consent of the local authorities be obtained before thé road is constructed or operated. The franchise proceeds from the legislature, and the consent of the local authorities is the performance of a condition without which the road cannot be constructed. In re Thirty-fourth St. R. Co., 102 N. Y. 343. The city has no power to alienate or appropriate the city streets, and has no property rights therein ; and the provision of the statute authorizing an action to prevent a waste of the estate and other property of a municipality plainly refers to property owned by the city, and within its power of disposition.

We thus reach the question whether the common council was bound to grant the consents to the person offering the highest price therefor. The plaintiff strenuously insists that it was, and as one ground for declaring the consent void has referred us to a provision of the charter of the city, enacted in 1861, declaring it unlawful to grant the right to construct a street railroad except to the person who will agree to carry passengers on such railroad at the lowest rate of fare. We are of the opinion that this provision of the charter is superseded by the general railroad law (Laws 1890, chap. 565), which declares that every railroad corporation has the power to construct its road across, along or upon any highway which the route of its road shall intersect or touch, subject to the limitations and requirements of that chapter. That the legislature intended this act to' do away with all provisions of local laws is, we think, very plain, and is especially made so by the amendment of section 92 by chapter 434, Laws 1893. The validity of a street railroad franchise is, therefore, to be determined under the railroad law as limited by the provisions of the constitution heretofore referred to. There is no provision of the railroad law which requires that in the city of Brooklyn the right and privilege of using any street shall be sold to the highest bidder. The provision that such privilege shall be sold at public auction is now limited in its application to the city of New York. In the city of Brooklyn and other cities of the state the local authorities are given the power to require the payment annually into the treasury of the city of such percentage of gross-receipts, not exceeding three percent.,, as they may deem proper. The policy of the state, in this regard, as expressed in the statute of 1886 (chapter 65), which required as a condition of the consent to use the streets a sale of the privileges at public auction, has, by recent legislation, been completely reversed as to the whole state, except the city of New York. Under the present law it is entirely discretionary with the local authorities whether they will require, as a condition to the grant of the consent, the payment into the treasury of any portion of the gross receipts of the railroad to be constructed and operated therein. General Railroad Laws, §§ 93, 95.

The testimony shows that all the proceedings before the common council were regular, and that no formality made requisite to its final action were omitted; and as the right to grant consent to construct a railroad in the streets of the city is not the property of the city, and the local authorities are not required to grant such consent to the highest bidder, the conclusion necessarily follows that the grant to the defendant companies was a valid exercise of legislative power, and, as suc-h, is not within the province of judicial review. By the constitution and laws pf the state the granting of the consents, and the terms upon which they should be given, were committed to the judgment and discretion of the mayor and common council of the city. In enacting the resolution complained of they exercised a part of the sovereign power of the people, and, as was said by one of the ablest judges of our state, however unwise their action, whatever the motive may have been which led to the passage of the resolution, the courts have no power tovarrest its execution.

Tue judgment must be reversed, and the complaint dismissed, with costs.

Pratt, J., concurs.

Dykman, J.

(concurring). — Municipal corporations are creatures of law, and clothed with powers and functions to be exercised for public welfare. In the extent of their powers and liabilities they differ materially from counties, towns and other quasi corporations which are created for governmental purposes alone. The officers of such corporations are viewed as trustees of the state residing within the territorial limits of the city. In respect to the public and governmental functions with which such corporations are clothed, they are vested and are to be exercised for public purposes. They are sovereign powers, to be exerted in the in-interests of the entire public. It would be a very narrow view of the powers and duties of municipal officers that would confine their exercise to the aggrandizement of the local treasury. Financial considerations are not alone to control in granting permission to prosecute the various enterprises conducted by individuals and private corporations within the municipality. In all such cases the welfare of the public must be considered, and in the exercise of its governmental functions the municipal authority is required to determine the questions by the exercise of judgment and discretion in the interest of the whole community. So far as a discharge of the duties devolved upon municipal authorities requires the exercise of judgment and discretion, they must be to a great extent final and conclusive when free from fraud and corruption. It would be quite destructive of local self-goverment if all the acts of city and village authorities within their jurisdiction were subject to judicial review and control. Mistakes and errors of judgment may occur in the performance of such duties, but it is not in accordance with our system of government to apply to the courts for their correction. Prior to the enactment of several statutes which authorized an action in favor of taxpayers to prevent waste or injury to public property, funds, or estate, judicial interference with the action of public bodies within their powers was never invoked Those statutes came before the court of appeals for consideration and application in the case of Talcott v. City of Buffalo, 125 N. Y. 286 ; 34 St. Rep. 871, and it was there said :

“The terms ‘waste’ and ‘injury,’ used in this statute, comprehended only illegal, wrongful, or dishonest official acts, and were not intended to subject the official action of boards, officers, or municipal bodies acting within the limits of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident, or based on errors of judgment, to the supervision of the judicial tribunals. It is believed that no action was ever maintained under this statute with the sanction of this court, without some proof or allegation that the official actor proceeding complained of was without power, or was tainted by corruption or fraud.”

The decision was that the provision of Code Civ. Proc. § 1925, authorizing an action by a taxpayer to prevent waste or injury to the property of a municipality, as supplemented by the subsequent statutes on the same subject, is confined to cases where the acts complained of are without power, or where corruption and power and bad faith amounting to fraud is charged. The word “waste” includes only illegal, wrongful, or dishonest illegal action. The constitution and the laws have delegated to the local authorities the control over the streets in the cities with authority to consent to their use for a surface railroad. The performance of their duties in that regard requires the exercise of judgment and discretion, and the presumption always is that their action lias been prompted by correct motives. Municipal officers are not the agents of the city. They are public officers, clothed with certain powers for convenience of government; and interference with'their action by the courts would be an invasion of their province, and amount only to a substitution of the judgment of the judges for that of the officers. The foregoing principles will aid us in our further progress in the examination of this appeal.

Turning now to the case before us, we find it to be a taxpayer’s suit under the several statutes mentioned. The defendants are two railroad companies to which franchises have been granted by the city of Brooklyn to construct and operate surface railroads over certain streets named in the petition. The city of Brooklyn and the mayor and aldermen of that city are also made parties defendant. After stating the application for leave to construct the railroads, and the action of the common council thereon, the complaint continues as follows: “That by the aforesaid- illegal and wasteful acts of the individual defendants the defendant railroad companies claim nevertheless to have acquired the valid consent of the city of Brooklyn to the construction and operation in conjunction with a railroad over the streets and' avenues mentioned in paragraph fourteen of this complaint, and are about to proceed so to do,” and then prays for judgment declaring the grants to the defendant companies illegal, and wrongful to the estate and funds of the city. There is no charge of fraud or corruption in the complaint. The only allegation of malfeasance is that the members of the common council wrongfully and willfully and in violation of their official duties to the said city, taxpayers, freeholders, and electors thereof, and illegally and in waste of the property, funds, effects, and estate of said city, and solely in order to favor the defendant railroad company, and the persons managing such companies and interested therein, and colluding with such persons with intent to prevent said city from getting fair and adequate and the largest compensation for such streets, granted to said companies the right to construct and operate railroads on the route specified. There is no averment of want of power in the common council to perform the acts of which the plaintiff complains, or that such acts were not within the jurisdiction of the municipal authorities, and there is no complaint of an irregularity in the proceedings. The averments in the complaint amount at most to a charge of mismanagement or improper administration of public affairs, and, as we have already seen, it requires much more to justify the interfei;ence of a court of equity to supervise or correct the action of municipal authorities. The law affords no appeal to the courts from their action. Judge Bbown said upon the application for a preliminary injunction in this action :

“Very much must be conceded by the courts, in a case of this character, to the judgment and discretion of the municipal authorities ; and their action cannot be nullified simply upon the ground that the court thinks they should have afforded more opportunity to other companies to bid for their consent, or to give greater or more favorable consideration to real bidders. The law does not afford an appeal from their decision. In the absence of illegal or corrupt action, bad faith will justify interference by the courts only in a case where it amounts to fraudulent action ; and in such cases the fraud must be shown to be productive of waste or injury to city property.”

When Judge Cullen heard the case before him on demurrer to the complaint, he said :

“The local authorities might deem that a road of a particular character would so much better subserve public interest than one of another character, that it would be wiser to grant consent to the first without compensation than to the second for compensation. I think, therefore, that the whole subject is within the power and discretion of the local authorities, if that power be exercised without fraud, to determine whether a consent shall be given to a particular company, and the reasons and considerations that shall dictate their course.”

■ The proof fails to bring the case up to the charge in the com-

On the 22d day of May, 1893, the two defendant railroad companies, which were associated together and with the Coney Island, Et. Hamilton & Brooklyn Railroad Company, so as to be substantially one concern, applied to the common council of the city .of Brooklyn for consent to lay down railroad tracks in certain streets •of that city. On the same day the Brooklyn City Railroad Company applied for a consent covering the most, but not all, of the same streets, and also covering other streets. On the same day the Union Street Railroad Company applied for a consent in respect to the streets covered by the application of the Brooklyn City Company, but omitting, as the latter company had done, a part of the streets 'applied for by the defendant companies, and including many streets for which the latter companies did not apply. The Brooklyn City Company offered to pay to the city $150,000 for a consent to build on the streets according to its application and that of the defendant companies ; the Union Street Railroad ■Company offered to pay the city various sums per mile, amounting to between $250,000 and $260,000. The defendant companies made no specific offer, but expressed a willingness to make such compensation as the common council might deem proper. All the provisions of the railroad law as to notice of hearing and con•sideration of defendant’s application were duly complied with. On the 19th day of June, 1893, the board adopted resolutions granting do the defendant companies the consents for which they applied, and granting to the Brooklyn City Railroad Company a consent for a portion of the streets for which it applied. The consents which were granted imposed by way of condition, the payment to the city of Brooklyn of "the following percentages of gross receipts of the railroads to be constructed, narnelycone per cent., when the receipts were $20,000 or less per mile, two per cent, when the receipts were more than $20,000 and less than $40,000 per mile, and three per cent, when the receipts exceeded $40,000 per mile. The application of the Union Street Railroad Company was refused, for the reason stated in the report of the committee, to-which it was referred, and which was substantially as follows:

“There is before the common council an application of the-Union Street Railroad Company for its consent to the construction of a street surface railroad upon the same routes as those covered by the application of the Nassau Electric Railroad Company. These roads are understood to be proposed extensions of the main route of the Union Street Railroad Company’s road, designated in its certificate of incorporation as covering Union Street from Hamilton Ferry to Prospect Park Plaza. The routes of the Union Street Railroad Company do not extend beyond the city line, and in that respect do not afford the facilities for travel presented by the Nassau Electric Railroad Company. It is deemed worthy of mention that by far the greater part of the Union Street Railroad Company’s route consists in extensions of the road described in its article of association, upon no part of which as yet a road has been built Your committee is advised that there is grave doubt of the power of a railroad company to apply for or take a grant, of a right to extend the route of an unconstructed railroad, and before an application for extension can effectually be made there must be an existing railroad to which such extensions will apply. If such be the law, a grant to the Union Street Railroad Company would be entirely inoperative, and the public would not realize from it any of the increased facilities for travel of which it stands in need. Upon the question of compensation for franchises, your committee, after mature deliberation, has reached the conclusion that a graded percentage upon gross receipts is in harmony with the spirit of the statute relating to the subject, and will produce the largest revenue to the city and is favorable to the latter as a continuing source of income, and, so far as concerns the railroad company, should not be regarded as burdensome, because the payment thus imposed would be measured by the earnings of the company.”

The report of the committee, and the resolution proposed by it and adopted by the board, manifests a thorough and careful examination and acquaintance with the subject, and a proper consideration and regard for the interests of the city and the welfare of the public. This lengthy extract is made from the report to show that the whole subject was thoroughly considered, and also to manifest the reasons which actuated the aldermen in their action in respect to the bestowment of the franchise to the defendant companies, and refusing the request of the Union Company. We are not concerned with the refusal to grant the request of the Union Company beyond its reflection upon the motives of the aldermen and the interests of the city, because no relief is sought in that respect, In regard to the motives of the aldermen, the doubt expressed respecting the validity of the grant to the Union Company for an extension qf its route anterior to the construction -of any portion of its road, and the fact that the route of the Union Company is covered by the other lines, and does not extend beyond the city limits, are proof of their sincerity and correctness. The very term “ extension ” implies the existence of something to be extended, such as a street or a field. Such were the views of Judge Earle, expressed in the case of People v. Broadway Railroad Co., 126 N. Y. 39; 36 St. Rep. 376, where he.said:

“ It cannot be properly said that a road is extended unless it is dhen existing to be extened. The very language implies that the road was to be built, and then, after the opening of the avenue mentioned, extended.”

But there are reasons why such a grant for. extension would be nugatory beyond the mere signification of the term “extended.” 'The effect of filing an extension certificate, if valid, is to give the railroad company the same corporate capacity with reference to the extension to construct, maintain, and operate a railroad as that which it acquires by filing its articles with reference to its original route. Inasmuch, therefore, as the filing of the original articles does not give any corporate capacity whatever, unless certain con- ditions are performed in respect to the amount of the capital stock per mile, and the payment of at least ten per cent, of the minimum capital, and evidence of a bona fide intent to build and operate the railroad,' and the payment of one-eighth of one per cent, of the amount of stock to the state, the statute authorizing the extension ought to be so constructed as not to make it subversive to the general policy of the railroad law, and as not to enable •companies to accomplish indirectly what they could not accomplish directly otherwise than by compliance with the conditions prescribed by the statute. Moreover, as the route of the Union 'Company did not extend beyond the bounds of the city, its facilities for accommodating the public were limited, and less extensive than those of the other companies. Again, it is to be observed that the income, based upon the percentage of gross receipts, will be perpetual, and therefore mar-e advantageous to the city than the sum offered by the Union Company.

As there is no cause for the interference of the court upon the ground of frauds, so we find no reason for interference by reason of waste or injury to the funds or property of the city, even ac- ■ cording to the most technical definition of those terms. In the sense in which they are employed in the statute they include only wrongful or dishonest illegal action, as we have already seen. The general view is that the permission of the defendant companies could have been granted without compensation, but, if such grants are to be considered as property, the city is to receive compensation, and so no waste has been committed. When it is claimed that the aldermen could and should have made a more rigid bargain, the answer is that the subject rested in their discretion. Tested by the application of both reason and authority according-to the principles laid down in the commencement of this opinion, the record before us discloses no case for interference of the court. There are many details which cannot be stated within the reasonable length of an opinion, but we have examined the entire case-with care, and we have reached the conclusion that the judgment is erroneous. It invades the jurisdiction of a governing body which is as independent within its sphere as the judiciary is in its. In the dissenting opinion of Judge Peckman in the Talcott Case, he said:

“Under the statute as it now reads, I think the court has jurisdiction to enjoin the performance of an act by a public officer of the kind mentioned therein, if it be of such a character as to necessarily result in a plain, bald, useless waste of the property or funds-of the public. The act must be such that there can be no fair question in the judgment of reasonable men as to its character. It must be plainly and beyond all fair controversy wasteful, a mere squandering of public funds.”

The proofs in this case leave it far below that requirement. The case has attracted much public attention, chiefly because it arose at a time when there was considerable excitment in the public mind. But the courts are beyond the voice of clamor, and must decide the law with serenity and independent of external strife or opinion.

The judgment should be reversed, with costs.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    Edward B. Lynch, Resp’t, v. George W. Lynch, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Limitation — Decedent’s estate.
    In an action by a child of a decedent to recover personal property,, brought after an action by an executor would have been barred, the plaintiff need not state whether the decedent died testate or intestate, or whether any executors or administrators of his property were appointed or whether an action was commenced by them in respect thereto; the facts, if they exist, are matters of defense to the action and must be alleged by the defendant in his answer.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.

      W. Wickham, Smith, for app’lt; Horace Graves, for resp’t.
   Dykman, J.

— This is an appeal from a judgment overruling a demurrer to the plaintiff’s complaint which contained the following allegations, in substance: Sophia Lynch died in 1876, leaving a husband and three children, of whom the plaintiff is one and the defendant is another. The plaintiff was five years old at the time of his mother’s death, who at that time was the owner of a market stand, stocks, and household furniture. The defendant converted this property to his own use more than six years before the commencement of this action, and the plaintiff learned of such conversion one year before he brought his suit, and demanded his share of the property. His demand was refused. The plaintiff now claims possession of his share of the property, or for an accounting. The defendant demurred to the complaint on the ground — First, that it stated no cause of action; second, that there was a misjoinder of causes, plaintiff having sued both in trover and for an accounting. The action is based upon section 392 of the Code of Civil Procedure, which ’reads as follows:

“For the purpose of computing the time, within which an action must be commenced in a court of the state by the executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining or injuring personal property within the said period; the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors who at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane or imprisoned on a criminal charge, may within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the .estate, if an action had been seasonably commenced by the executor or administrator.”

The cause of action set up by the plaintiff in-this suit falls within the second subdivision of the foregoing section. The plan tiff is within its provision, for the reason that an action for the recovery of the property owned by the mother was barred by this section, and the plaintiff, at the time of the transaction upon which the action might have been founded, was within the age of twenty-one years. Moreover, this suit was commenced within five years after the cessation of such disability. The children of Sophia Lynch succeeded to the property which she owned at the time of her death by right of succession as her heirs at law. There is no legal presumption that the mother died testate or intestate, or that letters testamentary were ever issued upon her estate, and it was therefore unnecessary to negative either of those facts by any allegations in the plaintiff’s complaint. Neither is there any presumption that a suit was brought within six years after the death of the party by the executor or administrator. It appears from the complaint that the plaintiff became twenty-one years of age in 1892. Under the provisions of the section quoted, he had then five years in which to bring this suit. Under our construction of the section quoted, it was entirely unnecessary to state whether the plaintiff died testate or intestate, or whether any executors or administrators of her property or estate were appointed, or whether any action was commenced by them in respect to the cause of action stated in the complaint; but such facts, if they existed, are matters of defense to the action, and must be so alleged by the defendant in his defense.

The judgment should be affirmed, with costs.

All concur.


text:
    John G. Murphy, Resp’t, v. James F. Carey, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Bills and notes — Renewal.
    The failure to surrender tlie old note upon its renewal constitutes no defense to an action on the latter note.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      J. Stewart Ross, for app’lt; James McKeen, for resp’t.
   Dykman, J.

— This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion upon the minutes of the court for a new trial. The action was based upon seven promissory notes of which Cary, the defendant, was the maker, and James F. Gillen was the indorser. The appeal is by the maker alone. The facts were substantially these : The plaintiff in this action held a note made by Carey, the defendant, for $5,000, drawn to the order of Michael C. O'Brian, and indorsed by him, and protested for nonpayment. In January, .1891, Murphy was prosécuting an action on behalf of Murphy against Carey, involving other matters, and on the eve of trial a settlement was reached, and Mr. Hewitt, counsel for plaintiff, suggested that the O’Brien note, not then in suit, should be brought into the ■settlement. It was accordingly arranged at that time to give Carey an extension of time for the payment of that five thousand dollar note, upon condition that he would procure an indorser. Thereupon the notes involved in this suit were given, and Gillen became the indorser upon them. The first of the series of notes became due and were protested August 28, 1892. Shortly thereafter Carey sent to Mr. Hewitt, the lawyer, his check for $400. The check was not paid, but Carey afterwards paid $250 in money, which was allowed on the note due August 28th. The only substantial defense urged is that there was a failure to carry out an alleged condition that the old note for $5,000 should be given up or surrendered.

Upon the fact disclosed at the trial no defense to the action was established. The failure to surrender the old note constituted no defense to this action. There was a full and valuable consideration for the notes in suit, and the old note ceased to have any validity or vitality. The plaintiff was entitled to a verdict upon his claim, and the judgment must be affirmed unless some of the exception taken to the rulings on the questions of evidence or to the charge of the judge present error. After a careful examination of the exceptions taken to the charge of the trial judge and his refusals to charge, we find no error, and the judgment and order denying the motion for a new trial upon the minutes of the court should be affirmed, with costs.

All concur.


text:
    Matter of Audubon Ave.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order affirmed, -with $10 costs and disbursements.


text:
    Mills W. Brase et al., Resp’t v. John F. Williams, App’lt.
    Sup. Ct, 5 D,
    January, 1895.
   No opinion. Motion to dismiss appeal granted, with costs.


text:
    Eliza Beck et al. v. Brooklyn El. R. Co. et al.

    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Order of general term modifying judgment by striking out words “with costs and disbursements,” granted.


author: Per Curiam.

text:
    Louisa Becker, Resp’t v. Manhattan Ry. Co., et al., App’lts.
    Sup. Ct., 1 D.
    June 14, 1895.

      J. C. Bushby, for app’lt; J. A. Weekes, for resp’t.
   Per Curiam.

— The judgment which was awarded in this case depends largely upon the testimony of the plaintiff. An examination of the evidence given by her shows that she was able to tell the story which she had learned; but, .when taken from that which she had evidently committed to memory, she was utterly unable to testify as to the circumstances which were as likely to be in her memory as those in respect to which she had given evidence. Site testified with great distinctness as to the rents received in 1870, but was unable to remember the names of any of the tenants at other times, or to give the rents of other years with the certainty of those of 1870. When she did attempt to do so, in one instance, at least, she was shown by the evidence of the tenant not to have testified correctly. This obliviousness upon the part of the witness in reference to other periods of time in which rents were collected necessarily rendered all her testimony unreliable. We think, therefore, that no basis was laid for the judgment which was given, and the same should be reversed, and a new trial ordered, with costs to the appellant to abide the event.


text:
    Arthur J. Bennett, Resp’t, v. United Life Ins. Ass’n of New York, App’lt.
    Sup. Ct. 3 D.
    July 6, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Henry Bereau v. Daniel O’Connell.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Motion to vacate order of February 11, 1895, denied.


author: Freedman, J.

text:
    Ignatz Blech et al., App’lts, v. Joseph Sterzelbach, et al., Resp’ts.
    Sup. Ct.
    June, 1895.

      Goldsmith & Doherty,for app’lts ; Gruber & Bonynge, for resp’ts.
   Freedman, J.

— This is an action to recover the possession of certain personal property, or its value, taken by the sheriff from the plaintiffs under an attachment issued to him against the property of one Nathan Silvcrstein. The defendants indemnified the sheriff, and the property was taken upon the strength of their indemnity bond. The plan tiffs claimed title as bona fide purchasers for value from Nathan Silvcrstein. The question as to the validity of this purchase was fully litigated at the trial as a question of fact. , Both parties give evidence upon tile point, and at the close of the whole case the plaintiffs did not move for the direction of a verdict, but at once went to the jury, and the case was submitted to the jury under a charge to which practically no exception was taken. The record discloses no error, and no reason appears for a disturbance of the verdict, which the jury rendered for the defendants. The judgment and order should be affirmed with costs.


text:
    Hymen Bloom et al., v. National United Benefit Savings & Loan Co.
    Sup. Ct. 5 D.
    January, 1895.
   No opinion. Motion to amend the memorandum of decisions by inserting therein that the reversal of the judgment and new trial were upon questions of fact as well as of law, granted. If, by reason of the amendment, the plaintiffs' shall desire to discontinue the appeal to the court of appeals they may do so without costs.


text:
    John J. Bordman et al., v. James B. Kinney et al.

    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Motion granted, with $10 costs.


text:
    Herman Bradshaw v. Clement C. Moore.
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Judgment modified so as to provide that defendant, his agents and servants, are enjoined from taking possession of the property, etc., " except in accordance with the terms of the lease, as deternúned by the court in its second finding,” and, as so modified, affirmed with costs. All concur.


text:
    Matter of Brooklyn El. R. Co.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Order denying motion to dismiss appeal of plaintiffs from final order confirming report.


text:
    Matter of Brooklyn Trust Co.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Order affirming order made by surrogate, without costs.


text:
    Catharine J. Brown, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.
    Sup. Ct. 3 D.
    July 6, 1895.
   No opinion. Judgment affirmed with costs and disbursements.


text:
    M. Fillmore Brown, Resp't, v. Harvey F. Remington, App’lt.
    Sup. Ct. 5 D.
    January, 1895.
   No opinion. Interlocutory judgment appealed from affirmed, with costs, against the defendant Remington, with leave to him to answer within twenty days, on payment of the costs of the demurrer and of this appeal.


text:
    M. Fillmore Brown, Resp’t, v. Harvey F. Remington, et al., Appl’ts.
    Sup. Ct. 5 D.
    January, 1895.
   No opinion. Motion to dismiss appeal granted, with $10 costs against the-defendant Remington.


text:
    Emma Bryan v. Louis J. Grant.
    Sup. Ct. 2 D.
    July 26, 1895.
   On rehearing. Denied.

Dykman, J.

— There is a motion for a reargument in this case, but no sufficient reason appears in favor of the application, and the motion should be denied, with $10 costs and disbursements. All concur.


text:
    Emma Bryan v. Louis J. Grant.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Proposed order denying the proposed order is in accordance with the decree of the court, and is settled in accordance therewith. See preceding case.


text:
    Emma Bryan v. Louis J. Grant.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. The proof and order is in accordance with the decree of the court, and is settled in accordance therewith. See two preceding cases.


author: Newburger, J.

text:
    Harriet E. Burke, Resp’t, v. Terry J. Tindale, App’lt.
    N. Y. C. Ct.
    June 25, 1895.

      Hunter & Battle, for app’lt; Fustis, Foster & Coleman, for resp’t.
   Newburger, J.

— All the questions involved herein were passed upon by the court of common pleas in an action between the same parties. The judgment herein must therefore be affirmed, with costs.


author: Pratt, J. Brown, P. J.

text:
    Mary E. Burns, Resp’t, v. City of Yonkers, App’lt.
    Sup. Ct. 2 D.
    July 26, 1895.

      James M. Hunt, for app’lt; John C Hanrigan, for. resp’t.
   Pratt, J.

— We do not find that the facts on the present trial vary in any important particular from those shown on the previous trial. That case determined that the plaintiff had a right to go to .the jury on the question of defendant’s negligence. The verdict establishes the liability of the city. It is entirely clear that the accident resulted from the absence of a fence between the traveled road and the declivity down which the plaintiff went. In the light of the event, it is easy to see that a fence should have been provided. We cannot say the jury are wrong in finding that the necessity of a fence should have «been apparent before the accident. There were no errors in the admission of evidence, or in the charge, and the judgment must be affirmed, with costs.

Brown, P. J.

(concurring). — This action was first tried at a circuit at which I presided, and the complaint was dismissed. Upon an appeal to a general term composed of Justices Dykman and Cullen, the judgment entered upon the order dismissing the complaint was reversed, and a new trial ordered. Upon the second trial the plaintiff recovered a judgment, from which the present appeal is taken. The court should adhere to its former decision, unless the facts are essentially different from what they were on the first trial. I do not think they differ to such an extent as to make inapplicable the rule applied in the opinion of Justice Cullen, and I therefore vote to affirm.

Dykman, J., dissents.


author: Pratt, J.

text:
    George W. Burrows App’lt, v. James McMurray et al. Resp’ts.
    Sup. Ct. 2 D.
    July 26, 1895.

      Oscar E. Langer, for app’lt; Hirsh & Basquin, for resp’t.
   Pratt, J.

— This complaint was held insuiiic’ent, on motion to dismiss at the trial, on the ground that it failed to state facts sufficient to constitute a cause of action. It sought to vacate the credentials of four out of five delegates chosen by the Fifteenth Ward Republican Association of Brooklyn to the" Republican General Committee of Kings County. Neither the association, the general committee, nor any individual representing it, nor either of the four individuals whose credentials are attacked are parties. The only ground alleged against the four delegates or their credentials is that, “under the constitution and by-laws, they are incompetent and disqualified from occupying the position.” The provisions of the constitution and by-laws bearing upon competency or qualifications are not stated, nor is it alleged that any such provisions exist. Other difficulties might be stated. Without going into detail, it is plain that the conclusions of the learned trial judge were correct. Judgment affirmed, with costs.


text:
    Samuel J. Campbell v. Albert Friedlander et al.

    Sup. Ct. 2 D.
    June 14, 1895.
   _No opinion. Appeal taken from order of Justice Smith, February 27, 18950 dismissed with §10 costs to respondents.


text:
    William Chandler, Resp’t, v. John A. Knox, App’lt.
    Sup. Ct. 2 D.
    July 26, 1895.
    D. Epstin, for app’lt; Frank A. Bennett, for resp’t.
   Dykman, J.

— This is an appeal by the defendant from a judgment in favor of the plaintiff entered upon the verdict of a jury after a trial at the circuit. The action was for malicious prosecution. As the testimony was substantially uncontradicted, or at least such that but one conclusion could be fairly reached upon the question, the trial judge determined that there was not probable cause for the prosecution, and left the question of damages to the jury. There was no error committed upon the trial, and the judgment must be affirmed, with costs. All concur.


text:
    Chicago & E. I. Ry. Co., Resp’t, v. Beecher et al., App’lt.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Judgment affirmed, with costs, with leave to defendant to answer on payment of costs. I


text:
    Charles M. Church et al., Resp’ts, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.

      Brainerd Talles, for app’lts; E. M. Felt, for resp’ts.
   Per Curiam.

— Upon an examination of the evidence in this case, w-e think that tim fee damage should be reduced to the sum of $5,000. The judgment, as modified by such reduction, should be affirmed, without costs to either party.


text:
    Charles J. Close, Resp’t, v. Edward W. Potter, App'lt.
    Buff. Supr. Ct.
    January, 1895.
   No opinion. Judgment and order appealed from affirmed, with costs.

Titus, Oh. J., not sitting.


text:
    Lily G. Coddington, App’lt, v. Emily K. Bond, Resp’t.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Matter of Cohen.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Motion is denied, but appeal will be dismissed at the next term, ifi appellant is not then ready to argue.


text:
    Rose Cohen v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.

      A. A. Wluat, for app’lts; J. A. Weekes, Jr., for resp’t.
   Per Curiam.

— The fee damage in this case should be reduced to §1,250, the rental damage to §100 a year, and the extra allowance to §100. The judgment, as so modified, should be affirmed, without costs to either party.


text:
    William N. Coles et al. v. South St. Paul Belt R. Co.
    Sup. Ct. 1 D.
    July 26, 1895.
   No opinion. Judgment affirmed, with costs, with leave to plaintiffs to amend their complaint in twenty days, on payment of costs. All concur.


text:
    Alexander M. Conway, Resp’t, v. Edward O. Carpenter, App’lt.
    Sup. Ct. 2 D.
    July 26, 1895.

      Rudd,Runt & Wilder, for app’lt; William Riley, for resp’t.
   Dykman, J.

— This is an appeal from a judgment entered upon a verdict in favor of the plaintiff, after a trial at the circuit, and from an order denying a motion for a new trial. The action has been tried three times, with various results. On the first trial the complaint was dismissed, and upon the plaintiff’s appeal judgment was reversed and a new trial was granted. The second trial of the action was had in March, 1894, when the plaintiff obtained a verdict of §2,500. Upon the defendant’s appeal to the general term that judgment was reversed, and a new trial granted. The third trial of the action was had at the Westchester circuit, in September, 1894. A verdict was rendered in favor of the plaintiff, and judgment was thereupon entered, from which this appeal is taken. The plaintiff was a minister of the Gospel, and while engaged in the performance of services in a church at Yonkers, in March, 18EI2, it is alleged in the complaint that he was violently seized and taken from the pulpit, with force and violence, and was thrown upon his back and dragged from the vestibule of the church into one of the public streets of Yonkers, by order and direction of the defendant. Upon the last trial, which resulted in a verdict for the plaintiff, the only question submitted to the jury was whether moie force or violence was used against him than was necessary under the circumstances; the jury being charged that the defendant had the right to cause the removal of the plaintiff from the church in which he was engaged in holding services at the time. The charge of the trial judge to the jury was within the rule of law laid down by the general term when the case was before it on the last occasion, and we are therefore concluded by the law as so laid down. The question of excessive force was plainly one for the jury. Where, as in this case, there was testimony from which the jury might find that the force used was excessive, the question being thus properly submitted to the jury, and the verdict being in favor of the plaintiff, the rules of law applicable to the case having been heretofore settled, we find no cause for the interference with the verdict, and the judgment should be affirmed, with costs.


author: Merwin, J.

text:
    Christian Cook, Resp’t, v. Josephine Rowell, App’lt.
    Sup. Ct. 4 D.
    July 5, 1895.

      Frank Z. Wilcox, for app’lt; E J Edgcomb, for resp’t.
   Merwin, J.

— I fail to find in this case any good ground for reversal. The action is on two notes, and the defendant cannot complain because the plaintiff has recovered on but one. Whether the defendant in fact indorsed the last note, and whether there was any duress as to the indorsement of either, were questions of fact, and disposed of by the referee in favor of plaintiff. The giving of time was a sufficient consideration. The defendant ^says that she was not in any event to be troubled or called on for pay, but this, if a defense, was a question of fact. The defendant .says that more interest was allowed than was demanded. The argument is based on what was evidently a clerical error. Besides, the aggregate of the demand is more than the recovery. The defendant was an accommodation indorser for the maker, for valuable consideration, ana liable for the full amount. The judgment should be affirmed, without opinion. Judgment affirmed, with costs. All concur.


text:
    Horace W. Corey et al. v. Anna S. Van Fleet.
    Sup. Ct. 3 D.
    July 26, 1895.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Henry F. Craig et al. v. Frank J. Butler.
    Sup. Ct. 5 D.
    January, 1895.
   No opinion. Motion for leave to appeal to the court of appeals granted.


text:
    Thomas Crimmins v. Metropolitan El. Ry. Co.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Motion denied, with §10 costs.


author: Brown, P. J.

text:
    Henry W. Cromwell, Resp’t, v. Henry Hall, App’lt.
    Sup. Ct. 2 D.
    June 14, 1895.

      Fullerton & Sharps, for app’lt; E. A. Brewster, for resp’t.
   Brown, P. J.

— The notice of appeal, not containing any demand for a new trial, raised questions of law only, and it was the respondent’s duty, if there was any other evidence than that contained in the appeal book, to have caused such evidence to be inserted in the justice’s return, llalpin v. Insurance Co., 118 N. T. 165. The justice’s return, however, states that it contains all the testimony given on the trial, and the question presented is whether there is any evidence to support the verdict. The testimony in the justice’s return does not show any indebtedness of the defendant to the plaintiff, and it is absolutely impossible, on any view of the case, to ascertain how the jury arrived at their verdict. The judgment is wholly unsupported by the testimouy, and as we cannot, upon tile record before us, indulge in any presumption in the respondent’s favor, it should be reversed.


text:
    George B. Dalton, Resp’t, v. New York, L. E. & W. R. Co., App’lt.
    Sup. Ct. 5 D.
    January, 1895.
   No opinion. Motion for leave to appeal to the court of appeals denied.


text:
    Matter of Degen’s Will.
    Sup. Ct. 2D.
    July 26, 1895.

      Ayres & Walker, for app’lt; Sheehan, Southworth & Bourns (Henry A. Thompson, of counsel), for resp’t.
   Pratt, J.

— This is an appeal from a decree of the surrogate of Kings county, admitting to probate the will of Helene Degen, deceased, etc. An examination of the evidence satisfies us that the conclusions of fact found by the surrogate are fully sustained by the evidence, and that the will was properly admitted to probate. It is true there was some conflict in the testimony, but a clear preponderance seems to be in favor of the proponent. Besides, the surrogate had the advantage of seeing the witnesses and hearing them testify, and was thus better able to judge of the credibility of witnesses than an op=. pellate court. Neither do we discover any error in the rulings of the surrogate upon the trial. There was no merit "in the point that witnesses did not subscribe the will in the presence of the testator. In re Phillips, 98 N. Y. 267. It was not prejudicial to contestants to permit the doctors who examined the testator long previous to the making of the will; to wit, August 20, 1890, to look at the certificate they had made, as they testified to their present recollection. The rule is that in appeals of this kind the error must appear to have prejudiced the appellant to warrant a reversal. Code Civ. Proc. § 3445 ; In re Smith, 95 N. Y. 516. I do not think this case can he properly classed as doubtful. Judgment affirmed.


author: Titus, C. J.

text:
    Geremia Depirro, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.
    Buff. Supr. Ct.
    July 30, 1895.

      McMillan, Gluck, Pooley & Depew, for app’lt; Charles Oishei, for resp’t.
   Titus, C. J.

— This action is brought to recover damages for an injury received by the plaintiff while riding as a passenger on a belt-line train of the defendant’s railroad. The plaintiff, with several other laborers, got onto the train at the Terrace station for the Military Road station. When the train arrived at that point, the passengers commenced getting off, and before all had got off the train started, and while on the lower step of the car platform the plaintiff claimed that the car gave a sudden jerk, and threw him to the ground, and he received injuries, for which this action is brought. The facts are not very much in dispute. The defendant claims that the train did not start with a sudden jerk, and that the plaintiff jumped from the train. The case was submitted to the jury on a charge by the court, which, to say the least of it, was not unfair to the defendant. No exception was taken to the charge, or to any ruling of the court in the admission or rejection of evidence. The only exceptions are to the court’s refusal to nonsuit the plaintiff, and to direct a verdict for the defendant at the close of the case. These exceptions present a single question. Was there sufficient evidence to justify the jury in the conclusion reached by it? An examination of the record satisfies' me that there was an abundance of evidence to warrant the jury in coming to the conclusion which it reached. The court could not have granted the defendant’s motion, as the case presented a question of fact, pure and simple, for the jury to determine, and their findings cannot be disturbed. The judgment and order appealed from should he affirmed, with costs.

Hatch, J., concurs.


text:
    David Douahue, App’lt, v. John H. Drake et al., Resp’ts.
    Sup. Ct. 3 D.
    July 6, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    Matter of Dunne.
    Sup. Ct. 2 D.
    July 26, 1895.
   Ho opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Mary Ann Durland v. Jesse Durland.
    Sup. Ct. 2 D.
    June 14, 1895.
   Ho opinion. Ordered that the order of this general term, dated December 10. 1894, be amended by inserting therein after the word “reversed” the words “ on both questions of law and questions of fact.”


text:
    Matter of Dusenbury.
    Sup. Ct. 2 D.
    June 14, 1895.
   Ho opinion. Appeal dismissed, with $10 costs, and case stricken from calendar. Order signed.


text:
    Franklin P. Eastman v. Mayor, etc., of City of New York.
    Supr. Ot.
    July, 1895.
    Both parties appeal.

      Hatch & Wiekes, for pl’ff; Francis M. Scott, for def’ts.
   Per Curiam.

— This action was brought to recover damages for the breach of a contract by which the defeudants granted to the plaintiff the right' to collect all the wharfage and cranage of a certain bulkhead. The defendants disclaim any liability whatever, while the plaintiff contends that the verdict directed in his favor is insufficient in amount. An examination of the case has satisfied us that the views exnressed by the learned trial judge on directing the verdict were correct, and that upon the evidence before him the verdict was properly directed. The judgment should be affirmed on both appeals, but without costs to either party.


text:
    Empire State Sav. Bank of Buffalo v. Daniel Beard et al.

    Sup. Ct. 5 D.
    January, 1895.
   Ho opinion. Motion for certificate to enable the defendant to appeal to the court of appeals granted.


text:
    Joan Enscoe v. New York & R. B. Ry. Co.
    Sup. Ct. 2 D.
    June 14, 1895.
   Ho opinion. Appeal from judgment entered February 21, 1894, dismissed, with costs.


text:
    Richard C. Fallows, App’lt, v. James C. Hoyt et al., Resp’ts.
    Sup. Ct. 1 D.
    June 14, 1895.
   Ho opinion. Order affirmed, with §10 costs and disbursements.


text:
    Edward D. Farrell, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.

      F. A. Tuttle, for app’lts; F. M. Felt, for resp’t.
   Per Curiam.

— We do not think that the evidence in this case furnished any foundation for an award of rental damage. The fee value of the premises, however, seems to have been seriously affected by the existence of the elevated railroad in front thereof. And this damage is accentuated by the method of construction of the said elevated road and the manner of its use. The suggestion that if no rental damage is awarded then no fee damage can he allowed, is without merit. It depends very largely upon the use to which the premises may happen to be put for the time being as to whether rental damage is suffered or not. Thus the lot may be used for a coal yard, and the rental dam-ace because of the existence and operation of the elevated railroad would be nothing And 3ret, such existence and operation might seriously affect the value of tile lot for the purpose of improvement,-and hence fee damage he suffered. We think the judgment should he modified by striking out the rental damage, and affirmed as to the fee damage and the costs, without costs of appeal.


author: Van Wyck, J.

text:
    Michael H. Flannery, Resp’t, v. Colin McLean, App’lt,
    N. Y. C. C.
    June 25, 1895.

      J. A. Barratt, for app’lt; Ed. Swann, for resp’t.
   Van Wyck, J.

— The plaintiff’s contention, by pleading and proof, was his employment by defendant for term of one year, and wrongful discharge before end of term; while defendant admitted such employment and discharge before expiration of term, but contended that such discharge was for just cause. This question, under the proof, as to whether such discharge was wrongful or rightful, was properly left for the jury to determine, and they answered that it was wrongful, by returning verdict for plaintiff, and such verdict was justified bjr the proof, and will not be disturbed here. The defendant took only two exceptions, — one to denial of his motion for nonsuit, and the other to an overruled objection to a question by plaintiff at folio 84, which was, however, properly allowed, and, moreover, was merely a repetition by plaintiff’s counsel of the witness’ answer to a previous question to which no objection was made. "The order and judgment are affirmed, with costs.


text:
    Moretz Freedman et al. v. Pietro Catalano et al.

    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Motion granted, with §10 costs.


text:
    Edward Freeman et al., App’lts, v. Caroline Uhlig, Resp’t.
    N. Y. C. C.
    May 28, 1895.

      W. W. Westervelt, for app’lts; Alfred & Charles Sleekier, for resp’t.
   Newburger, J.

— This action is brought by the plaintiff to recover from the defendant commissions alleged to have been earned in procuring an exchange of real estate. The answer of the defendant is substantially a general denial. The trial resulted in a verdict for the defendant, and from the judgment entered upon such verdict this appeal is taken. It is claimed by the appellants that the trial justice erred in excluding questions at folios 114, 115, 116, as to conversations between one of the plaintiffs and defendant. We think the questions excluded related to the subject-matter, and were material and pertinent to the issues herein, and were strictly in rebuttal to the testimony of the defendant. The judgment must, therefore, be reversed, and a new trial granted, with cost's to the appellants to abide the event.


text:
    Timothy Gannon v. County of Queens.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Appeal of Timothy Gannon from judgment entered October "25th is dismissed, with §10 costs.


text:
    Henry F. Gillig, App’lt, v. George C. Treadwell Co. et al., Resp’ts.
    Sup. Ct. 3 D.
    July 6, 1895.
   No opinion. Order affirmed on opinion of special term, with § 10 costs and disbursements.


text:
    Frances L. Glover, Resp’t., v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.

      S. Babcock, for app’lts; E. M. Felt, for resp’t.
   Per Curiam.

— The evidence in this case is entirely unsatisfactory. An examination of the testimony of the expert Mangam leads to the impression that it is entirely unreliable, and should not furnish the basis for any judgment. He seems to be uncertain both in his ideas and his figures; and a perusal of this testimony necessarily produces distrust in either his knowledge or his ingenousness. This testimony seems to have formed the basis of the judgment, and we think it is wholly unsatisfactory and insufficient. It is true that certain other evidence was given by the plaintiff and her husband. But this evidence seems to be altogether inadequate to sustain the findings of the court below. It appears to have been assumed that the court was to infer damage, and that it was the duty of the defendant to disprove the same. This, however, is not the rule which is to govern the disposition of cases such as the one at bar. The judgment appealed from should be reversed, and a new trial ■ordered, with costs to the appellants to abide the event.


author: Per White, J. Hatch, J.

text:
    Laurence Green, Resp’t, v. Northern Steamship Co., App’lt.
    Buff. Supr. Ct.
    January 15, 1895.

      E. C. Bobbins, for app’lt; John Laughlin, for resp’t.
   Per White, J.

— Judgment affirmed. No opinion written for affirmance.

Hatch, J.

(dissenting). — The contract sued upon might have been performed within one' year from the time it was made, consequently the statute of frauds; is not available to defeat plaintiff’s right to recover. Lockwood v. Barnes, 3 Hill, 128; Kent v. Kent, 62 N. Y. 560-564. But I think the plaintiff must fail from insufficiency of proof to establish his case. The establishment of the contract rests upon plaintiff’s testimony alone, without the slightest corroboration either of statement or circumstances. The defendant met the testimony of plaintiff by an entire denial, through its agent with whom the contract was claimed by plaintiff to have been made. Plaintiff was also contradicted by other witnesses respecting some circumstances connected with his own conduct regarding the business which he had contracted, as he claims, to perform. The record does not show any fact or circumstances which tends to discredit defendant’s testimony. And the same is true of plaintiff, except in so far as he was contradicted by witnesses respecting his acts after it is claimed the contract was made. The burden of proof to establish his cause of action rested upon plaintiff, and it cannot be said to have been so established when his statement is met by a denial as broad as the claim, and there is nothing to discredit the statement of either party, except the difference between them. Syms v. Vyse, 2 St. Rep. 106 ; approved in Smith v. Gunn, (Sup.) 12 Supp. 808, The rule is recognized that very slight circumstances tending to corroboration of plaintiff or to the discredit of his opponent carry the case to the jury. But in this case nothing of the kind appears, and, so far as the discredit went, it was against plaintiff. I therefore reach the conclusion that the judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.


author: Conlan, J.

text:
    Sidney Green v. Edward S. Schroeder.
    N. Y. C. C.
    June 25, 1895.
    Appeal from special term.

      Vanderpoel, Chiming & Goodwin, for appl’t; D. J. M. O’Callaghan, for resp’t.
   Conlan, J.

— Appeal from an order sustaining a demurrer, and from an interlocutory judgment thereon entered. We think the court erred in sustaining-the demurrer to the second separate defense in an answer. Heety, on the trial, will have to show substantial performance on his part before he or his assignee can recover back the money advanced to Saltus. Exhibit A refers to Exhibit B, and Exhibit B refers to Exhibit A. They are inseparable in law, and must ‘ be read as construed together. The judgment and order appealed from must be reversed, and demurrer overruled, with costs.


text:
    France V. Greene v. Frederick B. Carey.
    Sup. C. 1. D.
    June 14, 1895.
   Ho opinion. Motion granted with $10 costs.


text:
    Charles F. Hart, Resp’t, v. Frank McSywgan et al., App’lts.
    H. Y. C. C.
    June 25, 1895.

      Davenport & Leeds, for app’lts ; Ernest Kail, for resp’t.
   Newburger, J.

— In the month of May, 1893, the defendants employed the-plaintiff to do the work and furnish the material necessary in setting two-boilers and an engine at Elizabethport, and to do some mason work at Brewsters, and in the city of Hew York. The main dispute seems to be that the defendants contend that plaintiff overcharged them for the work and material at Elizabethport. The trial resulted in a verdict in favor of the plaintiff for $494.14, and from the judgment entered upon the verdict, and the order denying defendants’ motion for a new trial, this appeal is taken. A careful reading of the printed case fails to disclose any errors that would1, warrant us in disturbing the verdict of the jury. The contention of the-appellants’ counsel that the admission of the testimony showing the custonr among masons of paying car fares and board was error, is untenable. The custom seems to have been well known to the trade, and defendants liad knowledge of the custom, as is shown by the estimates submitted by (lie plaintiff prior to his acceptance of the contract from the defendants. The judgment and order appealed from must be affirmed, with costs. All concur.


text:
    John W. Hasbrouck et al., App’lts., v. Silas H. Dickinson et al., Resp’ts.
    Sup. Ct. 2 D.
    July 26, 1895.

      John L. Wiggins, for app’lts; O'Weil & Boyce, for resp’ts.
   Pratt, J.

— We think this judgment should be affirmed. The appellants’’ points present simply the question whether or not the verdict was against - the evidence or the weight of evidence. No other exception is pressed. "We have examined the case carefully, and are satisfied that the case was properly submitted to the jury because of conflicting evidence as to the locatiou of the Wallace line, — tüe starting point for the determination of the location of the strip claimed by plaintill. The issues were fairly put to the jury and the points of conflict of evidence so lucidly set forth in the charge that we entertain no doubt that the verdict was an intelligent finding upon the facts. Judgment and order denying motion for a new trial affirmed, with costs.

Dykman, P. J., concurs; Brown, P. J., not voting.


text:
    Samuel W. Hastings, App’lt, v. Jacob Nagel, Resp’t.
    Sup. Ct. 2 D.
    July 14, 1895.
   No opinion. Motion for reargument denied, with costs.


text:
    Johan Helmprecht, App’lt, v. Jason Marvin Bowen, Resp’t.
    Sup. Ct. 1 D.
    June 14, 1895.

      Robert Goeller, for app’lt; Blair c6 Rudd, for resp’t.
   Per Curiam.

— The order should he affirmed. It is evident from the affidavits of the plaintiff that he is reckless in his averments. The court is not required to assign an attorney designated by the party applying. Furthermore, the proposed attorney in the case at bar nowhere agrees to conduct the action without compensation, as required by section 460 of the Code of Civil Procedure. Order affirmed, with $ 10 costs and disbursements.


text:
    Phebe A. Henderson v. Caroline I. Hadden et al.

    Sup. Ct. 2D.
    June 14, 1895.
   No opinion. Order affirmed, with $10 costs, and disbursements. All concur.


text:
    Charles N. Hildreth, v. Thomas W. Willets et al.

    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Appeal taken from order dismissed, and order affirmed, with §10 costs and disbursements.


text:
    Squire Hill, Resp’t, v. Robert W. Westcott, App’lt.
    Sup. Ct. 2 D.
    July 26, 1885.

      Backus & Manne, for app’lt; B. F. Chedsey, for resp’t.
   Pratt, J.

— It seems clear that the contract in question herein was a specific contract between Westcott on the one side and Hill and Harrison on the other wherein Westcott agreed to pay Hill and Harrison ton cents per can cartage on milk carted by them from their creamery at Sidney to the station at the same place, and shipped over certain specified" lines of railroad. The milk was shipped as per this agreement. We are therefore of the opinion that the judgment should be affirmed, with costs. All concur.


text:
    Charles Hoffman et al., Resp’ts, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.

      R. L. Maynard, for app’lts; E. M. Felt, for resp’ts.
   Per Curiam.

— Upon an examination of the evidence in this case we think that the rental damage should be reduced to $6,750, and the fee damage to> $7,500. The judgment as so modified should he affirmed, without costs.


text:
    Charles Hoffman et al., Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.

      K. C. Morhous, for app’lts; E. M. Felt, for resp’ts.
   Per Curiam.

— We find no evidence justifying the large awards made in this action. What evidence was offered upon the part of the plaintiffs is unsatisfactory and inconclusive, and affords no sufficient basis for the judgment which has been entered. We think therefore, that the judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.


author: Gildersleeve, J.

text:
    Daniel N. Hurlbut, Resp’t, v. Interior Conduit Insulation Co., App’lt.
    Supr. Ct.
    June, 1895.

      Eaton & Lewis (J. S. Wise, D. H. Driscoll and E. II. Lewis, counsel), for app’lt; Kneeland, & Stewart (Stilman F. Kneeland,, of counsel), for resp’t.
   Gildersleeve, J.

— The action is to recover the stipulated royalty, for a certain specified period, upon “paper tubes,” alleged to have been manufactured by the defendant, and covered by letters patent of the United States, duly issued to the plaintiff. The complaint sets out a license agreement from the plaintiff to the defendant, The agreement is not disputed, nor is there any controverted question as to its construction. The account of royalties is not questioned. The defense is that the paper tubes manufactured by defendant did not contain the invention covered by the plaintiff’s patent. The character of the product of the defendant is the sole issue raised. Did the paper tubes made and sold by defendant involve the invention for the which the patent was obtained, and under which the license was given ? On this issue the court below found in iavor of the plaintiff. This finding is amply supported by sufficient testimony, and should not he disturbed. We find no rulings that impugn the validity of the judgment. The defendant’s objection to the jurisdiction of the court is without merit. The action is not for an infringement of the plaintiff’s patent, hut is for compensation for an authorized use. The judgment appealed from should be affirmed, with costs to the respondent.


author: Dykman,J.

text:
    Marie A. Jahn, Resp’t, v. Patrick J. Gleason et al., App’lts.
    Sup. Ct. 3 D.
    July 26, 1895.

      George W. Stephens, for app’lts; H. Randolph Anderson, for resp’t.
   Dykman,J.

— This is an appeal from a judgment and an order upon a decision •of a justice of this court after a trial at the special term. The action is brought to set aside a deed of conveyance of real property. The action received the proper disposition at the special term, and the judgment should be affirmed, with costs, upon the opinion of trial judge.


text:
    George Jans, Resp’t v. Manhattan Ry. Co., App’lt.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Jacob Kalinsky, App’lt, v. Albany Railway, Resp’t.
    Sup. Ct. 3 D.
    July 6, 1895.
   No opinion. Judgment affirmed, with, costs.


text:
    Julia Kammerer, v. Brooklyn El. R. Co.
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Judgment affirmed, with costs. All concur.


author: Platt, J.

text:
    Corydon P. Karr et al., Resp’ts, v. Baxter et al., App’lts.
    Sup. Ct. 2 D.
    July 26, 1895.

      Henry A. Monfort, for app’lts; W. L. Flagg, for resp’ts.
   Platt, J.

— The case presents little hut questions of' fact which were fairly •presented to the jury, and upon which their verdict must be decisive. It cannot he said that there is a failure of evidence in its support. No exceptions require attention. Judgment affirmed, with costs. All concur.


text:
    Elizabeth Keller, Resp’t, v. Manhattan Ry. Co., App’lt.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    David I. King, Resp’t, v. Metropolitan El. Ry. Co., App’lt.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Fannie H. Kingsbury et al., Resp’ts, v. Manhattan Ry. Co., et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.

      A. T. Stoutenberg, for app’lts; L. C. Dessan, for resp’ts.
   No opinion. Judgment affirmed, with costs.


author: Colan, J.

text:
    Jacob Klotzky, Resp’t, v. Dora Hertschikoff, App’lt.
    N. Y. C. Ct.
    May 28, 1895.

      Abraham H. Barasohn, for app’lt; Louis Levene, for resp’t.
   Colan, J.

— We think the warrant of attachment complies with the requirements of section 641 'of the Code, and that the order appealed from should he affirmed, with costs.


text:
    Edward R. Ladew et al., App’lts, v. Charles D. Rathbone et al., Resp’t.
    Sup. Ct. 3 D.
    July 6, 1895.
   No opinion. Judgment affirmed, with costs and disbursements, on the opinion of trial court.


text:
    Gray Lathan et al., v. Samuel J. Tilden et al.

    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Motion granted, with §10 costs.


text:
    Barbara Lauber v. Jamaica & B. Road Co.
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Newbold T. Lawrence et al., App’lts, v. Town of Hempstead, Resp’t.
    Sup. Ct. 2 D.
    December 10, 1894.
   Dykman, J.

(Dissenting). — This is an action to quiet the title to a large tract •of land in Queens county, and prevent interference therewith by the defendant. Starting with the title to the land in the town of Hempstead, by virtue of a grant from William Kieft, the Dutch governor of the New Netherlands, to the lteverend Robert Fordliam and others, dated November 16, 1644, confirmed by a patent from the English governor,Thomas Dongan, dated April 17, 1685, the plaintiff assumed the burden of proving title out of the defendant and in himself. For the purpose of sustaining the burden thus assumed, the plaintiff introduced an order, known in the case as the fencing order, made at a town meeting of the town of Hempstead on the 17th day of April, 1659, and a quitclaim deed from fifty-eight persons to Jacob Hicks, dated June 7, 1725. Giving to the fencing order and the deed the force and effect claimed for them by the plaintiff, we cannot find that they embraced the land in question. The designation of the premises in the order and deed is quite too general and uncertain to constitute a basis for a judgment in favor of the plaintiff. It is essential to the validity of a grant that the premises upon which it is to operate must be so described therein that they can be identified, and if the intention of the parties cannot be discovered the conveyance is inoperative. Coleman v. Beach Co., 94 N. Y. 232 ; Jackson v. Rosevelt, 13 Johns. 97 ; Peek v. Malians, 10 N. Y. 509. As that uncertainty seems to be an insuperable obstacle in the way of the plaintiff, further examination is rendered unnecessary. The judgment should be affirmed, with costs.


text:
    Charles L. Littlewood, App’lt, v. W. H. Riley et al., Resp’ts.
    Sup. Ct. 2 D.
    July 26, 1895.

      James C. Church, for app'lt; Willis & Wallis (William G. Wilson, of counsel), for resp’ts.
   Pratt, J.

— The plaintiff’s case depends entirely upon his own testimony. He is contradicted by two witnesses and the written instruments. Giving to his testimony full faith, and all that is established is that the minds of the parties did not meet.. At most, that would only authorize a recission of the contract. That would not benefit the plaintiff. Judgment affirmed, with costs. _A11 concur.


text:
    Frank H. Lovell, Resp’t, v. George W. Jacobi, App’lt (two cases).
    Sup. Ct. 5 D.
    January, 1895.
   No opinion. Motions to dismiss appeals granted, with $10 costs in one case only.


author: Fitzsimons, J.

text:
    Frederick Lowey, Resp’t, v. Fidelity Printing Co., App’lt.
    N. Y. C. C.
    May 28, 1895.

      Philip Carpenter, for app’lt; Wakernan & Campbell, for resp’t.
   Fitzsimons, J.

— The defendant, because of its agreement with the Lowery Oompany, became liable for the value of the goods in question to plaintiff. The failure of the Lowery Company to return the plates when the printing was finished, it having been so agreed, was a breach of contract on its part, for which it was liable in case any damage followed. Faulkner v. Hart, 82 N. Y. 413; Michaels v. Railroad Co., 30 id. 564. In this case the goods were destroyed, and to the extent of the value thereof it was liable to the plaintiff. That liability or obligation was assumed by defendant in the agreement above mentioned, and, although the plaintiff was not a party to that agreement, yet he was entitled to the benefits thereof. The judgment, in our opinion, is a just one, and, finding no error, it must be affirmed, with costs. All concur.


text:
    James E. McCarty, App’lt, v. William Tracey et al., Resp’ts.
    N. Y. C. C.
    June 3, 1895.

      William Riley, for app’lt; James J. Fitzgerald, for resp’t.
   Per Curiam.

— It does not appear that the plaintiff was the procuring cause of the sale to Fursey. The fact that he overheard plaintiff telling a third person that the property had been sold to one Murphy at a certain sum, and, after the sale to Murphy had fallen through, bought it liimself, is not sufficient evidence to show that plaintiff was the procuring cause, especially in view of the further fact that he was well acquainted with the defendants, and had previously learned from them that the property was for sale. Goldsmith v. Cook, 14 Supp. 878. The answer sets up a good general denial. Griffin v. Railroad Co., 101 N. Y. 348. Judgment affirmed, with costs.


text:
    Matter of Augstine R. McDonald.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Manhattan Sav. Inst. v. Mary Greehy et al.

    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Motion to dismiss appeal on payment of $10 costs.


text:
    Martens Turner Co. Resp’t, v. James Mackintosh, App’lt.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Hubert W. Martin, Resp’t, v. Mary E. Coleman, App’lt.
    N, Y. C. C.
    June 25, 1895.

      Wells, Waldo & Snedelcer, for app’it; Myron II Oppenheim, for resp’t.
   Newburger, J.

— This is an action brought for damages sustained by the plaintiff on account of water dripping through the ceiling of Iris premises. The premises where the damages occurred is a four-story building, aud at the time of the accident was wholly occupied, one tenant being on each floor. The plaintiff occupied the parlor floor or main floor, as a tailor, the defendant the second floor of the building, as a dressmaker, and for living purposes. On January 6, 1894 (Saturday), the plaintiff closed his place of business. On Monday morning, when plaintiff’s clerk opened the plaintiff’s store about 8 o’clock, water was dripping from ihe ceiling. The trial resulted in a verdict for the plaintiff, and from the judgment entered upon such verdict, and from the order denying the defendant's motion for a new trial, this appeal is taken. The trial justice properly denied the motion for a dismissal of the plaintiff's complaint. The testimony of the plaintiff and his attorney as to statements made by the defendant after the overflow required that the case should be submitted to the jury as to the negligence and carelessness of the defendant. The charge of the trial justice was a fair and complete statement of (he law governing cases of this kind, a ;d must have been so viewed by the defendant’s counsel, as there is pot a single exception, nor was any request made by defendant to charge anything in addition. The judgment appealed from must he affirmed, with costs.


text:
    Price A. Matteson, App’lt, v. Charles A. Seluckel, Resp’ts.
    Buff. Supr. Ct.
    January, 1895.
   No opinion. Judgment appealed from reversed, with costs.


text:
    Charles E. Maxfield, Resp’t, v. Oliver L. Carpenter, App’lt.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Motion for reargument denied, with costs.


text:
    John L. Merritt v. John B. Peirano.
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Reargument ordered.


text:
    Beruhard Metz v. American Credit Indemnity Co.
    Sup. Ct. 1 D.
    June 14, 1895.

      W. F. Upton, for the motion; John V. Bouvier, Jr., opposed.
   Per Curiam.

— Under the contract by which Abraham was employed by the; defendant, who had no authority to hind the defendant to pay commissions to the plaintiff ; and, besides, there is no evidence that Abraham assumed to bind the defendant. The motion for new trial should be denied, and judgment ordered dismissing the complaint, with costs.


text:
    Lysander T. Mills, App’lt, v. Edwin M. Gardner et al., Resp’ts.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Matter of William Moore’s Estate.
    Sup. Ct. 1 D.
    July 6, 1895.
   No opinion. Decree affirmed, with costs and disbursements, to be paid out of the estate.


text:
    James W. Murphy et al., Resp’ts, v. New York El. R. Co., App’lt.
    Sup. Ct.
    June, 1895.

      Davies & Rapallo, for app’lt.1 John F. Parsons, for resp’t.
   Per Curiam.

— The judgment and order should be affirmed, with costs,


text:
    Nason Ice Mach. Co., App’lt, v. William L. Hermance, Resp’t.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Frances Nathan et al. v. Edmund Hendricks et al.

    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order affirmed, with costs on opinion of the court below.


text:
    National Park Bank of New York, Resp’t, v. Warren N. Goddard et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Judgment affirmed, with costs, on the opinion of the court below»


author: Bookstaver, J.

text:
    Frederick Neff, Resp’t, v. Benus Klopfer et al., App’lts.
    N. Y. C. P.
    June 3, 1895.

      M. II. Regensburger, for app’lts; Henry Schmidt, for resp't.
   Bookstaver, J.

— Plaintiff sued upon an alleged contract with defendants, by which it was agreed that lie should make and keep on hand for their use a certain number of paper boxes, for which the defendants contributed certain labels. The defendants contend that they agreed to give their trade to the plaintiff, if he would keep a sufficient stock on hand to insure a prompt delivery of their orders. We think that this contention is upheld by the weight of the evidence. Not only did defendant testify that this was the agreement, but plaintiff’s principal witness, when asked, on cross-examination : “Q. The conversation you had, you say, was that if Neff and Co. would keep on hand a certain amount of these boxes Klopfer would give you orders ? A. The prices being right.” And, further : “Q, Is that so ? A. Yes, sir, I had that impression. Q. You don’t want to correct it ? A. No.” It will, therefore, be seen that if plaintiff has any cause of action against the defendant it is for a'breach of this contract, and not for “goods manufactured and sold at defendants’ request.” The judgment must therefore be reversed, as against the weight of the evidence. Brown v. Sullivan, 1 Misc. Rep. 168. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.


author: Per Curiam.

text:
    Alexander Neill, Resp’t, v. Brooklyn El. R. Co. App’lt.
    B. C. C.
    June 24, 1895.

      Hoadley, Lauterbach & Johnson, for app’lt; Jas. & T. II. Troy, for resp’t.
   Per Curiam.

— The learned counsel lor the appellant contends that the damages awarded by the jury were excessive. We have very carefully read the appeal book and the briefs in the case, and, while the verdict was large, we do not think that we should exercise our power to reduce the damages. The court was right in refusing to compel the plamtiff to remove his clothing and exhibit his knee to the jury. Roberts v. Railroad Co., 29 Hun, 154; McQuigan v. Railroad Co., 139 N. Y. 50 ; Elfers v. Woolley, 116 id. 394; Lyon v. Railroad Co., 142 id. 398. Judgment and order denying new trial affirmed, with costs.


text:
    Joseph Newman v. Ephraim B. Levy et al.

    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Motion for leave to appeal to the court of appeals denied, without costs.


text:
    George H. Newton et al., Resp’ts, v. A. G. Lyman, App’lt.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order modified by striking out all reference to section 550 of She Code in the order of arrest, and, as modified, affirmed, without costs.


text:
    Thomas B. Norris, App’lt, v. Herbert A. Jones et al., Resp’t.
    Sup. Ct. 5 D.
    January, 1895.
   No opinion. Motion for leave to appeal to the court of appeals denied.


text:
    Michael O’Brien, App’lt, v. Robert J. Smith, Resp’t.
    Sup. Ct. 1 D.
    June 14, 1895.
    Appeal from special term, New York county.

      Edward W. S. Johnstone, for app’lt; Frederic A. Ward, for resp’t.
   Per Curiam.

— This action was begun September 9, 1889, by an assignee of Margaret Smith, to compel the defendant to account for moneys which, it is alleged, he wrongfully converted to his own use between November 1, 1880, and September 11, 1883, while employed by the assignor as the manager of her retail liquor store at Nos. 56 and 58 Columbia Place, Brooklyn. The allegations in the complaint are wholly on information and belief, but it is not alleged how much money the assignor lost, nor when the defendant converted it. At the close of the plaintiff’s case the defendant rested, and the court held that there was no evidence that the assignor had lost any money, or that the defendant had retained any of her money. The court also found that, the aasignment was colorable only, the assignor retaining an interest in the alleged cause of action. After reading the evidence we are satisfied that the plaintiff utterly failed to prove his cause of action, and that the judgment should be affirmed, with costs.


text:
    Ellen O’Connor v. Seaside & Brooklyn Bridge R. Co. et al.

    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Judgment affirmed, with-costs. All concur.


text:
    Matter of One Hundred and Fifty-fourth St.
    Sup. Ct. 1 D.
    June 14, 1895.
   Ho opinion. Motion granted, with §10 costs.


text:
    Christine M. Pedro, Resp’t v. Brooklyn City R. Co., App’lt.
    B. C. Ct.
    June 24, 1895.

      Morris & Whitehouse, for app’lt; Shorter & Kurth, for resp’t.
   Per Curiam.

— This case was submitted without oral argument, and no point is made in the brief for appellant, except that the verdict was against the weight of evidence. After careful consideration, we are of opinion that the verdict should not he set aside. Judgment and order denying new trial affirmed, with'costs.


text:
    Annie C. Pell et al., Resp’t, v. Manhattan Ry. Co., et al., App’lt.
    Sup. Ct. 1 D.
    June, 14, 1895.

      H. Mc Williams, for app’lts ; E. W. Tyler, for resp’t.
   Per Curiam.

— The judgment in this case must he affirmed. One difficulty with the appellants’ argument as to the credibility of some of the witnesses is that it depends upon evidence given by them in other cases, which is not contained in this record, and which does not seem ever to have been offered in evidence. The judgment should be affirmed with costs.


text:
    The People, Resp’t, v. Grand Lodge of Empire Order of Mutual Aid of State of New York, App’lt.
    Sup. Ct. 3 D.
    July 6, 1895.
   Ho opinion. Order affirmed, with costs and disbursements.


text:
    The People v. Oettenger.
    Sup. Ct. 5 D.
    January, 1895.
   Ho opinion. Motion to amend memorandum of decision denied.


text:
    The People ex rel. Cunningham et al., Resp’ts, v. Thomas A. Wilson et al., App’lts.
    Sup. Ct. 2 D.
    June 14, 1895.
   Ho opinion. Order dismissing appeal from judgment granted and signed.


text:
    The People ex rel. Granville W. Harman v. Henry H. Adams.
    Sup. Ct. 2 D.
    February, 1895.
   Ho opinion. Order affirmed, without costs.


text:
    The People ex rel. Charles W. Klebisch, Resp’t, v. Charles Gearing, App’lt.
    Sup. Ct. 2 D.
    February, 1895.
   Ho opinion. Judgment affirmed, with costs and disbursements.


author: Dykman, J.

text:
    The People ex rel. Robert Lee et al., Resp’ts, v. Village of College Point et al., App’lts.
    Sup. Ct. 2 D.
    July 26, 1895.

      John J. Gleason, for app’lts ; O. B. Gould, for respt’s.
   Dykman, J.

— This is an appeal from an order of the special term reversing: the taxation of $50 as costs to the defendants, which was allowed by the clerk. The proceedings was by eertiorcvri, and the only question presented by the. appeal now before us is whether, under the order of the general term confirming their proceedings, with costs to be taxed, the defendant could include in its bill of costs the sum of §50. That sum was allowable in the discretion of the court, but, as that discretion was not exercised, the defendant acquired no right to insert the same in his bill of costs. The order should, therefore, be affirmed, with $10 costs and disbursements.


text:
    The People ex rel. Robert Lee et al. v. Village of College Point et al.

    Sup. Ct. 2 D.
    June 14, 1895.
   Ho opinion. Motion to resettle order denied.