author:
PARKER, J.
      FOLLETT, J.

text:
    The People, Resp’t, v. John T. Stephenson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1895.)

    1. Evidence—Bribery.
    The evidence, in this case, was held insufficient to connect defendant with a third person so as to render a conversation, with the latter admissible.

      2, Appeal—Exception—Motion to strike out.
    An objection to evidence may be reviewed where an exception was taken to its admission, though no motion to strike out was made.
    8. Same.
    Where any competent evidence is admitted because of the assertion of counsel of his ability and intention to connect it, if the assertion is not kept good, the counsel making the promise should be compelled to withdraw the testimony from the consideration of the jury.
    4. Witness—Cross examination—Extent.
    A defendant in a criminal case, on cro.ss examination, may be inquired of in relation to the facts brought out on his direct examination, as well as to all other facts pertinent to the issue, whether the subject of direct examination or not, and facts tending to discredit him as a witness or impeach his moral character may be elicited ; but the trial court may, in the exercise of its discretion, still further restrict the cross examination, but cannot extend it beyond the limits of such rule.
    Appeal from a judgment convicting defendant of the crime of bribery.
    Benjamin F. Tracy, for app’lt;
    John R. Fellows, Dist. Atty., and John D. Lindsay, for People.
   PARKER, J.

The indictment under which the defendant was convicted charged him with having, on the 16th day of December, 1891, at the city and county of Mew York, while a captain of police, and in charge of the Bifth police precinct of said city, asked, received, and agreed to receive from one Martin M. Edwards, a produce merchant carrying on business in said precinct, four baskets of peaches as a bribe, upon an agreement and understanding that, in consideration of such bribe, he would violate his duty as such captain of police by knowingly suffering and permitting Edwards to offend against an ordinance passed by the common council of said city relative to sidewalk incumbrances. Upon the trial the people, after proving the ordinance bearing upon the issue, defendant’s official position, the talcing of the oath of office required by law, his transfer to the Bifth precinct on the 8th day of December, 1890, and that he continued in charge of such precinct during all the period of the time referred to in the evidence of Martin U. Edwards, called Edwards, who testified that one Melvin Whispell and himself were associated together in the fruit business in the Fifth precinct; that, early in March, 1891, Augustus J. Thorne, a patrolman, approached him and said that there was a new captain in the district, Capt. John Stephenson; that lie was the captain’s private man; that the captain Used considerable fruit, and if there was no objection the captain would take fruit in place of money for protecting Edwards on the sidewalk,—to which Edwards replied that it was immaterial to him.-whether he took fruit or money, and asked Thome if he had an order for the fruit then. Thome said he had not, but would come with it the next day. The following day Thorne called and brought with him a card upon which was written “Captain John T. Stephenson, No. 274 Washington Ave., Tremont.” He handed the card to Edwards and said, “This is the captain’s address, and he wants to have a barrel of apples shipped to this address,—to ship it by the American Express.” Edwards took the card, marked a barrel of apples as requested, and delivered it to the Amei’ican Express. No attempt was made to show that the barrel of apples was delivered to Stephenson at his house, and it does not appear that Thome was the captain’s private man, nor was the captain in any way connected with him by subsequent testimony. It does Uot appear from the record that Thome’s name was ever mentioned to him in connection with the conversation to which Edwards testified, or that he ever heard of such conversation until Edwards testified to it. Edwards further testified that, in the latter part of April, or early in May, 1891, James Kelly, another patrolman of the defendant’s command, who had been in that precinct continuously from October, 1873, and who, early in February, 1891, had been especially detailed Toy the police board on corporation ordinance duty in the Fifth precinct, called on Edwards while the latter was standing on the sidewalk in front of his place of business, and told him that the captain wanted a box of Florida oranges sent up to his address. Edwards replied that he did not have any oranges, and testified that he did not send them. A month or so later Kelly reported certain violations of the corporation ordinance by Edwards and his partner to Capt. Stephenson, who promptly forwarded the complaints to the chief clerk of the police board. August 10th an action was commenced by the corporation attorney to recover penalties on four of these complaints, and judgment was rendered against Edwards thereon on the 28th of August. This judgment Edwards paid. September 15, 1891, Kelly called again, and said the captain wanted four baskets of peaches, good for canning purposes, sent to his address. Without further conversation Edwards says he personally addressed four baskets of peaches to the captain at the address which Kelly had given him in April or Mav, and delivered them to the American Express Company. Evidence was offered tending to show that the agent of the express company made delivery of the peaches at the number marked on the baskets, and the receipt book bore the signature, Mrs. John T, Stephenson. Mrs. Stephenson denied that it was her signature, or that she re» ceived the peaches, and the defendant also denied all knowledge of them. On the 28th day of September, 1891, the corporation attorney began another action against Edwards & Whispell for violation of the sidewalk ordinance^ and Edwards testified that he went at once with the notice to Gapt. Stephenson, whom he found at the station house. As to what-took place he describes as follows:

“When I first went into the station house the captain was not in his room. I inquired for the captain. They said he would be there in a few moments. In a few moments I saw him come out of a back room, and he said, ‘I am Gapt. Stephenson,’ and took me to his private office, unlocked the door, or opened the door, .and invited me in. I said to him: ‘Gapt. Stephenson, here is a notice that I have got of a fine for' obstructing the sidewalk. This is the second notice I have received. The first one I paid. I thought it was a mistake, probably, and paid it. Here is the second one I received. What is there about this? I thought I had an understanding with you that you would take care of my sidewalk.’ He said, ‘That is evidently a mistake. You leave it with me, and I will attend to it for you.’ I left the notice with him.”

Notwithstanding this interview, judgment was rendered .against him on October 19th, for $5 and costs. As soon as Edwards received notice of this second judgment, he went again to Gapt. Stephenson, and in response to the question, “State what happened,” Edwards testified as follows:

“I said to him: ‘Gapt. Stephenson, here is a notice of judgment against me. I brought the notice around to you some time ago, and you agreed to take care of that. You asked me to leave the notice with you, and you would take care of it. It is evident you haven’t done it. Here is a notice of judgment.’ He says: ‘Damn it, I told so and so to go and attend to that, but he evidently hasn’t done it. You leave this notice of judgment with me, and I will take care of it for you.’ I left it with him. By the Gourt: Q. Anything else said? A. Yes, sir. Q. Go on. A. I said to him: ‘You sent a man to me to say that yon would take fruit from us for taking care of us on the sidewalk. We have sent you the fruit, as you have ordered it from time to time, and how is it you haven’t attended to this notice for us?’ Q. That you have taken fruit? A. We have sent him fruit. •Q. For doing what? A. For taking care of us on the walk. Q. What did he say? A. ‘Inasmuch as you have sent me the fruit, I will take care of this notice for you.’ Q. He said that? A. Yes, sir. Q. Anything else?" A. He said: ‘It is not customary for me to do this kind of business. I never lay myself liable to these people down town.’ Q. What else? A. ‘Any arrangement that Mr. Kelly sees fit to make with you, or any favors that he wants to extend to me, will be all right, and I will abide by it.’ ”

Edwards testified, also, that about the 10th of November Kelly again came to him and said, “The captain wants $50.” Edwards, replied “that he had fulfilled his agreement by furnishing him with fruit.” Kelly answered “that the captain was not satisfied with that, but wanted money,—$50.” Edwards protested that he could not afford to pay the captain the $50, and asked Kelly to see if he would not be satisfied with $25. This Kelly promised to do, but returned after two or three hours, saying that the captain would not accept it. Edwards then put $25 in bills in an envelope, addressed the envelope to the captain, sealed it up, and handed it to Kelly. Within an hour Kelly returned and threw the envelope on the desk, saying, “The captain won’t have it. It must be $50 or nothing, and you needn’t pay it if you do-not want to.” Opening the envelope, Edwards found the $25. He then made out a bill against the defendant for $12, the value of the apples and peaches, receipted the bill, placed it in another envelope with $38 in money, sealing and addressing it as before, and handed it to Kelly, who carried it away with him. The next day, according to Edwards, Kelly called on him again, and told him to go before the court and say that they had probably obstructed the walk a little, but would be careful not to do so in the future, and the judge “would rub out the judgment,” or words to that effect. This Edwards says he did, and the case was dismissed.

The first question pressed upon our attention is the ruling of the court admitting the evidence of the conversation between Edwards and the Policeman Thome against the objection of the defendant. There is no evidence whatever in this case connecting Thome with this defendant. There is no evidence tending to show that he was ever defendant’s “private man.” On the contrary, there is evidence that he never was. In-the respondent’s brief it is said that Edwards’ testimony is to the effect that defendant admitted that he had sent Thorne to him for the purpose of maldng an arrangement to have fruit sent to him from time to time. There is no direct evidence to that effect, nor is there any evidence from which such an inference can properly be drawn. The only evidence which it is even pretended tends in that direction has been quoted in full by us. The captain is alleged to have said, “Any arrangement that Mr. Kelly sees fit to make with you, or any favors he wants to extend to you, will be all right, and I will abide by it.” Nothing is said about Thome. His name is not mentioned. He is not in any way referred to. Indeed, the language used expressly excludes the claim that the captain 'referred to anything that Thorne had done. He ex- - pressly refers to Kelly, and to Kelly only. He is the acknowledged representative, and no one else. The interview occurred almost immediately after the sending of the peaches to the captain at Kelly’s request, and the expression regarding the sending of the fruit, assuming, as we must, that it was made, necessarily refers to Kelly, who was directly and solely named by the defendant in that connection. What Thorne had done occurred six months before. In civil actions ratification would never be predicated upon such evidence. How much less can it be relied upon to establish a criminal act. And yet Edwards was permitted to testify that Thorne came to him and said:

66 T am the captain’s private man. The captain uses considerable fruit, and if you have no objections, he will take fruit from you in place of money for protecting you on the sidewalk. ■ I said it was immaterial to us. We would as leave he would take fruit as money. We would give him fruit. I asked him if he had the order for fruit now. He said Ho” he would come the next day with it.”

Edwards said that he did come the next day with an order for a barrel of apples for the captain, but it does not appear that it was ever delivered to him.

When it is considered that the charge against this defendant was that he agreed, in violation of his duty as a public officer, to accept a bribe as a consideration for protecting Edwards in disobeying the law, the conclusion is inevitable that this evidence must have had great weight with the jury. Indeed, the record is not without direct evidence that the jury attached importance to it, for we learn from it that, after the jury had been charged by the court, and had retired, they returned with a request that the evidence of one of the witnesses be read, after which a juror .asked this question:

“Would I be at lberty to ask where this Thorne is? Is he out of the reach of the court?”

The assertion that this evidence was prejudicial to the defendant, and ought not to have been considered by the jury, is so clearly well founded as to be beyond the reach of reasonable controversy. The question is whether this defendant, by proper objection and exception, is in a position to make the point on this appeal His objection to its admission was seasonably and properly made, and the court, at once appreciating its forcefulness, inquired of the district attorney whether he intended “to connect the defendant with the interview between the witness and the officer Thome.” This inquiry being answered in the affirmative, the court overruled the objection, and in giving the reasons for it said:

“As I understand the district attorney, he says that he will connect this interview with the direct crime for which the defendant is now on trial, and because this interview relates to the receipt of the peaches, I overrule the objection, cautioning tho jury again that it is not to try him for the apples, nor is he to be found guilty of this indictment because he sent the apples, but it is to be connected by the district attorney with the crime with which he is charged. If not, I will strike it out.”

The district attorney did not connect it, and the evidence was not stricken out.

It is said that, while the defendant’s objection was in time, it is nevertheless not availáble to him, because he did not move to strike out the testimony before the close of the case. There are civil cases in which the courts have indulged in expressions to that effect. Bayliss v. Cockcroft, 81 N. Y. 363. 'We cannot discover any good reasons for such a rule even in civil actions, and certainly it ought not to obtain in criminal cases, in view of the policy of the law, carefully to guard a defendant from the possibility of .harm from evidence calculated to prejudice a jury rather than to prove the offense charged; nor have we found a criminal case in which the existence of such a rule has been asserted. Such a rule would place a premium upon the recklessness of prosecuting counsel. By a promise to connect, he could deprive a defendant of an exception which, but for.it, would be well taken. To assert that a defendant may be deprived of the protection of the law simply upon the assertion of counsel, is a novel proposition, to say the least. But the contention of the people amounts to this and nothing more. The testimony offered was inadmissable as the evidence then stood. The court so held. Thereupon the counsel for the people promised to connect it, but he failed to keep his promise; and in such case it should be held that the promise, whether made in bad faith or in good faith, because based upon inaccurate information, should operate to the prejudice of the party accused. Such a result must necessarily ensue if a defendant be compelled to move to strike out the prejudicial and incompetent evidence. We think, where such evidence is admitted because of the assertion of counsel of his ability and intention to connect it, that if the assertion he not kept good, the counsel making the promise should be compelled to withdraw the testimony from the consideration of the jury. He is the party responsible for the wrong, and should be compelled to right it in so for as he is able.

The prosecution were permitted, against the objection and exception of the defendant, to prove in detail all of the property, real and personal, owned by the defendant, as well as that possessed by his wife. The learned counsel for the prosecution con-' ducted the examination on this subject in a manner calculated to produce a decided effect upon the minds of the jury. He first showed by the defendant that, when'he became a member of the police force, all of his property did not exceed in value $500 or $600. This was followed by proof of the date of his appointment as patrolman; the amount of his salary during the several periods when he was patrolman, sergeant, and captain; the date of his marriage; number of his children; the location of his residence; the fact that he had not inherited any property, except about $1,500; and specifically and in detail he was inquired of as to the sums paid by him for property from time to time,—= the result being that it was made to appear that he was ■worth between $9,000 and $10,000 at the time of the trial. Without any warning or chance of preparation, the defendant was called upon to make such an accounting of his business affairs, covering seventeen years of active life, as should satisfy the jury that the property which he or his wife owned was not the fruit of various acts of bribery. The object which the counsel for the prosecution had in mind in offering this evidence is apparent. The defendant was indicted for receiving, hs a bribe, four baskets of peaches. In making out the case for the people, the request by Thome for a barrel of apples, under circumstances already adverted to, was shown. It was made to appear that Kelly told Edwards to send the captain a box of oranges, which was not done, that Edwards expressed four baskets of peaches to the captain, and that Kelly tried to collect of Edwards $50, which he said was for the captain. But as each of the charges was positively denied by the defendant, and his wife had denied that the peaches ever came to the house, the prosecution sought to strengthen its position before the jury by the introduction of evidence from which they should draw the inference that the defendant’s property was not obtained honestly, but was the outcome of a system of bribery, of which the offense charged in the indictment was but a single instance. The assertion that this evidence did not tend in any degree to prove the offense charged against the defendant, that it had no bearing whatever upon any legitimate issue, and that its only effect was to inflame the prejudices and arouse the indignation of the jury, requires no argument for its support. It is obvious that it is true.

It is not pretended, in support of the judgment, that if the people had offered independent evidence of the defendant’s poverty before becoming a policeman, and that the value of his property at the time of the trial was $10,000, such evidence would have been admissible. It is urged, however, that, the defendant having elected to become a witness, the limitations of his cross-examination were within the discretion of the court. This is not a correct statement of the rule. The principle that an accused person who becomes a witness in his own behalf thereby places himself in the attitude of any other witness, in respect to the right of cross-examination, has been announced in many cases. Brandon v. People, 42 N. Y. 265; Connors v. People, 50 id. 240; Stover v. People, 56 id. 315; People v. Casey, 72 id. 394. But the general scope of such a cross-examination is well defined and the courts will not allow any transgression of the well-understood limitations. In People v. Tice, 131 N. Y. 651; 43 St. Rep. 573, the leading case cited by the people, the boundaries of a cross-examination of a defendant in a criminal action are held to be that he may be required to answer questions affecting his credibility, or as to matters relative to the issue, although having no relation to his testimony on the direct examination. The opinion also refers to the discretion to be exercised by the trial court on such a cross-examination, and concedes that it may properly restrict it, but denies that it may extend it beyond relevant matters or matters affecting credibility. The rule, and the reason for it, found expression in People v. Brown, 72 N. Y. 571, the court, through Chief Justice Church, saying:

“I am of the opinion that the cross-examination of persons who are witnesses in their own behalf, when on trial for criminal offenses, should, in general, be limited to matters pertinent to the issue, or such as may be proved by other witnesses. I believe such a rule necessary to prevent a conviction for one offense by proof that the accused may have been guilty of others. Such a result can only be avoided, practically, by the observance of this rule.”

In People v. Crapo, 76 N. Y. 2,88, the defendant, who was on trial for burglary, was asked, on cross-examination, if he had been arrested on a charge of bigamy. The court, in holding the question inadmissable, stated the true rule to be that the disparaging questions must either be relevant to the issue, or such as clearly go to impeach the moral character and credibility of the witness. In People v. Court of Oyer and Terminer, 83 N. Y. 460, the court held that the range and extent of a cross-examination of a defendant in a criminal case is within the discretion of the trial judge, subject, however, to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character. Other cases, in great number, might be cited to the same effect, but as we have found none to conflict "with them, it is unnecessary.

From these cases we understand the rule of cross-examination of a defendant in a criminal case to be, that he may be inquired of in relation to the facts brought out in his direct examination, as well as of all other facts pertinent to the issue, whether the subject of direct examination or not, and that facts tending to discredit him as a witness, or impeach his moral character, may also be elicited; that while the trial court may, in the exercisp of its discretion, still further restrict the cross-examination, it cannot extend it beyond the limits of such rule. The defendant’s counsel, on his direct examination of the defendant did not open the door for the cross-examination we are considering. It is not pretended that it was pertinent to the issue before the epurt, and it need not be argued, we take it, that proof that a witness accumulated between $9,000 and $10,000 in seventeen years does not tend to discredit him, or impeach his moral character.

It follows that, if the views expressed be sound, the'judgment of conviction must be reversed, and a new trial granted.

YA27 BRTT27T, P. J., concurs.

FOLLETT, J.

I cannot concur in the conclusion reached in the prevailing opinion, that the testimony of Edwards and Whispell, detailing the conversation had between themselves and Policeman Augustus J. Thorne, in March, 1891, was irrelevant ■or incompetent.

Edwards testified:

“He (Thorne) said: eI am the captain’s private man. The captain uses considerable fruit, and, if you have no objections, will take fruit from you in place of money for protecting you on the sidewalk.’ ”

Whispell testified:

“Thorne said we had a new captain, and he was the captain’s man, and that he was looking for the sidewalk business,—something to that effect,—and suggested fruit in payment for the use or protection of the sidewalk.”

Both Edwards and Whispell testified that on the next day Thorne called, and left the defendant’s card, on which was his address, and that a barrel of apples was sent to him on the same day by the American Express. They testified that in April or May Policeman James Kelly called, and informed them the captain would like to have a box of Florida oranges sent to his house, and they replied they had none. They further testified that, September 15, 1891, pursuant to Kelly’s request, they sent four boxes of peaches to defendant’s house. In September the firm was fined for incumbering the sidewalk, and Edwards testified that he called on the defendant and inquired why he had not been protected, and said to him: ■

“You sent a man to me to say that you would take fruit from us for taking care of us on the sidewalk. We have sent you the fruit, as you have ordered it, from time to time, and how is it you haven’t attended to this notice for us?”

The defendant replied:

“Inasmuch as you have sent me the fruit, I will take care of this notice for you.”

This conversation between Edwards and the defendant clearly referred to the arrangement made with Thome, for no arrangement had been made with Kelly to pay the captain in fruit for his protection. The captain, by. his answer, assented to the statement that he had sent a man to arrange to take fruit for protection, This conversation, assuming that it was had, which was a question for the jury, could have referred to no other arrangement but the one made with Thorne, and both the defendant and Edwards must have so understood it. The defendant did not inquire: “What arrangement? With whom was it made?”

From May 5,1877, to December 23,1884, the defendant served as a patrolman and roundsman, at an annual salary of $1,200. During this period his-pay amounted to $8,050. From January 23, 1884, to December 23, 1887, he served as sargeant, at an annual salary of $1,600. During this peiiod his pay amounted to $6,066. From December 23, 1887, to September 6, 1894, he served as captain at an annual salary of $2,750. During this period his pay amounted to over $18,600. During his service of seventeen years and four months he received in salary more than $32,700; worth when appointed, $500; received from his wife’s estate, $1,500,—$34,700. By his cross-examination it was shown that he had the following property: A mortgage for $3,000; a farm, for which he paid $4,100; a city lot, in the name of his wife, for which he paid $2,000; an interest in a house, above the mortgages, $2,100,—$11,200. His interest in the house was subject to mortgages amounting to $18,900. On his redirect examination he testified that he was not worth to exceed $10,000. His testimony did not tend to show ill-gotten gains. On the contrary, the inference to be drawn therefrom was that he had not acquired property by blackmail or by bribery. The subjects on which a witness may be cross-examined for the purpose of determining his credibility, as well as the extent of such cross-examination, are largely in the discretion of the trial court, and depended upon the facts, of each case, and when it appears that the credibility of a witness was strengthened rather than impaired by a cross-examination, even on immaterial subjects, it is not a legal error for which a new trial will be granted. The court, in its instruction to the jury, made no allusion to these facts, and it is not asserted that the prosecuting officer did, and these facts might and may have been urged with great force by the defendant’s counsel to show that the defendant had not been the recipient of bribes or of blackmail. I am unable to see how the defendant could have been injured by this cross-examination.

It is charged in the indictment that, September 15, 1891, the defendant received from Edwards four baskets of peaches as a bribe for not performing his duty in respect to the sidewalk in front of Edward’s store. Whether he received the peaches was the crucial issue of fact. Edwards and Whispell swore that he did, and that they were delivered through the American Express Company. The defendant denied it. His wife denied it. A way bill, of which the following is a copy, was introduced in evidence; , '

William F. Herger testified that, September 15,1891, he was a driver for the American Express, and on that day received the waybill, and delivered four baskets of peaches at the defendant’s residence, Ho. 2074 Washington avenue. In corroboration of his testimony, the delivery sheet on the preceding page was read in evidence.

The fact that defendant’s name in the waybill was misspelled “Stevenson,” and that No. 2082, instead of 2074, Washington avenue was erroneously inserted by Herger in the delivery sheet, are matters of slight importance, and not sufficient to discredit the documentary evidence and the testimony of three witnesses. Under the circumstances of this case, it is impossible to believe that Edwards, Whispell, and the employes of the express company, in September, 1891, more than three years before this indictment was found, entered into a conspiracy to manufacture these documents. They had no motive. The defendant and his wife testified that the peaches were not received. The wife swore that the signature in the delivery sheet was not hers. The defendant swore that the signature did not resemble the handwriting of his wife, and also that it might look a little like it. Upon this conflicting evidence, the conflicting testimony of the defendant and Edwards in respect to their interview at. the station house, and evidence in regard to the prosecution of Edwards for violating the ordinance relating to sidewalks, and the discontinuance of some of those prosecutions after the last interview at the station house, and other evidence which need not be referred to, this case was submitted to the jury, under instructions which were eminently fair, and not unfavorable to the defendant, and he was convicted. I am unable to find any error calling for a reversal of the judgment.

Code Or. Proc. § 542. “After hearing the appeal the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.”

The judgment should be affirmed.


source: Caselaw Access Project

author: BRADLEY, J.

license: Public Domain

text:
    Charles S. Whitcomb et al., Resp’ts, v. Flynn Whitcomb, as Executor, etc., App’lt. (Two cases.)

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Contract—Promise for benefit of third party.
    A promise to pay an existing obligation of another is not effectual to charge the promisor unless some privity exists between the person for whose benefit the promise is made and the promisee, in so far that some duty is owing by the promisee to such person, or some reciprocal duties are undertaken or assumed by them in respect to which the promise may have some beneficial relation.
    2. Parties—Who may be.
    Where an agreement between a wife, who was prosecuting an action for divorce, her husband and his father by which she was to proceed with the action, the husband was to make certain provisions for her and the children, and the father was by will to leave a certain amount to the children, and she was to make no other demands on the husband, an action for failure of the father to make such provision in his will, can be maintained against his executor by the children.
    8. Contract—Performance.
    Such agreement is not violated by the wife’s commencing another action and obtaining a divorce under it, instead of under the action pending at the time of the agreement, or by her obtaining judgment for alimony, where she undertakes', after entry thereof, not to enforce it if the husband complies with his obligations under the contract.
    4„ Cost—Executors.
    On a reference of a claim against a decedent’s estate under section 2718 of the Code, the claimant’s right to recover cost against the estate is dependent upon a certificate of the referee that the payment of the claims was unreasonably resisted or neglected.
    Appeal from a judgment entered on the report of a referee.
    George A. Benton, for app’lt;
    W. H. Whiting, for resp’t.
   BRADLEY, J.

The plaintiffs in the two actions were the children of Truman H. Whitcomb and Eleanor J. Whitcomb, his wife, and the defendant’s testator, Samuel Whitcomb, was the grandfather of the plaintiffs. This action was brought upon an agreement in writing entered into in 1879, between Truman BE. Whitcomb, of the first part, Eleanor Whitcomb, of the second part, and the defendant’s testator, of the third part, whereby the latter agreed at his death to pay or cause to be paid to each of those grandchildren the sum of $1,000, and to provide by his last will and testament for the payment thereof-; but, in case $2,000 should exceed one-half of his estate at the time of his, death, one-half only of the amount of his estate should be paid to them. By the agreement it was also further provided that Eleanor, the wife, should have the custody of the two children, who were minors, and that certain provisions should be made by Truman BE. Whitcomb to her and for the children. The defendant’s testator, by his will, gave nothing to those grandchiddren.

It is urged on the part of the defendant that the testator, by his agreement to do so, assumed no legal obligation to make in his will any provision for them, because there was no personal liability of the mother to them. She, by the agreement, having the custody of the plaintiffs, then infants, assumed to take care of them, and such agreement of the testator may be deemed to have been one of the considerations for her undertaking. In view of the relation of Mrs. Whitcomb to the children, her duty to them arising from it, and of the -fact that she proceeded in its performance on the faith of the provisions of the agreement, the promise of the testator would seem to come within the doctrine of Lawrence v. Fox, 20 N. Y. 268, and kindred cases. This is not inconsistent with the legal proposition that a promise to pay an existing obligation of another is not effectual to charge the promisor where there is no liability of the promisee to pay it, and! the persons entitled to receive its payment and liable to pay it are strangers to the promise. Vrooman v. Turner, 69 N. Y. 280. In such case there is no privity between the promisee and the person who is entitled to the payment of the obligation. The support of a promise made by one person to another for the benefit of a third person requires no privity between the promisor and him for whose benefit it is made, but, between the latter and the promisee, privity is essential in so far that some duty is owing by the promisee to the person to be benefited, by the promise, or some reciprocal duties are undertaken or assumed by them in respect to which the promise may have some beneficial relation. Such, as before suggested, was the relation between the mother and the plaintiffs, and, in taking the agreement of the defendant’s testator, she may be deemed to have acted in their behalf. As the promise was made with a view to aid in the support and maintenance of those children, it was within reasonable contemplation that the mother might be entitled to reimbursement from the fund for supplying the means necessary for such purpose. Ex parte Bostwick, 4 Johns. Ch. 100; Wilkes v. Rogers, 6 Johns. 566; Voessing v. Voessing, 4 Redf. Sur. 360; In re Ogg’s Estate, 20 St. Rep. 867. The promise of the defendant’s testator was not only made for the benefit of the plaintiffs, but was one to pay to them, respectively, the specified amounts in the manner mentioned. It was founded upon a good consideration. By his default a right of action accrued to each of the plaintiffs, and they were entitled to recover unless some further reason appears to defeat the actions. Todd v. Weber, 95 N. Y. 181; Rector, etc., v. Teed, 120 id. 583; 31 St. Rep. 908.

It is contended by the learned counsel for the defendant that the plaintiffs were denied the right of action on the promise by the failure of the mother to observe and perform the provisions of the agreement, in that she agreed to proceed with the prosecution of the action then pending for a divorce, and that, if the stipulations of contract were faithfully carried out, she would make no further demands upon Truman H. Whitcomb. It is true that the agreement contained these provisions. An action brought by her for divorce was then pending, and it was contemplated that she would proceed to judgment. She did this by a new action commenced for such purpose, in which were alleged further facts in its support. This substantially accomplished the object which the parties had in view by that provision of the contract. But because she took, by that judgment, direction for payment by Truman H. Whitcomb of a certain sum for alimony, it is urged that she violated the provision not to make further demands upon him. The recovery itself had no significance contrary to that provision, because she was not required to make it available, and it cannot be assumed that she would if he faithfully performed what he undertook by the contract; nor did she use the judgment to defeat the effect of any provision of the agreement, but, after its recovery, she accepted from him his notes for certain amounts, in discharge of his further obligation upon the contract,- and undertook, in case they were paid, not to-enforce such direction in the judgment so recovered against him. This precautionary provision of the judgment, and the consequences of it, therefore, constituted no substantial violation on the part of Mrs. Whitcomb of the contract. Mo opportunity on that account was furnished to the defendant’s testator to assert relief from his promise in question. Mor does any other reason appear to relieve him from liability upon it.

The final conclusion of law in the referee’s report was the direction of judgment against the defendant with costs. Exception was filed to the award of costs. Upon the entry of the order of reference, the proceedings became actions in the supreme court; and the determination of the question of costs is governed by the provisions of the statute relating to costs in an action brought in such court against executors or. .admistrators in their representative capacity, in which recovery is had against them. Code Civ. Proc. § 2718. The plaintiff’s right to recover costs against the defendant was dependent upon a certificate of the referee that the payment of the claims was unreasonable resisted or neglected. Id. §§ 1835, 1836. Mo such certificate was-made, and therefore no right to recover costs appears. Matson v. Abbey, 141 N. Y. 179; 56 St. Rep. 690. We think, nevertheless, that the plaintiffs should be allowed to recover their disbursements.

The judgments should be modified by striking out the award of costs, and inserting the amount of disbursements as such; and, as so modified, the judgments should be affirmed, with costs of these appeals payable out of the estate.

All concur.


text:
    Joseph W. Hopper, App’lt, v. Emma B. Hopper, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    Marriage—Annulment—Allowance op attorney’s pees.
    Attorney’s fees wilt not be allowed defendant in an action by a man to ■ declare void his marriage on the ground that the former husband of defendant was then living and that the former marriage was in force, where knowledge of the parties that the former husband was living'is admitted and the only issue is as to the good faith of the parties and the belief of the one or the other that they had a right to marry.
    AppeaJ from an order, directing plaintiff to pay defendant’s attorneys counsel fees, and for the expense of conducting the defense.
    De Merville Page, for app’lt;
    Dolson & Dolson, for resp’t.
   BRADLEY, J.

The action was brought to procure a judgment declaring void the marriage contract of the parties, for the alleged reason that the former husband of the defendant then was and is living, and that the marriage with such former husband was then and is in force. Code Civ. Proc. § 1743. Those facts are alleged, and are admitted by the parties in- their pleadings; and the only issues presented by the complaint and answer-raise the question of good faith of the parties, respectively, in contracting the marriage. The plaintiff alleges good faith on his part. This is denied by the answer of the defendant, who alleges that she acted in good faith, and in the belief that she had the right to enter into the marriage contract with the plaintiff. This assertion of good faith was not founded upon the belief that her former husband was dead. Both the plaintiff and the defendant, at the time of their marriage, knew that he was still living. The case therefore does hot come within the provisions of section 1745 of the Code. The parties are not husband and wife, and no judicial declaration is necessary to render the marriage ineffectual and invalid. The answer alleges no defense in support of that relation of the defendant, nor any facts which, if established, will deny to the court the power to direct the judgment sought by the plaintiff. The most that can be urged for them is that the good faith of the defendant and the want of it on the part of the plaintiff may furnish a reason to enable and induce the court, in the exercise of its discretion, to deny any relief to the plaintiff. In support of that view is cited Kerrison v. Kerrison, 8 Abb. N. C. 444. The defendant in that case had been divorced in an action by his former wife -on the charge of adultery, and thus, by the judgment and the statute, was denied thp right to marry during her life. He nevertheless went with the plaintiff into the state of Hew Jersey, and there being married, they returned to this state. The view of the court was that the marriage, having taken place outside of this state, was valid here, notwithstanding the statute prohibiting the marriage within the time there mentioned of a person divorced for adultery, and declaring a marriage in violation of its provisions void. 2 Rev. St. 139, § 5; Laws 1879, chap. 321; Code Civ. Proc. § 17 61. The same doctrine was applied in Van Voorhis v. Brintnall, 86 N. Y. 18, where it was held that the inhibition by the statute of remarriage in such a case was in the nature of a penalty; and that, as the marriage was valid in the state where it was contracted, it was not void within this state on their return to it. And in that respect Marshall v. Marshall, 2 Hun, 238, was overruled. The doctrine of those cases is not applicable to the present one. The parties resided and were married in this state. Ho judgment of dissolution of the marriage contract between the defendant and her former husband had been obtained "by either of them. The marriage of the parties to this action vas absolutely void, and the fact so appears by the pleadings.

Our attention is called to no case where the facts indisputably so appeared, in which an allowance of either alimony or counsel fee has been allowed pendente lite. In O’Dea v. O’Dea, 31 Hun, 441, the defendant, in her answer, alleged matters of defense, and there were material issues to be tried. This more fully appears in the report of the case on review. 101 N. Y. 23. In Anon., 15 Abb. Prac. (N. S.) 311, material matter of defense was alleged, and in that connection the denial of certain allegations of the complaint not essential to the action was deemed to hax'e been properly alleged in the ansxver as bearing upon the question of costs, etc. The theory upon which advances are directed to be made during the pendency of an action for divorce or for the annullment of the marriage contract, as well as for alimony, is that the person seeking them stands in the relation of wife, and to enable her to obtain such relief, or to defend in that relation. Oollins v. Collins, 71 N. Y. 269. That is not the situation of the defendant. She, confessedly, is not the xvife of the plaintiff. Nor does she defend as such. Her status in that respect xvill not be affected by the result of the action, whatever it may be. The defendant has no opportunity, upon the facts admitted and alleged by her answer, to claim that she is the wife of the plaintiff, and therefore, in the legal sense, her relation to the action, "for the purposes noxv under consideration, cannot be treated as that of the xvife of the plaintiff. If, however, for any cause, the court may, in its discretion, deny judgment to the plaintiff, it is unnecessary now to consider the consequences as to costs in favor of the defendant xvhich may follow. In Marshall v. Marshall, upon the conclusion reached that the marriage there in question was absolutely void, the court, treating the plaintiff as guilty of contempt in contracting it, denied the relief 'sought by him. And in the Kerrison Case the viexv of the court was that, if the marriage there in question was void, the plaintiff was not entitled to relief. -That question, in its application to the present or any case where the marriags is void, does not necessarily arise here, and is not considered on this review. In Appleton v. Warner, 51 Barb. 270, where the relief sought was a decree declaring the marriage void, the court held that, as it so appeared, the defendant could not be treated as the wife of the plaintiff, and that he was under no obligation to pay her counsel, and reversed the orddr granting the defendant alimony and a sum as counsel fee. In viexv of the undisputed facts in the present case, there seems to be no reasonable support for the allowance.

The order appealed from should be reversed.

All concur.


author: FOLLETT, J.

text:
    United States Life Insurance Company, App’lt, v. Charles Salmon et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Principal and surety—Liability—Suppression of facts.
    Iu case an obligee takes a bond as security for the fidelity of liis agent, who, to the knowledge of the obligee has previously violated tbe trust imposed in him, and the obligee does not disclose the misconduct to the sureties, he is guilty of a fraudulent concealment of a material fact, of which good faith requires the disclosure, and he cannot recover of the sureties.
    Appeal from a judgment dismissing complaint as to part of the defendants.
    This action was begun June 2, 1894, to recover of William Hanning and Charles E. Manning, principals, and Charles Salmon and Moses B. Shantz, sureties, on a bond, under seal, executed November 13, 1893, to the plaintiff, whereby the obligors undertook that the principals, who were the plaintiff’s agents, should pay over all moneys theretofore received and thereafter to he received by them as agents, and that they should pay all debts then owing and thereafter incurred for moneys advanced to them, and should faithfully discharge their duties as agents. The referee held that the agents, the principals on the bond, were indebted to the plaintiff in the sum of $3,769.48, the amount claimed in the complaint; and a judgment was entered against them therefor, with costs. From this part of the judgment no appeal has heen taken. $2,010.67 of this sum were for moneys owing by the principals to the plaintiff prior to the execution of the bond, and $1,758.81 were for moneys received by the principals as agents after the execution of the bond, which they neglected to pay over to the plaintiff.
    The referee found: “Ninth. The said Mannings, while agents of the plaintiff, as aforesaid, at various times between the months of May and November, 1893, embezzled large sums of money belonging to the plaintiff which came into their hands as such agents. The plaintiff’s officers, including its secretary, who accepted the bond described in the complaint herein, well knew these facts weeks before the execution of said hond; and the said secretary had plenty of opportunity to communicate them to the defendants Salmon and Shantz before they signed said hond. Tenth. The defendants Salmon and Shantz had no knowledge of said embezzlement, or that either of said Mannings liad been guilty of any dishonesty. They sinned the said hond without consideration, solely to accommodate said Mannings, and relying upon their honesty.”

    As conclusions of law, he found: “First. That it was the duty of the plaintiff to inform said Salmon and Shantz of the said embezzlement by the said Mannings before accepting from them the said hond. Second. That said hond is, as to the defendants Salmon and Shantz, void. Third. That the complaint should he dismissed, upon the merits, as to the defendants Salmon and Shantz, with costs to them against the plaintiff.”
    Upon the report, a judgment was entered in favor of the sureties, and against the plaintiff, with costs, from which the plaintiff appeals.
    O. P. Buel, for app’lt;
    J. B. M. Stephens, for resp’ts.
   FOLLETT, J.

The plaintiff excepts to the ninth finding of fact, to so much of the tenth as is printed in italics, and to the three conclusions of law. No other exceptions were filed. It must be conceded that, if the findings of fact excepted to are sustained by the evidence, the judgment must stand, unless there were erroneous rulings on the admission or exclusion of evidence. It is well settled that in case an obligee takes a bond as security for the fidelity of his agent, who, to the knowledge of the obligee, ¡has previously violated the trust reposed in him, and the obligee does not disclose the misconduct to the sureties, he is guilty of a fraudulent concealment of a material fact, which good faith requires the disclosure of, and he cannot recover of the sureties. Machine Co. v. Farrington, 82 N. Y. 121; Bostwick v. Van Voorhis, 91 id. 353; Telegraph Co. v. Barnes, 64 id. 385; Ludekens v. Pscherhofer, 76 Hun, 548; 58 St. Rep. 241; Bank v. Van Slyke, 49 Hun, 7.

I The plaintiff’s president and secretary testified that in June, ¡1893, the Mannings were short in their account $5,000, for ¡moneys collected and not paid over. This defalcation was settled rJuly 8, 1893, by the promissory note of the sureties on a previous bond. This note fell due October 11, 1893, and was protested for nonpayment. In the latter part of October, 1893, the secretary investigated the affairs of the agency, and found the Mannings short $8,806.55. On the 4th of November the secretary took possession of the office of the Manings, and all of the policies, renewal receipts and papers, and refused to allow them to act as agents until the deficiency was secured to be paid and the bond in suit furnished. The deficit was secured by mortgages on the property of the sureties for $8,500, and the balance was paid in cash. This being done, and the bond in suit having been delivered November 14, 1893, the affairs of the agency were turned over to the Mannings. The plaintiff’s secretary knew that the Mannings were endeavoring to induce Salmon and Shantz to become suretits on a new bond which was drafted by him, but he did not disclose to them the previous defalcations of the Mannings. This was not good faith. The defalcations of June and of October, 1893, were not different in character from those occurring after November 14, 1893, and disclosed by the account of April 15, 1894. The evidence shows that, when the sureties executed the bond, they had no knowledge of the' previous defalcations and misconduct of the Mannings, nor had they any information which should have caused them to inquire in respect to their conduct.

The ninth and tenth findings are amply supported hy the evidence. The plaintiff’s president was asked by his counsel if, before he went to Rochester in April, 1894, he believed the Mannings were honest. This question was obj ected to by the respondents’ counsel, and was excluded. The president had full knowledge in June, 1893, and in November, 1893, of the manner in which the Mannings had conducted their business. He knew they were defaulters in considerable sums, and it was not competent for him to characterize their conduct either as honest or dishonest. In the face of these facts, his opinion or belief as to the integrity of the agents was entirely immaterial. The new sureties were entitled to know the facts, and it was for them to judge whether they would become responsible for the fidelity of these agents, who had been found so unfaithful. The respondents were not allowed to testify to communications made to them by the Mannings in the absence of the plaintiff’s officers, but were simply allowed to prove that the Mannings did not inform them of their previous defalcations and indebtedness to the plaintiff.

The judgment is right, and should be affirmed, with costs.

All concur.


author: BROWN, P. J.

text:
    Truman A. Black, App’lt, v. Thomas A. Maitland, Resp’ts.

      (Supreme Court, Appellate Division, Second Term,

      Filed January 14, 1896.)

    Appeal—Justice’s court.
    Where a justice, whose judgment is appealed from, fails to state to the appellant the correct amount of the cost included in the judgment, and the appellant for that reason does not pay them all, the appellant, under section 3049 of the Code, may be permitted to correct the omission.
    Appeal from an order of the county court, denying a motion to dismiss the appeal, and permitting the defendant to supply an omission to pay the costs of a justice’s court.
    Frederick Willets, for pl’ff;
    Murray, Bennett & Ingersoll, for def’t.
   BROWN, P. J.

This appeal is from an order of the county court of Westchester county, which denied a motion made by the plaintiff to dismiss an appeal taken by the defendant from a judgment rendered by a justice of the peace, made upon the ground that defendant had omitted to pay the costs awarded in the judgment, and which granted leave to defendant to pay such costs. It is provided by section 3047 of- the Oode of Civil Procedure that at the time of serving a notice of appeal on the justice, the appellant must pay to him the cost included in the judgment. In this case it appears that at the close of the trial the plaintiff’s attorney paid to the justice the costs included in the judgment; that defendant immediately served a notice of appeal to the county court, and asked the justice what costs he had to pay in order to take the appeal. The justice answered, “Two dollars,” which sum was thereupon paid, Upon learning that this sum did not include all the costs, the defendant’s counsel thereafter tendered to the justice and to the plaintifi’s attorney a sum equal to the amount of costs awarded in the judgment, neither of whom would, however, accept it. Section 3049 of the Code provides that:

“Where the appellant, seasonably and in good faith, serves the notice of appeal, upon either the justice or the respondent, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any act necessary to perfect the appeal, the appellate court, upon proof .by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.”

This provision was first embraced in 1880. Prior thereto there was no power in the courts to relieve a party appealing from a judgment rendered by a justice of the peace in a civil action from any omission or neglect to do any act necessary to perfect ■his appeal. Eldridge v. Underhill, 17 Hun, 241; Thomas v. Thomas, 18 id. 481. Under the section quoted the court may now, however, upon such terms as are just, permit the appellant to supply such omission, and may grant such amendments as are ^necessary to perfect an appeal already taken. Gutbrecht v. Railroad Co., 28 Hun, 497; Thorn v. Roods, 47 id. 433; 14 St. Rep. 345; Mann v. Dennis, 20 St. Rep. 195. The cases cited by the appellant have no application to the question here presented.

The order should be affirmed, with $10 costs and disbursements.

All concur.


author: PER CURIAM.

text:
    W. S. P. Prentice et al., as Executor, etc., Resp’ts, v. W. W. Goodrich, as Receiver, etc., App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 14, 1896.)

    1. Trial—Directing verdict.
    It is not error to direct a verdict in favor of plaintiff, where the defendant not only does not ask that the case he submitted to the jury, hut also joins with the plaintiff in a request that the court should dispose of the questions in the case.
    2. Same—Motion to strike out evidence.
    A refusal to strike out evidence, which is directly responsive to a question to which no objection is made, is proper.
    Strong, Harmon & Mathewson, for pl’ff;
    John A. Deady, for def’t.
   PER CURIAM.

This is an appeal from a judgment for the plaintiffs, entered on a verdict at circuit directed by the court, and from an order denying defendant’s motion for a new trial. The action is to recover rent of demised premises. The answer set up a counterclaim for damages to a subtenant from the plaintiff’s entry on the demised premises for the purpose of making repairs, against which it was alleged the plaintiffs agreed to indemnify the defendant, and also for delay and negligence in the prosecution of such repairs. There can be but little said in disposing of this appeal. The most serious contention of the appellant is that the trial court erred in directing a verdict, and that the case should have been sent to the jury. The perfect answer to this claim is that, as the record shows, the defendant not only did not ask that the case be submitted to the jury, but joined with the plaintiffs in a request that the court should dispose of the questions in the case.

The conversation' with Philips, the general superintendent of the Sandersons, was competent; and further, it was directly responsive to a question to which the defendant interposed no objection. The motion to 'strike out the testimony was, therefore, properly denied.

The judgment and order denying new trial appealed from should be affirmed, with costs.


author: PRATT, J.

text:
    William H. Ferdon, Pl’ff, v. Martha Ferdon et al., Resp’ts John C. Harrigan, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 14, 1896.)

    Attorney and client—Summary proceedings..
    Where, on motion to compel an attorney to pay over to his client moneys received by him in excess of what he is entitled to receive for his services, where it appears what services he has performed, the court has only to fix a reasonable amount for his compensation.
    Appeal from an order, granting a motion that the attorney for defendants be required to pay over moneys received by birn as their attorney.
    John H. Ferguson, for pl’ff;
    John F. Brennan, for def’ts.
   PRATT, J.

This is an appeal from an order made at special term requiring an attorney, John 0. Harrigan, to pay over moneys received by him as attorney for certain defendants in this action, in excess of what he was justly entitled to for his services. It appeared upon the hearing of the motion exactly what services had been performed in a suit in partition in which Harrigan had appeared for said defendants, and what amount he had retained for services. It has been the custom for years, in motions of this kind, where an issue is raised which it is difficult for the court to determine, for either the court to try the issues of fact, or send the matter to a referee to take proof of the kind, quality and extent of the services for which the attorney claims compensation and their value. In these issues, like all others, the evidence must be considered, and its relevancy, materiafity, and credibility passed upon. I know of no rule that requires a judge to give equal credit to all that every witness says, as that might render impossible any decision. In this matter, however, there is very little dispute upon any question of material issue between the parties. In fact, it appears beyond dispute what were the services of the appellant, and all there was for the court at special term to do was to fix a reasonable amount for his compensation. It is not necessary to allude to any pretended formal counterclaims of hjs partner, as that has no relevancy to this matter. The judge at special term, we think, correctly decided the facts, and has allowed a reasonable amount for services. It follows that the order must be affirmed, with costs and disbursements.


author: MERWIN, J.

text:
    Salt Springs National Bank of Syracuse, Resp’t, v. John C. Fancher et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Witness—Cross-examination.
    A party, who introduces-a deposition in evidence, may cross examine the deponent, when examined as a witness for his adversary, for the purpose of showing that the deposition was untrue.
    3. Fraudulent conveyance—Mortgage—Proceeds.
    Upon the setting aside of a conveyance as fraudulent as to a judgment creditor of the grantor, a frauduli-nt grantee is chargeable with money procured by him on a mortgage of the premises, though the sum had been expended by him before the action was brought, where plaintiff's judgment against the grantor was recovered before the mortgage was made.
    '8. Same—Liability for use of premises.
    Where the grantee had the use of the premises, he is chargeable with its rental value, though he'received no rent.
    Appeal from a judgment for plaintiff, and from an order confirming a referee’s report.
    W. J. Bellen, for app’lts;
    J. William Wilson, for resp’t.
   MERWIN, J.

The plaintiff, as a judgment creditor of the defendant John 0. Fancher, upon a liability incurred by Fancher prior to the 24th day of June, 1892, sought to set aside, as fraudulent as against creditors, a conveyance of certain real estate, dated June 24, 1892, and a bill of sale of certain personal property, dated July 12, 1892, made by the said John 0. Fancher to the defendants Wardwell W. Fancher and Charles H. Fancher. These instruments covered substantially all the property the debtor then had. Wardwell and Charles are sons of the debtor, and their main defense is that their faiher owed them, for services, more than the value of the property. It was found by the special term, as matter of fact, that these instruments, and each of tliem, were made and accepted with intent do hinder, delay, and defraud the creditors of John C. Fancher, and were therefore void as to the plaintiff and its debt. In the light of the arguments presented on the part of the defendants, we have carefully examined the evidence, and have reached the conclusion that the evidence is sufficient to sustain the finding of the special term.

The defendants claim that the rule that a party cannot impeach his own witness was violated at the trial. This claim is based on the idea that the plaintiff, by introducing in evidence the deposition of John C. Fancher, taken in proceedings supplementary to execution, made him their own witness, so that they could not contradict him, in showing the facts different from what he stated in his deposition. The plaintiff did not call him as a witness, as in the case of Thalheimer v. Klapetzy, 36 St. Rep. 116, but simply put in evidence, as against himself, his sworn declarations. He was afterwards called by the defendants as a witness, and the plaintiff then had a right to cross-examine him, and prove by him any facts pertinent to the issue. We find no error in allowing that course to be taken, or that there was any violation of the rule referred to.

In the course of the trial it appeared that the defendants Ward-well W. and Charles II.,.after the conveyance to them, and on the 12th of September, 1892, gave a mortgage on the real estate to one Hawley, for the sum of $1,000, then loaned to them by Hawley, and applied the money to their own use. It was conceded that Hawley took the mortgage in good faith. This suit was commenced on October 14, 1892. It also appeared that Wardwell and Charles had the use of the real estate from the time of the deed to them. By the judgment a receiver was appointed of the personal property, and of the rents and profits of the real estate, and of the proceeds of the mortgage above referred to, ■and the defendants Wardwell and Charles were directed to deliver and pay the same to him; and a referee was appointed to examine into the acts of the said defendants in regard to the real and personal property while claiming to own the same, and to take an account of the rents and profits of the real estate and the proceeds of the said mortgage, and report the evidence by him taken, and his opinion thereon. The reference provided was had, and, upon the coming in of the report, it was, after due healing, confirmed. The defendants appeal from the order of confirmation. The referee reported that the defendants should be charged with $1,000, the proceeds of the mortgage, and, for the use of the real estate from the time of the deed to the time of the judgment or hearing before the referee, the sum of $300; in all, $1,300. The appellants claim that they should not be charged with the $1,000 received on the mortgage, mainly because it was not actually in their hands when the present suit was commenced. They had applied it to their own use. In this way they would get the benefit of a fraud in which it was found that they had participated. This would hardly answer. They were, we think, properly charged with the amount. Fullerton v. Viall, 42 How. Prac. 294; Loos v. Wilkinson, 110 N. Y. 214; 18 St. Rep. 110. They were not charged with interest. The judgments of plaintiff were recovered before the mortgage. The appellants claim they should not be charged with the rents and profits, because they did not actually receive any. . They were charged with the rental value, the amount of which was not disputed. They actually had the use of the property. That was conceded. That being so, it is difficult to see, in principle, why they should not account for the use, as much as if they had rented to a tenant, and received from him rent. In Bump, Fraud. Conv. (2d Ed.) p. 593, it is said: “It certainly is not consonant with the-principles of the law that the grantee should derive any advantage from his fraud. Consequently, he may be compelled to account for the profits from the time of the transfer.” Many cases are cited to the proposition. ¡¡To good reason is presented for disturbing the order. ¡¡To question was made at the hearing about taxes or repairs.

■ Our attention is called to some qther exceptions, but we find in them no sufficient ground for reversal. The judgment should be affirmed.

i Judgment affirmed, with costs. Order affirmed, with $10 costs and disbursements.

I All concur.


author: ADAMS, J.

text:
    Town of Wheatfield et al., Resp’ts, v. Tonawanda Street Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    Railroads—Street—Consent.
    Highway commissioners are “ local authorities,” who may consent to the construction of a street railroad on a bridge.
    Appeal from' an order continuing an injunction.
    Root, Orton, Baldwin & Baldwin, for app’lt;
    Warner & Lindsay, for resp’t.
   ADAMS, J.

The court at special term was undoubtedly correct in its view of the question which this case presents, and the opinion of the learned justice who presided leaves but little to be said. It may be suggested, however, by way of compliment thereto, that when proper emphasis is laid upon the language of the constitution there remains scarcely any opportunity for the contention made by the appellant’s counsel. Section 18 of article 3, which defines the powers of the legislature, provides that no law shall he passed authorizing the construction or operation of a street railroad, except upon the condition that the consent of the “local authorities having the control of that portion of a street or a highway upon which it is proposed to construct or operate such railroad-be first obtained.” Now, this language clearly indicates that the framers of the constitution recognized a condition of affairs, the existence of which is well known to every one at all familiar with the highway law of this state, viz., that a “portion” of a public highway is frequently territorially within one political subdivision of the state, while the burden of its control and maintenance is imposed upon another. And such is confessedly the situation which confronts the parties.to this action. One-half of the bridge in question is within the boundaries of the village of Tonawanda, while the other half is within the confines of the village of North Tonawanda. But the structure itself was built by the towns of Tonawanda and Wheatfield, with some assistance from the state, and the special act under which it was built provides that the towns shall he responsible for its repair and maintenance.Laws 1867, chap. 863, §• 9. Subsequently it was enacted by the legislature that nothing in the general act “giving to the board of trustees of a village power to make and repair bridges within the village hounds, or making them commissioners of highways, etc., shall be construed as divesting the commissioners of highways, for any town in which a bridge may be located, of power or control over the same.” Laws 1870, eh. 291, as amended by Laws 1887, ch. 513, § 3. It will be seen therefore, that the control of this bridge is expressly conferred, upon the plaintiffs, and, as it constitutes a “portion” of a highway over which the defendant seeks to construct and operate its road, it necessarily follows that the “local authorities” whose consent is to he obtained as a condition of such construction and operation must he the town highway commissioners. In re Rochester El. Ry. Co., 123 N. Y. 351, 356; 33 St. Rep. 695. The application of a simple test will determine the correctness of this conclusion. Suppose the defendant were to place some obstruction upon this bridge; could either or both of the villages, whose corporate limits extend to its center, maintain an action therefor? Most assuredly not, because the right to maintain and control the bridge resides elsewhere, and a municipality which cannot sue for or restrain the obstruction of any particular portion of a highway certainly cannot authorize the same to be used for a street railroad.

The order appealed from should he affirmed, with $10 costs and disbursements.

All concur.


author: RUSSELL, J.

text:
    The People ex rel. Anna Dunnigan, Pl’ff, v. Charles A. Webster, as Superintendent, etc., Def't.

      (Supreme Court, Monroe Special Term,

      Filed December, 1895.)

    Criminal law—Suspension op sentence.
    Section 12 of the Penal Code, as amended by chapter 279 of 1893, confers on the court of special sessions the power to suspend the sentence of a defendant convicted on a plea of guilty, and to impose a sentence and commit defendant thereon at a later date.
    Application for a discharge on a writ of habeas corpus from imprisonment. -
    Thomas Spratt and George E. Van Kennen for relator;
    Geo W. Hurlbut, Asst. Dist. Atty., for the People;
    Charles A. Kellogg, for resp’t.
   RUSSELL, J.

On the 21st of November, 1895, the relator pleaded guilty to a charge of leasing a house in the city of Ogdensburg for the purposes of prostitution. The proceeding was had before the recorder of the city of' Ogdensburg, sitting as a court of special sessions. Upon such plea sentence was suspended; and the relator suffered to go at large until the 4th day of December, 1895, when, being again before the recorder, sentence was imposed by him of confinement in the Monroe county penitentiary for the term of six months.

.On this proceeding the sole claim of the relator for her discharge appears to be that the sentence was void, because the recorder was functus officio in that case, and had no authority, after allowing a prisoner to go upon a plea of guilty, to again subject her to his jurisdiction. I have no doubt but that, if her claim is well founded, she may be discharged upon this proceeding, notwithstanding the apparent exclusion, by section 2016 of the Code of Civil Procedure, in habeas corpus proceedings, of cases of detention by virtue of a final judgment of a competent tribunal of criminal jurisdiction. The constitution gives the remedy of habeas corpus in cases of illegal detention, and the legislature-cannot narrow its scope. Tweed’s Case, 60 N. Y. 559.

There have been various cases holding that, when a magistrate tries a criminal, sitting as a court of special sessions, the court is organized pro hac vice only, and, with the end of that case, by judgment which should follow conviction or a plea of guilty, the court of special sessions loses its jurisdiction to do aught further in that criminal proceeding. Starks’ Case, 17 St. Rep. 234; Smiths’ Case, 9 N. Y. Supp. 181; Carter’s Case, 48 Hun, 165; 15 St. Rep. 640. It is unnecessary, however,-to consider these decisions as conclusive upon the question here involved, for those were cases where the magistrate had imposed sentence, and had, therefore, completed the work of the court. It matters not that the sentence imposed by him was void, for he had no power to set aside or disregard Ms own action, and impose a new sentence.

The whole theory of the right to suspend sentence is based upon a different exercise of power than that of the imposition of sentence. If courts of special sessions have power to suspend sentence, this implies the power, at the expiration of the suspension, to complete the work. Otherwise, the announcement of a suspension of a sentence would be a discharge. A suspension means a interregnum of the period between conviction and final judgment. The power is worthless, and does not in fact exist, if a suspended right to impose a sentence may not be exercised at the termination of the period of suspension.

Do courts of special sessions have the power, to suspend sem tence? Dp to the year 1893 there was no statutory power given to any courts in this state to suspend sentence, but that courts of record had such power inherently is beyond doubt. Forsyth’s Case, 141 N. Y. 288; 57 St. Rep. 404. I am cited to no case by either side which withholds from courts of special sessions the same power as criminal courts of record have in tMs respect. Why do courts of record have tMs power? It is manifest that it is a common-law power, flowing incidentally from a right to impose punishment. It is assumed that a court which may punish may also fix the time when the sentence defining the punishment shall be passed, and may withhold punishment entirely unless their power be otherwise limited by express statuaory enactment.

Courts of special sessions act within a much narrower sphere than those wMch have the power to try graver causes of offenses, but witMn that restricted sphere have all the powers incidental to the proper discharge of duty. If they may not sentence for long terms, it is still just as essential to the exercise of the power to sentence at all that they shall be able to appoint the day when sentence shall pass, or to suspend sentence entirely or for a limited oeriod. I see no distinction between the incidental powers of i ourts in those respects, except as to the term of imprisonment. 1 Ms power is recognized, if not expressly given, by section 12 of th 3 Penal Code, wMch provides as follows:

'The several sections of this Code, which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to determine and impose the pumshment prescribed; but such court may, in its discretion, suspend sentence during the good behavior of the person convicted, where the maximum term of imprisonment prescribed by law does not exceed ten years and such person has never before been convicted of a felony.”

This power to suspend was added to the section by the legislature of 1893 (chapter 279), and modifies the provision of the Revised Statutes in regard to courts of special sessions, now incorporated in section .717 of the Code of Criminal Procedure, which reqmres, upon a plea of guilty or conviction, the court to render judgment thereon or fine or imprisonment, or both.

It may also-be fairly argued that, for all the purposes of their action, courts of special sessions are, by Code Cr. Proc. § 11, now made courts of record, except as to the provisions of the consth tution providing for the removal of magistrates who may hold such courts. Whether, by analogy, the provision of the Code of Criminal Procedure limiting the term in which the sentence may be imposed (section 470a) is applicable to courts of special sessions, or not, is immaterial to the consideration of the legal question here involved. It may, however, be fairly deemed a wise subject for legislative action to have the powers of magistrates sitting as courts of special sessions more clearly defined in the respects indicated.

The prisoner is remanded to the custody of the superintendent of the penitentiary.

Prisonér remanded.


author: BARTLETT, J.

text:
    Benjamin Estes et al., Resp’ts, v. Robert J. Dean, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 14, 1896.)

    Reference—Compulsory.
    The fact that the services consist of distinct steps and proceedings, which may be stated in numerous separate items, does not make an attorney’s bill a long account within the meaning of' the" statute which authorizes a compulsory reference.
    Appeal from an order of compulsory reference.
    Lyman E. Warren, for app’lt;
    Benjamin Estes, for resp’ts.
   BARTLETT, J.

The respondents are quite right in their contention that the claim of an attornéy for legal services, if it involves the examination of á long account, may be sent to a referee for trial, just the same as a claim in behalf of any other person. In an action by an attorney against his client, however, to recover the value of professional services on a quantum meruit, it is settled by authority that the fact that the services consist of distinct steps and proceedings, which may be stated in numerous separate items, does not make the attorney’s bill a long account within the meaning of the statute which authorizes a compulsory reference. Randall v. Sherman, 131 N. Y. 669; 43 St. Rep.. 923; Spence v. Simis, 137 N. Y. 616, 618; 51 St. Rep. 167. The services rendered upon one retainer constitute a single cause of action. There are four such causes of action set out in the complaint herein. In regard to each the plaintiffs have itemized the work done in their bill of particulars, but the cases cited distinctly hold that a claim is not rendered referable by reason of the fact that it is thus capable of itemization.

The order appealed from should be reversed, with costs.

All concur.


author: CULLEN, J.

text:
    The People ex rel. Charlotte C. Seaman, App’lt, v. Charles R. Dickinson as Treasurer et al., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 14, 1896.)

    Municipal corporations—Assessments—Hearing.
    Sections 126 and 127, chapter 523 of 1883 (Poughkeepsie City Charter), which fail to provide for any hearing to the owners upon laying special assessments on abutting property for street improvement, are invalid.
    Appeal from an order denying a writ of certiorari.
    S. H. Brown, for app’lt;
    P. E. Ackert, for resp’ts.
   CULLEN, J.

This is an appeal from an order of the special term denying the application of the relator for the issue of a writ of certiorari to review an assessment for the repaving of Market street, in the city of Poughkeepsie. The substantial attack on the validity of the assessment is that the provision of the charter of the city (section 126, 127, chap. 523, Laws 1883) authorizing the respondents to lay an assessment for such improvements is unconstitutional, in that it fails to provide for giving any hearing to the parties to be taxed. The application was denied by the special term, not as a matter of discretion, but on the ground that the objection was not well founded. This court has already decided the question involved, in the case of People ex rel. Spencer v. Village of New Rochelle, 83 Hun, 185; 64 St. Rep. 146, where it was held that similar provisions in the charter of that village were invalid. That decision seems not to have been cited before the learned justice at special term. As he wrote an opinion supporting the conclusion reached, by him, it is as well that we re-examine the question.

In Stuart v. Palmer, 74 N. Y. 183, it was first authoritatively decided that no law authorizing the imposition of taxes or assessments by local authorities was valid, unless the law itself provided for a hearing of the owners of the property to be assessed. This rule has never since been departed from by the court of appeals, but, on the contrary, has often been reaffirmed. Remsen v. Wheeler, 105 N. Y. 573; 8 St. Rep. 202; In re Union College, 129 N. Y. 308,; 41 St. Rep. 640. The special term did not deny this principle, but apparently based its decision upon the theory that the legislature had itself exercised the power of apportioning the tax by prescribing the rule that the abutting property should be assessed, not according to benefits, but according to the frontage of each lot; and thus the duty imposed on the common council was so purely ministerial that a hearing before it was unnecessary, because it would have been unavailing. To support this claim, three cases are cited: Spencer v. Merchant, 100 N. Y. 585; State v. Kings Co., 125 id. 312; 34 St. Rep. 782; Genet v. City of Brooklyn, 99 N. Y. 296. In the first case, a local assessment having been held void for failure of the statute to provide notice, a subsequent statute was passed, 'directing that the uncollected part of the assessment should be apportioned among the abutters who had failed to pay the original assessment. The statute was held valid, but it provided for a hearing to the taxpayers, and the court based its decision on the ground that such hearing was neither vain nor illusory. The cases of Genet v. City of Brooklyn and State v. Kings Co. simply hold that “the power of taxation is vested in the legislature, and is practically absolute, except as restrained by constitutional limitations.” But we have already seen that a constitutional limitation which restrains its action is that a hearing must be given as to the apportionment of the tax; otherwise, the legislation is invalid. But it is unnecessary to pursue the discussion further, for in Be Union College, supra, it was held not only that the imposition of water rates in Long Island City was invalid, because the charter failed to direct a hearing, but also that, after an attempted imposition of water-rates had been made, a statute validating the same was equally bad for the same effect. Yet this last statute was almost the equivalent of a direct imposition of the tax by the legislature, for the exact amount of the tax and the particular property taxed were ascertainable from the assessment rolls.

Even if the theory of the special term were correct, it would not be applicable to this case. The precise tax had not been determined at the time of the charter, or the work commenced till years after. -The taxpayer might, on a hearing, have contested the amount of the expense of the improvement, and also the frontage of his lot. The hearing would, therefore, by no means have-been perfunctory. The discretion of the court in granting the writ is vested not only in the special term, but also in this bransh of the court. An appeal is therefore properly made to our discretion to refuse the writ, even though we find that the special term erred in its view of the law. But we think it wiser that a proceeding which we believe -void should be adjudicated upon in a direct proceeding, rather than remit the parties to a further litigation. However, some of the parties may prefer to pay the tax, void as it is,‘thinking (probably correctly) that it will be ultimately imposed upon them. For this reason we think there should be no stay.

Order appealed from reversed, and application granted, with $10 costs and disbursements, and also $10 costs of original motion.

All concur.


text:
    William B. Reynolds, Resp’t, v. Lydia Spencer et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Sale—Delivery.
    A delivery to a carrier, to be effective, must be of the quality and description and in amount called for by the contract. .

      2. Same.
    A delivery of goods on March 6, 1894, is not a performance of an agreement to deliver on or before May 1, 1893. So held, where the seller of goods contracted to deliver them to a carrier for the buyer on or before May 1, 1893, but, no delivery was made within that time, and the buyer, about September 1st, notified the seller that unless the goods were delivered immediately, he would refuse to accept them.
    Appeal from a judgment entered in favor of plaintiff.
    George P. Wood, for app’lts;
    C. H. Everts, for resp’t.
   MERWIN, J.

The defendants in 1893 were partners doing business at Union Springs, Cayuga county, N. Y., under the firm name of the Spencer Manufacturing Company; and the plaintiff lived in Hector, Schuyler county. In January, 1893, the plaim tiff and the defendants entered into an agreement by which the defendants agreed to make and deliver to the plaintiff, on board the cars at Union Springs, on or before the first day of May, 1893, one drag saw, with the appurtenances thereto, of the agreed value of $75, which the plaintiff agreed to pay by delivering to defendants certain property, of the value, as the referee finds, of $75 and upwards. The plaintiff, in pursuance of the agreement, delivered his property to the defendants on the 13th February; and the defendants received the same, and appropriated it to their own use. They did not, however, perform on their part, by delivering to plaintiff the property he purchased; and, as the referee finds, it has never been delivered. This action was brought on the 10th March, 1894, to recover of defendants the sum of $75, as damages for the breach by defendants of the contract; and the referee has awarded to plaintiff that amount, with interest from June 1,1893.

In defense, the main claim of the defendants is that on the 6th March, 1894, they delivered the property on board the cars at Union Springs, billed to the plaintiff, and sent him, by mail, the shipping bill. This, it- is claimed, was under the contract, a delivery to the plaintiff, so that the plaintiff, at the time of the commencement of the action, was constructively in possession of the property, and therefore not in a position to maintain the action. There is evidence that on the 6th March the defendants delivered at Union Springs certain articles, and mailed to'plaintiff the shipping bill. The plaintiff testifies that he never received the bill, and knew nothing about the delivery at Union Springs until long after the commencement of the suit, and that he refused to receive the property. It is not claimed that the plaintiff ever accepted the property. There is no evidence that the articles, as delivered at Union Springs,, did not comprise all the articles that, under the contract, were to be delivered by the defendants, as constituting “the drag saw and its appurtenances.” If so, it world not be a good delivery. A delivery to á carrier, to.be effective, must be of the quality and description and in amount as called for by the contract, Mee v. McNider, 39 Hun, 347; Gutwillig v. Zuberbier, 41 id. 363; Benj. Sales (Bennett’s Ed.) 330. Besides, a delivery on 6th March, 1894, is not performance of an agreement to deliver on or before May 1, 1893. In Benj. Sales, 330, it is said that a delivery of goods to a carrier at a much later time than ordered does not bind the purchaser to accept them; citing, among others, the case of Rommel v. Win-gate, 103 Mass. 327. But the defendants claim that the time for delivery was extended. On this subject the referee finds, on sufficient evidence, “that at different times between the time when said drag saw was to be so delivered and the 1st day of January, 1894, the plaintiff requested the defendants to deliver the same to him as they had agreed to do, and that on or about the last day of August or first of September, 1893, the plaintiff requested. the defendants to deliver said drag saw to him immediately, and gave them notice that, if they did not deliver the same forthwith, he would have no use therefor, and would refuse to accept the same.” This notice was never withdrawn or modified or waived. At least, it should not be said, as matter of law, that there was a waiver. The finding of the referee is, in effect, agaist the defendant on this subject. We are of the opinion that the attempted delivery on the 6th March did not bind the plaintiff, and, in the absence of an acceptance by plaintiff, is no defense to th'e action. We are referred to the case of Dunn v. Steubing, 120 N. Y. 235; 30 St. Rep. 653, but that case is very unlike this.

Judgment affirmed, with costs.

All concur.


author: VAN BRUNT, P. J.

text:
    Howard H. Van Ingen et al., Resp’ts, v. Henry G. Hilton, App’lt.

      (Supreme Court General Term First Department,

      Filed December 18, 1895.)

    Judgment—Opening default.

      Where an order, opening a default on the condition that defendant pay costs, fixes no time for payment, the defendant is entitled to the statutory time therefor.
    Appeal from an order striking the cause from the circuit court calendar. '
    R. Tracy, for app’lt;
    W. H. Arnoux, for resp’ts.
   VAN BRUNT, P. J.

The plaintiffs brought this action, against the defendant, and an answer was served, but said answer contained no plea of payment. The case having been placed upon the short-cause calendar for trial, an inquest was taken by default, and judgment entered. A motion was thereupon made to open the default, and for leave to amend the answer; and an order was entered upon such motion the 8th day of May, 1895, opening the default, upon the condition that the defendant pay to the plaintiffs costs in the action before notice of trial, and the costs of motion, and that the judgment entered stand as security. The order further provided, in a separate paragraph, that the defendant might amend his answer by setting up therein the plea of payment, provided that said answer, so amended, was served upon the attorneys for the plaintiffs within five days from the entry of the order. The order further provided, by another separate paragraph, that the case should be set down for trial for the short-cause calendar for May 17, 1895; and the order further provided that, should the defendant fail to comply with any of the terms of the order within the time and in the manner therein provided for, his motion should be denied, with $10 costs to the plaintiffs. On the 13th of May, 1895, a copy of the amended answer was served, without the payment of the costs, and the answer was returned with a notice of this objection. Two days thereafter a copy of the amended answer was tendered, with the -costs, and the same refused. Thereupon, on affidavits submitted by both sides, setting forth the facts, the cause was ordered to be stricken from the circuit calendar.

The single question is whether the defendant was in default in respect to the payment of costs. It is clear that he was not by any express provision of the order. It can only be so held by assuming that he was bound to pay his costs within the five days provided for serving the amended answer. But as the order in question does not so limit the time to pay the costs, and as the order was drawn and entered by the respondents’ attorney, it seeems to be difficult to see how the court could impose such a penalty as the denial of the defendant’s right to appear and defend, because of his alleged erroneous construction of an ambigú-» ous order. But we cannot find anything in the order which required the payment of these costs within five days. It may be true that-it would have been proper to make such a provision; but the order did not so provide, and the attorney for the appellant had a right to rely upon the statutory time in which to pay these costs where no time was fixed in the order; and, certainly, he had a right to rely upon this statutory provision until the time fixed for the trial. Such being the case, he having tendered the costs two days prior to the time fixed for trial, he certainly was in time, and was not in default.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion to strike the cause from the calendar denied, with $10 costs.


author: PARKER, J.

text:
    Astoria Veneer Mills, Resp’t, v. John W. Looschen, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Sale—Phoop.
    The question whether there had been a resale of the wood to plaintiff, . was held, under the facts in this case, to be one for the jury.
    Appeal from w judgment entered on a verdict directed by the court in favor of plaintiff.
    John Ford, for app’lt;
    John Delahunty, for resp’t.
   PARKER, J.

The court directed a verdict in favor of the plaintiff for $633.37. The defendant insists that, as to $288.64 of such amount, there was a question for the jury, and our examination of the evidence leads us to agree with him. For a number of years prior to the transaction in dispute, the defendant, who was a piano case manufacturer, had been accustomed to purchase wood of the plaintiff suitable for his business. Such purchases were made through Jared J. Looschen, who had general charge of the business of this defendant. In the early part of September, 1892, Jared. J. Looschen called at the plaintiff’s place of business and inquired for “mahogany veneer with a little figure in it.” He purchased one lot, and then the salesman, Reed, called his attention to some finely-figured wood. The figure pleased Looschen, who asked the price of it, and upon being informed that it was five cents a foot he said he would give four for it. The offer was not then accepted, but Reed said he would submit it to Mr. Williams on his return, who decided to accept it. The wood was at once shipped to the defendant, but before it reached him he received a bill from the plaintiff, and, following their usual method of dealing, he at once sent his note to plaintiff for the full amount of the bill. When the wood came to his attention, he discovered that it was not mahogany veneer, but California redwood, which could not be used in his business. Both Looschen and the salesman, Reed, agree that nothing was said about California redwood, and that no other kind of wood was referred to by name than mahogany veneer. Indeed, their testimony is not in conflict in any respect. As soon as the wood reached Looschen, he opened it, and, finding that it was not mahogany, he went at once to the plaintiff’s factory, where he saw the president of the company, and Looschen describes what took place as follows:

“I told him that the mahogany that they had shipped me was, California redwoodfi and billed as sequoia, and was not fit for; piano cases, and that, if I used it, it would come hack from my customers, and that I wished to send it back to them. And he said, 'Why, certainly, Looschen; I could have told you that any day,—that it was not fit for piano cases, and he ought not to have sold it to you.’ He asked me who sold 'it to me, and I told him •Mr. Heed. I said, 'I want to send it back.’ He says, 'That will be all right; you better wait and see later, because I don’t want to interfere.’ Apd he says, 'Alec is out of town, and you better wait and see him.’ ”

Looschen did not wait to see Alexander Williams, the person referred to as “Alec,” but returned the California redwood to the plaintiff. Alexander Williams at once reshipped it to the defendant, whereupon Looschen called upon him, and a conversation ensued upon the subject of its redelivery to the plaintiff, with a credit to the defendant for the purchase price. They differ as to what took place. Williams testifies that he refused to give defendant credit for the wood, but said he would take it, and sell it for him if he should have opportunity to do so. Looschen’s testimony on that subject was in part as follows:

“Í went in to see Mr. Alexander Williams, and I asked him, 'What did you ship back the veneer for? I told your father about it,—that I couldn’t use that in my business, and I bought it for mahogany, and it isn’t mahogany.’ He says, 'That don’t make any difference. We sold you that veneer, and we can’t take it back.’ And I says, 'It isn’t worth five cents to me. I was deceived in the matter.’ And he says, 'We have used your note for discount.’ I said, 'I don’t care anything for that. You can allow me for it later on, for I am not in any hurry about that.’ Then he says, 'All right, Looschen, let her come back.’ And I sent it hack, and they have had it ever since.”

H Looschen’s testimony was true, then the jury were authorized to find a resale of the California redwood to the plaintiff, followed by its actual delivery to and acceptance by it. Whether it was true, was a question of fact for the jury.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.