author: Macomber, J.—This

text:
    Ann M. Dill et al., Adm’rs, Pl’ffs, v. Charles W. Voshall, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Negligence—Failure of proof.
    A person was attempting at night to drive to his mother’s house through a covered way, which was closed by gates. The defendant, by permission of the owner of the locus in quo, had put bags of cement in this way. It was claimed that these white objects frightened the horse. It appeared, however, that the horse reared and plunged into the passageway before reaching said bags. It was also alleged that the bags of cement prevented the gates from opening to their full width. On the other hand, a witness of the accident, from recollection, placed the gates about as they were at the time of the accident, and it was found that the gates, although not opening to their full width, did not interfere with the ordinary width of the wagon track. Held, that a nonsuit was proper.
    Motion by the plaintiffs for a new trial on a case and exceptions, ordered to be heard at the general term in the first instance, after a nonsuit at the Monroe circuit, in October, 1890.

      George D. Reed, for pl’ffs; Thomas Raines, for def’t.
   Macomber, J.—This

This action is brought to recover for injuries resulting in the death of Prank Dill, the son of the plaintiff, Ann M. Dill, on the 3d day of May, 1889.

The deceased was attempting to drive from North Clinton street through a covered way into the premises of his mother. In order to reach his mother’s house it was necessary to drive through a space ten feet nine inches in width from wall to wall, and covered for a distance of twenty-eight feet. This driveway was shut off by two gates, one of which was seven feet two and one-half inches in width, hanging upon hinges fastened to a post on the south wall of the driveway; and the other hanging upon hinges fastened to a post upon the north wall of the driveway, the latter being about three feet in width. When closed, both gates came together at a low foot post standing three feet four inches from the north wall of the driveway. To this foot post the large gate was fastened by a hook, which held it in place, and the "smaller gate was fastened to the larger one by means of a latch. Both gates swung into the driveway; the largest one toward the south wall, and the smaller one to the north wall. A board walk existed along the north wall two feet three inches in width. The driveway, so far as it was covered, was in the night time a dark passageway. The south wheel track was shown to be a little over three feet from the south wall, and the north wheel track to. be three feet four inches from the north wall.

The deceased, who had driven in and out of this place during the day, when first seen by the witness appeared in front of the entrance at 10:40 P. M., with his horse’s fore feet upon the sidewalk, desiring to enter through the passageway to his mother’s house. The only eye witness of the occurrence, who was passing along the sidewalk at this time, was asked by the deceased to open the gate in order that he might pass in, and was instructed by the driver how to proceed to open it. This witness finally took hold of the large gate at its further end and was required, inasmuch as it sagged to the ground, to lift it along, but at a time, so far as the evidence discloses the fact to be, before he had carried the gate as far as it would go, the horse, which was at this time very restive, reared and plunged into the passageway, so that the witness was obliged to scramble to get out of its way. In some manner or other, not clearly disclosed by the evidence, the driver was thrown from the buggy (the wheels having passed upon the sidewalk upon the north side of the passage way), and received a blow upon his head, from what source it is impossible to tell, resulting in his immediate death.

It is claimed in behalf of the plaintiffs, that the defendant is responsible for the death of Frank Dill. The charge against him is, that he placed bags of cement within the passageway, standing them on end along the south wall, so that on opening the gates the large gate could not be placed back parallel with the wall, but at a distance four or five pickets from the hinges the same came in contact with the bags, thus preventing a clear opening. These bags of cement, which the defendant, being a builder, was using in the construction of a building adjacent to Ann 'M. Dill’s premises, had originally been placed along the south wall of the passageway by the consent of the owner of the premises. There is no evidence that the defendant had been requested to remove the bags, but had neglected to do so. The plaintiff’s contention is, that these bags, being white objects appearing in a dark passageway, frightened the horse. But the testimony of the witness to the occurrence, taken as a whole, completely negatives such contention. The witness had made no motions to open the small gate, but it is perhaps a sufficient answer to that to say, there was evidence to the effect that the small gate when released from the larger one would, by gravity, swing back toi the north wall. The witness says that he swung the large gate around until it came to a jar and that he could not push it any further; and at that instant the horse gave a leap, plunging toward the north wall,-and as the horse plunged into the driveway the witness fell back, hearing the crash at the same instant.

This witness subsequently visited the place of the accident and placed the gate in the spot as his recollection showed it to be at the time of the accident, swinging it back to a point as far as he had swung it on the night in question, and he says, as a result of those subsequent observations, the further or swinging end of the gate was, at the time of the occurrence, twelve and one-half inches south of the south edge of the south wheel track.

The evidence, taken all together, shows that the claim made against the defendant is placed upon a hypothesis which finds no support in the evidence. Had the jury rendered any verdict under these facts other than that the deceased came to his death by reason of the unruly plunging of the horse, it would not have been supported by the preponderance of the evidence.

It follows, therefore, that the nonsuit was properly granted, and the motion for a new trial should be denied.

Motion for a new trial denied, with costs, and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    Abram Shaver, Resp’t, v. Nelson B. Eldred, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Justice’s court—When title to land is in question.
    The complaint in an action in a justice’s court alleged that the plaintiff was in possession of a farm which was tillable; that the defendant by flush boards placed upon a dam unlawfully raised the waters of a lake so that it overflowed his farm and damaged his crops. This was denied in the answer, and the defendant set Up certain legislative acts in defense of his proceedings. The defendant also plead that the title to real estate would come in question. The undertaking offered was disapproved by the justice, who gave the plaintiff judgment. Held, that irrespective of this latter defense there was a proper issue presented for trial, and it was error for the county court on a new trial to exclude evidence in support of the defense.
    Appeal from a judgment of the Cayuga county court entered February 4, 1890, on the decision of the county judge, without a jury, in a case brought to that court by appeal by the defendant from a judgment of a justice of the peace.

      C. M. Baker, for app’lt; H. V. Howland, for resp’t.
   Macomber, J.

This action was originally brought in a court of a justice of the peace where a judgment of thirty dollars, besides costs, was rendered in behalf of the plaintiff, upon a complaint in trespass for flooding the lands of the plaintiff by raising the dam of the outlet of Owasco Lake by means of flush boards thereon, thus overflowing the plaintiff’s farm.

On appeal from that judgment to the county court, a new trial was had before the county judge, without a jury, resulting in a judgment for the plaintiff of $150 damages, besides costs. The general term of this court affirmed such judgment of the county court, in a decision reported in 38 Hun, 633. But, upon appli- * cation of the defendant, leave was granted to appeal from the judgment of affirmance to the court of appeals, where the judgments of the lower courts were reversed and a new trial granted in the county court. 114 N. Y., 236; 23 N. Y. State Rep., 293. Upon the new trial in the county court, a jury having been waived, the judge, under findings of fact whereby he found that the plaintiff had sustained damages to the amount of One hundred and fifty dollars, directed as a matter of law that judgment be entered for Two hundred dollars damages, besides costs.

The court of appeals has held that this action is not maintain able under the facts disclosed upon the first trial. It there ap peared that in the year 1857 an act of the legislature was passed (Chap. 524) appropriating this dam for the use of the Erie canal, subject to the use for hydraulic purposes by the owners of such dam. The canal commissioners were authorized to increase the height of the dam, and to appropriate for that purpose necessary lands, water rights, etc. In pursuance of a resolution of the canal board, flush gates were put upon the dam by the commissioner in charge, raising the water above the dam. Under an act of the legislature of 1874, chap. 399, this dam was rebuilt at the same height as the old one, with flush gates two feet in height, taken from the old dam and built into the new. The defendant, acting under authority in writing of the assistant superintendent of the public works of the state given to him two years before, opened the gates of the dam, and in consequence thereof the water overflowed the lands of the plaintiff. The court of appeals held, under these facts, that assuming that the commissioners did not proceed in all things as required by statute, yet the legislature in subsequently making appropriations and passing laws upon the subject must be deemed to have acted with reference to what had been done by the canal authorities, and to have adopted and ratified their acts, and that consequently at the time in question the state had the right to use the flush gates, and that the remedy, if any, of the person aggrieved, was by making a claim for compensation against the state. '

Under this decision of the court of appeals, had the same facts appeared at the trial, it would have been the duty of the county court to have dismissed the complaint. But it now appears, apparently for the first time, that the point is taken by the learned counsel for the plaintiff that under the answer the proof ■which had been offered upon the former trial without objection, and under which the court of appeals has determined that no right of action exists, was incompetent At the trial before the county judge, now under review, all attempts to prove the facts as they existed upon the former trial were excluded by the learned county judge, upon the ground that such offers of evidence were incompetent and immaterial. No objection is distinctively made to the competency of such evidence under the answer, or that the answer was not sufficient to admit the introduction of such evidence, save only an intimation contained in the case, when the counsel for the defendant moved for a non-suit, in which the court expressed the opinion that so much of the defendant's answer as attempted to raise a question of title to real estate was not to be considered as part of the answer in this case. If we understand the position of the county judge aright, and the argument made by the counsel for the plaintiff in support thereof, it is, in effect, that the defense relied upon, the facts of which were offered to be proved, could not be permitted to bo proven, unless a good and effective plea of title had been filed with the justice of the peace with the usual undertaking approved by the justice, so as to oust the justice of jurisdiction by such plea of title, and conferring the right to try such a question solely upon the supreme court or the county court.

Under subdivision 2 of § 2863 of the Code of Civil Procedure, .a justice of the peace has not jurisdiction of a civil action where title to real property comes in .question, as prescribed by subsequent provision of the Code. Under § 2951 the defendant may, either with or without other matter of defense, set forth in his answer facts showing that the title to real property will come in question. The justice of the peace is required, by the same section, to countersign the answer and deliver it to the plaintiff.

By § 2952 the defendant is required to deliver to the justice, with the answer, a written undertaking executed by one or more sureties approved by the justice, to the effect that if the plaintiff, within twenty days thereafter, deposit with the j ustice a summons and complaint in a new action for the same cause, to be brought in the proper court, the defendant will, within twenty days after the deposit, give a written admission of the service thereof. Upon the proceedings before the justice of the peace an undertaking was presented in due form, with two sureties who justified amply, and yet the justice, for some reason undisclosed, disapproved of the undertaking. Whether such disapproval was made upon the ground that the case presented was not one proper for the filing of an undertaking, or whether the sureties were not deemed to be sufficient, does not appear. Inasmuch, however, as the formal parts of the undertaking were in strict accord with the statute, it must be presumed that the justice rejected the undertaking (in the absence of a disapproval thereof on the ground of the insufficiency ■of the sureties) upon the ground that the case was not one coming within the purview of the statute.

But in any view which may be taken of the case, we think that the evidence offered upon this trial, and which had been re•ceived and pronounced upon so conclusively upon the other trial, was clearly "competent under the pleadings. The complaint is to the effect that the plaintiff was, at the time stated, in possession of his farm which was tillable, through which the waters of Owasco inlet are allowed to pass; that the defendant wrongfully and unlawfully raised the upper dam of the outlet of the lake, by placing flush boards thereon, so that the waters of the lake and inlet backed up and overflowed the plaintiff’s farm and rendered the ■same worthless for agricultural purposes and injured his crops and grain during the year 1883 to the damage of $200.

The defendant’s answer is, first, a general denial; second, “ That the plaintiff has not such title to the premises mentioned in the complaint as will enable him to maintain this action. That title to the real estate will come in question herein.” Thence follow allegations to the effect that the dam in question is maintained by the People of the state of New York, and that the same, together with the flow of the waters of the outlet of Owasco lake, are regulated by the officers of the state under the laws thereof; that the acts of the defendant were performed in pursuance " of the directions or the authority of the superintendent of the public works of the state of Hew York, and the authority of the superintendent or assistant superintendent of the canals, and that the defendant has been guilty of no acts which were not authorized or directed by the officers of the state, and that the state has the right, under the acts mentioned, to regulate the flow of the waters from Owasco lake through its outlet. Then come suitable allegations showing that the plaintiff had made a claim before the canal appraisers of the state for compensation growing out of the same injuries, which had been denied him upon the merits of the case.

It is difficult to discern from the record before us, in the absence of an opinion of the learned county judge, why the evidence so offered by the defendant was not received upon this trial now under review, as well as upon the former trial We may assume that the effort in the answer to plead title to real estate, and thus to oust the justice of jurisdiction, was ineffective. There remains, however, before that court a perfectly good answer, irrespective of the question-of-title to real estate. The plaintiff in his complaint did not allege that he was the owner of the lands in question: he merely alleged that he was in possession thereof, under the form of an ordinary action of trespass. This was denied in the answer, and the other facts above mentioned were set up. Under this denial, and under these facts alleged, it was the duty of the county court to have received these rejected offers of evidence, and, having received them, it was likewise its duty, under the decision of the court of appeals in this case, to have dismissed the plaintiff’s-complaint.

Judgment appealed from should be reversed, and a new trial granted.

Judgment reversed, and a new trial granted, with costs to abide the event. f

Dwight, P. J., and Lewis, J., concur.


text:
    The Village of Mayville, App’lt, v. Mariette Wilcox et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Municipal corporation—Cannot maintain an action por a riparian RIGHT.
    In 1804 the' Holland Land Company laid out a street in a village six rods wide, the end of the street abutting upon Chautauqua Lake, a navigable b. dy of water. In 1887 the court of common picas of Chautauqua county under § 3 of chap.150, Laws of 1837, granted to Dexter and Tinkom permission to erect a wharf and thereon a store house at the end of said street 40 feet wide. The effect of this was to narrow the street where it met the water .by that distance. The charter of the village gave it the power of commissioners of highways. In an action against.the grantees of Dexter and Tinkom to restrain their erection of a building upon the wharf to the end that the street might be restored to its original width, EM, that the.village had no riparian rights and could not maintain such an action and that this could be done only by the People, the grantees of the Holland Laud Co.
    2. Same—Presumption that a court acted within its jurisdiction.
    The said statute of 1827 provided that such permission could only be given to adjacent owners and the order did not show that Dexter and Tinkom were such. Held, that it would be presumed that a court of record acted within its jurisdiction.
    8. Adverse possession— Prescriptive right under decree op court.
    The occupation of the defendants and their grantors since 1827 was shown. Held, that this established a prescriptive right under a claim of title based upon the decree of a competent court having jurisdiction.
    Appeal from a judgment enteredpn Chautauqua county November 27, 1886, on the report of a referee dismissing the plaintiff’s, complaint upon the merits.

      Shermun A Rogers, for app'lt; Lorenzo Morris, for resp’ts.
   Macomber, J.

This action was brought to restrain the defendants from erecting buildings in front of the termination of Brie street in the village of Mayville, abutting against the waters of Chautauqua Lake.

The plaintiff, which was incorporated April 19, 1867, has, by virtue of its charter, the powers of commissioners of highways, under the general' laws of the state, within the limits of Mayville.

The Holland Land Company was the original proprietor of the land situated within the corporate limits of this village, and of the waters of Chautauqua Lake. The lake is a navigable body of water and sundry lines of steamers are now operated thereon for the purpose of conveying passengers and merchandise to and from various parts of its shores. The Holland Land Company laid out Brie street in the year 1804, the map of which (included in the map of the village) was filed in the county clerk’s office of Chautauqua county on the 23d day of February, 1829. The street was then six rods wide. In. the year. 1827 the court of common pleas, on proper application, made an order, dated the 27th day of June of that year, granting permission to John Dexter and Hezekiah Tinkom to erect a wharf on the land covered by the water at the termination of Erie street, and to extend it on a line parallel with the northeastern line of Erie street to the width of forty feet, for a distance of three hundred feet into the lake, with the privilege to erect on such wharf or pier such store houses as they might think necessary for public convenience. This order has remained unrevoked. At the time mentioned the waters of the shore of Chautauqua Lake, at this point, were shallow, not exceeding the depth of two feet at a distance of fifty feet from the shore. In pursuance of the power given to Dexter and Tinkom by the court of common pleas, these persons did, in the year 1828 or 1829, erect a wharf and storehouses at the termination of Brie street, in accordance with the power thus bestowed, namely, taking up forty of the ninety-nine feet of the street at its' intersection with the water, and carrying the wharf or pier into the lake a distance of three hundred feet. These premises, for a width of forty feet, have been in the possession and occupancy of the defendants. and their grantors since the year 1828 or 1829. The wharf has not been used for about twenty years, and the buildings erected thereon by the defendants were destroyed by fire about the year 1883.

That the court of common pleas had the power to make the grant above mentioned admits of no doubt, under chap. 150 of the Laws of 1829. Section 2 of that act is as follows:

“ And be it further enacted, that it shall and may be lawful for ■any person owning lands adjoining the Cayuga, Seneca or Chautauqua lakes, to erect any wharf or wharves, storehouse or storehouses, upon any land covered by the water of such lakes, adjacent to, and bounding upon the land of such owners, and to use, occupy and enjoy the same, as if conveyed by the commissioners of the land office, pursuant to an act passed February 6, 1824;

;"provided, that nothing in this act shall be so construed as to authorize any person to erect a wharf at the termination of any highway, so as to obstruct the passage of ferry boats or any other water craft; and, provided, further, that before any peráon or persons shall be authorized to erect any wharf or storehouse in Chautauqua. lake, such person or persons shall first apply to, and obtain the consent and order of the court of common pleas of said county, which consent and order shall not be granted until the applicant or applicants shall first give at least three weeks notice of such intended application, by publishing a notice in one of the newspapers printed in said county; and when such order and consent shall be obtained, it shall forthwith be filed in the clerk’s office of the county of Chautauqua.”

The learned counsel for the appellant contends, notwithstanding the judgment of the court of common pleas, and the continued occupation thereunder by the defendants and their grantors, that the village of Mayville, nevertheless, has the right to maintain Erie street as a public highway to its full width of ninety-nine feet unobstructed to the water’s edge. In this contention we cannot concur with counsel. Erie street was by the Holland Land Company opened and dedicated as a street in the year 1804. It was then, it, is true, six rods wide. The public had received, through the dedication made by the Holland Land Company, no rights beyond a right of way to the waters of the lake. We ¡know of no powers given to the village of. Mayville to construct wharves and maintain them upon these waters. The right of action underlying this suit seems to be based upon allegations that the defendants threatened to erect and maintain in front of such street, within the limits of its lines, extended into the waters of the lake, structures and buildings the erection of which, it is claimed, would prevent the plaintiff and the public from enjoying the frontage of Erie street upon the lake, and from using the same as^ an approach to and from the street, clocks or wharves that may be' hereafter erected thereon, whereby the plaintiff would be deprived of its vested riparian rights. But it is quite evident that the plaintiff has no riparian rights over the waters of Chautauqua lake.

It is a municipal corporation, without ownership of any highways or streets except in trust for public use. Its charter is silent upon

the subject of any riparian right; and. our attention has not been called to any statute which would give it any power to erect, for its own purposes or for the purposes of the commerce of the lake,, piers or wharves out into the lake for its own use, to the exclusion of the public. It cannot be regarded as having any control over the navigable waters, unless such power is expressly conferred by statute. If the defendants have made, or if they now threaten to make any structures into the lake, so as to impede navigation, it is not, in our judgment, the province of the village of Mayville to call such action in question; but the same is cogziable only by the proper action in behalf of the people of the state, as the state has succeded to the original rights of the Holland Land Company. Wetmore v. Brooklyn Gas Light Co., 42 N. Y., 391.

1Furthermore, it appears that the occupation by the defendants and their grantors, which has been continuous since the year 1828, lias been not of the whole of the foot of Erie street upon the lake, but of only forty feet thereof out of the total width of ninety-nine feet. There remains, therefore, to the village ample room of access to the lake, and it has not been deprived in any respect by the interference of the defendants with easy egress and ingress from the lake to the highway.

It is further claimed by counsel for the appellant, that the order of the court of common pleas above mentioned was ineffective, because it did not affirmatively appear, outside of the recitals of the order, that Dexter and Tinkom owned lands adjacent to the waters of the lake where the wharf was permitted to be extended. But in our judgment, a presumption arose that the court acted within its jurisdiction, for it was a court of record.

Moreover, the statute does not require that the order as entered shall contain the proofs upon' which it was founded. The direction is that the order only shall be entered upon the record of the clerk’s office.

Under the facts proved, the occupation by the defendants and their grantors since the year 1828 clearly establishes a prescriptive right, under a claim of title, based upon a decree of a competent court having jurisdiction in the premises especially bestowed, by the statute above set forth. Code Civ. Pro., § 369.

The title of the defendants and their grantors has been repeatedly recognized by the plaintiff. In the year 1869 condemnation proceedings were instituted by the plaintiff to extend Erie street over the lands in question; but after a jury had been summoned for the assessment of damages and an appeal had been taken, the proceedings were subsequently abandoned and discontinued. Since the incorporation of the plaintiff, it has caused the premises and property of the defendants and their grantors to be assessed, and has exacted and received taxes thereon from the defendants and their grantors.

Were it important or necessary to establish the fact that the plaintiff has ample access to the lake, it would be sufficient to point to the evidence, and to the accompanying map, which show that it has control of Water street, which runs nearly at light angles to Erie street, and along the shore of the lake, and that such street affords all adequate facilities needed by the plaintiff.

The judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Dwight, P. J., and. Lewis, J., concur.


text:
    C. Frank Pitcher, Resp’t, v. The Lake Shore & Michigan Southern Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Railroad—Negligence—Drover’s pass.
    The plaintiff, in charge of stock, was traveling upon a ticket which provided that if such persons left the caboose and passed along the tracks they did so at their own risk; that such trains need not be started from depots or platforms and that the carrier need not furnish lights to persons accompanying stock. The conductor told the plaintiff he could not ride further in the caboose, but must ride with his stock; that he would have time to go to a hotel and get his supper, and that the train would remain on the track forty-five minutes. While plaintiff was thus absent the train was shifted to another tr ck. He returned in half an hour, went to the new track, passed around its engine in'sight of and near.the engineer, reached the side of the stock car which, from electric lights on the other side, was in shadow, attempted to board the car, the engineer at that moment backed the train and plaintiff was injured. Held, that the question of defendant’s liability for negligence was for the jury.
    3. Same—Duty to passenger.
    Notwithstanding the stipulation of the ticket, the defendant owed the plaintiff, as a passenger, due diligence in protecting him from harm.
    S. Same.
    R was for the jury to say whether the engineer saw the plaintiff when he passed by to board the train.
    4. Same—Passenger may rely on conductor’s statement.
    As the plaintiff had been informed by the conductor that he must leave the caboose at that station and thereafter ride with his stock, he had a right to assume that it would be safe for him to board the stock car at any time within the time name by the conductor.
    Appeal from a judgment entered in Erie county, March 26, 1890, upon a verdict rendered at the circuit for $8,000 for the plaintiff, and from an order denying defendant’s motion for a new trial made upon the minutes of the court.

      James Fraser Gluck, for app’lt; Norris Morey, for resp’t.
   Macomber, J.

When this case was before us upon a motion for a new trial in behalf of the plaintiff, after a non-suit, it was held that there was sufficient evidence to submit the question of the defendant’s negligence and the plaintiff’s "want of negligence to the jury. Pitcher v. Lake Shore & Michigan Southern Railway Co., 28 N. Y. State Rep., 647.

Upon the second trial evidence was given in behalf of the defendant touching the matters under review upon the first hearing, and it is upon such testimony that the learned counsel for the appellant now claims that the case is materially different in its legal aspects from the one which was formerly presented to us. Unless this contention of the learned counsel appears to be correct, we must adhere to our former conclusions.

The plaintiff, while riding upon the freight train of the defendant, had in charge nineteen horses for his employers who lived in Boston, Mass., and was making a continuous trip from Tecurnseh, Michigan, to Boston. He arrived in Buffalo July 12, 1887. Before arriving there, on conference with the conductor of the train, he was informed that he would have ample time to leave his charge and go to the Crandall House and get his supper, and that the train would remain on the track where he would leave it for a period of forty-five minutes, and that he could return to the train at any time during that period. The plaintiff had no passage ticket, but was travelling upon a ticket issued in the usual form to drovers or persons in charge of horses, and it contained the following clause :

“ That whenever the person, or persons, accompanying said stock under this contract, to take care of the same, shall leave the •caboose and pass over or along the cars or track of said first party, or of connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause, and neither the said first party, nor its connecting carriers, shall be required to stop or start its trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock to take care of the same under this contract”

This provision of the contract does not, in our judgment, in any respect vary the facts from which, upon the former hearing, we adjudged that the plaintiff was a passenger upon the defendant’s road to whom there was owing all due diligence from protection and harm while riding upon the railroad, or while engaged in the care of his horses. (See cases cited upon the former hearing, and the limitation of such rule there stated.)

When the plaintiff left the train it was under information, imparted to him by the conductor, that the caboose in which he had ridden from Tecurnseh to Buffalo would go no further, but that he must ride thereafter in a car occupied by his horses. With this information and with the assurance that the train would be upon the track for him to board at any time within forty-five min-'rites, the plaintiff proceeded to his supper at the Crandall House, where he remained from twenty-five to thirty minutes. On his return he found that the train had been shifted two tracks further off, and that a locomotive had been placed at the rear end •of the train for the purpose of backing the same to other yards •of the defendant. It appears upon this trial, as it did upon the former, that there were electric lights upon the side of the train facing the Crandall House, but that in order to go aboard the car it was necessary for him to pass. around the locomotive, which then stood partly across a roadway into the defendant’s stock yards. The plaintiff testified, that in passing around the locomotive he came within two or three feet of the engineer, who seemed to be looking towards the rear of his train. The plaintiff was then carrying his hand bag. He does not testify positively that the engineer saw him, nor did he so testify upon the former trial. The engineer himself testified that he did not see the plaintiff. On coming to the car, into which he intended to pass, he placed his bag in the door, and taking hold of the handle, with his right foot in a sort of stirrup, he was lifting himself into the car when, by a sudden and unexpected backward jerk of the train his leg; came.in contact with a chute close to the outer edge of the car,, which resulted in such injuries to it as to require its amputation. No warning was given of the movement of the train.

The learned trial justice submitted the question to the jury, whether or not it was not the duty of the defendant, under the circumsta-nces, to give some warning to the plaintiff, so that he should not incur the dangers of entering the car at that place, of which danger he had no previous knowledge or information. In this ruling we think the learned justice was correct. It was left, to the jury to say whether or not the engineer saw the plaintiff passing around the engine with a hand bag under such circumstances as indicated the purpose of the latter to board the train. It now appears, a circumstance which in this respect is different from the other case, that the present engineer was not the same one who had brought the train into Buffalo. But, under the evidence given by the plaintiff of his arrangement made with the conductor, this circumstance cannot he deemed of importance. On the other trial the plaintiff testified that the engineer seemed to be looking at him as he passed around the locomotive. On the present trial he does not use the same language, but he says that the engineer seemed to be looking eastward down the train where the plaintiff was going to take liis car. It is now argued by counsel for the appellant that there was nothing in the situation to call the attention of the engineer to the plaintiff or to lead him to think it was the purpose of the latter to get aboard the train; for, as is argued, people were accustomed to pass at this point. It is not, indeed, contended that this was a public highway. On the contrary, it is conceded that it was a way made solely for the uses and purposes of the railroad company in giving ingress and-egress from its cattle yards. It was not a highway either for persons on foot or in carriages.

.If, indeed, it be true, as .the jury may have found, that the engineer must have seen the plaintiff passing around the locomomotive with his hand bag in his hand at the time of evening stated, to wit, between half past eight and nine o’clock, the reasonable inference to be drawn by the engineer would have been that it was the purpose of the plaintiff to board the train, and that he was apparently a passenger having live stock in charge. Yet. the right of the plaintiff to recover is not solely based upon this inference which the jury may have drawn of the actual observation of the plaintiff by the engineer. For, under the testimony given by the plaintiff relating to his conversation with the conductor at the time of leaving the train on the arrival in front of the Crandall House, the plaintiff being unaccustomed to that locality, had a right to assume that it would be safe for him at any time to enter the car containing his horses within the three quarters of an hour limited to him by the conductor. It may be said, however, that this arrangement did not preclude the company from shifting the train to another track if the needs of its service required it. This, undoubtedly, is true. But whether the train was upon the track where the plaintiff originally left it, or upon any other track in that vicinity, the plaintiff had a right to assume that the directions given to him by the conductor, namely, that he could no longer ride in the caboose but must enter the car containing the horses, might be complied with at any place where he found the car, within the time named.

The contention made by the counsel for the appellant, that the proper place for the drover to get in and out of the car was at the ends and not at the side door, is not sustained by the evidence. The entrance at the ends of the car seem to be made exclusively for the use of the drovers and their assistants in cases of emergency, or when they have occasion to go to the car while the train is in motion, passing from the caboose by means of rungs in the car to a transom-like door in the upper part of the freight car, to which, in case of need, they may pass to give heed to their .animals.

The case, consequently, "which is now presented to us does not differ in its material parts from the one originally presented upon the plaintiff’s proofs alone, when it was held to be one to be decided by the jury. The jury, under a charge in all respects clear and fair to the defendant, has found a verdict for the plaintiff, which we do not feel at liberty to disturb for any of the alleged errors upon the trial or upon the ground that it is excessive; and the judgment entered thereon should, for the reasons above stated, he affirmed.

Judgment and order appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    George W. Cole, Resp’t, v. Sidney B. Roby, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Attorneys—Contract of an attorney entire—It includes an appeal PROM A JUDGMENT.
    The contract for services between an attorney and client is entire, and where an attorney who had advised a client to appeal failed to take such appeal, although the time to appeal had not expired when his client notified him to proceed with the appeal,he cannot recover for any services in the action.
    "2. Same.
    Evidence insufficient to show personal service of notice of entry of judgment sufficient to limit time to appeal to thirty days.
    Appeal from a judgment entered in Cattaraugus county, November 24, 1890, on the verdict of a jury at the circuit, and also from an order denying the defendant’s motion for a new trial made upon the minutes of the court.

      James G. Johnson, for app’lt; G. W. Cole, in person.
   Macomber, J.

This case has been tried three times. At the first trial, held in September, 1888, before Mr. Justice Daniels and a jury, a verdict for the plaintiff was rendered in the sum of $125. Upon a motion made for a new trial, upon the minutes of the court, the verdict was set aside and a new trial granted. From such order granting a new trial the plaintiff appealed to the general term, where the order was affirmed. Upon the second trial the plaintiff recovered a verdict of $157.84. Amotion was again made by the defendant for a new trial upon the minutes, which was denied by the circuit court; but from the order denying such. motion an appeal was taken to this court, where the order, together with the judgment entered upon the verdict, was reversed and a new trial granted. Upon the third trial the recovery was-$148.23, and from the judgment entered upon such verdict and from the order denying the defendant’s motion for a new trial, made upon the minutes of the court, this appeal is taken.

The plaintiff is an attorney and counsellor at law, and he had. conducted a litigation in behalf of this defendant, as a plaintiff, against one Frank J. Grief, upon an account for goods sold and delivered amounting to twelve hundred dollars. The controversy in that action turned upon the contention, made by the plaintiff therein, that a certain bill of sale absolute in terms, covering carriages, the value of which was expressed to be $945, was a security only for the payment of the original indebtedness, and the-counter contention by the defendant in that action that the transfer was absolute and worked a payment to the amount of $945-upon Eoby’s account. The form of the action, however, was a, complaint founded upon an allegation of a balance remaining due- and unpaid from Grief to Eoby, over and above the amount which the alleged mortgaged property actually brought upon the sale made under the written instrument. A firm of lawyers known asAnsley & Davie had been employed by Eoby to conduct the chattel foreclosure; but the action for the deficiency arising upon such sale was brought by the plaintiff in'this action, who was formerly a clerk for Ansley & Davie, and he had in person conducted the sale under the chattel mortgage. By consent of the attorneys of record in the action thus brought by Eoby for the deficiency, the issues therein were referred to a referee who reported adversely toEoby, the plaintiff in that action, and upon that report a judgment was entered on the 8th day of January, 1887, of a dismissal of the complaint and for the costs of the action. On-that day, namely, January 8, 1887, the plaintiff wrote a letter signed by Inman & Cole, of which firm this plaintiff was then a member, enclosing a copy of the referee's adverse report. In it the plaintiff in this action said : “ By it you will see that the referee not only beat-us on the question of the bill of sale, but he beat us out of what-we were entitled to recover even upon the theory that the bill of sale was absolute. The figures showed that we were entitled to recover something over two hundred dollars in any event. His findings of fact in the report are not supported by the evidence in the case. He relied upon a statement of account-made out by you to Grief, October 8, 1885, as the basis upon which to determine the amount due, which even then you were entitled to recover about two hundred dollars or a little more, even upon the’supposition that the bill of sale was an absolute one. He finds that the note of $104, given July 4, 1885, and which you afterwards took up (Klager note) on December 5th or 15th, was paid by the maker, Mr. Klager. The evidence of yourself shows that it was not paid by him, and there is no evidence disputing_ that fact There is also a note made by Klager on the 20th day of April, 1885, for $125, payable in seven months, and it became due Rovember 25, 1885. He does not find that note became due after the issuing of that statement. It did in fact become due after that statement was issued, and was charged back to him, having been once credited to him at the time of its receipt by you. This is also an error. The report and findings are unsupported by the evidence, and the case ought to be appealed and the judgment reversed and a new trial obtained before another referee. Please let us know at once what you desire to have done with the matter. This is radically wrong. The figures show you are entitled to something over two hundred dollars in any event, and if we get a new trial we do not believe any other referee would find against you on the question of the character of the bill of sale. Hoping to hear from you directly, we remain, etc.”

On the 28th day of February, 1887, this plaintiff, likewise writing under the name of Inman & Cole, calls the defendant’s attention to his unanswered letter of January 8th, and says: “We write you again, for the time within which to appeal, should you desire to do so, has very nearly expired. Will you reply at once ?” To this and the previous communication the defendant answered on March 5, 1887, by telegraph, as follows:

To Inman & Cole, Salamanca, N. Y.:

“Have decided to appeal. Please take necessary steps and advise Sidney B. Roby.”

On the 7th day of March, 1887, this plaintiff wrote to the defendant the following letter:

“ Salamanca, R Y., March 7, 1887.

Sidney B. Boby, Esq.:

“ Dear. Sir—Your telegram directing me to appeal was received Saturday evening, 5th inst., but it came too late, as the time within which to appeal has expired. We should have been informed some time ago, as it requires some time to prepare a case and exceptions. The time, however, has expired, and your delay in instructing us to appeal is to be regretted.

“Yours truly,

“Inman & Cole.

“P. S.—Mr. Vreelandsaid he would not issue execution for costs if you desired to pay them without”

In view of this written, and, therefore, indisputable evidence, Mr. Justice Daniels set aside the verdict of the jury, and granted a new trial under an opinion which clearly indicated a judgment that the plaintiff could not recover of the defendant compensation for the services rendered in the Grief case, for the reason that he had failed to bring an appeal from the judgment entered upon the report of the referee, after positive instructions in writing to do so and, as it then indisputably appeared, before the time to appeal had elapsed under any notice of the entry of judgment.

Upon the second trial this plaintiff was permitted to testify that he was mistaken in saying that Eoby was entitled to recover in any event about the sum of $200, irrespective of the legal construction of the written agreement between Eoby and Grief. Upon an appeal to this court that evidence was deemed to be incompetent, as merely an expression of an opinion unaccompanied by facts. In the opinion then rendered it was held that the plaintiff’s contract with the defendant in the litigation was entire in its character, and not divisible, and that any misconduct on the part of the attorney to bring an appeal would deprive him of the right to compensation for past services in that action.

Judge Daniels, in the opinion already adverted to, says, if the notice of appeal had been served when it was directed to be, the defendant might have some redress, and, upon the statements contained in the letter, undoubtedly would, so far as the amount of the note and the balance upon the account of $200 were included in the action. It was the duty of the plaintiff, as Eoby’s attorney in that action, to employ that degree of attention, skill and diligence in taking, not only the proceedings leading up to the judgment, but the subsequent appeal which he advised to be taken and which, under his advice, he was positively, in writing, directed to take. As Judge Daniels says, if the plaintiff failed to discharge the duty which he owed to the defendant, and the defendant was injured by reason of such failure, the attorney should be held liable for the injury. While it is true that a legal presumption exists that the judgment so entered was not erroneous, yet such presumption may be easily overcome by evidence, such as was laid before the client by the attorney in the letter above quoted, not as expressions of opinion only, but as statements of fact, by a person having knowledge of his assertions, to the effect that there had been a palpable mistake made by the referee in the action resulting in the dismissal of Eoby’s complaint. If the referee found,, as the letter states he did actually find, and as we must presume he did find in the absence of proof (because the original record of the trial of Eoby against Grief is not before us), then the Klager note had been taken up by Eoby and had not been paid by the person principally liable thereon. The positive statements made by the plaintiff in that letter were sufficient to warrant the defendant in acting upon them; for he had a right to assume and believe, under the relations of attorney and client which existed between the parties, that such statements were made intelligently and fairly and not for selfish purposes.

In its material aspects the case, as it appeared upon the first two trials, was not changed upon the third trial, though an attempt was there made to show that the notice of the entry of judgment in the Grief case had been served, together with a copy of that judgment, upon Boby’s attorneys on the 8th day of January, 1887. But there was no evidence showing that any notice, which might have been at that time served, limited Eoby’s right of appeal from the judgment entered upon the report of the referee.

The Court was asked by defendant’s counsel to charge as follows : “ I ask that this be charged as a question of law, that there is no evidence of the service of a sufficient notice of the entry of judgment limiting the time of appealing the case of Roby v. Grief to thirty days from January, 1887.”

The Court: “ Upon the request of defendant’s counsel I charge you that; the jury are instructed in the language of that request.”

This final ruling of the learned justice at the last trial renders it unnecessary, in our judgment, to consider the exceptions taken to the charge as given and to refusals to make a charge in accordance with other requests.

In our judgment the final decision of the justice, that there was no notice sufficient in law to limit Eoby’s time to appeal, was correct.

The attorney of Grief in that case testified that he thought that he served the judgment and notice of the entry thereof personally on Inman or Cole in their office on the 8th day of January, 1887. He decided it, however, as a judgment, as he said, that was entered on the 7th day of January, while the record given in evidence conclusively establishes the fact that there was no judgment entered in that action on the 7th day of January. The effort on the part of this plaintiff, to establish the fact that there had been served upon him a copy of the judgment with a notice of entry thereof, so as to limit his time to appeal to thirty days, seems to be an after thought of which he availed himself only upon the last trial; while, theretofore, the plaintiff had consistently claimed that whatever notice had been given of the entry of judgment was received by mail; so that on the 5th day of March when the peremptory telegram was received from his client to appeal the case the time to appeal had not in fact expired. Ho pretense is made by the plaintiff that any notice had been given to Eobj", prior to the plaintiff’s letter of the 7th day of March,'that the time to appeal had expired. Indeed, there is no evidence that the time to appeal was likely to expire.

On February 28, 1887, the plaintiff wrote to the defendant that the time within which to appeal had very nearly expired. But it is obvious that if the judgment and a notice of the entry thereof had been served by mail, the time to appeal had not expired, either at the time of the writing of this letter or at the time of the reception, on the 5th day of March, of the absolute direction contained in the defendant’s telegram. If the assurances which the plaintiff gave the defendant in his letter of the 28th day of February were not correct in stating, by necessary implication, that the time to appeal had not then expired, and the time had actually expired in fact, the plaintiff can be deemed hardly less liable to the defendant for liis failure to notify his client of the fact that the time to appeal had been actually limited by a notice of the entry of judgment. The client lived about a hundred miles distant from his attorney and in another county. He had no knowledge of the decision of the referee in the Grief case, or of the judgment, except as he was apprised by letter from his attorney, upon whom he had a right to rely for such information. So that, as it seems to us, the plaintiff cannot, if his contract with the defendant is an entirety (as we held upon the previous appeal), recover for any services which he has rendered to the defendant; because he failed, through professional neglect, to carry on the litigation as he himself advised, and as he was directed to do by his client acting under such advice, and which he failed to do.

There is a suggestion in the evidence given upon the last trial that it was the firm of Inman & Cole who were employed to take .and perfect the appeal in the Grief case; and not the plaintiff .alone. This contention, however, is without merit It matters not in whose name the letters were signed, or to whom the defendant’s instructions to appeal had been addressed, for there is nothing to gainsay the fact that the plaintiff alone had charge of Roby’s litigation with Grief, and was solely responsible for the failure to obey instructions.

As it is apparent that in no view of the case which has been 'made upon the three trials can the plaintiff recover in this action, it is our duty, we think, to dispose of the case finally rather than to put the parties to the formality of another trial, and to dismiss the complaint.

Judgment and order appealed from reversed, with costs, and the complaint dismissed

Dwight, P. J., and Lewis, J., concur.


author: McAdam, J.

text:
    Robert Auld, Pl’ff, v. Isabella Auld, Def’t

      (New York Superior Court, Special Term,

      Filed October, 1891.)

    Divorce—Adultery.
    Evidence sufficient to prove the commission Of adultery.
    Action for divorce.

      George E. Coffin, for pl’ff; J. E. Ludden, for def’t.
   McAdam, J.

The action is for divorce on the ground of adultery. The answer denies the charge and sets up adultery on the part of the plaintiff; Bach side asks for a divorce against the other. The evidence discloses a painful case of marital infelicity. The parties inter-married March 22, 1882, at the city of Mew York, and one child has been born of the marriage, named Isabella, who is now of the age of six years. The parties cohabited peaceably together for some years, when, owing to certain differences, they separated. They became reconciled and again cohabited until about April, 1890, when they separated finally.

The plaintiff charges that between the 17th of July and the 27th of July, 1891, at a farm house kept by one Decker, at or near Dentons, Orange county, Mew York, the defendant committed adultery with one Lyman A. Pickens, familiarly called Al. Pickens, and that subsequently and between the 27th of July, 1891, and the commencement of the action, she also committed adultery with Pickens at a hoarding house kept by Mrs. Shaw-cross, at Bellvale, Orange county, aforesaid.

Without reciting the evidence in detail, it is sufficient to say that the defendant went to these places and spent the summer, and while there Pickens joined her, boarding at both places during most of the time the defendant remained there. Pickens went to Orange county on the invitation of the defendant: that is to say, he met her in the street; she told him where she was going; he asked her if he might join her; she said yes, and he went. Telegrams passed between them, and on Pickens’ arrival at the station the defendant met him; he put his arms around her and kissed her, and she took him to the house where she boarded. While in the house they exhibited great fondness for each other, showed marked intimacy, visited each other’s rooms, lay in the hammock together, and the one was seldom out of the company of the other. They frequently rode out together, and on all occasions, excepting one, he introduced the defendant as his cousin, and on that exceptional occasion as his wife.

To summarize the acts of undue familiarity with Pickens, they may be grouped together in this way: Going to the depot to meet Pickens; kissing him on his arrival; accompanying him to the boarding house; occupying the same hammock with him; allowing him to hug her while in the hammock; frequenting his room and permitting him to frequent her room during the day and night, on one occasion, while she had on a sleeveless vest, corsets and underskirt; going out riding with him; allowing him to accompany her to the door of the water closet; corresponding with him ; destroying the letters and telegrams sent by him to her and by her to him; finding her hair pins between the sheets of Pickens' bed after one of her visits to his room, and dressing his sore leg, are all circumstances corroborating the more direct evidence which appears in the case that adultery was committed. One of the letters sent by Pickens to the defendant was found by the husband in her pocket; this was before the final separation, and in that letter Pickens, referring to a certain female, used this significant language: “I do not think she is as good at covering her tracks as we are.” The husband on becoming possessed of this letter, naturally became indignant. The wife begged forgiveness, and, after a great deal of persuasion and delay, he returned the letter to her and she destroyed it. Before returning it he made a copy of the letter, and Pickens testified it was a substantial copy of the original.

While the intimacy which existed between Pickens and the defendant prior to that time may have been forgiven by the subsequent cohabitation of the parties, the significant declaration as to “ covering their tracks ” still lives as pertinent evidence bearing on their subsequent conduct. It is also significant that Pickens should have taken the liberty of writing letters, using endearing terms, to a married woman, which she never rebuked or complained of; on the contrary, actually invited, because she furnished him envelopes bearing the name of Mrs. Mary Buckley, under cover of which he was to carry on his evil work. These circumstances tend to throw light on what occurred afterwards, and lend corroboration to the charge made.

Married women should not only avoid evil, but the appearance of it, and if, by their course of conduct with other men, they give color to charges' of misconduct and commit acts of indiscretion and impropriety which tend to evidence them, they must not complain if the public draw the conclusion which seems inevitable, that the marriage vows have not only been forgotten, but broken.

Pickens frequently visited the house where the husband resided,' during the husband’s absence, and without his knowledge, and frequently met the defendant in the streets without the husband’s knowledge or consent. Pickens repeatedly introduced the defendant as his cousin. When asked to explain why he did this, he said “ to avoid talk. He was afraid of inviting talk, because she was a married woman.” Pickens introduced the defendant “ as his wife ” to Farmer Burt, and when asked to explain this, said “ that was to give the professional town gossips something to talk about.” He afterwards told Burt that the defendant was not his wife but his “ cousin.” That she was a widow. The defendant admits that these statements were made to Burt. She says she wanted Pickens to correct his first story, which he did by saying the defendant was his cousin; after he did so the defendant said “ cousin ” is better. The defendant also says she admitted to Burt that she was a widow, for she did not want it known that she was separated from her husband. It seems passing strange that the defendant should be introduced as Pickens’ “ cousin ” to avoid talk, and next as his wife ” to give the professional town gossips something to talk about.”

These inconsistencies, followed by the falsehoods as to being a “ widow," and “ Pickens’ cousin,” are suggestive of something radically wr.ong in their relations. So, throughout the case, the facts link one after another in harmony, while falsehoods clash discordantly one with the other. The following evidence given by Pickens bears upon the question of his relations with the defendant:

“ Q. What did you mean by the phrase ‘ covering up our tracks better than Lizzie ? ’ A. Why, just when we would meet each other and take a walk the people would talk about it and we would have to walk where people would not see us.

“ Q. Why did you put yourself in that position? A. I only met Mrs. Auld accidentally when I did meet her; I would meet her occasionally on the street, and would walk a few blocks, and people would talk about it because they knew I went there previous to Mrs. Auld’s marriage.

“ Q. And why was it that you addressed your letters in an envelope directed to Mrs. Buckley ? A. Because I could not very well direct them otherwise.

“ Q, Was it done with the consent of the husband ? A. Hot at all.

“ Q. And isn’t it a fact that all your intercourse with her since her marriage has been surreptitious, concealed from him ? A. Yes, what little we have had.

“Q. You sent a telegram, to Bellvale, didn’t you? A. Yes.

“ Q. What did you say in it ? A. I forget.”

The following evidence, given by the defendant, relates to the same subject:

“ Q. What was the object in having Mr. Pickens address you by a fictitious name ? A. I didn’t want too many letters coming to me in my own name.

11Q. Did you know you were doing wrong then? A. Certainly ; I knew I was doing wrong.

“ Q. What did you do it for? A. What! You have often done wrongful and knew that you did it. I didn’t feel condemned about it until afterward. When you are caught you feel condemned.

“ Q. When I am caught ? A. When I was caught I did.

“Q. So, you were caught? A. Yes; I admit it.”

These are frightful statements for a single man and married woman to make respecting their conduct; certainly not such as straightforward people, honest and fair in their intercourse, would ever be willing to have known.

When Pickens was asked why he destroyed the letters which the defendant sent him, he said that he did so because “it was a wise precaution; he had been bit before,” and did not propose to be bit again. This was shocking. Indeed, Pickens’ conduct on the stand demonstrated clearly that he was a man in whose keeping no woman’s honor was safe.

These various circumstances grouped together show undue familiarity between Pickens and the defendant, and demonstrate that they acted the part of husband and wife without holding that sacred relation.

While marriage is in a sense a civil contract, it is a relation divinely ordained, out of which flow the brightest anticipations, the purest affections and tenderest memories. Indeed, iteis the cornerstone of the social edifice, and the stranger who intrudes himself upon it, and by his conduct breaks up the home of a married couple, commits a crime against society that merits the highest censure possible to pronounce.

The witness, Morris, testified that he saw the defendant in Pick-ens’ room one evening in July, 1891, that she pinned the curtains together, and Pickens unpinned them and put out the light, and that all was quiet after that. The witness, McCarthy, testified that he saw the defendant and Pickens in bed together. While his testimony, standing alone, would be entitled to but little credit, he is corroborated in many of the details of his evidence by other witnesses, a circumstance which adds weight to his testimony.

In short, the evidence satisfactorily shows the defendant “ was caught,” that “ the tracks ” referred to by Pickens were not sufficiently covered, and that Pickens in spite of his purpose “not to be bit again,” has been again discovered. Eespectable married women, accurate in their deportment, need not be afraid of “ town talk ” or “professional town gossipers.” Their lives and their conduct give the lie to every insinuation of impropriety.

Actions often speak louder than words, and are as well if not better understood, even by Orange county boarding house keepers. Talk or gossip, corroborated by acts of the parties impugned, giving color to them, soon takes wings and often flies further than even the author contemplates. Married women should so live that the electric light of truth when turned upon them will reveal nothing but honor and purity. Such women have nothing to fear. The charge of adultery is one easy to make, difficult to prove. It must be proved by evidence, clear, positive and satisfactory; yet, being a crime of darkness and secrecy, wherein the parties are rarely surprised, it may and ordinarily must be proved by circumstantial evidence. 2 Bishop on M. & D., § 613.

The evidence of the different witnesses from Orange county, where the acts were committed, and the circumstances before referred to, are all consistent with the theory of the defendant’s guilt Indeed, all the links consistently and firmly join together in making out a solid chain sustaining the charge made. Circumstances standing alone amount to but little,-but where additional facts exist in the same case giving rise to additional presumptions against the accused, though individually of the same slight kind, a chain or body of evidence begins to form, and from the mere circumstance of the concurrence or coincidence of such presumptions, bearing upon one point or in one direction, and materially aiding each’ other, they acquire a force and weight eventually sufficient not only to shift the burden of proof, but in some cases to amount to proof of the most convincing kind. Burrill on Cir. Ev., 65. The object of criminative evidence is to form such a chain, in which each circumstance or link shall be in its proper place, and all, taken together, shall connect the crime with the criminal, in the most effectual and satisfactory manner. Id., 179.

With respect to the comparative weight due to direct and presumptive evidence, it has been said that circumstances are in many cases of greater force and more to be depended on than the testimony of living witnesses; inasmuch as witnesses may either be mistaken themselves or wickedly intend to deceive others; whereas, circumstances and presumptions naturally and necessarily arising out of a given fact cannot lie. Per Mounteney, B., Annesley v. Lord Anglesea, 9 St. Tr., 426 ; 17 Howell, 1430.

It may be observed that it is generally the property of circumstantial evidence to bring a more extensive assemblage of facts under the cognizance of a jury, and to require a greater number of ' witnesses, than where the evidence is direct, whereby such circumstantial evidence is more capable of being disproved, if untrue. 3 Bentham’s Rat. of Jud. Ev., 251. Circumstantial evidence must be acted on cautiously, and rash inferences should not be drawn, but those irresistibly flowing from the circumstances are entitled to great weight, and have the force of evidence. Circumstances give rise to presumptions, and these in turn are proof.

In Rex v. Burdett, 4 B. & Aid., 161, Abbott, C. J., said: “A presumption of any fact is properly an inference of that fact from other facts that are known ; it is an act of reasoning, and much of .turnan knowledge on all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference ; but if no fact could be thus ascertained by inference in a •court of law, very few offenders would be brought to punishment.”

A presumption of fact is a logical argument from a fact to a fact; •or, as the distinction is sometimes put, it is an argument which infers a fact, otherwise doubtful, from a fact which is proved.

. Hence, a presumption of fact, to be valid, must rest, on a fact in proof. Presumptions, therefore, in this sense, are to be regarded rather as among the effects of proof than as proof itself. Wharton ■on Ev., § 1226.

. In this case, the inferences following fact after fact established by the evidence all lead to but one result, and that of guilt. In .such a case the proof is entirely satisfactory.

In Smith v. Smith, 13 N. Y. Supp., 817; 37 N. Y. State Rep., 267, it is said that every act of adultery implies three things: First, opportunity; second, inclination on the part of the defendant ; third, inclination on the part of theparticeps criminis. In applying the rule to this case, the form of the proposition may be appropriately changed as follows: First, opportunity; second, Pickens’ motive and purpose; third, whether the defendant reluctantly, or otherwise, jdelded thereto. Pickens’ motive, and purpose were clearly illicit, opportunity favored, the defendant yielded, and the crime was complete. Pickens’ conduct is highly reprehensible. He was the bone of contention in most of the difficulties between the plaintiff and his wife; he was her first love, and when she married another he should have remained .away and not intruded his presence on the family circle and particularly upon the wife during the husband’s absence. He had no right to carry on a secret correspondence with her, complimenting each other on their adroitness, had no right to address letters to her in endearing terms, and had no right to take liberties which none but a husband should think V>f doing. He has, in my judgment, completely destroyed whatever friendly relations existed between husband and wife, and has been the means of breaking up their home and of bringing scandal and disgrace upon two -worthy families. That the wife permitted it is matter of deep uegret, and it must be to the families concerned.

The defendant charges that prior to the final separation in 1890, to wit, in 1888, the plaintiff was afflicted with venereal •disease and that he communicated it to her.

The plaintiff denies that he ever had the venereal disease or ever committed adultery. He admits he had blood poisoning, which his doctor testified might arise from many things beside venereal disease. The doctor also testified that he made a careful ■examination of the plaintiff and diagnosis of the case, and went usa far as to examine his person, and was unwilling to swear that "the plaintiff had ever been afflicted in that manner. Such evidence would not warrant a finding of adultery by the plaintiff. Homburger v. Homburger, 46 How. Pr., 346; Ferguson v Ferguson, 3 Sandf., 307. Whether he was so afflicted becomes of very little importance in the decision of this case, because it is clear that if so afflicted, it was in 1888, and the wile voluntarily cohabited with him long after that, which is • clear proof of condonation, which, in effect, wiped out the offense if it ever existed.

“ Condonation is presumed from cohabitation. It may be express or implied.” “ The true import of the rule, in my opinion,” said Parsons, Ch. J., 6 Mass., 147, “is, the cohabitation of the wife after the commission of the offense, and after she believes, on probable evidence, the guilt of her husband, is conclusive evidence of the remission.”

The evidence offered on the part of the defendant clearly shows, that, whether the plaintiff had venereal disease or not, the wife believed he did have it, and having cohabited with him after such, belief, the evidence respecting condonation is conclusive.

The court regrets exceedingly to have to pass such strictures upon the conduct of individuals, particularly where a female is. concerned, and would rather say to both of the parties litigant: “ Go- and sin no more." But the law gives the husband, who has been wronged, certain means of redress, of which divorce is one, and no court has the right to arbitrarily withhold legal remedies from an injured husband or wife without their consent and against, their will.

It follows that there must be judgment in favor of the plaintiff,, dissolving the marriage between the parties, and awarding the custody of the child to the plaintiff.


author: Barrett, J. Patterson, J.

text:
    Julius Gottberg, Ex’r, App’lt, v. The United States National Bank, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 16,1891.)

    1. Executors and administrators—Pledge op assets.
    While the purchaser or pledgee of assets of an estate may, up to a certain point, rely on the general presumption that an executor is acting for the estate and is not committing a devastavit, yet if such facts are disclosed as would put the party, he being a person of ordinary prudence, on. inquiry, he cannot rest on the presumption when inquiry would lead, him to detect the wrongful purpose of the executor and result in knowledge.
    2. Same—Liability op pledgee.
    The defendant bank loaned to one of two executors moneys on bonds, of the estate which were registered. On his first application the executor was told that the registration must be transferred to the bank, which was-done. The moneys were misappropriated by the executor. Held, that the facts were not sufficient to put the bank on inquiry, and it was not. liable.
    Appeal from that part of a judgment, entered after a trial by the court at special term, by which it was adjudged that the plaintiff was entitled to recover of the defendant bank only the sum. of $1,706.13, without costs.
    The action was brought by the plaintiff against the United States National Bank and one John J. Lonth, as an executor of the will of Mendlich Gottberg, and also individually, to procure-a judgment that six certain bonds of the St. Paul & Sioux City Eailroad Company were the property of the estate; that the bank. was not entitled to hold them as owner or as security for a loan to Louth, and that the bank should deliver the bonds to plaintiff or pay to him $6,500 in case a delivery could not be had, with damages for detention.
   The following is the opinion at special term:

Barrett, J.

Where one purchases property from a trustee, knowing that the subject is trust property, he is put upon inquiry as to the trustee’s power to change or vary the securities. But -one who purchases property from an executor is not necessarily put upon even this inquiry. On the death of a testator,” says Mr. Perry in his work on Trusts, § 809, “ the personal estate vests wholly in the executor, and, in order that he may execute his •office, the law permits him, with or without the concurrence ■of any co-executor, to sell or mortgage by actual assignment •or equitable deposit, with or without a power of sale, all or any part of the personal assets, legal or equitable.” For this proposition numerous authorities are cited in the notes to the fourth edition, and the princijde may be said to be well established. The ■distinction between a trustee and executor was referred to in Duncan v. Jaudon, 15 Wall., 175. In the former case, namely, that of a trustee, justice Davis observed that “there is no pre■sumption of a right to sell, as there is in the case of an executor.” And in the same case below, reported under the name of Jaudon v. Nat. City Bk., 8 Blatchf., 438, justice Blatchford observed that “a trustee stands on a different footing from an executor or administrator, or even a guardian, in many respects. A trustee presumptively holds his "trust property for administration, and not for sale.” Where, then, the securities show upon their face that they are trust property, the purchaser is put upon inquiry as to the power of the trustee to vary or change such securities. In the case of an executor, however, this power is presumed as a uecessary incident to the performance of his duties, and the pur.chaser or pledgee is protected if he pays or advances his money in good faith, and without knowledge of any intended misapplication by the executor. What neither a trustee nor an executor can do without peril to the purchaser or pledgee is to dispose of or pledge his cestui que trust's or testator’s assets in payment of or as security for a debt of his own. Field v. Schieffelin, 7 Johns. Ch., 150; Shaw v. Spencer, 100 Mass., 382 ; Petrie v. Clark, 11 Serg. & R., 377. In Field v. Schieffelin, Chancellor Kent examined all the English cases up to that date (1823), and his conclusion was that they all agreed that the purchaser is safe, “ if he is no party to any fraud in the executor, and has no knowledge or proof that the executor intended to misapply the proceeds, or was, in fact, by the very transaction, applying them to the extinguishing of his own private debt.” “The great difficulty has been," continued the chancellor, “ to determine how far the purchaser dealt at his peril, when he knew, from the very face of the proceeding, that the executor was applying the assets to his own private purposes, as the payment of his own -debt. The latter and the better doctrine is that in such a case le does buy at his peril; but that, if he has no such proof or knowledge, he is not bound to inquire into the state of the-trust, because he has no means to support the inquiry, and he; may safely repose on the general presumption that the executor is; in the due exercise of his trust.” The rule was stated by Chief Justice Taney, in Lowry v. Commercial Bk., Taney, 310, as follows: “ If a party, dealing with an executor, has at the time reasonable ground for believing that he intends to misapply the money, or is in the very transaction applying it to his own private use, the person so-dealing is responsible to the persons injured.” And the same rule; was put in another form by the House of Lords in 1861, in Walker v. Taylor, 4 Law T., N. S., 845: “ Where an executor parts with any portion of the assets of the testator, under such circumstances; as that the purchaser must be reasonably taken to know that they were sold, not for the benefit of the estate, but for the executor’sown profit, the result is that the purchaser holds the assets as if he; were himself, in respect of those assets, the executor.” See, also,. Leitch v. Wells, 48 N. Y., 585; Goodwin v. Am. Nat. Bk., 48 Conn.,. 550; Cook on Stock, § 474, and cases there cited. The present caséis analogous to McLeod v. Drummond, 14 Ves., 352 ; 17 id., 152, which was carefully analyzed by Chancellor Kent in Field v. Schieffelin. There was, in McLeod v. Drummond, a pledge by the-executor of the testator’s bonds upon advances of money. The-bill, as here, was by a co-executor, and it was dismissed by the-master of the rolls, and the decree was affirmed on appeal to the-lord chancellor. The master of the rolls said he had found no-case, where the money had been advanced at the time to the full, value of the assets, that it was ever called back. Lord Eldon, on the appeal, declared that, on a sale by the executor for money advanced at the time, the vendee could never be affected by proving the executor’s intention at the time to misapply the money. The third person, if there was no-more in the transaction, would be justified ' in assuming that-the sale was for those purposes for which the law gives the executor the power of sale. The conclusion, in substance, was-that, to charge the purchaser, he must have had direct evidence-that the advance was not for a purpose connected with the administration of the assets, but for a different purpose, and that the-executor was going to misapply the fund. Both upon principle- and authority, then, the plaintiff in the present case must fail. We will assume that the bank was bound to notice the manner in which the bonds were registered. What then ? It simply advanced money to one .of the executor’s upon the collateral security of the testator’s bonds registered in the name of the two executors. There was absolutely nothing more than this in the transaction. It is true that in form the advance was to John J. Louth personally. That is, he did not add the descriptive word “ executor ” to his signature to the stock note, nor did the bank add such word, to the name of Louth as the payee of its check, nor did Louth inform the barik that he desired the loan for the purposes of the-estate. But all this was implied upon the face of the transaction, and the bank is certainly not chargeable because its president supposed that he was dealing with.Louth personally, when, if he had. noticed the manner in which the bonds were registered, what transpired need not have been changed even in matter of detail; for the debt contracted by Louth as executor was in 1 aw personal, and it would have been just as much personal whether he added to his signature to the stock note his executorial description or not. The form of the.transaction, therefore, was unobjectionable. It appropriately effected a loan to the estate, and, so far as it spoke at all, it spoke of a loan to the executor for the purposes of the estate. It did not of itself effect a misappropriation of the funds of the estate, and it certainly gave no hint to the bank of an intended misappropriation. On the main question there should be judgment for the defendant, but as the bonds have been sold by the bank to pay the loans made to Louth, and as upon such sales there remains a surplus in the hands of the bank, the plaintiff may have judgment therefor, without costs.

R. E. Robinson, for app’lt; A. H. Joline, for resp’t.

Patterson, J.

We agree with the learned judge by whom this cause was decided at the special term, that the defendant bank acquired a good title as pledgee of the six bonds from Louth, and that the testimony was insufficient to prove notice to the bank that Louth was disposing of the assets of the estate of his testator for his own benefit, or that it was put upon inquiry before it made the loan. The collocation and criticism of the cases contained in the opinion of the court below covers the whole field of argument, and it is unnecessary to repeat what is there said, but we think that too close a deduction has been made from them. We do not concur in the exact statement of the rule as laid down by the learned judge, viz., that to charge a purchaser or pledgee in every case, he must have had direct evidence that the money was not paid or advanced to the executor for a purpose connected with the administration of the assets, but for a different purpose, and that the executor was going to misapply the funds. Undoubtedly under the cases referred to and commented upon in the opinion, the purchaser or pledgee may up to a certain point rely on the general presumption that an executor is acting for the estate and is not committing a devastavit, but if such facts are disclosed as would put the party, he being a person of ordinary prudence, on inquiry, he cannot supinely rest on the presumption, when inquiry would lead him to detect the wrongful purpose of the executor and result in knowledge. Lowry v. Com. Bank, Taney C. C. D., 310. We assume that by the words direct evidence the learned judge meant evidence which of itself and by necessary conclusion establishes the-guilty or fraudulent purpose; and it is in that view we cannot assent to the precise formulation of the rule, otherwise properly applied.

But with the explanation mentioned the conclusions of the court below were entirely correct Nothing occurred in the transaction, from first to last, to put the bank upon notice or inquiry of a title that could not be transferred or of any intent on the part of Louth to despoil the estate of which he was executor. When application was first made to Mr. Murray, the president of the bank, it was stated merely that Louth wanted to borrow on certain registered bonds and he was told the registration must be transferred to the name of the bank. That was done and nothing then appeared on the production of the bonds except that title had been made by a transfer from executors. The bank was not required to institute or prosecute inquiries nor to ask questions on that simple circumstance.

The judgment was right and must be affirmed, with costs.

Yak Brunt, P. J., concurs.


author: Patterson, J.

text:
    Peter W. Gallaudet et al., Pl’ffs, v. Charles W. Kellogg et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    COKTBACT—VaEIANCE.
    Plaintiffs sued to recover commissions claimed to have been earned under a paroi contract to aid defendants in procuring a contract to build a bridge. It appeared on the trial that before the latter contract was signed the parties hereto agreed upon a written statement which set forth their understanding of the agreement, which provided that plaintiffs should give defendants financial aid by selling bonds and were to take their commissions in instalments as the bonds were sold and the proceeds turned over. Plaintiffs' representative testified that there was but one contract and that the writing was intended to evidence it. Held, that there was a fatal variance and that the complaint should have been dismissed.
    Exceptions ordered to be heard in the first instance at the general term.
    The action was brought to recover the sum of $100,000 under un alleged contract between the plaintiffs and the defendants, by which, as alleged in the complaint, the plaintiffs “promised and agred to assist, further and aid the defendants, and to use their best endeavors to procure a valid contract, under and by the terms of which the defendants would be authorized and empowered to ■complete the building and construction of a bridge over the Hudson river at the city of Poughkeepsie, in the state of New York, known as the Poughkeepsie Bridge,’’ and for which services, the the complaint alleges, the defendants agreed to pay the plaintiffs the sum of $100,000 “ upon the execution and delivery to them ■of said contract.”
    It appeared on the trial that before the contract was signed the parties hereto reduced their agreement to writing, which written agreement provided that plaintiffs should sell bonds and turn over the proceeds to defendants and should take their commissions in instalments as they sold said bonds, and that they did not sell the bonds, nor pay over the proceeds.

      George W. Wingate, for pl’ffs; J. A. Bush and Joseph H. Choate, for def’ts.
   Patterson, J.

We are of the opinion that the exceptions must be overruled except as to the direction of a verdict.

The cause of action set forth in the complaint was based upon a contract by which compensation was promised to the plaintiffs simply for services in aiding and assisting in the procurement of an agreement whereby the defendants would become contractors for the work of building a bridge over the Hudson river at Poughkeepsie. According to the complaint, this agreement sued on contemplated nothing further of service or duty on the part of the plaintiffs than above stated, and for their aid they were to receive five per cent of the price of the work, to be paid on the execution and delivery to the defendants of a contract for construction. While negotiations between the defendants and the parties for whom the bridge was to be built were pending'and about concluded, but before the contract was signed, these plaintiffs and the defendants met in conference and agreed upon a written statement of the understanding between them, and there can be no doubt on the testimony that the plaintiffs accepted that writing as containing the exact terms of the contract under which, they were to be entitled to compensation from the defendants. It is dated August 27, 1886. Beveridge, who represented the plaintiffs, swears that there was but one contract, and that it is expressed in that paper. He testifies as follows: “I still say there was but one contract between our firm and the defendants for a commission of five per cent on the contract price, and this paper of August 27th was drawn up to give us evidence, the written evidence of it.” On the proof, therefore, it is apparent, that the action failed. The cause of action sued on was not only made out, but a substantially different contract from that counted upon was proven; one which fixed the compensation differently, provided for its payment from a specified source, and required from the plaintiff additional and future service. It is clear there were not two contracts entered into between the plaintiffs and the defendants, and it is also clear that the contract of August 27 was that upon which both parties reposed as the evidence of their respective rights and obligations.

Under those circumstances it is quite clear the plaintiff was not entitled to recover, but we are of opinion that the complaint should have been dismissed instead of a verdict being ordered. All the exceptions, except as stated, are overruled, and judgment directed that the complaint be dismissed, with costs.

Van Brunt, P. J., concurs.


author: Ingraham, J.

text:
    William C. Pate, Resp’t, v. Augustus Hoffman, Def't.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)
    Receiver—Action against to foreclose lien.
    A creditor of defendant had a lien upon property and procured judgment for the amount due him, hut failed to collect it. Held, that the procuring of the judgment did not affect his right to hold possession of the property, and that he had a right to foreclose his lien, making the receiver of the defendant a party, and that leave to sue the receiver for that purpose should have been granted.
    Appeal from an order denying a motion for leave to sue the plaintiff, who had been appointed receiver of the property of the defendant, a judgment debtor, made by Henry Bowman, as. assignee of Lewis B. Mayer.

      A. B. Smith, for assignee, app’lt; C. E. Souther, for receiver, resp’t.
   Ingraham, J.

The right of the appellant to hold possession of the property upon which he had a lien was not affected by the recovery of judgment for the amount of the indebtedness to secure the payment of which he held the property as security. It had the effect of settling the amount of the defendant’s liability to the petitioner, but did not affect the lien upon the security, or his right to have the same sold and the proceeds applied to the payment of the amount due. Nor did the fact that a receiver of the debtor’s property, appointed on the application of another •creditor, was extended so that the receivership would include the judgment obtained by the petitioner, affect' the petitioner’s right to hold the security until his debt was paid. Petitioner had the right to take any proceeding to collect his judgment without xesorting to the security.

If his judgment had been collected, then he would have no further interest in the property held as security, and such property would belong to the receiver and could be applied by him to the payment of the creditor at whose instance he had been appointed, but until such judgment was paid the lien upon the property was superior to the title of the receiver.

Petitioner having failed to collect his judgment by the proceedings instituted, had then the right to resort to the property upon which he had a lien to secure the payment of the debt, and for such purpose to commence an action to have the property sold and its proceeds applied to the payment of his demand. To such an action the receiver in whom had vested the title to such property subject to the lien, was a proper party, and he should have been allowed to make the receiver a party to such an action.

We think, therefore, that the motion should have been granted.

Order appealed from reversed, with ten dollars costs and disbursements, and motion granted.

Van Brunt, P. J., and Daniels, J., concur.


author: Per Curiam.

text:
    In the Matter of the Probate of the Will of Charlotte M. Hutchings, Deceased.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Depositions—Sueboqate’s couet.
    It is no objection to an order of a surrogate for the examination of a witness by his assistant that it is claimed that the witness is of limited mental capacity or not competent. Such questions may he determined by the surrogate when the deposition is offered to he read on the proceeding before him.
    Appeal from order of the surrogate granting order for the examination of one Jacob M. Hutchings.

      C. I. McBurney, for app’lt; A. A. Redfield, for resp’t.
   Per Curiam.

We see no reason for interfering with the order ■of the surrogate for any of the reasons urged by the counsel for the appellant. ¡

If there is any question in regard to the mental capacity of the witness whose testimony is to be taken, that question can be determined by the surrogate when such evidence is offered to be read before him. in the proceeding in which it is taken ; and there is nothing in the order which, in any way, allows the surrogate’s assistant to determine the question of the competency of the proposed witness. He is only authorized to take the testimony of the witness; whether such testimony is of any value is a question which must be determined by the facts appearing before the surrogate upon the trial or hearing of the proceeding.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


author: Van Brunt, P. J.

text:
    William Henry Willetts, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Bailboad—Elevated—Damages.
    In an action to restrain the operation of an elevated road and for damages, tlie court found the fee value before the road was built to have been §30,000, and it was shown that it was of that value at present, and that property in the vicinity not on the line of the railroad had increased ten to eighteen or twenty per cent. The court found the damage to fee value to be §8,000. Held, error; that the damage should not exceed §5,400.
    Appeal from judgment of the special term granting an injunction in default of payment of amount found due for damage to freehold.

      Arthur C. Townsend, for app’lts; John E. Burrill, for resp’t.
   Van Brunt, P. J.

ll the questions of law discussed upon this appeal have been so repeatedly disposed of by this court that it is unnecessary here to refer to the same.

The learned justice who tried this case, however, seems to have fallen into an error in respect to the amount of damage established by the evidence.

This error probably arose because of the multitudinous character of the findings presented and which he deemed it necessary to pass upon.

He has found that the fee value of the plaintiff’s premises in the year 1872 was $80,000, and the plaintiffs witness showed that the present value of the premises was about the same sum, and the same witness stated that the value of property in the vicinity of the premises in question but not on the line of the railway was at the present time from ten to perhaps eighteen to twenty per cent higher than it had been in 1872, and this is the outside limit shown by the evidence.

Giving the plaintiff the full benefit of this alleged rise in value, the total damage could not exceed from $5,400 to $6,000, instead of the $8,000 found by the court.

This action being in equity, and the object of the ascertainment of the amount of damage being to determine what the defendants should justly pay to relieve themselves from the operation of the injunction to which the plaintiff is legally entitled, we do not think that there should be an absolute reversal upon the question of the amount to be paid, leaving the injunction to stand, as we can determine what the proof shows in connection with the findings made by the court below to be the actual damage sustained.

Upon a consideration of all the evidence in the case, in view of the finding of value in 1872, the damage shown is the sum of $5,400. The evidence might have justified a finding of a higher value in 1872 than was found, but taking the finding as it is, we think that the sum named is a fair sum to be paid for the easements taken by the defendants.

The judgment should, therefore, be reversed and a new trial ordered, with costs to appellants to abide event, unless the plaintiff stipulates to reduce the amount of fee damage to $5,400, in which case the judgment should be so modified and, as modified, affirmed, without costs.

Barrett, J., concurs.


text:
    William A. Woodhull, Rec’r, Resp’t, v. Ansel L. Washburn, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16,1891.)

    Depositions—Examination before trial—Affidavit.
    An affidavit to procure an order for the examination of a defendant before trial must state facts from which the court can judge that such, examination is necessary; that defendant’s examination cannot as well be taken on the trial; that plaintiff has no knowledge of the facts in relation to which the examination is to be had, and that it will be used on the trial.
    Appeal from order denying defendant’s motion to vacate order, for his examination before trial.

      W. B. Ellison, for app’lt; L. J. Morrison, for resp’t.
   Van Brunt, P. J.

Under the principles laid down in Jenkins v. Putnam, 106 M. Y., 272; 8 N. Y. State Rep., 710; the motion to vacate the order for the examination of the defendant should have been granted.

Although there is an allegation that it is necessary to examine the defendant before trial, no fact are shown from which the court can judge that such allegation has any foundation. Meither is it shown that the defendant’s testimony cannot be taken upon the trial as well as before the trial. The papers further do not show any intention to use the evidence which might be taken upon defendant’s examination at the trial; nor does it appear that the plaintiff has no knowledge of the facts in relation to" which he desires to examine the defendant. The affidavit is made by the attorney, who is not presumed to have any knowledge of the information possessed by the plaintiff. The papers upon which the order was granted seem to have been fatally defective, and the motion to vacate should have been granted. What rights the receiver might have if lie had proceeded under the Revised Statutes it is not necessary here to discuss.

The order should be reversed, with ten dollars costs of appeal and disbursements, and the motion granted, with leave to renew upon additional papers on payment of the costs on appeal

Daniels, J., concurs._