author: Parker, J.—The

text:
    Sarah M. Warner, Resp’t, v. The Press Publishing Co., App’lt.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    1. Libel—Privilege—Evidence—Malice—Damages.
    Defendant published an alleged report of proceedings in a police court, containing a statement that plaintiff was charged by her husband with having illicit lovers and setting forth a letter to her from another man. In an action for libel the court refused to charge as requested by defendant that ‘‘if the jury find that the defendant was not actuated by actual malice against the plaintiff, they cannot award any damages to her for injured feelings or mental or bodily sufferings." Held, no error; as the request was too broad in view of the testimony, as it would have deprived plaintiff of her right to have that malice which the law imputed to false publication weighed by the jury in connection with defendant’s testimony that it was not prompted by malice.
    3. Same—Communications between husband and wife—Code Civ. Pro., § 831.
    A conversation between a husband and wife in which the husband alleges he charged his wife with an unlawful intimacy between her and another man is a privileged communication and inadmissible on behalf of one without the consent of the other, under § 881 of the Code.

      Appeal from a judgment of the general term of the court o£ common pleas for the city and county of New York, entered on an order affirming a. judgment of the trial term of said court,

      James M. Keatinge, for app’lt; A. W. Gleason, for resp’t.

       Affirming 29 St. Rep., 810.

   Parker, J.—The

judgment under review awards to the plaintiff damages against the defendant for publishing in the New York '■’■World" what purported to be a brief report of a judicial proceeding which contained matter imputing unchastity to» her.

The defenses sought to be interposed were :

1. That the publication was privileged because a fair and true report of a proceeding in court;

2. That it was true.

Ordinarily whether a publication is privileged is a question of law for the court, but in this case the evidence presented by the plaintiff was to the effect'that the matters in the publication of which complaint is made were neither introduced in evidence nor-presented in court for such a purpose, and therefore formed no-part of the hearing which the defendant pretended to report.

The defendant sought to show the contrary, and thus the cas© was brought within the rule that where the facts upon which a defendant bases a claim of privilege are challenged by the plaintiff it then becomes the duty of the court to submit to the determination of the jury whether there exist the facts upon which the privilege was sought to be founded. Lovell Co. v. Houghton 116 N. Y., 525; 27 St. Rep., 559.

This was properly done, and as one result of the verdict, it must be deemed established that the objectionable publication was not privileged. -

An effort was also made on the part of the defendant to prov© that the matter contained in the report was true.

This attempt was met by the testimony of the plaintiff asserting its falsity, and whether true or false was one of the questions-properly submitted to the jury, who by their verdict have settled that feature of the controversy favorably to the contention of the plaintiff.

But the appellant now insists that the court erred in refusing to charge the following request:

“ If the jury find that the defendant was not actuated by actual malice against the plaintiff, they cannot award any damages to her for injured feelings, or mental or bodily suffering.”

It asserts that in the absence of actual malice, injury to feelings, or mental or bodily suffering, are not elements of compensatory damages, but of exemplary damages; therefore, the request, called for less than was the defendant’s right.

This contention we regard as not well founded. From th© standpoint at which we are required to view the case, it. appears-that the defendant published of and concerning the plaintiff matters imputing unchastity to her; that it was not privileged, and was false.

The plaintiff gave evidence of malice when she proved th© falsity of the libelous publication, and in the absence of evidence on the part of the defendant tending to show that it had neither the desire nor the intention to wrong her, it would have been the duty of the court to instruct the jury that the plaintiff might be awarded exemplary damages in their discretion.

But testimony was adduced on the part of the defendant tending to prove the absence of actual malice on its part towards the plaintiff, which, taken in connection with the evidence of malice which the law imputed when the falsity of the libel was established, presented a question of fact whether malice existed in the publication. If found to exist, then, in their discretion, the jury could award exemplary damages. Samuels v. Evening Mail, 75 N. Y., 604; 9 Hun, 288; Bergmann v. Jones, 94 N. Y., 51-61.

It is apparent, therefore, that the request was too broad, for had it been charged, it would have deprived plaintiff of her right to have that malice which the law imputed to the false publication weighed by the jury in-connection with the testimony on the part of the defendant to the effect that no ill will was entertained towards the plaintiff nor the publication prompted by malice, in ■determining whether there existed such malice as would justify ■exemplary damages.

A libel recklessly or carelessly published, as well as one induced by personal ill will, will support an award of punitive damages. Holmes v. Jones, 121 N. Y., 461; 31 St. Rep. 379.

Our attention is called to but one other exception. The libelous article suggests improper relations between the plaintiff and one Smith, evidenced by letters from Smith to her. She denied not only the charge, but all knowledge of the letters. The defendant asserted the truth of the charges and insinuations contained in the article, and in support of its contention called the husband of the plaintiff, to whom the following questions were propounded:

“ Q. Had you any dispute with Mrs. Warner at any time about Smith ?
“Q. Had you any conversation with Mrs. Warner, your wife, at any time in relation to a man by the name of Frank Smith or F. Sidney Smith ? ”

Objection was made that the evidence was incompetent under § 831 of the Code of Civil Procedure, which provides that “ A husband or wife shall not be compelled, or, without the consent of the other, if living, allowed to disclose a confidential communication made by one to the other during marriage.”

The evidence offered could have no purpose useful to the defendant unless it tended to show that during such a conversation with her husband she said, or did, or omitted to say or do something from which it might be inferred that there existed an unlawful intimacy between her and Smith.

A conversation on such a subject between husband and wife seems to us to be clearly within the protection of the statute.

The appellant calls our attention to the decision in Parkhurst v. Berdell, 110 N. Y., 386-393; 18 St. Rep., 193, in which Judge Earl, in speaking for the court, said:

“ What are confidential communications within the meaning of the section ? Clearly not all communications made between husband and wife when alone. * * * They are such communications as are expressly made confidential, or such as-are of a confidential nature, or induced by the marital relation.”"

Clearly the definition given does not exclude such a conversation as the defendant desired to prove from the protection of the-statute. Its nature was not only confidential, but it was apparently induced by the marital relation, for it cannot be conceived that such a topic would have been the subject of discussion but for the existence of such relation between the parties.

A further test by which to determine whether a.communication is confidential is suggested by the learned judge in characterizing the nature of the conversations sought to be excluded in that case. He said: “ They were ordinary conversations relating to-matters of business, which there is no reason to suppose he would have been unwilling to hold in the presence of any person.”

It cannot- be supposed that both husband and wife would have-been willing to discuss such a subject in the presence of other persons ; or would have consented to a repetition of the conversation by either party to it Its nature, and the relation of the parties, forbade the thought of its being told to others, and the law stamped it with that seal of confidence which the parties in such a situation would feel no occasion to exact.

The wisdom of the statute was never more apparent than in this case, which exhibits a worthless husband in the attempted ■role of a destroyer of the good name of the mother of his children because she sought in the name of the law to compel him to contribute towards her support and that of his children.

' The judgment should be affirmed.

All concur, except Haight, J., absent. -


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Amasa R. Moore, Resp’t, v. The Manufacturer’s National Bank and Samuel O. Gleason, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Libel—Privileged communications.
    In an action upon the "bond of its former cashier for alleged defalcations the officers of the defendant hank furnished a statement of the claim and. also served a hill of particulars, both of which included items of cash withdrawn by. the cashier “by collusion with the teller.” In an action for-libel brought by plaintiff, who was the toller, defendants gave evidence in. justification, but the verdict was for plaintiff. Held, that the publication while privileged as to the cashier was not so as to plaintiff; that malice would be presumed from the defamatory nature of the publication, and. that the verdict should not be disturbed.
    Appeal from judgment in favor of plaintiff for $2,105.06, entered on verdict of a jury, and from order denying motion for a new trial.
    Action for libel. For opinion on former appeal, see 123 N. Y., 420; 34 St. Rep., 335.

      Smith & Parmenter (R. A. Parmenter, of counsel), for app’lts t. Sale & Bucldey {Matthew Sale, of counsel), for resp’t.
   Herrick, J.

In the year 1883 the defendant and appellant., the Manufacturer’s National Bank of Troy, claiming that its; cashier had misappropriated and embezzled the property and funds of the bank, brotight an action on the cashier’s bond against, the surviving surety and the representatives of a deceased surety to recover the amount of the alleged defalcation. An" agent of the representative of the deceased surety called at the bank, and there had an interview with the then cashier, the appellant. Grleason, and requested him to furnish as particular and complete an account as he could, “so that we could see how we stood. ’’ In compliance with that request, the bank, by its cashier, prepared,, or had prepared and delivered, to such agent of the sureties a. paper endorsed: “ A partial statement in detail of the defalcation of A. B., late cashier of the Manufacturer’s National Bank of Troy,” which contained an itemized account, with, dates and amounts constituting the claim. The account comprised a statement of alleged false charges made by the cashier in the accounts of depositors, items for drafts and securities of the bank abstracted and, in addition, items amounting in the-aggregate to $19,621.95, entered in the account as cash items drawn, from .the bank by collusion with the teller, without the knowledge or authority of the officers of the bank. The alleged label for which this action is brought is founded on the words “ for collusion with the teller,” contained in the statement, and also the repetition of the same words contained in a bill of particulars; furnished in the action by the bank against the sureties, on the demand of the attorney for the sureties. The plaintiff in this action was the teller of the bank during the time of the alleged: defalcations by the cashier, and no question is made but that the; words “ by collusion with the teller ” contained in the statement delivered to the agent of the sureties and repeated in the bill of particulars referred to the plaintiff.

The case has been before this court and also to the court of appeals, and whatever view this court might take of it as an original question, the court of appeals has determined that as to the cashier the publication was privileged, but that as to the teller.. “prima facie the publication was not privileged. The ordinary consequence follows that malice is presumed from the defamatory-nature of the publication, and the defendants must rely for their defense upon a justification.” Upon the former trial no evidence-was given to justify the publication; upon the trial now under review evidence in justification was presented by the defendants; the verdict of the jury was for the plaintiff, and under the decision of the court of appeals the judgment founded upon that verdict must stand unless the trial court erred in the reception or rejection of evidence or in its submission of the case to the jury.

I have examined with some care the exceptions taken to the-rulings of the court upon the evidence, and the exceptions taken to the charge of the court, and in them can find no sufficient reason to disturb the judgment.

Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


text:
    Richard Deyo, Resp’t, v. John Borley, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Execution—Endorsement.
    An execution was issued by the county clerk on the request of executors upon a judgment recovered by their testator in a justice’s court, and upon its return supplementary proceedings were instituted and a receiver appointed. The execution was in the usual form, but had no endorsement as having been issued by personal representatives. Held, that the omission of such an endorsement, if an error, did not render the execution void, but was a curable irregularity.
    Appeal from order of the county judge of Ulster county, denying motion to vacate and set aside proceedings supplementary to execution, and from order appointing a receiver.
    On April 15, 1887, Richard Deyo recovered a judgment in justice’s court against John Borley for $58.40, of which judgment a transcript was duly filed, and which judgment was duly entered ■and docketed by the clerk of Ulster county, in his office, on August 25, 1887.
    Richard Deyo died in the year 1888, and in the same year letters testamentary upon his estate were duly issued to Catharine Deyo and Elvin Deyo.
    ' In the year 1890, the county clerk at the executors’ request, issued an execution on said judgment, which was duly returned wholly unsatisfied; and thereafter the usual affidavit and order for an examination in supplementary proceedings were served on Mr. Borley, who appeared before the county judge and submitted to an examination and the appointment of a receiver without making any objection whatever. The receiver duly qualified and on December 81, 1890, served on Mr. Adams, Mr. Borley’s attorney, a certified copy of the order appointing him receiver. Thereafter Mr. Borley, by G. R. Adams, his attorney, began an action to recover money alleged to be due Mr. Borley and the receiver has been substituted as defendant in that action, which is still pending. Thereafter an order to show cause why the order appointing the receiver- should not be vacated was obtained and served.

      G. B. Adams, for app’lt; Be Witt Boosa (John B. Eckert, of ■counsel), for resp’t.
   Herrick, J.

The executors of the plaintiff, Richard Deyo, were entitled to enforce the unpaid judgment against the defendant, John Borley.

They authorized the issuing of execution upon the judgment, and the commencement of proceedings supplementary to execution against the defendant

The execution issued was in proper form; the only criticism that is passed upon it is that it was not properly endorsed as having been issued by the personal representatives of the deceased plainiff; and the whole objection to the regularity of the proceedings is based upon the lack of such endorsement of the execution.

No substantial right of the defendant has been infringed upon; the executors of Eichard Deyo were entitled to have an execution, issued against the defendant

The error alleged, if it is one, did not render the execution . void. It was a curable irregularity. Hill v. Haynes, 54 N. Y., 156; Douglas v. Haberstro, 88 id., 611; Wright v. Nostrand, 94 id., 48.

Ho objection was made by the defendant Borley at or prior to his examination or to the appointment'of the receiver, to the regularity of the proceedings; such objections should have been made then. Wright v. Nostrand, 94 N. Y., 45.

The order appealed from should be affirmed, with ten dollars costs and printing disbursements to the respondent.

Putnam, J., concurs; Mayham, P. J., not sitting.


text:
    George S. Wallace, App’lt, v. The Central Vermont Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Negligence—Contributory.
    Plaintiff was a brakeman in defendant’s employ and was injured by collision with a bridge which crossed the tracks. The bridge was sixteen feet high, and fifty feet therefrom was a tell tale or. tickler to give notice of its proximity, which, however, was out of order. Plaintiff had passed under the bridge thirty times, and testified that he never noticed the tickler. As the train approached the bridge plaintiff, who was on top of a car twelve feet high, stood looking toward the rear of the train, leaning forward with his hands on his knees. Held, that with his knowledge of the existence of the bridge he should have kept his eyes open and his senses about him, and that he was guilty of contributory negligence.
    Appeal from judgment in favor of defendant, entered on order granting a nonsuit.

      Swift & Sanford (Theodore Swift, of counsel), for app’lt; Louis Hasbrouch, for resp’t
   Herrick, J.

This is an appeal from a judgment of nonsuit entered upon. an order made at the close of the appellant’s evidence, upon the trial.

The action is to recover damages for injuries sustained by the appellant by reason of the alleged negligence of the respondent.

The appellant was in the employ of the respondent as a freight brakeman, and received the injuries complained of between ten and eleven o’clock in the forenoon on the 12th day of June, 1889, about one mile westerly from the village of Chateaugay, in Clinton county.

At the point where the accident occurred the road of defendant is crossed by a bridge, which is about sixteen feet above the rails of respondent’s road. Before reaching the bridge there is a reverse course upon a down grade, where trains were liable to break apart. Between fifty and sixty feet from the bridge is-what is called a tell-tale, or tickler, to warn brakemen of the proximity of the bridge. It is constructed of an upright upon each side of the road, a pole running across the road upon the up rights, and from such pole a number of strands of wire are suspended. At the time of the accident there is evidence showing that some of these wires had become twisted and displaced, and it is contended on the part of the appellant that thereby the distance between such hanging wires had become so great that it was possible for a person standing upon the top of the cars to pass between such wires without being touched, and he says that prior to the accident he had not noticed the ticklers or been'warned by them. The appellant knew 'of the bridge and had passed ■under it upward of thirty trips.

At the time of the accident the train consisted of fifty-four cars and one engine, and there was one brakeman besides the •appellant.

It was the duty of the appellant when the train was in motion to be on top of the cars to respond to any call to put on the brakes, and to keep watch of the train and see that it did not part and run together, and to be in such a position' that if such an accident occurred he could signal the engineer of the train. As the train.approached the bridge on the down grade over the reverse ■curve, going at the rate of from twelve to fifteen miles an hour, .the appellant was on the tenth car from the engine, looking towards the rear end of the train and with his back to the bridge, leaning forward a little with his hands on his knees. The car upon which he stood was about twelve feet in height and the respondent himself is five feet ten inches in height. While in the position ■described, watching the rear of the train to see that it did not break apart, the appellant reached the bridge, .was struck by it, and rendered insensible, his skull fractured and his shoulder dislocated.

The appellant on the trial testified that he was not looking out for the bridge on the occasion when he was hurt; that he was attending to other matters; that he had forgotten about it.

For the purpose of this appeal it would be profitless to discuss the question as to whether there was negligence on the part of the respondent; if the appellant was not free from contributory negligence, the fact that respondent was negligent will not avail him.

The appellant was in the ordinary discharge of his duty; he had come to a part of the road where from its perilous condition •■added watchfulness was needed on his part; at the same time that fact was also a warning to him that he was approaching a point of danger and notice to him to prepare for it; he knew of the existence of the bridge, where it was located, and knew that it was a low bridge; he had passed under it many times before on the tops of cars, yet he approached it standing up and with his back towards it. It could not be that he did this relying upon being warned by the ticklers or tell tales, because he says that prior to that time he had never noticed them, and had never been struck by them at the bridge before. It was, therefore, as to him as if no ticklers or tell tales were - in fact there, and “it was his duty to use due care and caution in approaching the bridge to avoid injury from it.” Fitzgerald v. N. Y. C. & H. R. R. R. Co., 59 Hun, 225; 36 St. Rep., 755.

The fact that he had forgotten about the bridge does not relieve him from the charge of contributory negligence any more than the forgetfulness of a railway officer to perform his duty -would relieve a railroad from responsibility for resulting injuries.

I do not mean to say that forgetfulness may not occur under such circumstances as to relieve the person forgetting from the ■charge of want of due care on his part, but in this case he was in the ordinary discharge of his duty, the road was in its usual condition, there was nothing to cause excitement, hurry or confusion, and he must be held to have assumed the risks incidental to a hazardous employment, and of the danger arising from an “ open, ■visible structure known to him, or of which he must have known had he exercised ordinary care and observation.” Williams v. D., L. & W. R. R. Co., 116 N. Y., 628, 27 St. Rep., 760.

When it is held that pedestrians crossing a railroad must, in "the absence of circumstances excusing it, look in each direction to •apprise himself of approaching danger, and cannot omit that precaution in reliance upon the railroad company to perform its duty to give notice of approaching trains, Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y., 526, 35 St. Rep., 814, it seems to me .not too much to say that a railroad employee who takes the ordinary risks of his employment, and who knows of the existence of a structure of the kind in question, has passed under it many times, should, in approaching it, keep his eyes open and his senses ■about him, and should not in broad daylight rush upon it, standing up with his back towards it, and yet be held to have exercised ■due care and caution.

The judgment and order appealed from should be affirmed, with costs and with printing disbursements.

Putnam, J., concurs, Mayham, P. J., not sitting.


text:
    Helen M. Jennette, Resp’t, v. John A. Sullivan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Breach of promise—Evidence of seduction.
    Where an express promise to marry is denied by defendant, it is competent as a part of the history of the relations between the parties to prove sexual intercourse and resulting motherhood of the plaintiff, although not alleged in the complaint, and the jury have a right to consider such evidence on the question of damages.
    Appeal from judgment in favor of plaintiff entered on verdict •of a jury.

      Shedden & Booth, for app’lt; Weeds, Smith & Conway, for resp’t.
   Herrick, J.

This is an action for breach of promise of marriage ; the complaint merely alleges the promise and its breach; the answer is a denial; the jury at the trial found a verdict for the plaintiff in the sum of $1,500.- The only questions argued before us upon this appeal are in relation to the reception of evidence of sexual intercourse between the plaintiff and defendant, and the charge of the court that the jury had the right, on the question of damages, to take into consideration the seduction o£ the plaintiff, if they determined that the seduction was caused by the engagement of marriage, and also that the damages awarded! by the jury were excessive.

The grounds of objection to the evidence of sexual intercourse were that it was immaterial, and that there was no allegation in the complaint of illicit intercourse or seduction.

It was denied by the defendant in his answer, and also when upon the stand as a witness, that he ever promised to marry the plaintiff, or that there was ever any engagement of marriage between them.

The question as to whether there was any such engagement was-sharply litigated upon the trial .

It needs no citation of authorities to show that where the-promise of marriage is denied, that it may be found by circumstances, by attentions bestowed, .the nature and description of those attentions, the intimacy between the parties, their relation; with and behavior to each other..

As a part of the history of the relations between the plaintiff! and defendant, and where an express promise to marry is denied by the defendant, it seems to us competent to prove sexual intercourse and resulting motherhood of the plaintiff, although not. alleged in the complaint, and that the jury have a right to consider such evidence on the question of damages. Wells v. Padgett, 8 Barb., 323, Hotchkins v. Hodge, 38 id., 117; Kniffen v. McConnell, 30 N. Y., 285.

The damages awarded by the jury do not seem to- be excessive for a cause of action such as this, and the judgment should not be-disturbed because of that amount

Let the judgment be affirmed, with costs and printing disbursements to the respondent.

Mayham, P. J., concurs; Putnam, J., not acting.


author: O’Bríen, J. Van Brunt, P. J.

text:
    Thomas W. Sweeny, App’lt, v. The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Municipal corporations—Negligence.
    In an action against a city for the alleged defective condition of a sidewalk, the only evidence upon the point was the plaintiff's testimony that, it was intensely dark, and that the first thing he knew he was prostrated upon his face and hands. Ten days later he examined the sidewalk and found it defective. Held, that a verdict against the plaintiff would not be disturbed.
    Appeal by plaintiff from a judgment entered on the verdict of a jury, and from an order denying the motion for a new trial.

      Frederick Coudert, for app’lt; Theodore Oonnoly, for resp’t
   O’Bríen, J.

The action was brought to recover the sum of $5,000 for injury alleged to have been sustained by the plaintiff in falling upon the pavement on the northerly side of Eighty-ninth street, between First and Second avenues, oh the evening of March 9,1889. The injuries were alleged to have been received by reason of the careless and negligent maintenance by defendants of Eighty-ninth street.

For appellant, it is insisted that the judgment should be set .aside for the reason that the verdict was against the weight of evidence, contrary to the instructions of the law, and the result of misapprehension and mistake in the minds of the jury, resulting in injustice to the plaintiff. In addition, certain exceptions taken

the refusal to allow certain questions to be answered are relied upon. These, and the refusal of the court to hear argument on the motion to set aside the verdict, are the questions raised upon this appeal.

The plaintiff’s version of the accident was tjiat on returning borne on the day in question, he left the Third avenue train at Eighty-ninth street with the intention of returning to his home in Astoria by the ferry from the foot of Ninety-second street. It being dark, the plaintiff testified that he concluded that it would be safer for him to continue on through Eighty-ninth street as far as Avenue A, instead of taking the route which he had often before gone over from Second avenue through Ninety-second street *o the ferry. This change from the usual route taken by plaintiff •on returning home to Astoria was the result, he said, of the very ■bad condition of Ninety-second street at the time in question.

As to just how the accident occurred and the cause of it, no positive evidence is presented. Upon the direct examination, the plaintiff testified as follows : I continued down Eighty-ninth ¡street, which, as I have stated, was very clear of obstructions, as far as I knew ; I have never travelled that part of Eighty-ninth street before, between First and Second avenues, and I continued on. It was very dark, and the first thing I knew, I was prostrated on my face and hands. I could see nobody in the street, it was so intensely dark, but there was a man on the street, it seemed on the other side, though he didn’t see me nor I him; but he heard the rattling of my cane on the flag I fell on, and crossed the street to ascertain what caused the noise. He came over and found me insensible, and being a very delicate man and sick at ■the time, he could not render me any assistance.”

Plaintiff further testified that he knew the name of this man do be Charles Funk, and that he lived on Eighty-eighth street, but neither Funk nor the policeman who assisted Funk to raise .the plaintiff after the accident were called as witnesses on the trial. It is true, that on cross-examination, plaintiff testified: “The might was dark ; I didn’t see a thing until I was prostrated,” and when asked if he knew the cause of the fall, he stated that the ■cause was broken flagstones, but, as stated by the court, the plaintiff did not pretend that he saw anything that night, but he speaks -of the condition of the sidewalk from his subsequent examination, which he says was ten days afterwards. It will thus be seen "that the plaintiff does not testify positively that his injury was caused by a defective sidewalk, but merely states that he tripped on ■some obstacle and fell; thus, at the most, raising but a presumption that the obstacle was a defect in the sidewalk. We have thus considered the evidence of General Sweeny, for the reason that it was the only evidence given as to the circumstances attending-the reception of his injuries. Unless this testimony would haverjustified a direction by the court that plaintiff was entitled to-recover, leaving to the jury only an assessment of damages, then a refusal to subsequently disturb the verdict was not error. In other words, if the verdict was not contrary to law, nor contrary to the evidence, it should not be disturbed", remembering the uncertain character of the evidence as to the cause of the accident, and the fact of the interest which plaintiff had in the suit, and the right that the jury had of drawing one or more inferences-from testimony thus offered. Though upon the same evidence the court might have come to a contrary conclusion, this would not be sufficient to justify setting aside the verdict. “ In reviewing the findings of a jury, and the evidence upon which it is-based, there are certain cardinal rules which are not to be lost sight of. It is the right of the jury to decide as to the credibility of testimony, to weigh evidence and to draw inferences from it. The courts are not authorized to set aside a verdict simply because-if they had been on the jury they would have found a different verdict, and it is not enough that the verdipt may possibly be wrong, but the court should be satisfied that, after giving a proper weight to all the evidence, it cannot be right. 3 Graham & Wat. on New Trials, 1283; Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415; 1 Thompson on Trials, 1037-1039.

We have thus reviewed the evidence upon the assumption that the case contained all that was given upon the trial.

We might have disposed of all the questions of fact and alleged errors of the jury by applying the rule, now well settled, that, evidence in a case cannot be reviewed where the case on appeal fails to state that it contains all the evidence. Cheney v. N. Y. C. & H. R. R. R. Co., supra; Cornish v. Graff, 36 Hun, 160; Porter v. Smith, 107 N. Y., 533; 12 St. Rep., 479; Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948.

Upon the same assumption heretofore- indulged in, however, that the case contains all theoevidence taken upon the trial, we will consider the second ground relied upon, which is the alleged error of the jury in misapprehending the instructions of the court, as-claimed by appellant. On the return of the jury after deliberation to the court the foreman stated that he would like to hear the testimony of General Sweeny on the point as to whether he-said Ninety-second street was in bad condition, where he could not pass through.

“ By the Court: Q. What has that to do with it ?
“ By the Foreman: Counsel said that the general got out at Eighty-ninth street, and went through Eighty-ninth street, because-he knew Ninety-second street was in an unsafe condition.
“ By the Court: I think the general said that in his examination, but the point is not very important * * *
“ By defendants’ counsel: He said he was apprehensive of danger by falling, on account of insecure condition of Ninety-second street.
. “ By the Court: The point involved in the case relates to Eighty-ninth street, and not to Ninety-second street. -
“A Juror : Then we have agreed upon the verdict. We find a verdict for the defendant, for the city.”

The occurrence thus related, is relied upon as tending to show that the verdict is altogether the result of misapprehension on the part of the jury, and a clear mistake of law; that it is evident that the jury wilfully and perversely disregarded the instruction of the court, that the condition of Ninety-second street had nothing -to do with the case, and returned a verdict based upon the condition of that street.

We do not think that such a conclusion is justified by what ensued on the return of the jury. On the contrary, it would appear that the jury had agreed upon a verdict, but were disposed to attach some importance to the condition of Ninety-second street, as affecting the plaintiff’s right to recover, which, as soon as they ascertained from the instruction of the court in no way related to or affected the question, a verdict was reached by entirely disregarding the same.

It seems, also, reasonable that the only one who attached importance, unless it may have been in addition the foreman himself, was the juror who, after the court had, instructed them that the condition of Ninety-second street had no bearing upon the question as to whether plaintiff should or should not recover, thereupon stated that they had agreed upon a verdict for the city. It was upon this ground that the motion for a new trial was made, and for the refusal to hear argument thereon that appellant relies to reverse the judgment. We have been furnished with no authorities, nor can we think of any good reason why a judge who has presided over the trial of a case, has heard all the evidence, should after a verdict is rendered be compelled to hear an extended argument upon a motion for a new trial. The exceptions at folios 140-142 and 154 we do not regard as well taken. They are all of one class, and relate to the exclusion of evidence tending to show that the city made repairs . to Eighty-ninth street after the date of the accident. Evidence of this character is clearly incompetent under the authorities. We are aware that 'counsel stated that it was offered, not for the purpose of showing the repairs as an admission on the part of the city that it needed repairs, but to show that the street was in the same condition when General Sweeny visited it a week after, and that it was only changed or repaired three months after.

If what was sought was to ascertain the condition of the street, that question could have been asked in a form other than the one that has been so frequently condemned by the court of appeals. If upon no other grounds, the court was justified in excluding it by reason of the form of the question by which the evidence was sought to be elicited.

On the examination of the case and exceptions, therefore, we are of opinion that the judgment should be affirmed, with costs.

Van Brunt, P. J.

The jury may have been of the opinion that as the plaintiff gave as a reason for not taking Ninety-second street its bad- condition, that if it was not in bad condition that it affected his credibility. I concur in result.

Lawrence, J.-—I concur in the result.


author: O’Brien, J.

text:
    James Degnan, Resp’t, v. Ella Degnan, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Divorce—Presumption as to foreign law.
    In an action to annul a marriage upon the ground that the wife, the defendant, was married to one Fried at the time of her marriage to the plaintiff, the defense was that Fried had been married in Sweden before he married the defendant here. The referee held that the defendant must show that Fried’s marriage in Sweden was valid according to the laws of that country. Held, error; that as the law of Sweden was not proved the court wouli assume that its law was like our law.
    2. Same—Proof of marriage.
    .Strict proof of marriage is not required; it may be inferred from cohabitation, declarations and conduct.
    . 3. Same—Evidence—Parish register.
    The fact that the marriage did not appear in the register of the parish in Sweden is not conclusive that it never occurred, as the keeping of such & register was not required by law. Evidence by a parish register, while competent, is not the best evidence. . .
    Appeal from a judgment entered upon the report of a referee, annulling the marriage of the plaintiff and defendant.

      J. Edward Swanslrom, for app’lt; Joseph F. Moss, for resp’t.
   O’Brien, J.

This action was brought to annul the marriage '■ between plaintiff and defendant, upon the ground that at the time <of the marriage the defendant was the wife of one Oscar Fried, whom she had .previously married, and by whom she had a child, and from whom she had never been divorced.

The defendant did not dispute the fact that, prior to her marriage with the plaintiff, a ceremony of marriage had been performed between herself and John Fried, but she introduced evidence tending to show that at the time of this ceremony Fried had a former wife living in Sweden, and hence his marriage with the defendant was null and void. It will thus be seen that the - questions presented upon this appeal relate to the force and effect of the testimony offered on behalf of the defendant to show that •Fried, at the time of his marriage with her, had a former wife living in Sweden, because it must be conceded, as a conclusion of law, that if such was the fact the defendant was under no legal disability to thereafter contract a valid marriage, and the one entered into between herself and the plaintiff would have been legal and valid.

Upon the trial the defendant, by testimony which is uncontra- ■ dieted, showed that prior to 1872 she had come from Sweden to America, and that while living in Jersey City she met Fried._ to whom she was married in the latter place in 1872. After living with him for some years she learned from letters received from her parents, who were then living in Sweden, and subsequently - by statements made by them when they came to America and joined her, that Fried had another wife and four children in Sweden,. Acting upon this information, she refused to live with Fried, who-thereafter fled to Salt Lake City, from which place he wrote-letters admitting the truth of the charge made against him, that he had another wife and children living in Sweden. One of these letters the plaintiff introduced as part of his case. In it Fried speaks of his wife in Sweden, and of the great wrong he perpetrated on the defendant in inducing her to marry him when he already had a wife living, and offered to secure a divorce if defendant would consent to a reunion with him. In addition to these letters and the conduct of Fried, several witnesses were called who gave testimony to show that Fried had a wife and four children living in the town of Skefto, Sweden. On plaintiff’s part no evidence was offered to rebut the presumptions necessarily to be drawn from such testimony.

Upon the trial, and in his opinion, the learned referee laid much stress on testimony adduced, showing that in Sweden marriages are entered in a parish registry, and the failure to prove the marriage between Fried and his former wife by such registry seems to> have been a controlling fact in the determination of the referee that a former marriage by Fried had not been proven. The learned referee, in his opinion, also held that the legality of Fried’s former marriage depended upon the law of Sweden; and as he states: “ Under these circumstances, it is necessary to prove-a marriage valid under the laws of the country where the marriage is alleged to have been made; ” and further on in his opinion he states that: “ Strict and absolute proof is requisite before placing the stain of illegitimacy on the surviving child of an admitted marriage solemnized in this country, and sanctioned by cohabitation of over ten years.”

We think that the learned referee- inadvertently fell into ari error as to the principles of law which should control. There was no allegation in the pleadings, nor was any proof offered showing that the law in this state and in Sweden was different. As said in Hynes v. McDermott, 82 N. Y., 41: “In the absence of proof, it will not be presumed that the law of marriage of any other country is different from that of this state.”

Upon the second appeal in Hynes v. McDermott, reported in the-91st of Flew York, page 458, Andrews, J., in writing the opinion, says: “ There was no proof given as to the marriage law of France, and it was held on the former appeal in' this case that in the absence of proof to the contrary, it would be assumed that, the requisites to constitute marriage are the same in any other-country as in our own, and it may be safely assumed as a fact, that in France the mutual consent of the parties to assume the-relation of husband and wife, followed by cohabitation, constitutes marriage; since, if it was otherwise, it could readily have been shown.”

Again, at page, 459, he says: “ The presumption of marriage-from a cohabitation apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case-involving legitimacy. The law presumes morality and not immorality, marriage and not concubinage, legitimacy and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence.”

In applying these principles to the question really presented to the referee, which was reduced to a determination as to whether or not Fried had a former wife living in Sweden, we think' that the evidence adduced, in the absence of any testimony to the contrary, was sufficient to raise the presumption of said marriage. There are many cases that might be cited, where the facts have been strained for the purpose of reaching the presumption of marriage in order to legitimatize children, but it will be noticed that such inferences and presumptions have been indulged in where the effort was to uphold the marriage.

There can be no doubt as to the law in this state as to what is sufficient in order to prove a marriage, and we have found no support for the expression used by the referee, that a strict and absolute proof is requisite. On the contrary, in Gall v. Gall, 114 N. Y., 109; 22 St. Rep., 746, it was held: “ Marriage may be proved by showing actual cohabitation as husband and wife, acknowledgment, declarations, conduct, repute, reception among neighbors or relations and the like.” Can there be any doubt that if an action had been brought in this state by the woman with whom Fried resided in Sweden, and by whom he had the four children, that upon the testimony adduced by the witnesses examined upon this trial, that in the absence of a different law prevailing in Sweden, and in the absence of any testimony to the contrary, but that the relation between Fried and the woman in Sweden would have been held to be matrimonial. It was shown upon this trial by several witnesses that Fried and the woman by whom he had the four children lived in Skefto, Sweden. Their life, as detailed by the witnesses, was the ordinary household and family life of persons lawfully married, rearing a family of children at their domestic board, to whom the father gave his name, and over whom he exercised the parent’s authority. The parish pastor baptized the children, and the husband and wife were recognized as such by their neighbors in the community where they lived. And, in addition, one of the witnesses who boarded with the Frieds in their home in Skefto, and knew their children, further testified that in á place like Skefto, “a man and woman are not allowed by the law to live together unless they are married.”

It is difficult to see, upon this evidence, how the referee could have reached the conclusion that this did not raise a presumption of Fried’s former marriage. As already stated, too much stress was -placed by the referee upon the absence of proof of what the parish register of Sweden might or might not contain. The keeping of a church registry is not required by law, and entries therein might or might not be correct. Moreover, such registry would not, as did the testimony in this case, identify the parties and their conduct and relations while living together. ¡No one would maintain that such entry was the best or only evidence of the marriage, but it was entirely proper for the defendant to prove it by any other competent evidence which, as here, she attempted to dpi Sufficient has been stated to indicate that the conclusión reached by us is that the referee erred in holding that the evidence introduced by the defendant was not sufficient to raise a presumption of the former marriage of Fried. We think it did; and that it was incumbent upon the plaintiff to meet it by some evidence which would rebut the natural and necessary in-, ference which would flow therefrom.

To the end that plaintiff may have an opportunity of rebutting the presumption thus raised, a-new trial should be had; but the judgment appealed from should be reversed.

Van Brunt, P. J., and Lawrence, J.,' concur.


author: O’Brien, J. Van Brunt, P. J.

text:
    The People ex rel. Alice Stobo, Resp’t, v. James S. Eadie, President of the Globe Fire Insurance Co., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Corporations—Examination op transfer-book.
    Under § 199 of chapter 409, Laws 1883, giving to a stockholder in a corporation an absolute right, within thirty days, prior to an election, to examine the books containing the names oí stockholders, the court has discretion to grant such an examination where the application is not made within the statutory period.
    (Van Brunt, P. J., dissents.)
    Appeal from order granting peremptory Writ of mandamus.

      Lemuel Skidmore, for app’lts; James J. Allen, for resp’t.
   O’Brien, J.

From the order that a peremptory writ of mandamus issue out of this court, directed to appellant Eadie, as president, and the Globe Fire Insurance Company, commanding them to permit the relator, Alice Stobo, or James J. Allen, her attorney, to examine and inspect the transfer book of the company, or such book kept by it as contains the names of the stockholders, this appeal is taken.

The application was made upon affidavits in which it was stated that the Globe Fire Insurance Company was a domestic corporation; that Alice Stobo, ’ the relator, held in certificates seventy-five shares of the capital stock of said company, which certificates were made out in the name of her deceased husband, Robert Stobo; that she went with her counsel to the office of the company for the purpose of obtaining an inspection of the transfer book, or book containing a list of the stockholders of said company,'in order that she might be able to vote intelligently at the approaching meeting of the stockholders of said company; that she requested the president to permit her to examine the same, which was refused. It also appears that Mrs. Stobo’s attorney had prior to that time called and made the same request, which was refused, and on another occasion he again called and requested to be informed as to the date of the annual meeting, which information was also refused.

In her affidavit Mrs. Stobo further states that she was informed and believed there was to be a meeting of the stockholders of the company for the election of directors and officers some time between the first and fifth days of January, 1892.

It will thus be seen that after information as to the real date of the meeting was refused, and acting upon the information which the relator received and believed, that the election of directors and officers would occur within thirty days after her application for permission to inspect the book containing the names of stockholders, she made this application intending to take advantage of the provision of the statute which gives the absolute right to a stockholder, within thirty days prior to an election, to make an examination of the books containing the names of stockholders. Chap. 409, § 199, Laws of 1882.

Upon the argument of the motion it appeared for the first time that the application was not made within thirty days of an election. The court, however, held that the papers disclosed sufficient to authorize it to exercise its discretion, and accordingly the order appealed from was made.

It must, be apparent from the papers themselves that if the court had any discretion it was wisely exercised in granting the application. The principal ground upon which the appellant relies is that the court has not the power, or that if it had it will not enforce it, in any case in favor of the right of a stockholder t) inspect the books of a corporation except at the time and in the manner specified by the statute governing the corporation. To sustain this ground the appellant relies upon two cases of Hatch v. The Lake Shore & Michigan Southern Railroad Company, 11 Hun, 1, and the People v. The Northern Pacific Railroad, 18 J. & S., 459.

An examination, however, of those cases will show that the ground of the refusal to allow an inspection of the books recognized the power of the court, and the right to exercise its discretion, to either grant or withhold a mandamus, and thus the contention of the appellant is disposed of.

In the case of Hatch v. The L. S. & M. S. R. R., supra, this court said “ the object of this statute (§ 1, 1st Revised Statutes, ■601) is quite apparent. It intends to put it in the power of every stockholder, for thirty days previous to any election of directors, to ascertain the names of all the stockholders of the company, so that he can exert such influence or use such lawful means as he may deem proper to effect an election of such directors; but the statute does not, we think, cut off all the rights of stockholders of a corporation to examine its transfer book for proper purposes, and on proper occasions at other times. There are no rules' in the statute indicating such an intention, nor any negation of the rights of stockholders which requires that construction.

'"“We think, therefore, that it is within' the power of the court whenever a case is presented that requires it to be done for the purpose of preserving the rights and interests of stockholders, to interfere by mandamus to compel the exhibition of the transfer books of the corporation or the book containing the names of its stockholders.”

The court of appeals expressly approved of this language, in affirming the decision of this court, in the Matter of the Application of Sage v. The Lake Shore, etc., Railroad, 70 N. Y., 222. It being therefore a matter of discretion which upon the facts was properly exercised, the order appealed from should be affirmed, with costs and disbursements.

Patterson, J.—I concur.

Van Brunt, P. J.

I dissent from the foregoing conclusions. In the first place the applicant is not a stockholder of the corporation. Upon the books of the company no stock stands in her name, nor has she made any application for a transfer which has been refused.

Her husband was the owner of stock which she alleges she has transferred to herself, but she nowhere alleges that such stock was ever transferred on the books of the company. It seems to me that the only way a company can determine who are stockholders is by their books, and unless a party appears upon their books to be a stockholder they are not compelled to recognize such person as such.

In respect to the case of The People ex rel. Hatch v. Lake Shore R. R., 11 Hun, 1, it seems sufficient to say that no question of the kind now presented was before the court, and what was said upon the subject was entirely obiter.

If such general right existed, what was the necessity of the legislation contained in 1 E. S., 601, § 1; as it did not exist, it was necessary to confer it by legislation.


author: Lawrence, J.

text:
    In the Matter of the Application of The New York Elevated Railroad Company. Matter of Clarkson et al.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Railroads—Effect of a lease upon the lessor company.
    It is provided by chap. 254 of the Laws of 1867, that any railroad company which is the lessee of another may take a surrender or transfer of the stock of the road held under lease and issue therefor a like amount of its own stock; that when the greater part of the stock has been so surrendered the directors of the lessee company may become ex officio directors of the lessor company; that upon filing a certificate the estate and franchises of the company whose stock has been surrendered shall vest in the ■ company to whom the transfer has been made, and that the rights of stockholders who have not surrendered their stock and those of creditors shall not be- affected. Held, that the statute contemplated the continuing existence of both corporations.
    2. Same—Eminent domain—Abatement—Transfer of interest.
    Where an elevated railroad company of the city of New York began condemnation proceedings and was subsequently leased by another company, it did not thereby lose its right to continue the proceedings.
    Appeal from an order at special term appointing commissioners.

      Gannon & Atwater, for app’lts ; Davies & Rapadlo, for resp’t
   Lawrence, J.

This is an appeal from an order appointing commissioners to ascertain and appraise the compensation to be made the owners of or persons interested in certain property, easements or other interests taken by the petitioner for the purposes of its incorporation. It appears that these proceedings were commenced by the New York Elevated Railroad Company to acquire title to certain property mentioned in the petition, being certain easements appurtenant to premises abutting on the street through which the railroad ran.

The original petition was dated September 17, 1889, and was presented to the special term on October 21, 1889, and testimony was taken upon this application, but before any order was made the petitioner applied for leave to amend its petition, which was granted April 22, 1890. The appellants, in answer to the amended petition, alleged that the petitioner has lost its right to institute condemnation proceedings by reason of the fact that it had been merged and consolidated on the 3d of February, 1890, with the Manhattan Railway Company.

It further appears that by proceedings under chap. 254 of the Laws of 1867 the capital stock of the petitioner, the New York Elevated Railroad Company, has been surrendered or transferred to the Manhattan Railway Company, and that a certificate to that effect had, on that date, in accordance with the statute, been filed in the office of the secretary of state. As already stated, the appellants claimed that thereby the petitioner lost all right to carry on these proceedings. It is claimed that that result follows from the provisions of the act of 1867 above referred to, and that thereby the petitioner, in effect, ceased to be a corporation, and-lost all legal existence. The act of 1867 is entitled “ An Act in relation to railroads held under lease.” The first section is as follows:

“ Any railroad corporation created by the laws of this state, or its successors now being the lessee of the road or any other railroad corporation, may take a surrender or transfer of the capital stock of the stockholders, or any of them, in the corporation whose road is held under lease, and issue in exchange therefor the like additional amount of its own capital stock at par, or on such other-terms and conditions as may be agreed upon between the two corporations; and whenever the greater part of the capital stock of any such corporation shall have been so surrendered or transferred, the directors of the corporation talcing such surrender or transfer shall thereafter, on a resolution electing so to do, to be entered on 'their minutes, become ex-officio the directors of the corporation whose road is so held under lease, and shall manage and conduct the affairs thereof as provided by law; and whenever the whole of the said capital stock shall have been so surrendered or transferred, and a certificate thereof filed in the office of the secretary of state, under the common seal of the cor- - poration to whom such surrender or transfer shall have been made, the estate, property, rights, privileges and franchises of the said corporation whose stock shall have been so surrendered or transferred shall thereupon vest in and be held and enjoyed by the said corporation to whom such surrender or transfer shall have been made, as fully and entirely, and without charge or diminu*tian, as the same were before held and enjoyed, and be managed and controlled by the board of directors of the said corporation to whom such surrender or transfer of the said stock shall have been made, and in the corporate name of such corporation. The rights of any stockholder not so surrendering or transferring his ■stock shall not he in any way affected hereby, nor shall existing liabilities, or the rights of creditors of the corporation, where stock •.shall have been so surrendered or transferred, be in any way ,affected or impaired by this act."

We think that under this section, notwithstanding the transfer -of the capital stock of the lessor to the lessee corporation, the' former does not cease to have a corporate existence. There can be no such thing as a lease without there are two parties to it, to wit: a lessor and a lessee, and it seems to us absurd to speak of a nailroad being held under a lease, if the corporation to which that railroad belongs has been entirely wiped out of existence.

Furthermore, an examination of the language of the first sec-in on of the act of 1867 satisfies us that the legislature did not intend that the effect of that act should be to entirely abrogate the -existence of the lessor corporation. The language is that the surrender or transfer of the capital stock in the corporation whose road is held under lease, and for which the capital stock of the lessee corporation is to be exchanged, may be made at par, or on such other terms as may be agreed upon between the two corporations. This section recognizes the existence of two corporations. Then comes the provision that whenever the greater part of thé capital stock of any such corporation shall have been so .surrendered, etc., the directors of the corporation taking such surrender, etc., shall thereafter, on a resolution .electing so to do, etc., become ex officio directors of the corporation whose road is so held under lease, and shall manage and conduct the affairs thereof as provided by law. Still the statute recognizes the lessor "•corporation as in existence.

Reading further on, we find it provided that whenever the capital stock shall have been so surrendered, etc., or a certificate thereof filed in the office of the secretary of state, etc., under the common seal of the corporation to whom such surrender, etc., shall have been made, the estate, property, rights, privileges, franchises of such corporation whose stock shall have been so surren■dered, etc., shall thereupon be held and enjoyed by such corporation to whom such surrender has been made as fully and entirely .•and without charge or diminution as the same were before held and enjoyed, and be managed and controlled by the board of directors of the said corporation to whom such surrender or transfer of said stock shall have been made and in the corporate name of such corporation.

It is further provided that the rights of a stockholder not so .surrendering or transferring his stock shall not be in any way effected hereby, nor shall existing liabilities or rights of creditors of the corporation, whose stock shall have been so surrendered or transferred, be in any way affected or impaired by this act We think a fair and proper construction of this language is that while the lessee corporation ig to manage and operate the railroad of then lessor corporation, the latter should not lose its corporate existence. The very fact that the rights of any stockholder who has, not surrendered his stock in the latter corporation are not to be-affected, indicates that the legislature recognized the existence of the lessor corporation, notwithstanding such transfer.

The case of the Memphis Railroad Co. v. The Commissioners, 112 U. S., 609, we think is in point in this case. It was there held that a franchise to be a corporation is distinct from a franchise as a corporation to maintain and operate a railroad, that the-latter may be mortgaged without the former, and may pass to a purchaser at a foreclosure sale. In that case Matthews, J., delivering the opinion of the court, says ;

“ The essential properties of corporate existence are quite distinct from the franchises of the corporation. The franchise of being a corporation belongs to the corporators, while the powers- and privileges vested in and to be exercised by the corporate body as such are the franchises of the corporation.”

If we are right in our construction of the act of 1867, we are of the opinion that by the proceedings taken thereunder, the petitioner did not lose its right to continue a proceeding commenced for condemnation of property before the transfer took place, or to-' authorize the Manhattan Railway Company to continue those proceedings in its name. Section 755 of the Code of Civil Procedure provides that an action does not abate by any event if the cause of action survives or continues, and by subd. 6 of § 3347 of that Code- that section is made applicable to special proceedings as-well as to actions. The right to condemn the property in question, therefore, has not abated or been lost by the lease made to-the Manhattan Railway Company. Section 756 of the Code of Civil Procedure provides that in case of a transfer of interest or a. devolution of liability, the action may be continued by or against, the original party. This section is also made "applicable to special proceedings by subd. 6 of § 3347 of the Code of Civil Procedure.

We are therefore of the opinion that the decision below was-right, and that the order should be affirmed, with costs and disbursements.

Yan Brunt, P. J., concurs.


author: Earl, Ch. J.

text:
    The People, Resp’ts, v. William H. Formosa, App’lt.

      (Court of Appeals,

      Filed March 15, 1892.)

    1. Constitutional law—Laws 1890, chap. 401; Rebates on life polict PREMIUMS.
    Chapter 401, Laws 1890, making it a misdemeanor for a life insurance company to discriminate between individuals of the same class and the-same expectation of life, or to allow rebates to any person, is constitutional.
    2. Same.
    ■ The power exercised by the legislature over insurance companies and; their agents is similar to that exercised over banks and railway corporations, and it has power to regulate them and their agents in the minutest particular in the interest of the public.

      Appeal from judgment of the supreme court, general term, ¡fifth department, affirming conviction of the crime of unlawfully paying and allowing a rebate of premium upon a policy of insurance upon the life of Orth 0. Graves, in violation of chap. 401, Laws 1890.

      W. Henry Davis, for app’lt; George A. Benton, dist-att’y, for resp’ts.

       Affirming 40 St. Rep., 861.

   Earl, Ch. J.

In 1889, the defendant was the agent at Rochester of the National Life Insurance Company of Montpelier, Vermont, a corporation organized under the laws of that state and doing business in this state. He was indicted, tried and convicted under the act, chap. 401 of the Laws of 1890, for paying and allowing to one Graves, as an inducement to him to insure his life in that ■company for $3,000, a rebate of fifteen per cent, on the first year’s premium. The defendant assails the judgment of conviction upon various grounds.

He was indicted on the 30th day of October, 1890, and the Indictment alleges the commission of the offense on the 26th day ■of October, 1890, The proof showed the commission of the •offense to have been about one year later, and his counsel now ■claims that there was a fatal variance between the time alleged in the indictment and that shown by the proof. It does not appear by the record that this variance was in any way called to the .•attention of the court upon the trial, and the record contains no ■exception presenting the point for our consideration. If objection on this ground had been made at the trial the court could have allowed an amendment of the indictment under § 293 of the 'Code of Criminal Procedure. People v. Johnson, 104 N.Y., 213; 6 St. Rep., 606; People v. Jackson, 111 N. Y., 362; 19 St. Rep., 506.

The indictment alleges that the Vermont Company was a corporation organized under the laws of that state and it is claimed that no proof was given upon the trial showing its corporate existence. No such objection was made at the trial, and there is no exception presenting that point for our consideration. If objection had been made the district attorney might have furnished the technical proof required to establish the incorporation of the company. But we agree with the court below that there was sufficient •evidence that the Vermont Insurance Company was a corporation .authorized to carry on the business of insurance. If it was not it could not under the laws of this state have transacted business here.

It appeared in the evidence that it was transacting business here; that the defendant represented it and held it out as a corporation. It was spoken of by the witnesses as such, and the policy which was issued to Graves was endorsed by the defendant as “ Genera] Agent of the National Life Insurance Company of Vermont.” In the absence of objection such evidence was .sufficient, and so we think the objection was not well taken.

The main point, however, upon which the learned counsel for ■She defendant relies here, is that the act making it a criminal offense for him to pay a rebate to induce any person to effect insurance in the company was unconstitutional, on the ground that-it arbitrarily and unjustly abridged his natural rights and personal liberty in the conduct of this business. He claims that the act has no relation to the public safety or welfare, and hence that it. could not be enacted under the police power which the state, through its legislature, can exercise.

Life insurance companies perform very important functions in modern society. They operate in all parts of the state, and a very large number of people are interested in them. They- are resorted, to for the purpose of making provisions for families and dependents after the death of the insured, and for that purpose many persons invest in them the accumulations of their labor and their thrift. The nature of insurance contracts is such that each person effecting insurance cannot thoroughly protect himself. He is-not competent to investigate the condition and solvency of the-company in which he insures, and his contracts may run through many years and mature only, as a rule, at his death. Under such circumstances it is competent for the legislature, in the interest of the people and to promote the general welfare, to regulate insurance companies and the management of their affairs, and to provide by law for that protection to policy holders which they could. not secure for themselves. Under such conditions there should be a wide range of legislative power to promote the public welfare in the exercise of the police power, and the true boundaries of that power it would be difficult in such a case to prescribe. We have no occasion now to specify to what extent it might reach,, or in any way to place upon it its proper limitations, because, iir order to justify the act in question, it is not necessary to resort to-that power.

The business of life insurance in this state is. mainly carried on, by insurance companies authorized by law, and minute provisions-are made regulating their incorporation and their business, and a department of the state government has been constituted to supervise them. The corporations organized under the laws of this state for life insurance are absolutely under the direction and control of the legislature. It may specify how and on what terms they may do business and enact laws regulating their conduct, and the conduct of their agents for their protection and the protection of their- policy-holders, and enforce obedience to such laws by such penalties, forfeitures and punishments as it may, within constitutional limits, prescribe. As all these corporations must act through agents it has the same power and authority to regulate the conduct of their agents as it has to regulate the corporations-themselves. It would be quite preposterous to say that while the-legislature could, in the' exercise of its legitimate authority, regulate these corporations and prescribe the terms under which they may exist and do business, yet it could not by similar laws-regulate and control the conduct of their agents. When these-corporations seek the benefits and privileges of the laws creating' and authorizing them they must conform to the laws enacted for their conduct, and if they are unwilling to do so they must go-out of existence. So, too, all persons who seek to act as agents-of such corporations must conform to the laws regulating thebnsiness of such corporations or cease to act for them.

We have not here the question as to what a private individual may do in the conduct of his private business; but the question, here is as to the power of the legislature over corporations and their agents. The power exercised over these insurance companies and their agents is similar to that exercised by the legislature over banks and railway corporations ; and it has never been doubted that such power exists, and the legislative power to regulate them and their agents in the minutest particular in the interest of the public has never been questioned.

The fact that this company was a foreign corporation can make-no difference. When it comes into this state by comity to do-its business here through its agents it must obey our laws and conform to our public policy, and if they are unwilling to do so they must keep out of the state.

We may not be able to perceive the purpose or the wisdom of this act. It is sufficient that we perceive the legislative will in the act, and we need not speculate as to the policy which, prompted it.

So we think there is no doubt that the act is constitutional and the judgment should be affirmed.

All concur.


author: Per Curiam.

text:
    William J. Brewster, App’lt, v. George H. Wooster, Resp’t.

      (Court of Appeals,

      Filed March 15, 1892.)

    1. Contract—Rescission of—Restoration of property.
    Defendants agreed to convey certain personal property to plaintiff and two others, for which plaintiff was to convey two houses, Bateman three pieces of real estate and Bvown $10,000 •' in satisfactory value." Upon the-trial of this action plaintiff testified that he had conveyed a house and lot and some personal property in lieu of the other house, that Bateman had conveyed two houses and lots and that Brown had paid in patents accepted at $10,000. Plaintiffs had sold a portion of the goods for $900, but defendant had retained the title to the goods sold and took possession thereof and sold it to a third person, without the consent of the purchasers. Plaintiff also offered to show that defendant had deeded away one of the houses-received from him. The judge dismissed the complaint on the ground* that the action was based on a rescission of the contract by plaintiff and could not be maintained, as plaintiff had not restored what he received under the contract. Held, error; that under the circumstances disclosed it was not a defense that the plaintiff had not. before bringing the action, restored or offered to restore to the defendant the goods sold or their proceeds.
    2. Same—Demand.
    No demand of the defendant was necessary to give a right of action, for the reason that the duty of the defendant to return the consideration received from the plaintiff aróse when he retook the property for which the-consideration was given, and transferred it to third persons.
    Appeal from judgment of the New York superior court, general term, overruling the exceptions of plaintiff to the order of the "trial court dismissing the complaint and ordering judgment for •defendant

      Wm. Henry Arnoux, for app’lt; Thomas B. Browning, for Tesp’t

       Reversing 30 St. Rep., 251.

   Per Curiam.

We deem it unnecessary to refer in detail to the complicated transactions disclosed by the evidence.

The plaintiff, in his complaint, sought to recover of the defendant the value of certain real estate and chattels transferred by him to the defendant in part performance of a contract for the purchase by the plaintiff and two other persons, from the defendant, ■of a certain stock of goods and certain machinery owned by the latter, valued in the contract at $44,000.

The judge on the trial dismissed the complaint on the ground that the action was based on a rescission of the contract by the plaintiff, and that it could not be maintained for the reason that the plaintiff had not restored to the defendant what he had received under the contract, and also that there was no allegation or proof of demand before bringing the action.

By the contract the purchasers, Brewster, Bateman and Brown, .agreed to pay the plaintiff for the stock of goods and machinery the sum of $44,000, as follows: the plaintiff Brewster the sum ■of $17,00.0, by conveying to the plaintiff two specified houses and lots in the city of New York, subject to certain mortgages; Bate-man a like sum, by the transfer of three other pieces of real estate; and Brown the sum of $10,000, “in satisfactory value.” The original contract was subsequently modified, and the time for payment by the purchasers extended.

The plaintiff gave evidence tending to show that he had fully paid his share of the purchase money by the conveyance to the •defendant of a house and lot in West Fifty-ninth street, New York, and the transfer of horses and personal property, accepted in lieu of the other house and lot which he agreed to convey by "the original contract; that Bateman had conveyed to the defendant two houses and lots, and that Brown had paid in patents accepted by the defendant the sum of $10,000. The jury would have been authorized by the evidence to find that the purchasers had either in accordance with the contract, or under substituted ••arrangements with the defendant, paid the greater part of the •consideration for the property purchased.

The possession of the stock and machinery embraced in the •contract of sale was transferred bv the defendant to the purchasers, who sold a portion of the goods, receiving therefor about $900. .'The defendant, however, retained the title to the machinery as ■security for the full performance of the contract by the purchasers. The defendant after the payments above mentioned had been made, claiming that the purchasers had not performed their contract, took possession of and sold to 'third persons all the stock and machinery embraced in the original contract, except the portion of the stock sold by the purchasers as above stated. The seizure and sale was made without the consent of the purchasers and while the contract was in force, since, although it was after the time originally fixed in the contract for performance by the purchasers, it was during a period over which the time had. been extended by the agreement of the defendant.

The plaintiff offered to show that a few months after the defendant had received the conveyance from the plaintiff of the-house and lot in West Fifty-ninth street, and at or about the time of his retaking possession of the stock and machinery, he had deeded the premises to a third person. Many things were left unexplained in the case, and there is much confusion in the evidence. But our duty here solely is to determine upon the view of the evidence most favorable to the plaintiff, whether the ruling, dismissing the complaint upon the grounds stated was correct. The defendant, by seizing and selling the stock and machinery to third persons, disabled himself from performing his part of the-contract with the plaintiff and his associates. He assumed by that act to terminate and rescind the contract. He, however,, retained the property transferred to him in part payment by the-plaintiff, and by selling the Fifty-ninth street premises and using, or disposing of the horses and carriages had disabled himself also from returning in specie the property received by him.

The plaintiff and his associates also having while the contract was subsisting, and by the consent of the defendant, sold a portion of the goods delivered to him by the defendant, could not return them. The defendant reclaimed and sold the remainder of the goods and the machinery, upon the theory that he had a right to rescind the contract, and he could not thereafter return the consideration paid. He was not entitled both to the property he sold and the property taken in payment.

Upon the case as presented the act of the defendant in re-taking and selling the goods and machinery was as to the plaintiff and his associates wrongful. They had severally conveyed individual property in payment of aliquot shares in the purchase money. The plaintiff does not by this action seek to rescind the contract of sale for fraud or any other reason. If that was the character of the action, or if it was founded on a rescission by him, the restoration of all he had received under it would be according to-the general rule a condition precedent to its maintenance, Gould v. The Cayuga Co. Nat'l Bk., 86 N. Y., 75; Francis v. N. Y. & B. Elevated R. R., 108 id., 93; 13 St. Rep., 87.

What the plaintiff has done is to bring his action for the consideration paid by him, based upon a rescission of the contract by the defendant He elects to accept the situation in which the defendant has placed himself, and treats the contract as if the abandonment and rescission by the latter was binding upon all parties. To such a situation the rule that a party seeking rescission must return what he has received, under it is inapplicable. The defendant has taken and sold to other parties the whole subject of the contract of sale, except the small part of the goods disposed of by the.purchasers, and these were sold with the authority and consent of the defendant The purchasers cannot return this part in specie, and cannot restore the defendant "to the precise-situation in which he was when the contract was made. They ■committed no fault in selling the part of the goods sold by them, as this was in accordance with the understanding and the contract between the parties. The money received can be applied as so much of the consideration returned to the purchasers, and the recovery limited to the excess.

It would be a useless form to require the plaintiff before bringing the action to pay or offer to pay the defendant the sum received for the goods sold by the purchasers. Whether the attempted rescission of the contract by the defendant was justified or not, or whether complete or not, the purchasers had a right to accept and act upon his theory of the situation. See Graves v. White, 87 N. Y., 463.

The case is novel and the facts are not easily ascertainable from the evidence. We confine our decision to two points; first, that under the circumstances disclosed it was not a defense that the ■plaintiff had not, before bringing the action, restored or offered to restore to the defendant the goods sold or their proceeds, and second, that no demand of the defendant was necessary to give a right of action, for the reason that the duty of the defendant to return the consideration received from the plaintiff arose when he re-took the property for which the consideration was given, and transferred it to third persons,

The judgment should be reversed, and a new trial ordered.

All concur.


author: Peckham, J.

text:
    Joseph Aron, App’lt, v. Alfred De Castro, Resp’t.

      (Court of Appeals,

      Filed March 15, 1892.)

    ¡Sale—Rescission.
    In an action to rescind a sale of stock, defendant swore he did not sell the stock to plaintiff, had no interest in the sale, never owned or had possession thereof. A witness G-. swore that Hector De Castro hired him to sell the stock to plaintiff and that plaintiff agreed to buy it before he even saw defendant. The evidence as to what occurred at the interview at which the stock was transferred was conflicting. Held, that the receipt of the price of the stock through the check of plaintiff, payable to defendant’s order and his depositing it to his own credit, paying the commissions to G-. and sending a portion to Paris, did not make a sale of stock by defendant, either as agent or owner, in view of the other testimony.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for defendant, entered upon •decision at special term.

      John M Parsons, for app’lt; Robert H. Grijfing, for resp’t.

       Affirming 36 St. Rep., 716.

   Peckham, J.

The defendant gave evidence that he did not ■sell the stock to plaintiff, that he had no interest in the sale and that he never owned the stock and it was never in his possession. The witness Grodchaux swore that Hector De Castro hired or employed him (the witness) to sell the stock and that he did sell it to plaintiff, or at least that he entered into an agreement with the plaintiff for the sale of the stock to plaintiff, and that such agreement was made before plaintiff even saw defendant. The parties -agree that an interview took place between them before the actual ¡transfer of the" stock, but they differ radically both as to the object and the matter of such interview, the plaintiff claiming that defendant ratified and confirmed all the representations made by Godchaux relative to the stock, while the defendant particularly denies that the subject of the interview had any relation to the sale of the stock or that any ratification took place as to representations made by Godchaux, or that anything relative to a sale or its terms was spoken of between them.

Subsequent to such interview the plaintiff went to the office of the Forcite Company, where the stock was, as defendant states, in the possession of Ferguson, the secretary, and there handed to the defendant his check for the purchase of the stock, and the stock was then transferred to him. The original certificates were there and Ferguson, the secretary, put plaintiff’s name in the blank power of attorney endorsed on the scrip, and thereupon issued new scrip to the plaintiff.

The defendant received the check which was payable to his •order, endorsed and deposited it to his own credit, and paid Godchaux the amount of his commissions and accounted for á portion of the balance by sending a certain sum to Paris. This left a ■sum between $800 and $1,100, which is not specifically accounted for, although defendant says he did account for it all. If these facts make out a sale by defendant to plaintiff either as owner or as agent of an undisclosed principal, then the question which the plaintiff seeks to raise here is properly before' us; otherwise not. The defendant, it is seen, squarely denies that he ever sold the stock, either as agent or owner. Godchaux swears he sold it on the employment of Hector, and not for the defendant at all.

Does the receipt of the price of the stock, through the check of the plaintiff payable to defendant’s order, and defendant’s subsequent dealing with the proceeds of such sale as above described, make this a sale of stock by defendant as agent or owner notwithstanding his testimony and that of Godchaux ? We must in this •court assume the truth of the testimony of defendant and God•chaux, however much we might, if triers of fact, be inclined to doubt it. The trial judge has found the sale was made by God•chaux on the employment of Hector, and not by the defendant or by his employment, and unless the law says that the evidence as to the receipt of the proceeds of the sale by defendant makes a sale by him as owner or agent, or by Godchaux as his agent, then we are bound by the finding of fact and no error is apparent.

We are of opinion that a sale by defendant, either personally •or through the agency of Godchaux, does not follow as matter of law from the evidence in the case.

Taking the version of the case as made by the defendant to be true, and we have the fact that the negotiations and agreement for the sale were made by Godchaux on Hector’s employment, the stock being in the possession of Hector or of Ferguson, the secretary •of the company. The plaintiff receives the stock or new scrip issued in exchange for the original three certificates from the hands of the secretary, and hands to defendant his check payable "to defendant’s order for the amount of the sale, and defendant •deposits it and accounts for it all.

From the evidence it does not follow as a legal conclusion that, the defendant sold this stock, either as agent of an undiscovered principal or as owner, or that he ratified the sale by Godchaux as his agent The finding is to the contrary. There is evidence-to support such finding, and the uncontradicted evidence does not. necessarily show any liability on the part of the defendant.

The simple receipt of the proceeds by him and his disposition thereof as testified to by him cannot be held to necessarily alter the fact found that he did not sell the stock, or own it, or have-any interest in it. The two positions are not legally incompatible, hence the defendant cannot be held liable to respond to plaintiff's-demand for a rescission of a contract which defendant never made, either as agent or owner, and which he never ratified as an act of an assumed agent of his own.

The trial judge having found the fact upon sufficient evidence-that the transaction was in truth as claimed by Godchaux and defendant, the refusal of the judge to find the facts as requested by the plaintiff was immaterial, and the exception to such refusal gives no ground for a new trial.

The judgment should be affirmed, with costs.

All concur.


text:
    Joseph Hegeman, Resp’t, v. Christina S. Moon et al., App’lts.

      (Court of Appeals,

      Filed March 15, 1892.)

    Decedent’s estate—Claims against—Direction to executors to pat.
    Plaintiff advanced certain moneys to testatrix’ son for his own account, and on that of his mother. Subsequently testatrix paid a portion of the indebtedness, received the note, and in consideration of plaintiff’s agreement to accept the balance without interest, executed and delivered to him a paper directing her executors, one year after her death, to pay to plaintiff a specified sum, “being the balance due him for cash advanced at various times by him to my son and others, as per statement rendered by him.” Held, that the instrument was not of a testamentary character, but was a promissory note, payable one year after the maker’s death, and imported a consideration and constituted a claim against the maker.
    Appeal from judgment of the supreme court, general term, second department, affirming order overruling demurrer to complaint.
    Demurrer to complaint. The complaint stated, in substance,, that between 1863 and 1867 the plaintiff advanced to his nephew,, Adrian Hegeman, for his own account and the account of his mother, Cornelia W. Hegeman, various sums, amounting in all to about. $3,075, which Adrian agreed to repay. On January 1, 1869.. there was due plaintiff for principal and interest, $3,363.41, for which Adrian made and delivered to plaintiff his promissory note payable on demand, with interest. On the 8th of February, 1871, Cornelia W. Hegeman paid plaintiff a bond of the Wabash Railroad of the par value of $1,000 on account of above indebtedness, and plaintiff on the same day surrendered to her the note of Adrian and extended the time for the payment of the moneys, and! in consideration thereof, and of plaintiff s agreement to accept the, principal of the amount due without interest, and of other sufficient considerations, the said Cornelia W. Hegeman made and -delivered to plaintiff her draft, or order in writing, a copy of which is as follows:
    ■“$1976.90-100. Brooklyn, February 8, 1871.
    “ One year after my death I hereby direct my executors to pay to Joseph Hegeman, his heirs, executors or assigns, the sum of nineteen hundred and seventy-six dollars and ninety cents, being the balance due him for cash advanced at various times by him to Adrian Hegeman, my son, and others, as per statement rendered by him this day, without interest.
    “ Cornelia W. Hegeman.’’
    Cornelia W. Hegeman died December 3, 1888, leaving a will which was duly admitted to probate and letters testamentary issued thereon to defendants as executors thereof. The executors qualified, and on the 3d of December, 1889, the plaintiff presented the said draft to the executors and demanded payment, which was refused. The plaintiff offered thereupon to refer the claim, which was also refused. The plaintiff further alleged there was due him from defendants as executors the sum of $1,976.90, and interest from December 3, 1889, and demanded judgment.
    To this complaint the defendants demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The ••special term overruled the demurrer and the general term affirmed that judgment, and certified it was proper to obtain a decision of this court before proceeding further in the action. And, therefore, defendants appeal here.

      Benjamin G. Hitchings, for app’lts; Charles P. Buckley, for Tesp’t.

       Affirming 39 St. Rep., 787.

   Peckham, J.

The defendants object to the judgment herein, because they claim the paper set out in the complaint is of a testamentary character, ana not being executed as provided for by the statute of wills, is for that reason void. They also object that if not of such a character it is a contract to answer for the debt, default or miscarriage of another person, or is one which, by its terms, is not to be performed within one year, and in either event is void, because it does not express a consideration.

We think-none of these objections are well founded. The instrument is, in its nature and substance, a promissory note, payable one year after the maker’s death.

It has just been held in the second division of this court that a promissory note, payable bv its terms after the death of its maker, is valid. Carnwright v. Gray, 127 N. Y., 92; 38 St. Rep., 56.

In that case the instrument was in this form: “ Thirty days after death I promise to'pay Cornelius Carnwright fifteen hundred dollars, with interest,” and was signed by the maker. Of course the promise was impossible of strict performance. The maker could not pay after his death, and so his promise was, in one ■sense, an impossibility. The law, however, regards the substance ©f things, .and the promise was, in substance, that thirty days after the maker’s death hi-s estate should pay the sum promised by him in the note to be thus paid.

In the instrument now before us there is no promise expressed in terms, but there is -a direction to the executors of the maker to pay the named sum in one year from the maker’s death. There is the further statement that such sum is due the-payee for cash advanced at various times by him to the maker’s-son and others. The maker then signs such statement. From whom is the sum due? A written statement that a certain amount of money is due a payee'therein named, followed by the-signature of the maker of the statement, implies that the money is-due from the maker and is an indebtedness front him to the person to whom the money is thus acknowledged to be - due. Kimball v. Huntington, 10 Wend., 675. The acknowledgment of the-indebtedness and that it is due implies a promise to pay it on demand. It is a promissory note within the statute. Id.

The addition of the words that the money is due the payee “for cash advanced at various times by him to Adrian Hegeman, my son, and others, as per statement rendered by him this day,” does not alter the implication that the money is due the payee from the-maker. It simply states the origin of the indebtedness of the-maker. It was not for money advanced directly to her, but toiler son and others. There is nothing inconsistent with her indebtedness to the payee in the fact of this acknowledged advance-of the money to the maker’s son. An original indebtedness may have arisen against the maker by the payee advancing at the maker’s request moneys to her son. And when she says that a certain amount is due the payee and signs the statement, with the addition of the origin of the indebtedness, the implication is-neither forced nor unnatural that she means that the amount is due from her or else she would not have signed the paper. The-time, when the money is to be payable is, however, altered by the direction given to her executor to pay it one year from her death. If there were no limitation, an acknowledgment that the debt-was due would imply that it was payable at once or on demand. The direction is, however, in the nature of a promise and expresses a time of payment and therefore excludes the presumption that it is payable immediately, which would otherwise arise from the use of the word due.

Being a promissory note it imports a consideration. Carnwright v. Gray, supra.

The defendants insist that even if the instrument be a promissory note and therefore within the principle that such an instrument in and of itself generally imports a consideration, no-such presumption exists when the instrument shows on its face there is no valid consideration. They urge that the noté in question shows on its face that the only consideration is an indebtedness of the son to the payee, and such consideration is not sufficient

' What has been already said disposes of this claim, The note¡ shows an indebtedness from the maker, because such is the natural and fair implication to be derived from the language used. Whatver may be implied from language actually used in an instrument is in judgment of law contained in it. Rogers v. Kneeland, 10 Wend., 219.

The views we take answer the objections of the defendants as Above set forth, and it follows that the interlocutory judgment appealed from must be affirmed, with costs, with leave to defendants to answer over within twenty days after service of a copy of the •order of affirmance on payment of costs.

All concur. _