author: Hardin", P. J.

text:
    Lorenzo Boon et al., Resp'ts, v. Daniel McGucken et al., App'lts

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Contempt—Order.
    An. order made at special term finding defendants guilty of contempt in violating an injunction contained no such adjudication and determination as are provided for by §§ 14, 2266 and 2281 of the Code. Held, that the order should not be sustained.
    Appeal from an order made at the Onondaga special term on the 17th day of September, 1892, adjudging certain of the defendants guilty of contempt, and fining them $200 apiece and $15 costs each, and requiring the fines to be paid to the clerk of Oneida county, and the costs and disbursements to be paid to the plaintiffs. An injunction order was granted on the 3d day of June, 1892, by a justice of this court; a motion was made to vacate and set aside said order, which was denied. It was alleged that after the granting of the injunction and after the denial of the motion to vacate the same, that on the 18th of July, 1892, the common council adopted certain resolutions for which the eight defendants, as members of the common council voted. It appeared that the resolutions were vetoed by the mayor, and that “ on the 22d day of August a special meeting of the council was duly held to consider and act upon said veto. At this meeting all the aldermen were present except alderman' Beatty, and said resolution or ordinance for paving South street, Sunset avenue and Jewett place and Jewett street and Plant street, were passed over said veto by a vote of eight aldermen voting in the affirmative, and three in the negative. Those voting in the affirmative, were the defendants Boyce, Clark, Corcoran, Dowd, Roberts, Welch, Tessy and McGrucken.” It was claimed at the special term that the order restrained the members of the common council of the city of Utica from making any contracts with any person or corporation for the paving of any of the streets mentioned, or any part or either of them, “ when the concrete base will be laid the wearing surface, or pavement proper, the matrix or binding material of which is a cement prepared with the best quality of refined Trinidad asphaltum obtained from the Pitch lake in the Island of Trinidad. And from making any contract affecting said streets or any of them requiring asphalt pavement thereon to be of asphalt from any particular place, and not obtained in the open market by all persons for the same price.”
    It is said in the opinion delivered at the special term, viz.: “ As no actual contract in writing has been entered into between the city of Utica and the Warren Scharf Company for paving said streets with asphalt from Pitch Lake in the island of Trinidad, technically, perhaps, there has not in this respect been a violation of the injunction. * * * But there is another prohibitory clause in said order that seems to have been intentionally disobeyed by the defendants complained of, and that is, c and each member of said common council is enjoined from voting to enter into any such contract on the part of the city of Utica, and from jointly or severally participating in concluding or attempting to conclude any such contract until the further order of the court.’ ”
    In the veto message of the mayor, bearing date August 15, 1892, he said: “ The resolution and the subsequent action of the council in the matter of Pitch Lake asphalt appears to me to be a violation of the injunction. Enjoined as I am, as well as the members of the council, I cannot consent to this action and bring the mayor or myself into contempt, I must, for the good name of the city and my personal security, obey the law and respect the order of the court. I, therefore, return the foregoing resolution, also the ordinance based thereon for the paving of South street, as the same appears in the certified minutes of the common council, under the date of July 27, to your honorable body without my approval.
    “ Thomas Wheeler, Mayor."

    Proceedings were instituted to punish the defendants for contempt by the plaintiffs obtaining an order August 24, 1892, requiring the defendants to show cause at a special term to be held in September, 1892. -

      Matteson & DeAngelis and A. M. Beardsley, for app’lts ;

      Charles D. Adams ^ for resp’ts.
   Hardin", P. J.

(1) It seems to be settled by authority that in eases of criminal contempt arising under §§ 8 and 9 of the Code of Civil Procedure, the court has no power to impose costs.

In People ex rel. etc. v. Gilmore, 88 N. Y., 626, it was said, viz.: “A proceeding, however, to punish for such a contempt is a criminal proceeding, and the general term, on reversal of the order of special term, has no authority to impose costs upon the relator.”

In Stubbs v. Ripley, 39 Hun, 627, in considering an alleged criminal contempt, it was held that the court “ did not have power to impose upon the defendant $10.00 costs of the motion.” In delivering the opinion in that case, Daniels, J., said, in considering an alleged criminal contempt, viz.: “ Authority to add these costs has not been given to the court by the section of the Code of Civil Procedure declaratory of the power of the court in the way of imposing punishment.” The case from which the quotation has just been made was decided in the general term of the first department in 1886.

(2) In Brinkley v. Brinkley, 47 N. Y., 40, it was held that contempt proceedings are special proceedings, and that an appeal lies from an order which is absolute in adjudging a person in contempt and prescribing punishment

(3) In People ex rel. Negus v. Dwyer, 90 N. Y., 410, it was held that an injunction order is a mandate, and is, therefore, included in that expression found in the sections of the Code of Civil Procedure relating to contempt. Section 14 of the Code of Civil Procedure.

(4) It has been repeatedly held that a party having knowledge of the existence of an injunction may be punished for violating it. Mayor, etc., of New York v. N. Y. & S. I. Ferry Company, 40 N. Y. Superior Court, 300; S. C., affirmed 64 N. Y., 623; People ex rel. King v. Barnes, 28 St. Rep., 625; Aldinger v. Pugh, 57 Hun, 181; 32 St. Rep., 513; S.C., affirmed 132 N. Y., 407; 44 St. Rep., 566. And it has also been held that a disobedience of an order by a party of which he had knowledge and which had been served on the solicitor, and not himself, may be punished as for a contempt. The People v. Brower, 4 Paige, 405; Koehler v. Farmers & Drovers' National Bank, 17 Civ. Pro., 307; 25 St. Rep., 222. And the same is true, although the acts done in violation were upon the assumption that such acts could be safely done notwithstanding the injunction. Gage v. Denbow, 49 Hun, 42; 17 St. Rep., 515, following R. H. & L. R. R. Co. v. N. Y., L. E. & W. R. R. Co., 48 Hun, 190; 15 St. Rep., 686. It was held, however, in Koehler v. Farmers & Drovers' National Bank, 14 Civ. Pro., 71, “ that unless personal service is made of an injunction order, that wilful and deliberate intent essential to constitute a criminal contempt is wanting.”'

(5.) In Duffus v. Cole, 39 St. Rep., 838, the question was presented to this court as to whether the defendant was properly convicted for violating an order and injunction, and in the course of the opinion delivered it was said: “Again, the defendant was not liable for contempt unless her act might defeat, impair, impede or prejudice the right or remedy of.the plaintiff. We are unable to see how her act in anyway tended to do that. There was no proof of any loss to the plaintiff. 37 Hun, 329; 42 id., 535; 4 St. Rep., 657. We think the order should be reversed."

In Rhodes v. Linderman, 43 St. Rep., 520, the case of Duffus v. Cole was referred to approvingly in an opinion delivered by one of the members of this court.

(6.) It was said in Hawley v. Bennett, 4 Paige, 164, that so far as the rights of the party have been “affected by the breach of the inj unction, it is no defense to the person who has been guilty of violating the same that he did it under the advice of counsel; although, if he has acted in good faith, it may be sufficient to protect him from punishment as for a criminal contempt. The rights of parties must be protected against the wrongful acts of the adverse party, although he may have acted under the advice of counsel.” The same doctrine was approved byFolger, J., in Erie Railway Co. v. Ramsey, 45 N. Y., 654; to the same effect is People v. Compton et al., 1 Duer, 512; affirmed 9 N. Y., 263.

(7.) It is provided in § 14 of the Code of Civil Procedure as follows: “A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prejudiced, in either of the following eases.” Then follows an enumeration of cases in eight subdivisions, and in the fourth subdivision it is provided that such punishment may be applied to a person for committing several enumerated acts “ and for any other unlawful interference with the proceedings therein.” ®

In King v. Barnes, 113 N. Y., 476; 23 St. Rep., 263, it was held that a party w ho had been convicted of contempt for advising and procuring one of the defendants to disobedience of- the judgment on the part of the officers of a corporation “ was a civil contempt within the Code of Civil Procedure, § 14, subdivision 4.” And it was also held, viz.: “Any person who interferes with the process, control or action of the court in a pending litigation, unlawfully and without authority, is guilty of a civil contempt if his act defeats, impairs, impedes or prejudices the rights or remedy of a party to such action or proceeding;” and the punishment of such a party, according to the provisions found in § 2285 of the Code of Civil Procedure, was upheld.

In King v. Flynn, 37 Hun, 329, although the acts of the defendant were unlawful and contumacious, it was held that the case was within the provisions of title 3 of chapter 17 of the Code of Civil Procedure.

In Dejonge v. Brenneman, 23 Hun, 333, it was alleged that an order of injunction was granted restraining the defendants from collecting rents, and that the violation thereof was charged as a contempt, and, in the course of the opinion it was said“ It does not appear, from the papers submitted on the appeal, in what way the fine above mentioned was made up, and there does not seem to be any evidence to warrant its imposition. This is a civil contempt * * *.”

Title 3 of chapter 17 of the Code of Civil Procedure relates to “ proceedings to punish a contempt of court other than a criminal contempt; ” and in § 2266 of the Code it is provided as follows: “In cases specified in § 14 of this act * * * and a right or remedy of a party to a civil action or special proceeding pending in the court, or before the judge or the referee may be defeated, impaired, impeded or prejudiced thereby, the offense must be punished as prescribed in this title. Then follows several sections relating to the practice; and in § 2281 of the Code of Civil Procedure it is provided as follows l “If it is determined that the accused has committed the offense charged ; and that it was calculated to, or actually did defeat, impair, impede or prejudice the rights or remedies of the party to an action or special proceeding, brought in the court or before the judge or referee, the court, judge or referee must make a final order accordingly, and direct that he be punished by fine or imprisonment, or both, as the nature of the case requires.” And in § 2285 of the Code of Civil Procedure it is provided what punishment may be inflicted, for “ omission to perform any act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it,” and then follows a provision in the section as follows : “ In every other case, where special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time not exceeding six months, and until the fine, if any, is paid; and the order and the warrant of commitment, if any, must specify the amount of the fine and the duration of the imprisonment.”

In Moffat v. Herman, 116 N. Y., 131; 26 St. Rep., 328, it was. held that: “Under the provisions of the Code of Civil Procedure, §§ 14, 2281, 2284, defining what is, and providing the punishment for, a civil contempt, the amount of fine which may be imposed must be based upon proof of the damages actually sustained.”

In the case in hand it appears that a decision of the motion made by the plaintiffs to adjudge the defendants in contempt was made September 17, 1892, and signed by the judge presiding, which stated: “ The motion made by the plaintiffs to adjudge the above named defendants, Daniel McGrucken and others, aider-men, and forming part of the common council of the city of Utica, in contempt for a violation of an injunction order issued in the above action and to punish them individually for the same, is granted, and a fine of $200 is imposed upon each of said defendants, which when paid will be paid over to the county clerk of Oneida county, and an additional fine of fifteen dollars upon each of said defendants, which when paid will be paid over to the plaintiffs for their costs and disbursements in this proceeding as a punishment for said offense. An order will be entered in pursuance of the above containing all necessary provisions, and among others that each of said defendants stand committed to the jail of Oneida county until the fines imposed against him are paid.”

Subsequently an order was prepared which contained the following language: “ It is * * * found, upon the evidence presented, that the above named defendants, Daniel McG-ucken (and others), are and each of them is guilty of contempt of this court, and that each of them has knowingly and willfully disobeyed the injunction order which had been granted in this ac- ■ tian and duly served upon them and set forth in the moving papers in full, in the following particulars and manner ” ; then follows a quotation from the injunction order; and thereafter the order contained the following: “ The above named defendants, while said order remains in full force and effect, did, as members of the common council of said city of Utica, jointly and severally and knowingly and willfully, vote to let a contract or contracts to the Warren-Seharf Asphalt Paving Company to pave the several streets above mentioned with the best quality of Trinidad asphaltum to be taken and obtained from Pitch Lake in the island of Trinidad, and did participate in concluding, and in attempting to conclude, said contract or contracts with said Warren-Scharf Company. For the disobedience of said defendants to said order, as above found and stated, each of said defendants are adjudged guilty of contempt. It is further ordered and adjudged that for such acts of contempt the said defendants, Daniel Me-' Grucken, Robert Boyce, Charles P. Clark, Michael F. Corcoran, John L. Dowd, John E. Roberts, John Welch and Joseph Tessy be and they each are fined, and a fine is imposed upon each for the sum of two hundred dollars, which said fines, when collected, shall be paid to the county clerk of Oneida county.

“And it is further ordered and adjudged that each of said defendants be and they are fined the further sum of $15, which, when collected, shall be paid to the plaintiffs for their costs and disbursements in this proceeding. It is further ordered and adjudged that each of said defendants stand committed to the jail of Oneida county, in the city of Utica, until said fines imposed upon them are paid, or he is discharged according to law. The proper process will be issued to the sheriff of Oneida county for the execution of this order. This order will be entered in the Oneida county clerk’s office; ” and it was signed by the judge presiding at the special term. The order does not contain any provision in pursuance of § 14, declaring that “ a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prejudiced ” thereby or the equivalent; nor the language found in § 2281 of the Code of Civil Procedure, viz.: “ If it is determined that the accused has committed the offense charged, and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedy of a party to an action or special proceeding, brought in the court or before the judge or referee, the court, judge or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires.”

In Matter of Swenarton v. Shupe, 40 Hun, 42, it was held, That as the punishment exceeded that which the court was authorized to inflict by § 9 of the Code of Civil Procedure, for a criminal contempt, it was to be assumed that the proceedings were instituted under the provision of the Code authorizing the punishment of a person for a contempt in a civil action for misconduct by which a right or remedy of another may- be defeated, impaired, impeded or prejudiced. That assuming the order to have been made under such latter provisions, it was void because no adjudication was made that the misconduct complained of was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the petitioner, or that the latter had sustained any loss or damage thereby.”

The doctrine of the above ease was followed in Dinsmoor v. Commercial Travellers' Association, 14 N. Y. Supp., 676; 38 St. Rep., 624. And in Sandford v. Sandford, 40 Hun, 540; 2 St. Rep., 133, it was held that “ To punish a party for contempt in a civil proceeding, his conduct must be such as to defeat, impair, impede or prejudice a right or remedy of the party affected by it, and that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed.”

In Wheelock v. Noonan, 55 Superior Court, 23 J. & S., 305; 13 St. Rep., 316, § 2281 of the Code of Civil Procedure was referred to, and a construction thereof was given in accordance with the views expressed by us in Dinsmoor v. Commercial Travellers' Association, supra.

In Fischer v. Raab, 81 N.Y., 235, it was held: “In proceedings under the provisions of the Code of Civil Procedure (§ 14), to punish as a contempt an act of misconduct, or neglect of duty, in a civil action pending, it must be made to appear that the act or omission complained of is one ‘by which a right or remedy of a party * * * may be defeated, impaired, impeded or prejudiced,’ and this must be adjudged to authorize the infliction of the punishment.”

We think the decision and order to which reference has been made, pronounced by the special term, because they contained no such adjudication and determination as are provided for by §§ 14, 2266 and 2281 of the Code of Civil Procedure, should not be sustained.

(8) The order to show cause recites that the summons and complaint, and the injunction, and all the papers on which the injunction was granted, were read. The order made at the special term, brought here by appeal, does not recite the summons and complaint as having been read at special term when the order was made, and the appeal book does not contain the complaint.

It does contain, however, numerous affidavits in which it is stated by the defendants that they intended to comply with the injunction order, and to avoid any act which would in anyway in letter or spirit violate the same, and that all their acts were done openly without any attempt at concealment and that they had the advice of the city attorney that they were at liberty to perform the several acts which are alleged to be in violation of the injunction order and that by such acts they would not violate the injunction order, and that they acted upon his advice reljing upon it and in good faith.

It was said in People ex rel. Kelly v. Aitken, 19 Hun, 329, by the general term in the second department, viz.: “ If, for example, one, after careful examination, wrongly interpret, and through this mistake disobey an order, the majesty of the law is not offended, nor the dignity of the court impaired ; and, as he is innocent of willful offence, the infliction of punishment could have no justification. The willful disobedience, expressed in the statute, means conduct intentionally and designedly at variance with the mandate of the court.”

The complaint of the plaintiff not being found in the appeal book the full objects of the action are not ascertainable, although it is inferred that the action was begun by taxpayers under § 1925 of the Code of Civil Procedure to restrain waste.

In Talcott v. The City of Buffalo, 125 N. Y., 280; 34 St. Rep., 871, it was held that the remedy under that section “is confined to cases where the acts complained of are without power, or where corruption, fraud or bad faith, amounting to fraud, is charged; the words “waste” and “injury” include only illegal, wrongful or dishonest illegal action.” And in Ziegler v. Chapin, 126 N. Y., 348; 37 St. Rep., 490, Talcott v. The City of Buffalo was referred to in the following language : “ We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.”

By reason of the absence of the complaint and because the affidavits used at the special term are very conflicting, and by reason of the views already expressed which lead, to a reversal, we omit any comment upon the merits of the application, and rest our conclusion upon the views already expressed. We think the order appealed from should be reversed with costs.

Order and decision reversed, with one bill of costs.

Martin and Merwin, JJ., concur.


source: Caselaw Access Project

author: Fitzsimons, J. Ehrlich, Ch. J.

license: Public Domain

text:
    John Drohan et al., Resp'ts, v. Marietta Norton, Impl'd,, App'lt.

      (City Court of New York,

      General Term,

      Filed December 22, 1892.)

    1. Judgment—Opening.
    Where a defendant positively swears that she was not served and did not appear or answer, and alleges that she is not liable to plaintiffs, it is proper to open the judgment and allow her to litigate the issue, notwithstanding a positive affidavit of service and an appearance for her by an attorney upon his own responsibility.
    (Ehrlich, Oh. J., dissents.)
    2. Same—Laches.

      Laches in moving is not a bar to such motion where the plaintiffs failed for seven years to attempt to collect the judgment.
    Appeal from order denying motion to set aside a judgment.

      Anthony Barrett, for app’lt;

      James Kearney, for resp’ts.
   Fitzsimons, J.

This action was commenced December 18, 1882, to recover the sum of $375.23 for goods alleged to have been sold to defendants in 1879. Judgment was obtained by default against defendant, Murray. Plaintiffs claim the defendant, Norton, appeared and answered, and that judgment was obtained, against her October 17, 1883; that execution was issued October 24, 1883, and returned unsatisfied. Nothing more was done by plaintiffs until May 28, 1890, when they issued another execution, which was also returned unsatisfied.

Supplementary proceedings were then instituted against defendant, Norton, on December 11, 1891.

Upon the service of said order for her examination as a judgment debtor, Norton moved to set aside said judgment, which motion was denied.

The special term justice assigned the following reason for such denial:

“ In view of the positive affidavit of service, and the appearance and sworn answer, motion is denied.”

The defendant, Norton, swears that she was not served with the summons and complaint herein. That she did not appear or answer; that she never was the partner of the defendant, Murray, and that the goods for the value of which this action is brought were not sold or delivered to her, and that she did not know of this judgment until May, 1890. Certainly the plaintiff has no claim against her if these "facts are true.

And for their determination they should be submitted to a jury.

This is a right, not a privilege, that all parties to actions of this character are entitled to.

The appellants contend that she should be deprived of that right because of loches on her part.

That she knew of the existence of said judgment against her at least as early as May, 1890, and that she took no action in reference thereto until December 11, 1891.

It is true that the defendant Norton was extremely careless. She should have moved sooner than she did to set aside said judgment, but the plaintiffs have been equally careless in the assertion of their rights, for they slept for seven years; did nothing during that period of time, and not until after the lapse of seven years did they deem this judgment worthy of collection. Evidently, both plaintiffs and defendant Norton are careless persons, but she should not be compelled to bear more than a reasonable punishment for her negligence; but it would not be reasonable or just to compel her to pay a debt she did not contract, simply because she was careless.

The complaint made by plaintiffs that their witnesses are dead or scattered, and testimony lost, and, therefore, that the judgment should not be vacated, is not justified by the appeal record, for it appears that his clients are alive, and they are able to prove the sale and delivery of the goods in suit; besides, if they as diligently pursued their legal remedies, when they obtained the judgment in 1883, as they are doing now, they would not be laboring under such supposed disadvantages; and because they failed in their duty surely defendant Norton should not suffer to the extent' suggested.

The order appealed from is a discretionary one, it is true, but in the interests of justice it is re viewable and reversible.

The action of Mr. Barrett is satisfactorily explained. I believe him when he says that he acted upon his own responsibility in all things done by him in this matter and for the purpose of aiding the widow of a deceased friend, and was willing to pay out his own money for that purpose she being a sick and sorrowing woman.

Assuming that Mrs. Norton was served with the summons and complaint or either of them, I am sure that she did not sign the answer and that she knew nothing of this judgment until May, 1890, and as she appears to have a meritorious defense we order and adj udge as follows: That the judgment herein as against the defendant, Norton, be vacated and set aside; that she be allowed to appear and answer herein within six days after the service of the order entered hereon; that this action be set down for trial peremptorily for 6th of February, 1893, with $20.00 costs to plaintiffs and their appeal disbursements.

The order appealed from is reversed and we direct that an order in accordance herewith be entered and substituted in the place and stead of the order appealed from.

Newburger, J., concurs.

Ehrlich, Ch. J.

I dissent for the reason stated in the memorandum of the special term justice.


author: Ehrlich, Oh. J. McCarthy, J. MewburGtER, J.

text:
    Georgine C. Wolters, Resp't, v. Louis Schultz, App'lt.

      (City Court of New York,

      General Term,

      Filed January 4, 1893.)

    Breach oe promise—Damages.
    In an action for breach of promise, where it appears that the parties became acquainted four months befóte the time set for the wedding, and there is no evidence tending to show malice, brutality or other wickedness-in the making or breaking of the promise; and where it appears that alter the breach defendant proposed an unlawful alliance, but plaintiff knew during the courtship that he sustained a similar relation to another person, a verdict for $25,000, being one-sixth of defendant’s fortune, is plainly excessive.
    (Newburger, J., dissents.)
    Appeal from judgment in favor of plaintiff.
    Action for breach of promise of marriage.

      George W. Gibbons (Isaac L. Egbert, Jno. O. Sheehan and Edward Browne, of counsel), for resp’t;

      Campbell & Murphy (David Leventritl and George H. Yeaman, of counsel), for app’lt.
   Ehrlich, Oh. J.

A patient examination of the record has satisfied the conscience of the court that the appeal should prevail; and to avoid misapprehension we place our decision distinctly upon the ground that a review of the facts inspires the belief that the interests of justice require the remanding of the cause to another jury.

In this, and all like cases, the jury is the primary, and must be the final arbiter of damages; but to us the power is intrusted, and upon us is enjoined the duty of reviewing verdicts which are challenged by appeal; we must proceed with deliberate caution in the interests of justice; but we should act with resolute vigor when convinced that the verdict (whether plainly excessive or clearly inadequate) must have been illegally influenced, and we are so convinced in the case at bar, assuming, as we are bound to do, the substantial correctness of plaintiffs testimony. Early in February, 1891, she first met defendant as a customer in her father’s segar store, she being then about thirty-one years of age, and acting occasionally as a clerk therein; seven weeks later a marriage engagement had been entered into with defendant, and the wedding day fixed for the twenty-first of June, following.

Defendant declined or failed to keep the engagement, and this action promptly followed, resulting in a verdict against him for $25,000, this sum being about one-sixth of his admitted fortune.

The brief length of the acquaintance before the engagement, the short duration of the engagement itself, and the absence of all evidence tending to show malice, brutality or other wickedness of defendant in the making or breaking of the contract, or during its existence, sufficiently negative the legal propriety of the verdict rendered.

The only testimony in the record that would seem to justify punitive damages is that of plaintiff, to the effect that after defendant had refused to consummate the marriage engagement, he proposed an unlawful alliance with her ; but since her knowledge that during the courtship he was sustaining a like relation to another person did not shake her confidence in him, nor diminish her respect or love for him or her desire to marry him, it is inconceivable that the indecent proposal alleged should have wounded her sensibilities to an extent that would justify the verdict; nap, standing alone, would this evidence be sufficient to support a finding that defendant never intended to marry plaintiff, but deliberately proposed to deceive her.

A new trial being necessary, it would be idle to review in detail the various rulings questioned by appellant’s exceptions.

But a brief statement of our views as to damages in actions of this nature will cover many of these rulings and may guide any future trial of this or other similar actions.

_ Whenever it is proved that a defendant has wrongfully broken his promise to marry plaintiff- without fault on her part, the law requires and the jury must award a recovery of damages.

These damages should include:

(a) All expenses justly incurred upon faith of the violated contract and by reason thereof, and all pecuniary loss directly caused thereby.

(b) A sum sufficient in the discretion of the jury, calmly and judicially exercised, to vindicate plaintiff’s character.

(c) In case defendant is shown to have acted maliciously, unfeelingly, or with evil or dishonest intention, a further award of damages must be made sufficient to be a punishment to defendant and a warning to others, and thus a safeguard to society.

The element of damage first mentioned is usually trifling in amount; in the case at bar, a few hundred dollars is mentioned as its limit.

The jury must never be allowed to estimate the supposed money value to plaintiff of the marriage contract.

’ The relation which an engagement contemplates lies at the foundation of social order; the obligation it imposes and the rights it assures are mutual and reciprocal; it holds forth the promise of benefits and blessings which can never be tested by a money standard; therefore, it is not to be tolerated that a jury should ever be allowed to speculate upon the net money value to a plaintiff of a violated marriage engagement; beyond the immediate pecuniary loss, we think that all other damage to which plaintiff herself is entitled may be referred to her proper vindication, in view of all the facts and circumstances attending the contract and the violation thereof on defendant’s part.

It is true that the authorities declare that plaintiff should have some indemnity or compensation for the disappointment of her expectations, her wounded feelings, her mortification and the harm done to her worldly prospects; but we think the meaning of these expressions is fully satisfied when the jury shall be allowed, under proper instructions, to take them into consideration in estimating and fixing a sum which shall properly express the vindication to which she is deemed entitled.

It must not be understood that disappointed hopes and mental suffering shall have no weight in fixing the damages, but in no just sense can there be compensation for an injured name or a wounded spirit; the law abhors any attempted traffic in character or in suffering, and no conceivable standard of their money value 'has ever been set up.

But, as to this element of damage,"in fairness it must be said that whenever a man unjustly spurns the' hand of a woman which he had won in promised marriage, by the act itself he makes a thrust at her character; in the eyes of her relatives and acquaintances she is, in a measure, dishonored, even though he has been guilty of no open slander.

To make a proper award of damages, the jury should scan and weigh the words and acts, and thereby ascertain the leading motives of both parties; it may consider their social standing, family relations, worldly fortunes, extent and duration of intimacy, length of courtship, and the degree or lack of culture, refinement and delicate sensibility possessed by each, and the manifestation of the same in their conduct towards and intercourse with each other.

If a plaintiff enters into a marriage engagement from mercenary motives only, she may still recover if she intended and was willing to carry out the agreement; but in such event the damage should not exceed the actual pecuniary loss or outlay, since disappointed love of defendant’s money furnishes no ground of legal redress, and she could not justly complain that defendant’s conception of the contract, or his standard of duty, was not higher than her own.

Whatever harm to plaintiff’s prospects in life has been caused by the non-fulfillment of the contract can only be estimated and remedied by courts and juries by way of vindication of her character, in view of all the attendant circumstances.

The same is true as to her wounded feelings and mental suffering ; these, when properly established to the satisfaction of the jury, fairly indicate serious injury to plaintiff’s good name, for they show that plaintiff herself valued it.

Vindictive damages should not be awarded upon proof that is doubtful or unconvincing, and only upon evidence of malicious or unfeeling conduct or evil intention on the part of the defendant.

It is true that marriage contracts are favorites of the law; but this alone will not justify an award of punitive damages.

In reaching their conclusion, the jury may take into consideration plaintiff’s previous social standing and pecuniary circumstances, but not with a view of carving out of defendant’s estate a sum sufficient either to improve or maintain such condition; they should consider these matters with reference to their bearing upon the injury which plaintiff has suffered, and the sum which may properly be awarded by way of fair reparation and j ust vindication.

The amount of defendant’s worldly resources may be considered ; it is plain that a verdict of a few hundred dollars against one defendant might sufficiently vindicate a plaintiff, and also adequately punish the wrong-doer; while in another case a like verdict would amount practically to no redress whatever, and as a supposed penalty would excite derision.

It is self-evident that the jury’s task in a case like the present is equally difficult and delicate; specific instructions covering every possible question that may arise cannot well be formulated; the objects to be sought should be carefully set forth, but the particular weight to be given to each item or element of damage alleged must be left to the sound discretion and judicial temper of the jury itself; the views herein expressed, it is believed, are as precise as the nature of the questions permit, and may sufficiently cover the principal matters likely to arise upon another trial, which is hereby ordered, with costs to appellant to abide the event.

McCarthy, J.

I concur. The damages were excessive, and the jury do not appear to have been free from passion or prejudice.

MewburGtER, J.

(dissenting).—This is an action for breach of pi'omise of marriage. The jury returned a verdict of $25,000 for the plaintiff.

Sufficient evidence was given at the trial to establish the contract between the parties, and the breach thereof by the defendant.

It is contended by the defendant that the court erred in submitting to the jury the question of exemplary damages.

In the course of the charge the learned trial judge said: “In an ordinary action for the violation of a contract, a person is simply entitled to the money damage which he suffers, but the courts have decided that that rule of law does not apply to actions of that character. If you should believe for instance in this case, that the defendant with evil mind and motive violated the promise of marriage, then you would have the right to give vindictive damages for the reason that has been stated in the language of the court of appeals, as a punishment to the defendant for the violation of a contract of this high character. That is the law, gentlemen, in case you find the plaintiff entitled to a verdict, and in case you believe there was a promise to marry, and that with evil mind and motive he broke the promise.”

After referring to the defendant’s pecuniary standing, he added: “ Before you can render a verdict in favor of the plaintiff, you must be convinced by the weight of evidence that there was a promise to marry and that defendant violated that promise. In case you determine that question affirmatively the next question for you to determine will be that of damages, and in that connection you have the right to take into consideration all the surrounding facts, circumstances and actions of the parties, for the purpose of determining whether or not the defendant broke that promise with evil mind and motive.

“ If you believe that he did break that promise with evil mind and motive, then I charge you that you have the right to give vindictive damages to the plaintiff,not so much as compensation for her, as the court of appeals has stated, but by way of punishment to the defendant, but in no event can the verdict exceed the amount asked for in this case, which is the sum of $50,000.00.

“In conjunction with the financial standing of the defendant, if you determine that the plaintiff is entitled to a verdict, you may also consider, in case you determine that there were any elements of that character in the case, the mortification which the plaintiff suffered in consequence of this refusal by the defendant to cony out the promise to marry, her disappointment, her wounded feelings, and the injury to her future prospects. All of those things are elements which may enter into the case for the purpose of fixing the amount of damages that the plaintiff is entitled to, in case you determine that she is entitled to a verdict at all.”

The question of damages, compensatory and vindictive, was properly and clearly submitted to the jury by the learned trial judge. Hunt v. Bennett, 19 N. Y., 173; Johnson v. Jenkins, 24 id., 252; Thorn v. Knapp, 42 id., 477; Chellis v. Chapman, 125 id., 214; 35 St. Rep., 17.

I do not think the damages given by the jury are excessive.

The action is intended as an indemnity for the temporal loss which the plaintiff has suffered, and that embraces the injury to the feelings, the wounded pride, and all the disappointments resulting from the failure of marriage, as well as in the losses it has occasioned.

From the nature of the case, it has been found impossible to fix the amount of compensation by any precise rule, and the measure of damages is a question for the sound discretion of the jury, subject, of course, to the general restriction that a verdict influenced by prejudice, passion or corruption will not be allowed to stand. Of course that discretion is not so absolute as to be independent of a consideration of the evidence.

That the amount of defendant’s pecuniary means is a factor of some importance is a circumstance which the jury may find has its influence upon the mind of the woman in determining the question of consent or refusal.

The ability of the man to support her in comfort, and the station of life which marriage with him holds forth, are matters which may be weighed in connection with an agreement to marry.

According to the plaintiff’s testimony, defendant stated to her on one occasion that he was worth the sum of $250,000 ; while the defendant admitted on the trial that he was worth, at that time, $140,000; the verdict, therefore, cannot be deemed excessive.

In Chellis v. Chapman, 125 N. Y., 214; 35 St. Rep., 17, plaintiff, a school teacher, forty-six years of age, sued the defendant, a farmer, for breach of promise of marriage; there was no evidence of the defendant's financial reputation, except the general statement that he was wealthy. A verdict of $8,000 was held not to be excessive. In Campbell v. Arbuckle, 21 St. Rep., 412, affirmed by the court of appeals, 34 St. Rep., 1009, a verdict of $45,000 was also held not to be excessive.

In Minick v. The City of Troy, 19 Hun, 258, Bockes, J., said: “ The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we cannot consistently with the precedents interfere with the verdict.

It is not enough to show that in the opinion of the court the damages are high, and that we would have given much less.

It is the judgment of the jury, not the judgment of the court which is to assess damages in actions for personal torts and. .injuries.

A careful examination of the appeal book, and of the authorities above referred to, leads me to the opinion that the verdict was not excessive, and the judgment should not be interfered with.

For these reasons, the judgment appealed from should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to appellant to abide event


author: Lewis, J.

text:
    Edwin Smith, Ex'r, Resp't, v. Mary A. Chase et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Mortgage—Burden of proof—Sale of property to take effect on grantor’s death.
    Testatrix sold and assigned to defendant all the title and interest she might have in certain premises at the time of her death, reserving the right in case of necessity to sell the same for her support, all the avails of such sale left at death to belong to defendant, after paying funeral expenses, if she left no other property to pay the same, her support to include all debts which she was then or might become liable to pay. Defendant gave testatrix a mortgage, and on its foreclosure after testatrix death, she alleged that it was given for part of the proceeds of the sale of the above premises, and therefore hers. Meld, that the money was liable to be appropriated for the payment of testatrix’ debts, and that it was incumbent upon defendant, m order to sustain her defense, to show that the money was not needed for such purpose.
    Appeal by the defendant, Mary A. Chase, from a judgment of the Cattaraugus county court entered in the county clerk’s office of that county, on the 7th day of November, 1889.

      Inman & Cole, for app’lt;

      Perry B. Goxe, for resp’t.
   Lewis, J.

This action was brought to foreclose a mortgage dated on the 18th day of December, 1883, given to the plaintiff’s testator by the defendant, Mary A. Chase, and her husband, to secure the payment of $600 two years from its date. The defendant, Mary A. Chase, interposed an answer alleging that the mortgage was given without consideration; that prior to the time of the giving of the mortgage and on the 3rd day of July, 1877, the defendant, was the owner of an Indian lease of certain premises on the Allegany Indian Reservation in. the village of Salamanca ; that on that day she sold, assigned and transferred the same to the testator, and that on the same day the testator re-assigned to the defendant all the right, title and interest, which the testator might have in the premises at the time of her death, Mrs. Evans, by the terms of the agreement reserving to 'herself the right to the use of the premises during her life time, and, in case of necessity, to sell and dispose thereof for her support and maintenance; that Mrs. Evans thereafter and prior to the giving of the mortgage sold the portion of the premises covered by the lease, for which she received the sum of $900 and that" the $600 for the payment of which the mortgage was given was a portion of said $900, and that the money belonged to the defendant by virtue of the agreement mentioned. The mortgage was found by the plaintiff amongst the assets of the deceased and the defendant neglecting to pay, this action was brought to foreclose it eleven months after the death of Mrs. Evans. The contract upon which the defendant relied to maintain her defense was read in evidence; it was dated July 3, 1887, and was as follows:

“ Know all men by these presents, that I, Eliza A. Evans, of Salamanca, N. Y., in consideration of the assigning to me this day of a certain lease of premises in said town, now occupied by me, by Mary A. Chase, of the same place, I do hereby sell, assign, ¡set over and transfer t.o the said Mary A. Chase, all of the right, title and interest in and to said property thus so conveyed to me by the said Mary A. Chase that I may have at the time of my death, hereby reserving and retaining the use of the same for my benefit, use and support during my lifetime, and retaining the right to rent the same, and in case of necessity to sell and dispose of the same at my option, and, in that event, all of the avails of the said sale left at my death not necessary for my support during my life shall belong to the said Mary A. Chase, her heirs or assigns, after paying my necessary and proper funeral expenses, which ftfneral expenses shall be paid out of my general property first, I hereby agreeing that all of my general property shall be used for my support in common with the property hereby conveyed to the said Mary A. Chase, which support is to include all the debts that I am now or may become liable to pay, I hereby charging my separate estate.”

Whether the nine hundred dollars were realized from the sale of that portion of the premises covered by the lease mentioned in the contract was left in much doubt, the evidence upon that question was very contradictory and uncertain. The plaintiff testified that soon after he qualified as executor he had a conversation with the defendant, Mrs. Chase, in reference to the mortgage, and requested her to pay it, or pay the interest on it; that Mrs. Chase replied that she could not pay then; that they owned a laundry, and if she could sell it she could pay up the mortgage and save the lot. He testified that he saw her two or three times, and that she stated that they were trying to sell, and that if they could sell they would have enough to pay up the mortgage; that just before the action was commenced he informed her that the year was pretty nearly up, and that he would have to commence foreclosure if it was not paid, and that the defendant replied that they expected to settle up that week. The defendant was called as a witness in her own behalf, after this testimony of -the plaintiff was given, and she failed to contradict or explain it.

These admissions where wholly inconsistent with her defense and tended to corroborate the plaintiff’s contention that the defendant had no interest in the property which Mrs. Evans had sold to Williams, and from the sale of which the §900 were realized. Mrs. Evans, by the terms of the agreement of July 3, 1877, not only reserved the right to sell and dispose of the premises and use the avails, if she needed them for her support, during her lifetime; it further provided that the proceeds of a sale, which should be left at her death, were to be used, if necessary, in the payment of her funeral expenses, and although not mentioned in the contract, the money was liable to be appropriated to the payment of the debts of the estate. It was incumbent upon the defendant, in order to sustain her defense, to show that the money was not needed for the purposes mentioned. That she failed to do. A sufficient time had not elapsed after the death of Mi’S. Evans and before the commencement of the action, for the executor to ascertain to a certainty the amount of the claims against the estate. It was his duty to collect the money due upon the mortgage, and if, after the settlement of the estate, any of the money should be left, the defendant would be entitled to it under said contract. The amount cannot be known until the estate is settled.

A review of the evidence has satisfied us that the conclusions of the trial court were correct, and that the judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    William E. Anderson et al., Ex'rs, App'lts, v. The Dundee State Bank, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Bills and notes—Indorsement in assumed name.
    If a payee adopts an assumed name, and indorses such assumed name upon a draft, it is not a writing purporting to he the act of another within the meaning of the provisions of the Penal Code:
    3. Same.
    In such case, where one obtains the draft as an innocent purchaser for value, he obtains good title thereto, and is entitled to recover thereon against the drawer.
    Appeal from an order entered in Yates county cleric’s office denying plaintiff’s motion for a new trial on the minutes.

      John Gillette, for app’lts;

      Briggs & Sunderlin, for resp't.

       Reversing 47 St. Rep., 447.

   Lewis, J.

The defendant is a banking association organized under the laws of the state of New York, doing business'"'at the village of Dundee, in the county of Yates. On the 9th day of February, 1885, the defendant made and delivered to one John 0. Peck their bill of exchange in writing, dated on that day, and directed to the Importers & Traders’ National Bank of New York, and thereby required said bank to pay to the order of John 0. Peck $300. On the 23d day of February, 1885, the draft was presented at the banking house of the testator, Anderson, with the indorsement of the name John G. Peck thereon, by a man who represented himself to be James Bell. It was purchased for full value by the banking house of Anderson, and was thereafter and on the 27th day of February, 1885, presented to the Importers & Traders’ Nation?! Bank for payment. Payment was demanded, which was refused, and the said draft was then and there duly protested for non-payment, with due notice to the defendant, and this action was thereupon brought to recover the amount of the draft. The defendant defends and says that John 0. Peck presented and delivered to it a check purporting to be made and drawn by one Reed, bearing date the 7th day of February, 1885, on the Geneva National Bank, payable to Jones & Ayres or order, for the sum of $965, which appeared to be indorsed by the payees thereof, and that the defendant paid to said Peck therefor at his request the draft in suit and $664 in currency ; that the said Peck, to induce defendant to take and accept the same, and to issue the draft therefor, falsely and fraudulently stated and represented to the defendant that the check was genuine, when it was in fact with its indorsements a forgery and of no value.

We assume, in deciding this appeal, that John C. Peck presented the forged check to the defendant and that the defendant issued the draft in suit to him, payable to his -order. Both the complaint and answer so state the facts to be. The defendant’s cashier, it is true, testified that he had learned since that the person who presented the forged check was not John C. Peck. How or when or where he got the information he does not state. This evidence cannot avail to contradict the admissions in the pleadings. When Peck presented the forged check to the defendant, the signature “ John C. Peck ” was indorsed upon it Defendant's cashier so testifies, and he is not contradicted. The draft was presented to the plaintiff by a person who was introduced to him by one of his customers as James Bell. When so presented the name John C. Peck was indorsed upon it, and the person presenting it then and there wrote due name of James Bell upon the draft under the name of Peck and the plaintiff purchased the same, paying full value therefor in the course of business. The indorsement of John C. Peck upon the check and upon the draft and the name of James Boll written as aforesaid upon the draft were all in the same handwriting, so the expert witness, Hoyt, testified without objection, and he is not contradicted. If we should assume that the person who presented the forged check to the defendant and obtained the draft did not give his true name to the defendant, to be inserted as payee, but directed an assumed name to be inserted and thereafter indorsed that name upon the draft, the draft then so indorsed became negotiable and would pass by mere delivery to an innocent holder for value. The person who presented the check and procured the draft was a stranger to defendant. Ho was not required to be identified. The defendant consented to issue and put in circulation the draft, payable to the order of John 0. Peck, relying simply and only upon the word of an entire stranger that that was his name, and under circumstances, as appears from the testimony of the defendant’s cashier, somewhat calculated to excite in the mind of a cautious banker suspicion as to the bonafides of the transaction.

It being shown, as we have seen, that the same person wrote all three of the indorsements, a prima facie case was made that the person who obtained the draft was the same person who sold it to the plaintiff. While, under the evidence, we may be left in doubt as to the true name of the person who obtained the draft, it is not disputed that he informed the defendant that his name was John C. Peck, and that the defendant issued the draft with that name as payee. If it was not his true name, it was the name he then assumed, and we are unable to sec that it concerns the defendant whether it was his true name or an assumed name, if it be shown that he indorsed the name he had chosen upon the draft and negotiated it to an innocent purchaser for value. Brown v. Butchers & Drovers' Bank, 6 Hill, 443; David v. Williamsburgh Ins. Co., 83 N. Y., 265; McDuffie v. Clark, 39 Hun, 166.

“ Parties sometimes adopt and use fictitious names as their own, and when there is a real party in existence who uses a fictitious name as descriptive of and with intent to bind himself, it is the same in law as if it were his real name, and he may be sued by the holder and declared against as having contracted by such adopted name.” Daniel on negotiable Instruments, vol. 1, § 141.

When the payee’s name to a draft is fictitious, the acceptor is not concerned, for the reason that the drawer has directed him to pay the money to the order of that name, and if it be thereon indorsed by the drawer or by the holder, he would fulfil that direction and discharge the debt.” Ibid, vol. 1, p. 119.

In Chalmer on Bills and Notes (by Benjamin), page 144, the text states the doctrine, citing a number of authorities to sustain it, that where B., at the request of Y., makes a note payable to C.’s order; C. is a fictitious person, but B. does not know this; X. indorses the note in C.’s name, and it is negotiated to D., a bona fide holder, for value without notice, D. can sue B.

Had Peck paid full value for the draft and caused to be inserted as payee an assumed name, and indorsed such assumed name on the draft and sold it under like circumstances to the plaintiff, it would not be contended but that the defendant would be liable upon the draft. This is not a case of a draft payable to a fictitious person to the knowledge of the drawer. In such a case the draft can be treated as payable to bearer. Here, in order to become negotiable, the indorsement of the name designated as payee was requisite; but it was not essential that the name was the one by which the payee was commonly known. If a payee adopts an assumed name and indorses such assumed name upon a draft, it is not a writing purporting to be the act of another within the meaning of the provisions of the Penal Code. It is simply a case of using an assumed name without any design of defrauding the payee. But, as we have seen under the pleadings and proofs, the draft appears to have been issued by the defendant,to John C. Peck as payee, and if his name was duly indorsed upon it when presented for discount to the plaintiff, the plaintiff, being an innocent purchaser for value, got good title tq the draft, and was entitled to recover thereon against the defendant.

The vital and controlling question is, did the person who procured the draft of the defendant indorse the name “John C. Peck” upon it There was no direct evidence of the genuineness of the indorsement upon the draft,but if it was proven that the name John C. Peck upon the back of the check was in the handwriting of Peck, so as to j ustify its use as a standard of comparison, then the testimony of the expert, Hoyt, proved the genuineness of the indorsement on the draft.

By presenting the check with his name upon it and stating to the cashier that his name was John C. Peck, he conceded it to be his genuine signature and was thereby estopped from thereafter claiming that it was a forgery.

The defendant, seeing the check so indorsed and being assured by the person presenting it that his name was John C. Peck, accepted it and indorsed it to the Geneva National Bank, the drawee, for payment. After this evidence was in, the record states: “The plaintiff offered in evidence the signature, of John 0. Peck upon the back of the check of February 7th, identified by the witness; received, marked plaintiff’s Exhibit No. 2.” Thereupon, the expert Hoyt was called and was, without objection, allowed to testify, after comparing the signature upon the draft with the signature upon the check, that they were written by the same person ; and the draft with its indorsement and the certificate of protest attached were offered and received in evidence without objection.

The defendant, later in the trial, used the check as in evidence, for the purpose of proving that the name of the maker and payee were forgeries, but did not offer any evidence to negative the plaintiffs’ proof as to Peck’s signature upon the check and draft.

It must be held that the proof established the controlling fact, that the person to whose order the defendant made the draft payable indorsed it and that the plaintiff in good faith took it and paid full value for it. If these views are correct, it follows that it was error to direct a verdict for the defendant, and the order appealed from should be reversed and the verdict set aside and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, -J., concur.


text:
    Almira Rowland, Resp't, v. Daniel Sprowls, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)
    Conversion—Pleading.
    Upon appeal from a verdict for plaintiff in an action by a mortgagee to recover damages for injury to liis security, defendant contended that as proof was given that a bond accompani d the mortgage, and plaintiff having failed to allege in his complaint the insolvency of the mortgagor, he could not recover. Held, that as the course of the trial was the same-as if the complaint" had contained the needed allegation, proof of such insolvency having been given without objection, the defendant was neither misled nor prejudiced by the omission, and the verdict should be sustained.
    Appeal from an order of the special term, Monroe county, denying the defendant’s motion for a new trial upon a case and exceptions.

      M. G. Sunderlin, for app’lt;

      M. A. Leary, for resp’t.
   Lewis, J.

It is difficult to determine whether the cause of action stated in the complaint is in trover for the conversion of the property which the defendant detached from the saw mill building and removed from the premises covered by the plaintiff's mortgage, or whether it is for an injury to the plaintiff’s mortgage security.

The course of the trial and especially the charge to the jury would indicate that the action was for conversion.

The only claim the plaintiff had upon the property at the time it was removed arose out of the lien of her mortgage upon the premises, on which the saw mill with its fixtures was situated.

The fixtures were detached and removed prior to the foreclosure of the mortgage, in fact before it fell due. The plaintiff, therefore, had no such title to the fixtures as entitled her to maintain an action for their conversion. Buckout v. Swift. 27 Cal., 433; Hill v. Gwin, 51 id., 47; Hamilton v. Austin, 36 Hun, 143.

This point is not raised by the appellant’s counsel; their contention is that the action is to recover damages for an injury to plaintiff’s security; they contend that there is proof that a bond accomponied the mortgage and that the plaintiff’s complaint failed to allege the insolvency of the mortgagor, and that such allegation is indispensible to the plaintiff’s right to recover.

No bond was produced at the trial. The only proof there was of the existence of a bond was the following recital in the mortgage : “ According to the conditions of a bond this day executed and delivered by the party of the first part to the said party of the second part”

If we assume that this recital was evidence in this action between these parties that a bond was given, the evidence which was admitted without objection abundantly established the insolvency of the mortgagor.

The complaint could have been amended by the trial court, if an amendment was necessary, for it would not in any respect have changed the nature of the action. It is not necessary that the case be sent back for the purpose of amending the complaint; that may be done by the appellate court

The course of the trial was the same as if the complaint had •contained the needed allegation, so that the defendant was neither misled nor prejudiced by the omission.

The case of the plaintiff, Mrs. Rowland v. Sworts, decided by this court in January, 1892, 43 St. Rep. 951, involved similar questions to those presented by this appeal. Mrs. Rowland there sued to recover damages for the removal of the saw mill building from the same premises covered by her mortgage. The pleadings in that action were like the pleadings here. She had a verdict, which upon appeal was sustained by this court

The order appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    Frank S. Oaks, Pl'ff, v. The Cattaraugus Water Company, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Contract—Corporations.
    In an action upon a written contract which purported to have been entered into between plaintiff and defendant, a water company, whereby the former was to receive $1,000 from the latter for certain services to be rendered, the contract being signed on the part of the company by one C., as attorney, it appeared that the company was not incorporated until several months after the signing of the contract, and no proof of its ratification was given. Held, that a nonsuit was properly granted.
    Motion for a new trial by the plaintiff upon exceptions ordered to be heard in the first instance at general term, after a nonsuit at circuit

      M A. Nash, for pl’ff;

      D. IS. Powell, for def’t
   Lewis, J.

The defendant is an incorporated water works company, organized under the statutes of this state providing for the incorporation of such companies for the purpose of constructing water works for supplying villages and the inhabitants thereof with pure and wholesome water. A certificate of incorporation was duly made, bearing date March 3, 1890, and recites that the company was organized on said 3d day of March, and that the names of the incorporators are, George FT. Cowan, W. H. Cowan, J. B. Cowan, W. H. McAlpine, W. R. Brock, B. H. Cohen and J. Brown. The certificate was filed in the office of the secretary of state on the 22d day of May, 1890. The incorporators named were elected directors of the company on the third Tuesday of May, 1890. Prior to the defendant’s incorporation, and on or about the 18th day of February, 1890, George FT. Cowan visited the village of Cattaraugus with a view of making arrangements to construct a system of water works for the village, and, at the suggestion of its president, he called upon the plaintiff and had a conversation with him upon the subject of the construction of water works for the village. He stated to the plaintiff that he had been engaged in putting up systems of water works in different parts of the state and had called to see the plaintiff in reference to the construction of such works. The plaintiff informed Cowan that he had made some calculations and arrangements for entering into that business himself, but, after some negotiations, it was agreed that the plaintiff should abandon his idea of building the water works, and assist Mr. Cowan in obtaining the right of way for laying the pipes for supplying water, and should render other services pertaining to the building of the works, and that he should receive as compensation therefor the sum of $1,000, and the following agreement was made:

“ Cattaraugus, FT. Y., February 18, 1890.

“This agreement, made by and between the Cattaraugus Water Company of Cattaraugus, FT. Y, and F. S. Oaks of the same place, witnesseth:

“The Cattaraugus Water Company hereby agrees to and with F. S. Oaks to pay him the sum of one thousand dollars in consideration of his services to said water company in securing right-of-way, hydrant rental and placing investments and in all things pertaining to the building of water works at Cattaraugus, FT. Y. Said sum to be paid at the completion of said works. Said services to consist in aiding and helping the said company in the above matters, but without cash expense to said Oaks. If said water works are not constructed in Cattaraugus by said company, then this agreement to be null and of no effect. This agreement shall be binding on the successors and assigns of the said company.

“(Signed) George FT. Cowan,

uAtty. for Cattarauqus Water Co.

“F. S. Oaks.”

After its incorporation, the defendant constructed the woncs. The plaintiff, at the request of George FT. Cowan, while he, Cowan, was the acting president of the defendant, rendered some slight services to the company, consisting of pointing out to Cowan the location of some springs of water, soliciting customers for the use of the water, and writing letters for the company, and there was evidence tending to show that Cowan, after he was appointed president of the company, promised to see that plaintiff’s claim was paid. After the completion of the water works, the plaintiff demanded payment of the thousand dollars of Mr. Cowan. Payment was refused, and this action was commenced. At the close of the plaintiff’s evidence a nonsuit was granted, and the plaintiff’s exceptions were directed to be heard at general term in the first instance.

The defendant was not incorporated until months after the making of the contract mentioned in the complaint. George N. Cowan assumed to make and signed the contract as attorney for the company. The only semblance of proof that he was authorized to act in that capacity was his statement that he had been so authorized. Of course, he could not act as attorney for a corporation that had no existence at the time. The only ground upon which the plaintiff's contention that the defendant could be made liable to perform the contrae^ would be the company’s ratification of the contract after it was fully informed of its existence and of its contents. No such proof was given. The defendant may be liable to the plaintiff for the value of such services as he performed after the organization of the company at the request of its president, but that is not the cause of action claimed in the complaint. ■ The action is based upon thé written contract. Whether the contract is one that could be enforced even against George N. Cowan, or against the company, had it been in existence and Cowan authorized to make it as and for the company, it is not necessary for us to decide, for the action is not against him personally.

The trial court correctly held that the plaintiff had failed to make a case against the defendant The motion for a new trial should be denied and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., and Macomber, J., concur.


author: Dwight, P. J.

text:
    Sophia Preston, App'lt, v. Philip Groben, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Evidence—Declabations of third person, when admissible
    Testimony of defendant as to conversations with and declarations by a third person, not in the presence of plaintiff, which, though part of the res gesta, ordinarily would not have been admissible in evidence against the plaintiff, are admissible where it appears that the transaction out of which the suit arose had been conducted by such third party, as in her own interest, with the consent of the plaintiff.
    Appeal by the plaintiff from a judgment dismissing her complaint, entered in Brie county, on the report of a referee.

      D. A. Silver, for app’lt;

      F. G Laughlin, for resp’t
   Dwight, P. J.

The plaintiff and defendant entered into an agreement for the purchase by the former from the latter of the stock and good will of a news stand on Main street in the city of Buffalo, afthe price of $1,000, to be secured to the defendant by a quit claim deed from the plaintiff of premises on Bailey avenue, in the same city, with a defeasance to be executed by the defendant, by virtue of which the plaintiff might, at any time within two years, redeem the property so conveyed by her upon payment of the full amount due to the defendant on the purchase of the news business, and of whatever sums the defendant should have paid out for taxes, assessments and interest on a mortgage on the premises so conveyed to him.

The evidence seems to show that the Bailey avenue property really belonged to one Mrs. Kellaher, a sister of the plaintiff, and had been put in the name of the plaintiff as a measure of precaution in view of certain contingent liabilities which had been assumed by Mrs. Kellaher; and that, while the plaintiff was content to bear the responsibility of the transaction with the defendant, Mrs. Kellaher conducted the negotiations, for the most part, as in her own interest, with the consent of the plaintiff.

This view of the relation of Mrs. Kellaher to the property, and the transaction in question, which is well borne out by the evidence and must have been adopted by the referee, disposes of what is the principal exception taken by the plaintiff on the trial of the action. The defendant, in the testimony given by him, relates conversations with and declarations by Mrs. Kellaher, not in the presence of the plaintiff, which, though part of the res gestae, would not have been admissible in evidence against the plaintiff but for the relation in which Mrs. Kellaher stood to the business in hand.

What remains of the case is substantially a question of fact. The agreement above mentioned was carried out The plaintiff executed and delivered her quit claim deed and the defendant his defeasance and bill of sale, and the plaintiff, or Mrs. Kellaher, took possession of the news business. Later the plaintiff executed and delivered to the defendant a second quit claim deed without defeasance, cutting off all the rights reserved to her in connection with the former deed. It is the theory and allegation of the complaint that this second quit claim deed was procured from the plaintiff by fraud, concealment and deceit. On the contrary, it is the theory of the defense that at the time of the original transaction the defendant was assured that the Bailey avenue property was free of incumbrance, except the mortgage above referred to, and that upon such assurance the defendant accepted the deed as security without a search; that soon afterwards he found that the property vas so encumbered by judgments, in addition to the mortgage, as to render it insufficient security for the $1,000 ; that he called upon-Mrs. Kellaher and the plaintiff for further security, when they requested him to sell the property in order to realize what could be gotten out of it to apply on the debt to him, and that to that end the plaintiff consented to give him an absolute deed of all her right, title and interest in the property, which was done.

The action was to set aside both the quit claim deeds and the defeasance, on the ground of a violation by defendant of the trust created by the original agreement, and of fraud in the procurement of the second deed. The two theories of the case are sustained, respectively, by the testimony of the parties; that of the defendant being corroborated by a memorandum in writing of a settlement subsequent to the transaction above mentioned, between the defendant on the one hand, and the plaintiff and Mrs. Kellaher on the other hand, signed by the plaintiff.

The referee held the defendant’s theory of the case to be established and dismissed the plaintiff’s complaint. A careful review of the testimony as it appears in print does not remove from our minds all suspicion that the plaintiff and her sister may have been overreached or unfairly dealt with in these transactions; but we recognize the superior opportunity of an astute and discriminating referee, who had the parties and the witnesses before him, to arrive at the truth; and we are by no means prepared to say that he has misapprehended the just weight of the testimony in the case.

The conclusions of law were correctly based upon the findings of fact, and the judgment entered thereupon must be affirnied.

Judgment appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.


author: Per Curiam.

text:
    The People, Resp'ts, v. Nathan I. Bennett, Impl'd, App'lt.

      urt of Appeals,

      Filed March 7, 1893.)

    Bail—Forfeiture .
    Where an order of forfeiture of bail is made on failure of the principal to appear, the court has done all that the statute requires to make the forfeiture complete, and a failure of the clerk to enter such order until after the principal has been surrendered does not render the order nugatory.
    Motion for re-argument of appeal.

      Benj. Patterson and George Bell, for motion;

      DeLancey Nicoll, opposed.
   Per Curiam.

A motion has been made fa,r a re-argument, on the ground that the court misapprehended the facts upon the decision of the appeal.

In the opinion handed down it is assumed that the entry in the minutes of the court of general sessions, there referred to and quoted in full, was made on March 21, 1892, whereas the appellant insists it was not made until April 1, 1892, and after the surety had surrendered his principal, and lie was then in the custody of the People; and it is argued that if when the principal was surrendered the undertaking of bail had not been in fact forfeited by the entry of the default in the minutes, such entry could not be subsequently made so as to impose a liability upon the surety, and, therefore, there was no jurisdiction to enter judgment upon the bail piece. We did not deem it necessary upon the decision of the appeal to determine the correctness of this proposition, because, as we read the record, it sufficiently appeared that there was an entry made in the minutes of the court on March 21, reciting the non-appearance of the principal, and we thought then and think now that the papers filed in opposition to-the motion to vacate the judgment do not admit of a contrary conclusion. In the affidavit of assistant district attorney Washburn,, it is stated that on March 21, when the principal was called and did not appear, an order was made forfeiting his bonds, and a bench warrant issued for his arrest, as appears by the indorsement on the indictment and the affidavit of assistant district attorney Osborne, and when the matter came np on April 1, reference is had to the original order of forfeiture made on March 21, which it is stated was not entered until that day. Assistant district attorney Osborne states in his affidavit that when the case was called on March 21 and the principal did not appear, and his surety did not bring him forth, his bond was immediately forfeited by the court, and an order made to that effect by the court and a bench warrant immediately ordered for the principal’s arrest

Assistant district attorney Lynn, in his affidavit, also refers to an order which had been made before April 1st, forfeiting the recognizance.

There can be no question, therefore, that upon the respondents’ papers it clearly appears that the first order of forfeiture printed in the record as the minutes of the court, was made on March 21st. But the appellant's counsel contends that it was admitted in the supplemental brief of the district attorney, upon the argument of the appeal herein, that this order was not entered until April 1st. That is undoubtedly true, but the district attorney there insists that it was in fact made by the court on March 21st, and that the failure of the cleric to record or enter it, as it is termed, until April 1st, did not render it inoperative, nor enlarge the privileges of the bail. In his brief in opposition to this motion, the respondents’ counsel correctly insists that the extent of his concession was that the record did not disclose a formal entry at length of the order of March 21st. This must have been a direction of the court in writing, otherwise it would not have been an order. When so made on March 21st, it became a part of the proceedings in the cause, and was a sufficient compliance with the requirement of § 593, Criminal Code, which provides that if the defendant does not appear “the court must direct the fact to be entered upon its minutes; and the undertaking of his bail is thereupon forfeited.” The failure of an officer of the court to discharge a clerical duty did not render the order of the court nugatory, and the court on March 21st did all that the statute requires in order to make the forfeiture of the bail complete.

The motion must be denied, with costs.

All concur.

       See 49 St Rep., 908.


text:
    In the Matter of the Final Accounting of Franklin C. Cornell, Adm'r of Ezra Cornell, Deceased.

      (Court of Appeals,

      Filed March 7, 1893.)

    Appeal—Executors and administrators.
    An order denying a motion by an administrator for his discharge during the pendency of an accounting, and when further objections thereto are presented and facts appear militating strongly against his good faith, rests in the discretion of the surrogate, and an appeal from the order will not lie to the court of appeals.

      Appeal of the administrator from order of the supreme court, general term, of the fourth department, which affirmed an order of the surrogate of Tompkins county, denying his application to be discharged, etc.

      Charles A. Collin and Henry W. Cornell, for app’lt;

      Simeon Smith and Charles H. Blair, for resp’ts.

       See 49 St. Rep., 918.

   Per Curiam.

The proceeding for the accounting of the administrator, which was instituted in 1881, was still pending when he filed his petition. It recognizes its pendency by asking the court to overrule or to dismiss the objections then filed. Upon the coming in of’ the next of kin and persons interested in the estate, who had been cited at the request of the petitioner, and it then appearing to the surrogate that the objections formerly made were still insisted upon; that still further objections were made, having relation to matters since occurring, and that there were facts militating strongly against the good faith and conduct of the administrator in connection with his accounting, and in his relations with his brothers and sisters, it was eminently proper for the surrogate, in the exercise of his judicial discretion in the matter, to refuse to discharge the administrator in the summary manner prayed for, and to permit the filing of the answer by the next of kin, and a hearing upon the issues made by the denial and charges contained therein. The exercise of his discretion was warranted by the Code, which invests him with the broad jurisdiction to direct and control the conduct and settle the accounts of executors or administrators, and to administer justice in all matters relating to the affairs of decedents. Section 2472. The order was in no sense final, but one made in the proceeding, and which regulated the procedure. It required the hearing of proofs on the issues presented, and was interlocutory in its nature. The review of such a discretionary order stopped with the action of the general term, and we will not consider an appeal therefrom.

The appeal should be dismissed, with costs against the appellant personally.

All concur, except Fence, J., not sitting.


text:
    Court of Appeals.
    Filed January 17, 1893.
    Geo. B. Glover, Resp't, v. Lucy H. Glover, Ind. and Exr'x, App'lt.

      Flamen B. Candler, for resp’t;

      Franklin B. Lm'd, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 47 St. Rep., 765.


text:
    Thos. J. Hagadorn, App'lt, v. John W. Hart, Sheriff, et al., Resp'ts.

      J. M. Clute, for app’lt;

      W. L. Morton, for resp’ts.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 41 St. Rep., 755.


text:
    Geo. T. Newhall, Resp't, v. W. H. Appleton et al., App'lts.

      J. Mewton Fiero, for resp’t;

      E. Winslow Paige, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 47 St. Rep., 299.


text:
    Amasa R. Moore, Resp't, v. The Manufacturers' Nat. Bank et al., App'lts.

      Matthew Male, for resp’t;

      R. A. Parmenter, for app’lts.
   Judgment affirmed, with costs, on former opinion of this court. All concur.

Affirming 43 St. Rep., 636.


text:
    Mary Mulligan, Admr'x, Resp't, v. The N. Y. C. & H. R. R. R. Co., App'lt.

      John Gillette, for resp’t;

      J. W. Dunwell, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 43 St. Rep., 969.


text:
    The Sixth Nat. Bank of N. Y., App'lt, v. The Lorillard Brick Works Co. et al., Resp'ts.

      R. D. Murray, for app’lt;

      Richard L. Sweezey, for resp’ts.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 46 St. Rep., 235.


text:
    Samuel Tucker, Adm'r, Resp't, v. The N. Y. C. & H. R. R. R. Co., App'lt.

      Adelbert Moot, for resp’t;

      Daniel M. McMillan, for app’lt.
   Judgment affirmed, with costs. All concur.


text:
    Wm. F. Lennon, App'lt, v. Cora Belle Cornwall et al., Resp'ts.

      James Kearney, for app’lt;

      Robert B. Ailing, for resp’ts.
   Judgment affirmed, with cos's, on opinions below. All concur.

Affirming 24 St. Rep., 390.


text:
    Geo. M. Johnson, Resp't, v. The Utica & Mohawk R. R. Co., App'lt.

      Menry F. & Jas. Coupe, for resp’t;

      Wm. F. Lewis, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 987.


text:
    James Barry, Resp't, v. The Second Ave. R. R. Co., App'lt.

      John J. Linson, for resp’t;

      Payson Merrill, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 41 St. Rep., 342.


text:
    Mary Guenther, Adm'rx, App'lt, v. James Lockhart, Resp't.

      James M. E. O’Grady, for app’lt;

      Abraham Benedict, for resp’t.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 40 St. Rep., 942.


text:
    Theresa Wannamaker, Adm'rx, Resp't, v. The City of Rochester, App'lt.

      Jo7mVdnVoorhis, for resp’t;

      G. B. Kiehel, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 44 St. Rep., 45.


text:
    Louisa Robertson, Resp't, v. The New Hampshire Ins. Co. of Manchester, App'lt.

      Adelbert Moot, for resp’t;

      I. Af. Ames, for app’lt.
   Judgment affirmed, with costs. All concúr.

Affirming 42 St. Rep., 452.


text:
    Louisa Robertson, Resp't, v. The Insurance Co. of the State of Pennsylvania, App'lt.

      Adelbert Moot, for resp’t;

      I. Af. Ames, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 694.


text:
    The People, Resp'ts, v. Anthony Cole, App'lt.

      George A. Benton, for resp’ts;

      Tilomas Baines, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 48 St. Rep., 351.


text:
    George Burt, Resp't, v. Arnold Lustig, App'lt.

      Joseph T. MosTier, for resp’t;

      John 0. Shaw, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 700.


text:
    Filed January 24, 1893.
    In the Matter of the Will of Robert J. Walker.
    No papers.
    Motion for re-argument.
   Order in this case amended so as to make the remittitur read .as follows; Order of general term and decree of surrogate reversed, except that part of the decree which admits the will to probate and allows costs to all parties to be paid out of the estate, with costs to the executor on this appeal payable out of the estate.

See 48 St. Rep., 893.


text:
    Jennie T. Hard et al., Adm'rs, v. Leurendus B. Ashley et al.

    No papers.
   Motion for re-argument denied, ten dollars costs.

See 49 St. Rep., 915.


text:
    In the Matter of the Southern Boulevard.
    No papers.
   . , . Motion to dismiss denied, without prejudice to a hearing of the question on the argument of the appeal.

See 49 St. Rep., 732.


text:
    Emily B. Von Hesse v. Theodora Edith Mackaye.
    No papers.
   Motion to amend remittitur denied, ten dollars costs.

See 49 St. Rep., 76.


text:
    Filed January 31, 1893.
    The People ex rel The Equitable Gas Light Co. of N. Y., App'lt, v. Edward P. Barker et al., Com'rs, Resp'ts.

      Frederic B. Ootidert. for app’lt:

      B. J Bean, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 49 St. Rep., 428.


text:
    Samuel G. Metcalf, Rec'r, App'lt, v. Jose A. DelValle, Impl'd, Resp't.

      Glumies A. Murphey, for app’lt;

      L. 8. JIulse, for resp’t.
   Judgment affirmed, with costs, on authority of Bostwick v. Menck, 40 N. Y., 383. All concur, except Earl, J., dissenting.

Affirming 46 St. Rep., 105.


text:
    Mary E. Connor, Admr'x, App'lt, v. The Mayor, etc., of N. Y., Resp't.

      L. Laflin Kellogg, for app'lt;

      D. J. Bean, for resp’t.
   Judgment affirmed, with costs, on opinion of general term. All concur.

Affirming 46 St. Rep., 494.


text:
    Richard Mortimer, Sole Surviving Ex'r, Resp't, v. The N. Y. El. R. R. Co. et al., App'lts.

      John Alex. Beall, for resp’t;

      Smuel Blythe Bogers, for app’lts.
   Judgment affirmed, with costs. All concur.


text:
    The Same, Resp't, v. The N. Y. El. R. R. Co. et al., App'lts.

      John Alex. Beall, for resp’t;

      Samuel Blythe Bogers, for app’lts.
   Same as above.

Affirming 44 St. Rep., 692.


text:
    Filed February 7, 1893.
    Jacob Henning, Adm'r, Resp't, v. Dan'l W. Caldwell, Rec'r, App'lt.

      G. M. BushneU, for resp’t;

      John G. Milburn, for app’lt.
   Judgment affirmed, with costs, on opinion of general term. All concur.

Affirming 45 St. Rep., 373.


text:
    Harriet Fifield, App'lt, v. The N. Y., Lackawanna & W. R. Co., Resp't

      Seward A. Simons, for app’lt;

      John G. Milburn, for resp’t.
   Judgment affirmed, with costs, on authority of this case as before decided. All concur.


text:
    Sam'l T. Guilford, App'lt, v. Jos. B. Mills, Sheriff, Resp't.

      Edgan' T. Brackett, for app’lt;

      L. U. Borthrup, for resp’t.
   Order affirmed, and judgment absolute ordered for defendant on stipulation, with costs. All concur.

Affirming 44 St. Rep., 358.


text:
    The Rochester Printing Co., Resp't, v. Augustus B. Kellogg et al., App'lts.

      Quincy Van Voorhis, for resp’t;

      George W. Cothran, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 44 St. Rep., 47.


text:
    Wm. Murphy, Resp't, v. The Broadway & Seventh Ave. R. R. Co. App'lt.

      Warren S. Burt, for resp’t;

      Winthrop Bronson, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 957.


text:
    Chas. Sweeney, Resp't, v. The City of Buffalo, App'lt.

      John Gunmen, for resp’t;

      W. ff. Mackey, for app’lt.
   Judgment affirmed, with .costs. All concur.

Affirming 43 St. Rep., 969.


text:
    David Wright, App'lt, v. Nelson B. Eldred, Resp't.

      H. V Howland, for app’lt;

      Ghanies M. Baker, for resp’t.
   Per Curiam.

A careful comparison of the record in this case with that of Shamer v. The Same Defendant, reported in 114 N. Y., 236; 23 St. Rep., 293, satisfies us that there is no material distinction to be made between the two cases, and upon the authority and reasoning of that case this judgment is affimed, with costs.

All concur, O’Brien and Maynard, JJ., not sitting.

Affirming 40 St. Rep., 928.


text:
    Catherine Mehegan, Adm'rx, App'lt, v. The N. Y. C. & H. R. R. R. Co. Resp't.

      Motion to withdraw or dismiss.
    No papers. ■
   Order entered December 13,1893, amended by striking out the words “Judgment to be affirmed by this court, with costs,” and inserting in lieu thereof the words “ The appellant have leave to withdraw her appeal upon payment of the respondent’s costs in this court, including the fee for argument and ten dollars costs of this motion.”

See 49 St. Rep., 915.


text:
    Filed February 10, 1893.
    The Magnolia Anti-Friction Metal Co., Resp't, v. Samuel Singley, App'lt.

      Alex. 8. Bacon, for resp’t;

      Rowland Cox, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 893.


text:
    The Pittsfield Nat. Bank, Resp't, v. Wm. H. Bayne et al., Def'ts, Wm. H. Tailer, App'lt.

      John J. Adams,, for resp’t;

      Edward B. Whitney, for app’lt.
   Judgment affirmed, with costs, on opinion of special term. All concur.

Affirming 47 St. Rep., 318.


text:
    Sarah E. Hermans, Adm'rx, Resp't, v. The N. Y. C. & H. R. R. R. Co., App'lt.

      Louis Ma/i'shall, for resp’t;

      J. W. Dunwell, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 43 St. Rep., 900.


text:
    Michael Doyle et al., Resp'ts, v. Bruno Beaupre et al., App'lts.

      Theodore Bacon, for resp’ts;

      Abraham Benedict, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 43 St. Rep., 741.


text:
    Chas. K. Grannis, Resp't, v. Addie L. Hobby, App'lt.
    E. B. Matthews, for resp’t;

      G. B. Prescott, for app’lt.
   Judgment affirmed, with costs, on opinion of Merwin, J., at special term. All concur.

Affirming 43 St. Rep., 828.


text:
    Nathan Blumenthal, Ex'r, Resp't, v. The N. Y. El. R. R. Co. et al., App'lts.

      Henry Q. Atwater, for resp’t;

      Famuel Blythe Rogers, for app’lts.
   Judgment modified by striking out extra allowance, and in all other respects affirmed on opinion of Freedman, J., with costs. All concur.

Modifying 42 St. Rep., 683.


text:
    Jas. M. Covart, App'lt, v. John W. Johnston, Resp't.

      Lewis E. Carr, for app’lt;

      T. F. Bush, for resp’t.
   Judgment affirmed with costs, in all courts. All concur.

Affirming 40 St. Rep , 62.


text:
    Henry H. Williams, App'lt and Resp't, v. Isaac R. Clements, Ex'r, App'lt. and Resp't.

      T. F. Bush, for pl’ff;

      Baniel Finn, for def’t.
   Judgment affirmed, with costs. All concur.

Affirming 46 St. Rep., 448.


text:
    Abraham Steinam et al., App'lts, v. Moses Strauss et al., Resp'ts.

      Alex. Blumenstiel, for app’lts;

      Nathaniel Myers, for résp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 44 St. Rep., 380.


text:
    Conrad Sipfle, Jr., et al., Resp'ts, v. Alfred H. Isham, App'lt.

      Homer Weston, for resp’ts,

      E. A. Nash, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 762.


text:
    Chas. Gorham Allen, Resp't, v. The Manhattan R'way Co., App'lt.

      Abel E. Blackman', for resp’t;

      Brainard Tolies, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 227.


text:
    John Sebastian Smith, App'lt, v. The N. Y. C. & H. R. R. R. Co., Resp't.

      Elbridge L. Adams, for app’lt;

      Albert H. Harris, for resp’t.
   Judgment affirmed, with costs. All concur, except Andrews, Oh. J., O’Brien and Maynard, JJ., dissenting.

Affirming 44 St. Rep., 55.


text:
    Geo. Silver et al., Ex'rs, Resp'ts, v. Richard H. Casey, App'lt.

      John Jeroloman.iov resp’ts;

      David Leventritt, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 41 St. Rep., 339.


text:
    DeVillo W. Selye, Resp't, v. Frederick Zimmer, App'lt.

      Martin W. Gooke, for resp’t;

      William E. Werner, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 604.


text:
    Harriet S. Rumsey et al., Resp'ts, v. The N. Y. & N. E. R. R. Co., App'lt.

      H. H. Hustis, for resp’ts;

      Walter G. Anthony, for app’lt.
   Judgment affirmed, with costs, on opinion helow. All concur.

Affirming 45 St. Rep., 33.


text:
    Francis H. Boyer, Resp't, v. Clark H. Rhinehart, App'lt.

      Jesse Johnson, for resp’t;

      Hobbs & Gifford, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 44 St. Rep., 370.


text:
    In the Matter of the Opening and Extension of Brownell Street in Village of Edgewater.

      Geo. J. Greenfield, for app’lts;

      Wm. M. Mullen, for resp’ts.
   Appeal dismissed, with costs. All concur.

See 44 St. Rep., 485.


text:
    Wm. Nelson, App'lt, v. Frederick Bleckwenn, Treasurer of Long Island City, Resp't.

      Wm. J. Gaynor, for app’lt;

      J. Balph Burnett, for resp’t.
   Judgment affirmed, with costs, on the case of People ex rel. Oakley v. Bleckwenn, 126 N. Y., 310; 37 St. Rep., 386. All concur, except Andrews, Ch. J., and Maynard, J., not voting.

Affirming 47 St. Rep., 759.


text:
    John Charles Anderson, Resp't, v. Walter S. Carr et al., App'lts.

      Wm. B. Hornblower, for resp’t;

      Wm. J. Gaynor, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 47 St. Rep., 494.


text:
    Barbara Scholl, Resp't, v. The Broadway R. R. Co. of Brooklyn, App'lt.

      Hector M. Hitchings, for resp’t;

      Thomas S. Moore, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 43 St. Rep., 770.


text:
    Jennie C. Griffith, Resp't, v. The Utica & Mohawk R. R. Co., App'lt.

      M. H. Sexton, for resp’t;

      Wm. E. Lewis, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 43 St. Rep., 835.


text:
    Chas. Wood, App'lt, v. Wm. Mitchell et al., Resp'ts.

      James O. Bergen, for app’lt;

      Everett D. Barlow, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 44 St. Rep., 694.


text:
    Henry E. Weed, Resp't, v. The Fire Association of Philadelphia, App'lt.

      G. B. Wellington, for resp’t;

      A. H. Sawyer, for app’lt.
   Judgment affirmed, with costs, on authority of Weed v. Hamburg-Bremen F. Ins. Co., 133 N. Y., 394; 45 St. Rep., 105. All concur!

Affirming 42 St. Rep., 477.


text:
    Frances McCaffrey, Resp't, v. The Pres't, etc., D. & H. Canal Co. App'lt.

      Oharles E. Patterson, for resp’t;

      Edwin Young, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 41 St. Rep., 221.


text:
    C. Frank Pitcher, Resp't, v. The L. S. & M. S. R. Co.,. App'lt.

      Horns Morey, for resp’t;

      Daniel H. McMillan, for app’lt.
   Judgment affirmed, with costs. All concur, except Earl, Peckham and Gray, JJ., not voting.

Affirming 40 St. Rep., 896.


text:
    The People, Resp'ts, v. Bruno W. Gottschalk, App'lt.

      Henry B. B. Stapler, for resp’ts;

      Henry Wehle, for app’lt.
   Judgment affirmed on opinion of general term. All concur.

Affirming 49 St. Rep., 726.


text:
    The People, Resp'ts, v. Herman W. Miller, App'lt.

      Henry B. B. Stapler, for resp’ts;

      Henry Wehle, for app’lt.
   Judgment affirmed. All concur.

Affirming 50 St. Rep., 471.


text:
    Supreme Court—General Term—First Department.
    Filed December 16, 1892.
    Morris Rubens et al. v. The Ludgate Hill Steamship Co.
   Application granted.


text:
    The Harlem Bridge, Morrisania & F. R. Co. v. The Town Board of the Town of Westchester et al.

   Re argument ordered.


text:
    Mary Ann Robinson, v. Robert Govers, Ex'r et al.

   Motion for re-argument granted.


text:
    The People, Resp'ts, v Matteo La Battaglia, App'lt.
   Judgment affirmed.


text:
    Theodore W. Morris et al. v. The Mayor, etc., of New York et al.

   Per Curiam.

The judgment appealed from should be affirmed, with costs.