author: Per Curiam

text:
    The National State Bank of Elizabeth, Resp’t, v. Elijah Brainard and Morris P. Brainard, App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. National banks—Usury.
    Plaintiff discounted certain drafts at the rate of fifteen per cent, while-the rate allowed hy the law of New Jersey was only six. Held, that under the provision of §5198, U. S. R. S., the interest prior to maturity was-forfeited and could not he recovered in an action on the drafts;' nor can interest thereon after maturity he recovered, as the forfeiture prescribed, by the statute is not merely of the interest agreed to be paid but of the entire interest which the evidence of debt carries 'with it, and hence the further interest bearing capacity of the paper is destroyed.
    2. Same—Application op payments.
    The drafts having lost their capacity to draw interest, a payment made thereon could properly be applied only on account of the principal.
    Appeal by defendants from a judgment in favor of the plaintiff entered on a verdict directed by the .court.

      J. Tredwell Richards, for app’lts’; S. J. McCutcheon, for resp’t
   Per Curiam

There is no dispute as to the fact that the plaintiff discounted the drafts in suit at the rate of fifteen per cent, per annum, while the rate allowed by the laws of the state-of New Jersey, where the bank is located, was only six per cent. This act brought the bank within the operation of §§ 5197 and 519.8 of the Eevised Statutes of the United States. Section 5197 provides that national banking associations may receive, reserve and charge on any loan or discount made, or upon any note, bill of 'exchange or other evidence of debt, interest at the rate allowed by the laws of the state, territory or district where the bank is-located. Section 5198 provides as follows:

“ The taking, receiving, reserving or charging a rate of interest greater-than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same, provided such action is commenced within two years from the time the-usurious transaction occurred.”

The effect of the provisions of the national currency act, which are embodied in these sections, was considered by the supreme court of the United States in the case of Barnet v. National Bank, 98 U. S., 555, and it was there declared that the statute defined two categories, and denounced the consequences thus:

“ 1. Where illegal interest has been knowingly stipulated for, but not paid, there only the sum lent without interest can be recovered.

“ 2. Where such illegal interest has been paid, then twice the-amount so paid can" be recovered in a penal action of debt, or suit in the nature of such action, against the offending bank by the persons paying the same, or their legal representatives.”

In that case it was accordingly held that where usurious interest had been actually paid to a national bank upon a bill of exchange, such interest could not be applied by way of offset or payment on the instrument.

Under this decision, the interest prior to maturity upon the drafts involved in the present suit was forfeited, if it was merely reserved, but not paid. As was said in the case of the National Bank of Auburn v. Lewis, 81 N. Y., 20: When a note is discounted, the amount reserved for the discount is the interest reserved. In most cases it is not - then paid. The borrower receives the sum called for by the note, less the amount reserved for the discount. That is not paid until the note is paid. It is interest, and it is interest which the note carries with it. If it be a discount at a usurious rate, it is forfeited by reason of the federal statute. In a suit on the note, it may not be recovered. It is to be held and adjudged forfeited.”

These views would necessarily result in an affirmance of the judgment, if no other questions were presented by this appeal. The defendants, however, insist that it was error to permit any recovery on account of interest accruing after the maturity of the drafts in suit, and that a payment of $2,360 made to the bank by the executor of the acceptor was erroneously credited on account of such interest, whereas it should have gone to diminish the amount of the principal debt

In both respects we think the contention of the appellants is correct.

The forfeiture prescribed by the Federal statute is not merely a forfeiture of the interest which has been agreed to be paid, but a forfeiture “ of the entire interest which the note, bill or other evidence of debt carries with it.” In other words, the reservation or acceptance of usury destroys the further interest-bearing capacity of the paper. It was so held by the supreme judicial court of Massachusetts in the case of the Peterborough Nat Bank v. Childs, 133 Mass., 248, in an opinion with the reasoning and result of which we entirely concur.

As to the payment of $2,360, which has been mentioned, there was no competent evidence of any intention to apply it to the interest on the part of the person from whom the money was received. The drafts having lost their capacity to draw interest, no interest was duo, and the payment could properly be applied only on account of the principal. See Adams v. Mahnken, 14 Stewart, 332 ; Gill v. Rice, 13 Wisc., 549; Greene v. Tyler, 39 Pa. St., 361.

' The judgment must, therefore, be reversed, and there must be a a new trial, unless the respondent will stipulate to reduce the judgment by deducting the amount included therein for interest accruing since the maturity of the drafts, together with the $2,360 which should have been credited as a payment on the principal. If this is done, the judgment as modified will be affirmed, with costs.

Van Brunt, P. J., Barrett and Bartlett, JJ., concur.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    John Enright, App’lt, v. The Montauk Fire Insurance Co. of the City of Brooklyn, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Insurance (Fire)—Appraisal.
    A submission to appraisal of damages by fire provided that two persons named, with a third person to be appointed by them if necessary, should appraise and estimate the damage, which appraisement by them or any two of them should be binding on both parties. The two appraisers selected a third person to act with them if necessary, but made the appraisal alone. Held, that the position of such third person was that of an umpire, who should act only when the arbitrators differed, and the fact that he was chosen before any differences had arisen did not deprive the others of their power to act without him or vest in him all their authority.
    2. Same.
    Endorsed upon the submission was an unsigned direction to the appraisers to affix to each article a specific damage per yard, pound, etc. This the appraisers did not do. Reid, that the direction did not form such a part of the agreement as to render the action of the appraisers void because they did not pursue in detail the method prescribed thereby.
    Appeal by the plaintiff from a judgment entered upon a verdict in his own favor directed by the court, and from an order denying a motion for a new trial on the j udge’s minutes.

      Delos McCurdy, for app’lt; H. C. M. Ingraham, for resp’t.
   Bartlett, J.

The plaintiff insists that he was entitled to a verdict for a larger amount than that which the court directed the jury to find in his favor. The only matter in controversy between the parties upon the trial of the action was the amount of damage done to certain of the plaintiff’s mrchinery which had been insured by the defendant. After the fire the parties entered into a written agreement to submit the question of damage to appraisers. Under this aggreement an appraisement was made, and the trial court held that the parties were bound by the action of the appraisers, and that the plaintiff could recover only the amount which they fixed on account of damage to his machinery.

The agreement for submission provided that William S. Phillips and William H. Weightman, “together with a third person, to be appointed by them if necessary, shall appraise and estimate at the true cash value the damage by the fire to the property belonging to John Enright as specified in the accompanying schedule, which appraisement and. estimate by them or any two of them in writing as to the amount of such loss or damage shall be binding on both parties.”

The persons named as appraisers, before making any examination of the damaged property, selected a third person to act with them if necessary. They assumed, however, th'at he was not to do anything unless they should disagree between themselves as to the amount of damage. They did not disagree, and the third person thus selected did not participate in any way in the appraisal.

The fact that he did not is one of the grounds upon which the appellant insists that the appraisement should have been disre garded. The proceeding was not an arbitration under the Cod of Civil Procedure, and therefore the requirements of § 2367 of the Code did not apply. It is said, however, that this third person was really a third arbitrator, and therefore that no valid award could be made unless he was notified of the time and place of the appraisement and was invited to join in the deliberations of the other arbitrators. But under the terms of the submission agreement it is quite evident that his position was rather that of an umpire who should act only when the arbitrators differed ; and the fact that the arbitrators chose him before any differences had arisen did. not, we think, deprive them of their power to act without him or vest in him all their authority, as is argued by the learned counsel for the appellant To hold that such was the effect of their action would be to defeat the plain intention of the parties. The plaintiff himself was present when the machinery was examined by Messrs. Phillips and Weight-man, and knew perfectly well that they alone were acting, and made no suggestion that the presence and participation of the gentleman whom they had designated as umpire was proper or necessary.

Complaint is also made in behalf of the plaintiff of the manner in which the appraisement was made. There was endorsed upon the submission agreement, or appended to it, a direction in the following words: “ The damaged property must be placed in as good a condition as possible, assorted and arranged. The appraisers will avoid general percentages of damage; a specific damage per yard, pound, bushel, gallon, etc., should be affixed to each article. None but damaged articles are to be inventoried on this sheet. Goods damaged by removal must be specified separately.” The appraisers did not assign a specific amount of damage to each article named in the schedule; but we do not think they were bound to do so. It does not appear that the direction which has been quoted formed any part of the submission agreement; it was not signed by anybody; and at all events it did not form such a part of the agreement as to render the action of the arbitrators void because they did not pursue in detail the method which was prescribed therein. We have carefully examined the testimony as to what they actually did, and find nothing to indicate that the examination was not honest, fair and sufficiently complete and accurate for all practical purposes. A difference of opinion did indeed arise between them and the plaintiff as to whether their examination of the dies was sufficient, but their testimony tends strongly to show that it was, and the mere fact that the plaintiff thought otherwise would not justify the trial court in holding that the appraisement was not binding between the parties.

We see no reason to interfere with the result reached in the court below, and think that the judgment appealed from should be affirmed.

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


author: Daniels, J.

text:
    Henry Fera, Resp’t, v. Daniel J. Wickham et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Set-off—Debt not due.
    Plaintiff drew a draft on defendants, payable in eight months, which was accepted by them. He afterwards became indebted to them on a note and account, and they made an assignment for creditors. Held, that as against the assignee, plaintiff was entitled to set-off so much of the amount of the acceptance as will satisfy the liabilities incurred by him, although his debt had not matured and become payable at the time of the assignment.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint

      John J. Adams, for ’app’lts; Samuel J. Goldsmith, for resp’t.
   Daniels, J.

The action was brought to secure a set-off of the amount owing to the plaintiff upon the acceptance of á draft by the defendants D. H. Wickham & Co.

The draft was drawn by the plaintiff on the 3d of March, 1890, and was due in eight months after its date: On the 6th of October, 1890, the plaintiff made and delivered his note for the sum •of §536.25 to the order of the defendants, which was payable in eight months after its date. The firm of Wickham & Co. also sold and delivered to the plaintiff on the 22d of October, 1890, goods and merchandise for the price of seventy-nine dollars which remained unpaid. After these obligations had in this manner been created, and on or about the 27th of October, 1890, Wickham h Co. made a general assignment to the defendant ÜSTathan J. ¡New-witter for the benefit of their creditors. And after this acceptance became due this action was brought to secure a set-off of so much of it as was necessary for that purpose for the satisfaction of the two debts which had been created against the plaintiff in favor of Wickham & Co. It was alleged in the complaint that Wickham & Co. were hopelessly insolvent, and were so prior to the 6th of October, 1890. And that by reason of such insolvency the plaintiff would be unable to secure the payment of this acceptance, which was for the sum of $1,390.60. The defendants demurred to the complaint, assigning in support of the demurrer that the complaint did not state facts sufficient to constitute a cause of action.

The precise point which in this manner has been presented for detetmination, is whether the plaintiff is entitled in equity to set-off so much of the amount due to him upon the acceptance of Wickham & Company as will satisfy the liabilities incurred by him in the manner already stated, although his debt had not matured and become payable at the time of the general assignment This question was considered by the general term of the fifth department in Rothschild, v. Mack, 42 Hun, 72; 3 N. Y. State Rep., 471, and it was the conclusion of the court that such a set-off might be secured. This case was afterwards before the court of appeals for its consideration, and is reported in 115 N. Y., 1; 23 N. Y., State Rep, 922.

In the decision then made the court concluded that the plaintiffs had a present demand against their debtor which was enforcible in this manner, and therefore sustained the judgment recovered in the supreme court. But in making the decision nothing was said in any form tending to impair or strengthen the effect of the decision of the general term. It was, on the contrary, stated in the opinion that the correctness of the decision was not intended to be*denied, and that it "was left without either affirming or disaffirming the view expressed by the general term. Accordingly the decision first made stands, at the present time, in full force and effect upon this disputed point. And it may be considered, inasmuch as the assignee for the benefit of creditors advanced nothing whatever as a consideration for the assignment, but stood in the position of the assignors holding the property for the benefit of their creditors under their assignment, that the views of the general term were sound, and should be followed in the disposition of this case. If the assignment made by the papers had been to some person for a present consideration, there the right of set-off would probably be defeated. But where, as the fact is here, the assignee takes no interest in the demands for himself, but continues to hold them for the advantage of the assignors and the benefit of their creditors, a different rule appears to be proper. For there is no substantial reason justifying the conclusion that any rights whatever have by the assignment been brought into existence inconsistent with this right of set-off in favor of the plaintiff.

This subject was also considered-in Chenault v. Bush, 84 Kentucky, 528. And it was held by thte court, as against an assignee for the benefit of creditors and a receiver subsequently appointed to collect in the debts and demands owing to the assignors, that this right of set-off in equity existed, although the plaintiff had no present demand due to him at the time when the assignment was made. There he had joined with the assignor in a joint obligation for the payment of an indebtedness. This obligation was created prior to the assignment, but he paid nothing until after the assignment had been made. And the court held that he was entitled to insist upon this equitable right of set-off on account of that payment, although it was made after the execution and delivery of the assignment. This case is substantially like the case now presented upon this appeal. And incidentally the principle seems to be approved by Schuler v. Israel, 120 U. S., 507, 510. And while the subject has been discussed in other authorities, and views not entirely harmonious have been expressed, there is sufficient in the equities of the case supported by these decisions, not only to require, but to render it the duty of the court to sustain this judgment.

The judgment should, accordingly, be affirmed, with costs.

Van Brunt, P. J., concurs.


author: Per Curiam.

text:
    The Bowery Bank of New York, Resp’t, v. Mahlon C. Martin et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Jury—Equity actions.
    While in equity actions relief may sometimes be granted by judgments for money only, yet where that is the only relief demanded and no other relief sought the case is brought within § 968 of the Code and the action must be tried before a jury.
    Appeal from order striking case from the circuit calendar, and sending it to special term for trial.

      L. G. Waehner, for app’lts ; Abram, Kling, for resp’t.
   Per Curiam.

In this action the complaint demands judgment for a sum of money only. In the case of Glenn v. Lancaster, 109 N. Y., 641; 15 N. Y. State Rep., 196, the court state that § 968 provides that every issue of fact must be tried by a jury unless a jury trial is waived or a reference directed “in an action in which the complaint demands judgment for a sum of money only.” We know of no exception that can be engrafted upon this provision ; while in equity actions relief may sometimes be granted by judgments for money only, yet where that is the only relief demanded and no other relief sought, the case is brought within the section and the action must be tried before a jury.

This decision covers the case at bar and is controlling upon us, the complaint in this action demanding judgment for a sum of money only.

The order should, therefore, be reversed, with ten dollars costs and disbursements to abide the event, and the case remitted to the circuit.

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


author: Van Brunt, P. J.

text:
    Anton Kimbel et al., Resp’ts, v. John Mason, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Rbeebence—Amendment of pleading.
    The court has no power in the same order to direct an amendment of the complaint so as to tender a new issue and order a compulsory reference. The right of answer cannot thus be taken away, and before issue joined no reference can be made.
    Appeal from order of reference.

      Franklin Bien, for app’lt; John A. Weeks, for resp’ts.
   Van Brunt, P. J.

We are of the opinion that the court had no power in the same order to direct an amendment of the complaint and order a compulsory reference. The defendant bad a right to answer the amended complaint. Under the complaint as originally framed the plaintiff could certainly have claimed the right to prove an account stated. By the amendment this cause of action was eliminated and one upon a quantum meruit substituted. This new cause of action the defendant had a right to meet by a new pleading. If it be claimed that there was also a count in the complaint for goods sold and delivered, and that that remained, it is to be observed that in connection with that count the plaintiff claimed that the price of goods delivered had been agreed upon, and that this allegation was stricken out in the order of reference and another substituted in its place alleging what was the reasonable value therefor.

An entirely new issue was thus tendered to the defendant, and his right of answer could not be taken away; and before issue joined no reference can be made.

The order should be reversed, with ten dollars costs and disbursements. •>

Daniels and Ingraham, JJ., concur.


text:
    In the Matter of the Application of The New York Elevated Railroad Co. Relative to Acquiring Title to Certain Real Estate in the City and County of New York.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Eminent domain—Evidence.
    The report of commissioners of appraisal in proceedings to take lands or easements for a railroad will not be set aside for errors in the admission of evidence where such errors are technical and not substantial, and the commissioners have not adopted any erroneous principle and the damages awarded are ,not excessive.
    Appeal by the New York Elevated Railroad Company from the report of commissioners of appraisal, making an award to Adolph Koffman, and from a special term order confirming the same.

      Julien T. Davies and William, R. Page, for app’lt; William G. Peckham, for resp’t.
   Bartlett, J.

Five points, all relating to the admission of evidence, are relied upon by the appellant as reasons why we should reverse the order of the special term confirming the report of the commissioners of appraisal. I think it must be conceded that some testimony was received which would not be admissible in a court of law. Thus the declaration of a neighboring property owner, that the elevated railroad “ had such an effect ” upon his own property that all his tenants determined to move unless he reduced his rents, which he accordingly did, was the statement of a conclusion which it was not proper for the witness to express, and the evidence should have been stricken out on motion. So, also, the question to Mr. Jefferson M. Levy: “ What has been the general effect of the elevated railroad upon property in Greenwich street, in that neighborhood ? ” ought not to have been allowed, if it had been objected to on the ground that it improperly called for opinion evidence; but this objection was not suggested until after the witness had answered. Some other errors were committed in the admission of testimony, though not so many as are indicated by the exceptions to which our attention is particularly called in the brief for the appellant These are only thirteen in number, in over two hundred printed pages of testimony, and none of them, can be said to show that the commissioners, in estimating the damages, adopted a wrong principle, or departed SO' far from the rules of law which should guide them in making the appraisal as to require us to set their report aside.

This general term, in the Matter of Sobel, 29 N. Y. State Rep., 190, expressly declared that commissioners in these proceedings are not to be governed in the receipt of evidence by the strict rules obtaining in a court. In the case of the Troy & Boston R. R. Co. v. Lee, 13 Barb., 169, Harris, J., said: “Unlike a jury, they are restricted to no peculiar species of evidence, or any peculiar sources of information. They may collect information in all ways which a prudent man usually takes to satisfy his own mind concerning matters of the like kind, where his own interests are involved in the inquiry. * "" * When the original jurisdiction is to be exercised in this manner, it is impossible, from tne very nature of the case, that there should be anything like a regular judicial review.”

In the Matter of the New York, Lack. & Western Railroad Co., 27 Hun, 116, the court said that some of the evidence received by the commissioners was of a very questionable character, but as the commissioners had not adopted any erroneous principle, the appraisal ought not to be affected by technical errors in the admission of evidence; and this view is sanctioned by the language of the court of appeals in the case of the N. Y. Central R. R. Co., v. Marvin, to the effect that the supreme court in cases of this kind will not set aside a report for every technical error, when no injustice appears to have been done, but will exercise its discretion in regard to it. 11 N. Y., 276, 278.

Such errors as we find in the present proceeding are technical, and not substantial; the damages awarded do not appear to be excessive; and the order appealed from should therefore be affirmed, with costs.

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


text:
    Herbert Cecil Pelly, Resp’t, v. William M. Onderdonk, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16,1891.)

    Bills and notes—Fraud—Evidence.
    In an action upon a promissory note brought by an endorsee thereof, where the defense is that it was procured by false representations, a deposition of the_ plaintiff stating that he purchased the note in good faith and for value is not conclusive evidence against the defendant of the existence of such fact, and does not preclude him from giving evidence to prove that he was induced by fraud to give the note.
    Appeal from a judgment recovered on the verdict of a jury by the direction of the court.

      Edward S. Clinch, for app’lt; Lucien Birdseye, for resp’t.
   Daniels, J.

The verdict was recovered for the amount of a promissory note made by the defendant on the 23d day of August, 1889, for the sum of $3,553, and payable to the order of the defendant, who endorsed it to the order of Thomas Griffiths, and by him it was' endorsed to the plaintiff. The making and delivery of the note were not denied by the defendant, but it was alleged by way of defense that Griffiths claimed to be the owner and inventor of processes for the manufacture of different articles óf paint, and also for the manufacture of a liquid called pyrodene. These articles of paint and this liquid are stated in the answer to have been falsely represented to the defendant as to their quality, utility and the profit that could be derived from their manufacture and sale. And it is alleged that these representations were fraudulently made for the purpose of inducing the defendant and others to associate together and form a corporation which was to become the purchaser of these inventions, or processes, and to issue its stock to Griffiths for the right to manufacture and sell the articles; and that the defendant with his associates were to purchase from Griffiths 315 shares of the capital stock of the corporation, and execute and deliver notes to him with a cash payment for the par value of the shares.

It was further alleged that the corporation was formed in this manner on the 27th of July, 1889, and the stock issued to Griffiths ; and that the defendant received from him eighty-four shares of the stock, and delivered the note in suit, together with two others and a cash payment for the price of such shares; that machinery had been obtained and a manufactory established to manufacture these different articles, which had proved to be useless by reason of the articles not being of the kind or quality represented by Griffiths, and that the stock had become worthless. And the answer contained an offer to surrender the eighty-four shares sold by Griffiths to the defendant, and demanded a surren-. der of this note, the other two having previously been paid and before the discovery of the fact that these representations were false.

Upon the trial the note was produced and read in evidence, and also the deposition of the plaintiff, in which he testified that he had purchased this note from Griffiths on the 20th day of March, 1890, “for value given by me on the said date in good faith.” And he repeated again that he gave value for the promissory note.

And this is all the evidence that was given upon the trial to establish the fact that the plaintiff had acquired the title to the note in suit in good faith and for value parted with by him. The case on the part of the plaintiff was then rested. And the defendant, by his own evidence and that of William Onderdonk, proposed to prove that these representations had been made by Griffiths before the note was made and delivered. This proof was objected to by the plaintiff, and the objection was sustained, and exceptions were taken to the exclusion of the evidence.

The objections were general, and the decision of the court apparently proceeded upon the ground that the plaintiff had been proved to be a bona fide holder of the note for value in the exclusion of the offered evidence. The decision, accordingly, was to the effect that the statement of the plaintiff in his deposition that he had given value for the note was conclusive against the defendant, and precluded him from giving evidence to prove that he had been induced to make and deliver the note to Griffiths by means of false and fraudulent representations.

It is no doubt the law, as the counsel for the plaintiff insisted upon the argument and in his brief, that if there had been a failure of consideration the burden would not xhave been upon the plaintiff to prove that he had become theCholder of the note in good faith and for value. This general principle was affirmed by the court in Evertson v. National Bank, etc., 66 N. Y., 14, and Dutchess Ins. Co. v. Hachfield, 73 id., 226. But the defense in this case 'did not depend upon a failure of consideration, but it was placed upon the ground that Griffiths had fraudulently obtained the note from the defendant. And where that is the defense relied upon, there the burden is placed upon the plaintiff to establish the fact that he became a holder of the note in good faith and for value before its maturity in order to deprive the defendant of the benefit of this defense. Vosburgh v. Diefendorf 119 N. Y., 357; 29 N. Y. State Rep., 448; Canajoharie, etc., Bk. v. Diefendorf, 123 N. Y., 191; 33 N. Y. State Rep., 389; First Nat. Bank v. Green, 43 N. Y., 298; Hale v. Shannon, 32 N. Y. State Rep., 1079; Harger v. Worrall, 69 N. Y., 370; Stewart v. Lansing, 104 U. S., 505.

The testimony of the plaintiff in his deposition that he obtained the note for value, general as it was in its terms, was not conclusive evidence against the defendant of the existence of that fact. He still had the right to submit the question of the plaintiff’s credibility to the jury, and to insist upon it that this evidence did not establish the truth of the- statement made. That is the rule in all cases where a vital fact may depend upon the testimony either of a party or an interested witness. Elwood v. Western Union Tel. Co., 45 N. Y, 549 ; Kavanagh v. Wilson, 70 id., 177 ; Brooklyn, etc., Co. v. Strong, 75 id., 591; Rochester, etc., Co. v. Loomis, 45 Hun, 94; 9 N. Y. State Rep., 592; Honegger v. Wettstein, 94 N. Y., 252, 261.

And as the evidence of the plaintiff upon this subject was not conclusive in his favor, but at most presented a question of fact to be considered and decided by the jury, the defendant, notwithstanding that evidence, still had the right to prove that the note had been obtained from him by means of fraudulent representations on the part of the endorsee Griffiths. And after that evidence had been given, then the jury would be at liberty to give full effect and force to it, notwithstanding this statement of the plaintiff that he had paid value for the note, for they would be at liberty to discredit his statement on the ground that he was a party and interested in the result of the litigation. The evidence which was offered to prove that the note had been obtained by false and fraudulent representations from the defendant should, therefore, have been received by the court. It was error to exclude it. And the exceptions to the rulings resulting in that exclusion were well taken.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the defendant to abide the result.

Van Brunt, P. J., concurs.


text:
    Herbert Cecil Pelly, Resp’t, v. Henry Naylor, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Bills and notes—Fraud—Evidence.
    In an action upon a promissory note brought by an endorser thereof, where the defense is that it was procured by false representations, a deposition of the plaintiff stating that he purchased the note in good faith and for value is not conclusive evidence against the defendant of the existence of such fact, and does not preclude him from giving evidence to prove that he was induced by fraud to give the note.
    Appeal from a judgment recovered on a verdict directed by the court.

      Edward S. Clinch, for app’lt; Lucien Birdseye, for resp’t.
   Daniels, J.

The verdict in this case was recovered upon a promissory note made by the defendant for the sum of $553, on the 23d of August, 1889. The note was payable to the order of the maker, and endorsed by him, payable to the order of Thomas Griffiths, who afterwards endorsed the same to the plaintiff. The note originated in the same transaction as the note on which the judgment was recovered by the same plaintiff against William M Onderdonk. The defendant was one of the associates who formed the corporation which purchased the inventions or compounds of Griffiths by issuing to him the whole amount of its capital stock, and also by delivering him the note of the company for $18,500. The defendant purchased of Griffiths eighty-four shares of the stock of the company, paying for them in part in cash and the residue by his three promissory notes, two of which have already been paid, and the other is the note in suit in this action. The same representations were set forth in the answer as a defense to this note as are contained in the answer in the other action, and the same offer was made to surrender the shares for which it was given. And. the deposition of the plaintiff was read in evidence as a part of his case, stating that he had purchased this note on the 20th of March, 1890, and had given value for it in good faith. This allegation was reiterated in the deposition several times, but the particular value which was parted with, or the amount of it, was not stated. And no other evidence was given upon the trial to prove that the plaintiff had become the holder of this note in good faith for a valuable consideration.

After the plaintiff rested, the defendant offered proof of the representations relied upon as a defense, which, if it had been admitted, would probably have established the fact that the note had been obtained from the defendant by means of fraudulent representations. The court, however, excluded all the offers of evidence designed to establish this fact, and to the decisions made in that manner the defendant excepted.

It has already been shown in the case of the same plaintiff against Onderdonk that the evidence to prove that the plaintiff became the holder of this note in good faith and for value was not so conclusive against the defendant as to deprive the latter of the right of submitting that question to the decision of the jury. And being in that position he was entitled to prove that the note had been obtained from him by means of fraudulent representations on the part of Griffiths. And if that proof had been received, the jury might have discredited the testimony of the plaintiff that he had received the note in good faith and for value, and found a verdict in favor of the defendant, for the reason that as a party and interested . witness his testimony was not sufficient to conclude the defendant from denying its truth upon a submission of the case for the decision of the jury.

For these reasons, and those already assigned in the other case, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Yan Brunt, P. J., concurs.^


text:
    Herbert Cecil Pelly, Resp’t, v. Andrew J. Robinson, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Bills and notes—Fraud—Evidence.
    In an action upon a promissory note brought by an endorsee thereof, where the defense is that it was procured by false representations, a deposition of the plaintiff stating that he purchased the note in good faith and for value, is not conclusive evidence against the defendant of the existence of such fact, and does not preclude him from giving evidence to prove that he was induced by fraud to give the note.
    Appeal from a judgment recovered on a verdict directed by the court.

      Edward S. Clinch, for app’lt; Lucien Birdseye for resp’t.
   Daniels, J.

This case no otherwise differs from the two which have already been considered than in the amount of stock purchased by the defendant, for which his three promissory notes were delivered to Griffiths and a part of the purchase price paid in cash. Two of the notes were paid prior to the time when it is alleged that the fraud by which the defendant was induced to execute and deliver them was discovered. And by reason of the fraudulent representations it is alleged that the stock of the company was utterly worthless, and the answer contained an offer to surrender it up, and demanded a judgment for a return of the note. The same deposition was read in evidence upon the trial of the plaintiff, and by reason of its effect the court excluded all the proof proposed to be given by the defendant to establish^ the existence of the fraud, and the allegation that he was deceived thereby and induced to deliver this and the other notes to Griffiths. The exclusion of that evidence for the reasons already given was erroneous, and the judgment should be reversed and a new trial ordered, with costs to the defendant to abide the event.

Van Brunt, P. J., concurs.


author: Pee Curiam.

text:
    Lucy M. Rice, Resp’t, v. John S. Rice, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Dower—Stay—Partition.
    The right of a widow to prosecute an action to enforce her claim for dower should not be stayed by the subsequent commencement of a partition action.
    Appeal from order denying application for a stay of proceedings in this action until judgment in an action of partition affecting the same property.

      C. J. McBurney, for app’lt; Wm. Man, for resp’t.
   Pee Curiam.

There seems to be no reason for disturbing the order made at special term. The right of the widow to prosecute an action to enforce her claim for dower should not be stayed by the subsequent commencement of a partition action, so that the enjoyment of her estate will be postponed until the heirs-at-law can settle their differences.

The order should be affirmed, with costs.

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


text:
    Meyer Bukofzer, Resp’t, v. The United States Grand Lodge of the Independent Order Sons of Benjamin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Benefit societies—Arrears.
    Plaintiff’s dues to the defendant were paid up to December, 1887, and. nothing further became payable until March, 1888. A further sum became due in June, neither of which sums were paid until afler his wife’s death, which occurred in August, 1888. By defendant’s constitution a member loses his right to the benefit of the endowment fund if in arrears for six months at the time of his wife’s death. Held, that a person cannot be properly said to be in arrears unless the time for payment has come and gone, and that plaintiff was not six months in arrears at the time of his wife’s death.
    2. Same—Remedy in case of disputes.
    The provision of defendant’s constitution that in case of disputes the members shall exhaust their remedy in the order before resorting to a court of law, relates to controversies of members with one another within the order, and not to controversies with the order itsrif.
    Appeal by the defendant from a judgment for the plaintiff entered upon a verdict directed by the court and from an order denying a motion for a new trial on the judges minutes.

      Mitchel Levy, for app’lt; Herman Aaron, for resp’t.
   Bartlett, J.

The principal question in this case is whether the plaintiff was in arrears with his dues and assessments for a period of six months at the time of his wife’s death. If he was, he cannot maintain the action. His wife died on August 8, 1888. Up to December, 1887, all the plaintiff’s dues were paid in full, and nothing further became payable until March, 1888, when the plaintiff was required to pay five dollars dues and assessments. This amount, however, he did not pay until September, 1888, after the death of his wife. A further sum of five dollars for dues and assessments had become payable in June, 1888, and this also was paid by the plaintiff in September of the same year.

In behalf of the appellant it is insisted that the plaintiff is to be deemed in arrears for a period of six months because at the time when his wife died he owed the defendant organization ten dollars, being the dues and assessments for the six months beginning with January, 1888. But the constitution of the defendant does not say that a member shall lose the benefit of the endowment fund whenever he owes six months dues. That forfeiture is only to occur when he is in arrears for the prescribed period. A person cannot be properly said to be in arrears until the time of payment has come and gone; and the time when the plaintiff was required to pay did not come until March, 1888. He could not be six months in arrears until six months from that date; and as his wife died in less than six months from that date, he was not six months in arrears with his dues and assessments at the time of her death.

Hpon the conceded facts of the case it was not essential for the plaintiff to secure the approval or disapproval of his claim.by the executive and endowment committees of the defendant before beginning this action. The defendant, by the stipulation printed in the appeal book, waived all question as to the sufficiency of the notice of death or .of the plaintiff’s claim, and admitted that payment had been duly demanded. Hnder the circumstances it was the plain duty of the committees to approve and pay the claim, and their neglect to do so cannot debar the plaintiff from maintaining this suit. The provision in the fourth article of the constitution of the defendant to the effect that, in cases of dispute, “ the members shall exhaust their remedy in the order before resorting to a court of law,” relates not to controversies with the order itself, but to controversies of members with.one another within the order.

• The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Barrett, J.—I agree that the judgment and order denying motion for new trial should be affirmed, with costs.


author: Ingraham, J.

text:
    In the Matter of the New Haven Clock Co., Resp’t, v. Richard Hubbard, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Venue—Change op.
    The action was brought by a foreign corporation against a resident of Ulster county. Held, that under § 984 of the Code the action was properly triable in Ulster county, and defendant having served a demand with h's answer for a change of venue to that county was entitled as matter of right to have the change made.
    Appeal from order denying motion to change place of trial. Wm. Lounsberry, for app’lt; Campbell & Murphy, for resp’ti
   Ingraham, J.

The plaintiff is a foreign corporation organized under the laws of the state of Connecticut; the defendant resides in Ulster county, in this state. After the service of the summons and complaint the defendant served upon the plaintiff a demand that the place of trial of this action be changed from the county of Hew York to the county of Ulster, the proper place of trial, and subsequently a motion was made to change the place of trial to Ulster county as the proper county.

By § 984 of the Code, an action must be tried in the county in which one of the parties resided at the commencement thereof.

As the only county in which either of the parties to this suit resided was Ulster county, this action must be tried in that county.

The notice demanding that the place of trial be changed was served with the answer, as required by § 986 of the Code, and we think defendant was entitled to have the place of trial changed to Ulster county as a matter of right, and his motion for that purpose should have been granted.

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

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


author: Macomber, J.

text:
    In the Matter of the Petition of Belle E. Grandin et al., Resp’ts, to Compel Accounting by William H. Fenton, Special Guardian, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Guardian—Limitation.
    In the absence of any evidence that the special guardian appointed in proceedings for the sale of infants’ real estate has openly and to the knowledge of the beneficiaries renounced, disclaimed or repudiated the trust imposed upon him after his wards had respectively become of full age, the statute of limitations cannot be held to have begun to run against the right to require him to account.
    Appeal by the special guardian from an order of the Chatauqua special term, dated February 2, 1891, confirming the report of a referee on an accounting by the appellant as special guardian, and from an order directing the payment by him of certain moneys in his hands to his wards.

      J. B. Fisher, for app’lt; A. C. Pickard, for resp’ts.
   Macomber, J.

The facts in this case, as reported by the referee, and which stand substantially undisputed, are as follows: On the second Monday in January, 1866, Julia 0. Carpenter, the mother of the petitioners, presented to the supreme court a petition, properly verified, praying for the sale of ten acres of land belonging to the infants, and the appointment of the appellant, William H. Fenton, as special guardian of the infants to represent them in the proceedings for the sale of the lands. One of the infants at that time was fourteen years of age. and the others were respectively eleven and nine years of age. The appellant was accordingly appointed special guardian, and required to give bond in the penal sum of $2,500, with two sureties, to be approved by the court, for the faithful discharge of his duties as such special guardian. The matter, by the same order, was referred to a referee to examine into and report upon the facts stated in the petition. The bond required by the order was executed and filed. The referee reported in favor of the sale of the premises. This report was confirmed by the court at a subsequent term held on the 4th Tuesday of March, 1866, by an order which, among other things, directed the special guardian to execute a deed of the premises to the purchaser, which was accordingly done. The purchase price was the sum of $1,500. Out of this amount the sum of thirty dollars was directed to be paid for costs, and $200 upon certain indebtedness to sundry creditors of the father of the infants, through whom their title was derived. The order further directed that the special guardian invest the residue on real estate security,, with annual interest, the principal to be paid when the infants should arrive at the age of twenty-one years respectively.

The amount thus coming to the hands of the special guardian, after payment of the expenses and debts, for investment, in pursuance of the order, was the sum of $930.07, as of the 11th day of June, 1866.

As a matter of fact, however, the special guardian never received any of the moneys arising from the sale, no part of which ever passed through his hands; he never invested any of the proceeds of the sale for the benefit of the infants or otherwise. He never gave any account of the disposition which he made of the $930.07, or any part thereof, or of the interest or income thereof, which he was directed to do by the terms of the order, and he has paid to the infants no part thereof, either of principal or interest. The referee further finds, that while the infants knew the fact that their father had owned these lands at the time of his death, and the same had been subsequently sold, they were not cognizant of their rights until three years before the reference was held.

The amount which the referee reported as the sum for which the appellant was liable to the infants was the sum of $930.07, with interest to the time of making the report, amounting in all to the sum of $2,423.82, without annual rests, and for such sum the order of the court holds the appellant liable and directs him to pay the sum to the infants within twenty days after notice of the entry of the order, together with certain costs.

No fact is found by the referee, nor is there any proof contained in the case, to the effect that the special guardian, at any time after the infants arrived at their majority, repudiated any trust or obligations which he owed to them respectively ; nor is there any proof that any demand for an accounting was made by the infants until shortly before these proceedings were instituted.

The principal answer relied upon is the ten years statute of limitations. The argument of the learned counsel for the appellant is that the sum due each of the infants was payable at his or her majority, and that, consequently, the trust in each instance was terminated when the infant arrived at the age of twenty-one years; and from that time forward only the relations of debtor and creditor existed between the trustee and beneficiaries. Counsel, in support of this contention, calls attention to the case of Witter v. Brewster, 12 W. Dig., 358. There is no disguising the fact that the authority so cited, if correctly reported, holds in all material respects with the contention made by counsel The ¿curt there decided that in a proceeding for the partition of real estate begun in the year 1862, the special guardian appointed in such proceedings, who had been required to invest money for his wards and pay the same over to them respectively as they arrived at the age of twenty-one years, was not liable to them in any action or proceeding after the lapse of ten years from the time that each ward became of full age. The court there say : “ The defendant had this money in his hands payable to the plaintiff and her sister when they became of age respectively. The amount was fixed and determined. He had received it for them; it was his duty to provide for its payment and pay the same to them at their majority. That was the condition on which he received it. It became due at their majority and payable as effectually as a note so payable. His retaining the money after that time was a breach of his implied promise or "undertaking. He received it to be paid at a certain fixed time. After that time the defendant was the debtor of the plaintiff. He had no right to retain the money from the plaintiff. He had no ■active duty to perform, except to pay over. There was, therefore, no trust and no relation of trustee or cestui que trust. There was no subject for an accounting. It was a debt due.”

With great deference to the court which rendered the foregoing -decision, we are constrained to hold, in view of other cases of paramount authority, that the doctrine there stated cannot now successfully be maintained. We do not put our decision upon the ground that there is any difference in the obligations of the special guardian appointed in the case cited • and the obligations ■of this appellant in proceedings for the sale of the infants’ real estate; for, in our judgment, the duties of the special guardian in each instance required of him a faithful performance of a trust imposed, and for the paying over or the investment and accounting for all moneys which he should receive according to the order of the court having ■ authority to give direction in the premises, and for the observance of any order and direction of the court in relation to the trust.

Such, in substance, was the condition of the bond which the ■guardian was required to enter into with sureties. The bonds in the case cited and in the case now before us were, in substance, the same, and the duties imposed by the order and by the acceptance of the trust were the same. Ho argument, therefore, based •on a difference in the nature of the proceeding, seems to us to be sound.

The appellant’s obligation was to receive the money belonging to the infants and in vest the same, and pay the income thereof in the manner stated, and the principal to the infants when they should become of full age. In Matter of Camp, 50 Hun, 388; 21 N. Y. State Rep., 308, it was held, under this statute of limitations, that it was no defense by a general guardian in partition for an accounting that ten years had elapsed since, by the order appointing the guardian, he was required to turn the property over to the ward; and that, in contemplation of law, the fund remained at all times invested as was required by law, and in a situation to be delivered over, and that the guardian held as trustee for the infants only; and until he repudiated .the trust, or in some way claimed title to the fund in defiance of it, there was no beginning of the running of the statute of limitations. In re Camp, 126 N.Y., 377; 37 N.Y. State Rep., 767. See, also, Boughton v. Flint, 74 N. Y., 481; Reitz v. Reitz, 80 id., 538; Mabie v. Bailey, 95 id., 206; Lammer v. Stoddard, 103 id., 672 ; 4 N. Y. State Rep., 225.

We are of the opinion, therefore, that in the absence of any evidence that the special guardian in this instance had openly and to the-knowledge of the beneficiaries renounced, disclaimed Or repudiated the trust imposed upon him after his wards had respectively become of full age, the statute of limitations had not begun to run We are finable to see that the arrival of the beneficiaries to the age of twenty-one years is, in and of itself, unaccompanied by any assertion of title in himself, a fact of any moment in measuring the obligation of the guardian.

It follows, therefore, that the order confirming the report of the referee must be upheld.

Order appealed from affirmed, with costs.

Dwight, P. J., concurs; Lewis, J., not sitting.


text:
    Giles H. Boyd, Resp’t, v. William Bassett, Impleaded, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23,1891.)

    1. Mechanics’ l^n—Verification of lien.
    If the owner of the property intends to make any objection on account of defects in the verification of the notice of lien it.is his duty to interpose them before entering on the trial of the case on the merits, and probably before answering the complaint for foreclosure of the lien.
    3. Same.
    A failure to make a full and complete verification is but an irregularity, which is waived without objection..
    Appeal from a judgment of the county court of Monroe county, entered December 29, 1890, on the decision of the county judge in an action to foreclose the plaintiff’s lien.

      John J. Snell, for app’lt; Hubbell & McGuire, for pl’ff-resp’t; James M. E. O’Grady, for def’t-resp’t.
   Macomber, J.

It is established by the evidence and found by the learned county judge at the trial, that prior to December 3, 1888, the defendant Bassett and the defendant Esterheld entered into a contract in writing, by the terms of which Esterheld agreed to do the carpenter work and painting, and furnish the necessary materials therefor, in the construction of a certain house for Bassett, situated on the corner of William and George streets, in the city of Rochester, for which he was to receive as compensation the sum of $1,050. On the 3d day of December, 1888, Esterheld had furnished labor and materials amounting to $800, including in such sum the value of certain lumber, amounting to $244.60, furnished by the plaintiff to the contractor, upon which the sum of eleven dollars had been paid. This action was brought to foreclose the lien created by the act of 1885, chapter 342.

. The defense to the action is, that the contractor, Esterheld, entered into an agreement with the owner, Bassett, on the 8th day of December, 1888, to abandon the contract. The defense was so far found to be correct by the county judge as that he found the fact of such agreement, but held that the same was entered into for the purpose of defeating the plaintiff’s claim.

The conclusion reached by the county judge is well supported by the testimony, for Mr. Esterheld testifies, with a high degree of circumstance, that the appellant advised him to throw up the contract, in order that he, the owner, might defeat the plaintiff’s liens. It is true that the appellant denies this evidence, but the circumstances attending the transaction go far to corroborate the contractor in his testimony.

Aside from the merits of the evidence an argument is now made, apparently for the first time, that the plaintiff’s lien cannot be enforced because of the defective verification made to the statement of his claim as filed with the county cleric. In this contention, also, we think the counsel for the appellant is in error, for two reasons. First. No objection to the verification was made, so far as we can ascertain, except upon this appeal. The fifth item named in the appellant’s answer does not include such a defense. If the owner intended to make any objections of this technical nature, it was his duty to interpose them before entering upon the trial of the case upon the merits, and probably before he had answered the complaint for the foreclosure of the lien. Secondly. The verification of the statement of the lien appears to be sufficient within § 4 of this act. Its language is, “ The said notice of lien must be verified by the person or one of the persons, member of a firm or firms, an officer of the corporation or association making the claim or his, its or their agent, to the effect that the statements therein contained are true to the knowledge or information and belief of the person making the same.” This verification, although insufficient under the Code of Civil Procedure relating to verification of pleadings, conforms to the statute in a literal sense; and, under § 25, so substantially to the general purpose of verifications as to lead to the conclusion that the objection taken thereto was untenable.

The verification by this statute is not made any essential part of the facts necessary to clothe the court with jurisdiction of the subject matter of the action, though the direction of the verification of the claim is imperative. But any failure to make a full .and complete verification would be but an irregularity which would be waived without objection under this statute as well as under the Code of Civil Procedure, for § 25 of the act declares: “ This act is hereby declared to be a remedial statute and is to be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions-shall be sufficient for the validity of the lien, or liens, hereinbefore provided for, and to give jurisdiction to the courts to enforce the. same.”

Judgment appealed from should be affirmed.

Judgment affirmed, with costs.

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


text:
    Achille J. Oishei, Resp’t, v. Giuseppe Lazzarone, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Attobneys—Oedeb oe abbest.
    An order of arrest was obtained in an action for fraudulently obtaining plaintiff’s money. It was charged that defendant, with intent to cheat and defraud, entered into an agreement with plaintiff by which the latter was to advance money, employ an attorney and render services in obtaining from a railroad company damages for personal injuries to defendant, agreeing not to settle with the company without plaintiff’s consent and his being present to receive his share of the money received, and that he made such settlement with the company without plaintiff’s knowledge. At the time stated in the complaint plaintiff had been admitted as an attorney. Held, that the contract was void under § 74 of the Code, and that the order of arrest and cause of action could not be upheld.
    Appeal from an order of the county judge of Brie county, dated April 7, 1891, denying the defendant’s motion to vacate an order of arrest

      Edward P. Coltle, for app'lt; Edward T. Durand, for resp’t.
   Macomber, J.

The cause of action against the defendant, as stated in the complaint, is that on the 11th day of January, 1891, the defendant, with intent to cheat and defraud the plaintiff, entered into a contract with the latter whereby it was agreed that the plaintiff should advance money, employ an attorney and render services for the defendant in procuring money from the Allegany & Kinzua Railroad Company for personal injuries received by the defendant upon the company’s railroad, and that the defendant then and there fraudulently agreed with the plaintiff that he would not settle with the railroad company without the plaintiff’s consent, and without plaintiff being present to receive, his pay for money advanced and services rendered; that thereafter, in disregard of the agreement, the defendant, without the knowledge of the plaintiff, made a settlement with the railroad company. It is further alleged that the plaintiff relied upon the representations made to him by the defendant, and that he advanced to the defendant, upon the claim against the company, the sum of forty-three dollars in money, and paid $100 doctor’s bills, and obligated himself to pay for the services of another in prosecution of such claim. It is also alleged that the share that was to be reccixmd by the plaintiff for such advancements and services was to be two-thirds of the recovery that might be had against the company. This action is brought to recover the sum of $300, which was supposed by the plaintiff to be two-thirds of such estimated recovery, together with the plaintiff’s advancements and disbursements. Thence follow allegations to the effect that on the 24th day of March, 1891, in pursuance of such fraudulent purpose to deceive the plaintiff, the defendant made a settlement with the railroad company and took the money which, under the contract, belonged to the plaintiff, and which should have been delivered to the plaintiff by the company, and converted the same to his own use.

Upon this complaint and an affidavit of the same import, the county judge issued his order of arrest, the ground thereof being, as stated in the order, “ fraud and deceit in obtaining property consisting of money, services and credits by false and fraudulent means, pretenses, representations and statements.”

The order of arrest and the cause of action stated in the complaint cannot be upheld. At the time stated in the plaintiff’s verified complaint and in his affidavit, the plaintiff, when this agreement was made, namely, the 11th day of January, 1891, was an attorney and counselor at law, having been admitted to the bar, as the records of this court show and as stated upon the argument by his counsel, on the 9th day of January, 1891. It is now suggested in the appeal papers that a mistake was made in the time mentioned in the complaint and in the affidavit. But in an affidavit verified the 25th day of March, 1891, taken before the police justice of the city of Buffalo, for the purpose of procuring a criminal warrant against the defendant, it is stated that there were two contracts made with the defendant, one bearing date December 27,1890, and the other January 11, 1891. The learned county j udge, in denying the motion to vacate the order of arrest, intimated in his opinion that if it appeared undisputedly that the bargain between the parties was made after the plaintiff became an attoriiey and counselor at law, the motion would prevail; but he places the denial of the motion upon the subsequent assertion of the plaintiff under oath, made on the hearing of such motion, verified April 2, 1891. The affidavit referred to is as follows:

“ That the agreement mentioned in the complaint herein was made before deponent was admitted, and in December, 1890, and deponent was an interpreter when the money was loaned.”

But the day before this the plaintiff made a more full affidavit to be used upon the hearing of the motion to vacate the order of arrest, which contains no intimation that the time stated in the complaint and in the affidavit upon which the order of arrest was granted was in any respect erroneous. The affidavit of April 2nd cannot prevail over the move detailed statement of facts contained in the preceding affidavits. The affidavit of April 2nd may be consistent with the one used before the police magistrate, and yet it fails to disclose that there was more than one agreement. Upon the whole evidence it is apparent that the contract relied upon by the plaintiff is the one dated January 11, 1891. If this is not a just inference from all of the affidavits made by the plaintiff, the fault"rests solely with the plaintiff himself, who,'having possession of the written agreement or agreements, failed to produce them upon the hearing before the county judge.

The provisions of § 74 of the Code of Civil Procedure are imperative. “ An attorney or counsellor shall not, by himself, or by or in the name of another person, either before or after action brought, promise or give, or procure to be promised, or given, a valuable consideration to any person, as an inducement to placing, or in consideration of having placed, in his hands or in the hands of another person, a demand of any kind for the purpose of bringing an action. But this section does not apply to an agreement between attorneys and counselors, or either, to divide between themselves the compensation to be received.” That no cause of action can arise out of a transaction thus prohibited by statute is such a plain proposition as hardly to require the citation of authority to support it.. But such authority may be found in Baldwin v. Latson, 2 Barb. Ch., 306; Wetmore v. Hegeman, 88 N. Y., 73 ; Browning v. Marvin, 100 id., 144.

It follows that the order appealed from should be reversed.

Order reversed, with ten dollars costs and disbursements and the motion to vacate the injunction granted, with ten dollars costs.

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


text:
    Thomas M. Rhines, Resp’t, v. The Town of Royalton, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Highways—Towns—Eailube to hepaih.
    It is no answer to the demand which the law places on the commissioner to repair dangerous places in a highway to say that the moneys in his hands had been designed for payment upon ordinary contracts for work which, though proper, could not be deemed to be so urgently required as the demand made by the dangerous defect in the highway.
    2. Negligence—Evidence.
    In an action for injuries caused by alleged negligence, an expert was allowed to testify that in his judgment at plaintiff's age he should think that his leg would never recover and be as well as it was before. Held,, that this was not so speculative, contingent or merely possible as to be inadmissible.
    Appeal by the defendant from an order of the special term denying its motion for a new trial on a case and exceptions after a verdict for the plaintiff, in the sum of $400 for personal injuries, recovered at the Niagara circuit on the 14th day of February, 1888.

      William C. Greene, for app’lt; F. Brundage, for resp’t.
   Macomber, J.

When this case was before the court on the former appeal, Rhines v. Town of Royalton, 11 N. Y. State Rep., 281, it was held that the evidence touching the infliction of the injuries upon the plaintiff made it incumbent upoji the court to submit to the jury the question of the defendant’s liability. At that hearing a new trial was granted, it is true, but upon grounds entirely unconnected with the merits of the case.

The evidence upon the second trial does not materially differ from that which was offered upon the first trial, and, consequently, with the supposed errors eliminated from the case, the verdict of the jury must be deemed to have been supported by sufficient evidence, and the judgment entered thereon must be affirmed, unless certain exceptions now relied upon by the learned counsel for the appellant are of sufficient import to require us to submit the case to another jury.

The injury was inflicted upon the plaintiff on April 10, 1882, on a highway in the town of Royalton, which runs from Wolcottsville to Benedict’s Ridge. The plaintiff, who was in charge of a team with a wagon loaded with barley, on his way to market, was thrown to the ground by the sudden sinking of the forward wheel of the wagon into a deep hole in the road which, throwing him to the ground, caused the breaking of his leg. There is evidence from which the jury was justified in finding the rut or hole, which caused the injury, of such a character as to charge the commissioner of highways of the town of Royalton with negligence in failing to repair the defect, and also to absolve the plaintiff from the imputation of carelessness on his part in passing along the highway. The argument, therefore, which is now addressed to us by the counsel for the appellant, that it was error for the court to deny his motion for a nonsuit at the close of the plaintiff’s case in chief, and also to deny his motion for a direction of a verdict at the close of the whole evidence, cannot prevail upon the merits.

But it is argued by counsel for the appellant that the court was in error in submitting to the jury the question, generally, of the negligence of the defendant’s commissioner of highways. The point greatly relied upon is, that the commissioner had not funds in his hands necessary to make the needed repairs, even admitting the condition of the highway was dangerous to public travel. It is shown the he had received during the year the sum of $2,310.25 from the town for the necessary work of buying materials and making repairs of the highways and bridges in that town; that on the 4th of April, 1882, he had expended all of this sum except $77.29, which he reported as then being in his hands, but which, he claimed, was due on contracts which he had made for surveys and repairs on highways and bridges of the town. It is shown that the expense of making needful repairs at the place where the plaintiff was injured would have been of trifling amount.

The position of the counsel for the defendant in this respect is untenable, because, if the highway was so out of repair as to be dangerous to travel, and the commissioner knew such fact, it was clearly his duty to expend a portion of the moneys in his hands in order to avert, what must have seemed to any person acquainted with the facts, any accident of the kind which resulted in the plaintiff’s injury. In our judgment it is not any answer to the demand which the law placed upon the commissioner, that he repair dangerous places in the highway, to say that the moneys in his hands had been designed for payment upon ordinary contracts for work which, though proper, could not be deemed to he so urgently required as the demand made by the dangerous defect in the highway. While, therefore, the town had raised a sum larger than that required by statute, 2 R. S., 7th ed., 1214, for its general expenditures for highways and bridges, and could not consequently be charged with negligence in failing to raise sufficient moneys to be expended by the commissioner of highways, it does distinctly appear that of such liberal allowance made to the commissioner, the latter had sufficient funds' to make the needful repairs in question. It follows, therefore, that the principal contention made by the counsel must be deemed to be unsound.

There remains to be considered certain exceptions to the testimony, and to the charge of the court. These several exceptions have been examined in detail, and no one of them, as it seems to us, was well taken, and none of them hardly worthy of consideration, except the question relating to the medical testimony given in behalf of the plaintiff. Dr. George Jackson was asked these q uestions:

“Q. In your judgment will he (the plaintiff) ever recover from it?

“ Objected to as being incompetent and speculative.

“Q. From the nature of the injury and from what you know of it, can you or can you not state whether or not this leg would ever recover and be as well as it was before ?

“ Objected to same as before. Objection overruled, and defendant excepts.

“A, No, sir.

“Q. You say it will not. A. I can’t say; I wouldn’t dare to attempt it; I can give you my opinion. Did you ask for that? A. Yes.

“Objected to as incompetent.

“ Q. State whether or not, in your judgment, his leg will ever be as well as it was before this accident ?■ A. At his age I should think not.

“Mr. Green: I object to that, same as before. Too remote, speculative, and not sufficient foundation laid for the evidence.

“Objection overruled, and defendant excepts.

“A. At his age I think not.

“Q. That is your judgment? A. Yes, sir; that is my judgment.

“ Q; I want you to describe from your experience and tell us why?

“Objected to same as before, and as incompetent and inadmissible. Objection overruled and defendant excepts.

“A. At his age there is not the strength and elasticity to the bone as there is in a younger person. The leg is nearly perfect now.

“ Q. You have seen it lately ? A. No, I have not seen it that I know of in four years. I was testifying to the last I had seen it. I don’t remember the depression in it at the point where the fracture was. There was a ridge, if I remember right, a bony union at the point of fracture at the last I saw of it; that will not always remain; it will pass away.”

These questions and answers do not, in our judgment, make a case where the evidence of damages can be considered as speculative, contingent or merely possible, within the doctrine of. Strohm v. The N. Y, L. E. & W. R. R. Co., 96 N Y., 305. The doctor was asked for his judgment as a medical man. He gave it with much circumspection considering the nature of the case and his connection with it.

But even if the questions propounded to the doctor had called for merely hypothetical, speculative or contingent evidence, it is obvious from the amount of damages awarded by the jury that the defendant was not harmed thereby.

The order appealed from should be affirmed.

Order denying new trial affirmed, with costs.

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


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    William Woodbury, Resp’t, v. Ansel F. Conger, App’lt.

      (Supreme Court, General Term,, Fifth Department,

      Filed October 23, 1891.)

    Attorneys—Burden of proof.
    In an action for services rendered by an attorney & prima facie case is made out on showing the rendition of services and their value. The plaintiff is not called upon as a part of his case to negative a defense that the services were to be gratuitous unless a recovery was had, but the burden of proving such defense rests upon the defendant.
    Appeal from a judgment entered in Erie county, October 8, 1889, on the verdict of a jury rendered at the circuit.

      Adelbert Moot, for app’lt; William Woodbury, resp’t in person.
   Macomber, J.

This action was brought to recover the value of the plaintiff’s services as an attorney and counselor at law in certain litigations which he had conducted for the defendant That the plaintiff gave evidence showing the employment and the value of his services to be at least the amount of the verdict admits of no doubt, and the fact is conceded by the learned counsel for the appellant.

Certain exceptions, however, were taken at the trial upon which reliance is placed for a reversal of the judgment. The first exception argued by counsel is the ruling of the court permitting the witness Wadsworth to testify, under objection and exception, concerning the connection of Joseph M. Congdon, at that time the defendant’s attorney, with the case. This exception, however, must go for naught, because the witness was not permitted to give evidence of what actually took place between him and Mr. Cong-don, and for the further reason that, so far as the witness did give testimony, the defendant’s counsel conceded its competency by admitting that Mr. Congdon came to Buffalo, and saw Mr. Wads-worth, and had an interview with him.

The only other exception requiring notice is that relating to the burden of proof. The action, as has already been stated, was for the recovery of compensation as attorney and counselor at law under a quantum, meruit. Having proved the rendition of the services, and the value thereof, a presumption of law arose that the defendant had contracted to pay the amount thereof to the plaintiff. The defense, however, is that the services in the litigation were to be gratuitous unless a recovery was had and compensation obtained from the other side. The court at the trial consistently held that the plaintiff had made out a prima facie case on showing the rendition of the services and the value thereof, and held that the defense, that the services were to be gratuitous, or without compensation in any event from the defendant, was an affirmative defense, which must be established by evidence adduced in support of it. It is clear that it was no part of the duty of the plaintiff at the outset to negative the proposition that the services were not to be paid for. The presumption of law, on the contrary, is that they were to be paid for. The plaintiff was called upon to prove no more than his own affirmative allegations, namely, the rendering of the services at the request or knowledge of the defendant, and the value thereof. He was not required to give evidence of the negative character mentioned, for the reason that it was no part of his case to exclude. the independent and affirmative defense. The plaintiff has, by a fair preponderance of the evidence, established his side of the case; consequently the verdict of the jury was correct, and should be affirmed.

Judgment affirmed.

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


text:
    Michael Filon, Pl’ff, v. John M. Durkin, Resp’t, Impl’d with Melville G. Riker, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Appeal—Foeeclosube—Discbetioraby oedeb.
    After judgment of foreclosure by default and sale of the premises to one of the defendants, who did not take a deed but paid the amount of the mortgage and took an assignment thereof, the county court on motion of a defendant who was liable for deficiency, if any, opened his default to allow Mm to set up certain equities existing between him and said purchaser. It appeared that the moving defendant had little reason to believe that a judgment for deficiency would be taken, and was told by plaintiff that the bond and mortgage were paid. Held, that the order of the county court was a discretionary one, and was not reviewable in this court.
    Appeal by the defendant Riker from an order of the county court of Monroe county, dated February 9, 1891, opening the default of the defendant, John M. Durkin, and permitting him to interpose an answer setting up certain equities existing between him and his co-defendant, the appellant Riker.

      J. A. Robson, for app’lt; S. D. Bentley, for resp’t.
   Macomber, J.

The controversy on the motion, and upon this appeal taken from the order entered on the motion, is between certain co-defendants, namely, Durkin and Riker. The notice of motion was served not only upon the appellant but also upon the plaintiff; but the plaintiff makes no appearance upon the motion.

The action was brought to foreclose a purchase money mortgage made by the defendant, Ellis, to the defendant, Durkin, and by the latter assigned to the plaintiff with a guaranty of collection. Mone of the defendants made any defense to the action. On the 16th day of April, 1890, after judgment of foreclosure, and a sale under such judgment had been had, a judgment for deficiency of $373.69 was taken against the defendants, Durkin and Ellis. On the sale, in pursuance of the judgment of foreclosure, the defendant Eiker bid off the premises in his own name. It appears, however, that no deed was given by the referee ; nevertheless the plaintiff received his pay in full from the defendant Eiker, to whom the bond and mortgage in question were assigned by the plaintiff without recourse.

Certain equities, it is claimed by the respondent, existed between the appellant and the respondent Durkin, growing out of sundry real estate transactions between them, the details of which it is not necessary to mention for the purposes of this decision. It is claimed in behalf of Durkin, that as between these defendants it was the duty of the appellant Eiker to pay any judgment of deficiency which was taken in the foreclosure suit. This defendant, however, failed to interpose any answer or take any steps to assert such equitable considerations until after the judgment of foreclosure and sale, and after the assignment of the bond and mortgage had been made by the plaintiff to the appellant. The excuse given for the omission to set up these equities is not of the most substantial and conclusive character, although it is plain to be seen from the whole evidence, and from all the affidavits, that the respondent Durkin had little reason to believe any judgment of deficiency would be taken against him in this action. The appellant had done no act and had made no assertions designed or calculated to induce this non-action on the part of Durkin. A complete excuse, however, of the delay in making this motion is given by the moving party covering a time between the sale and the time that the motion was originally made, and that excuse is that the plaintiff, not the appellant, had told the moving party that the bond and mortgage had been paid. Probably the plaintiff intended to say no more than that he had received the amount thereof, and not that the bond had been satisfied. After ascertaining that the appellant had become possessed of the bond and mortgage and claimed the right to enforce the judgment for deficiency, no loches can be imputed to Durkin.

The decision of the question, we think, rested in the discretion of the county court, and consequently is not reviewable in this court, under § 1342 of the Code of Civil Procedure, within the general principle governing courts at law, that one court will not review the discretionary orders made by another court. Kugelman v. Rhodes, 36 Hun, 269.

This principle rests not upon any statutory provision, but upon the well-established practice of courts of separate powers and organic differences. Under the Code of Procedure, until the amendment, subdivision 4, § 11 of that Code, made by chap. 741 of the Laws of 1870, the provision touching appeals to the court of appeals from orders made by the supreme court was of the same general character as in § 1342 relating to appeals from the county court to the supreme court; yet, the court of appeals held that discretionary orders made by the supreme court were not reviewable. Lansing v. Russell, 2 N. Y., 563 ; Humphrey v. Chamberlain, 11 id., 274; Bolles v. 42 id., 256.

The amendment of 1870, which is now embodied in the present Code of Civil Procedure, sub. 2 of § 190, permitting appeals from orders affecting a substantial right “ and not resting in discretion,” was doubtless made in pursuance of the previous decisions of the court of appeals. Hence it is that in the case of People ex rel. v. Board Police Commissioners, 82 N. Y, 506, the court says that the language of the new Code, subdivisions 2 and 3 of § 190, does not differ in meaning from that of the old Code, § 11.

We are of the opinion, therefore, that the application made to the county court was one entirely of favor, and was not based upon any substantial right, and that the order appealed from is not reviewable by this court.

Appeal dismissed, with ten dollars costs and disbursements.

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


author: Pryor, J.

text:
    James McGay, Resp’t, v. The Manhattan Elevated Railway Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 4, 1891.)

    Railboad—Elevated—Evidence.
    In an action to restrain the operation of an elevated railroad and for damages, it is error to allow an expeit to give an opinion as to whether the structure and operation of the road affected the premises of the plaintiff, and, if so, the extent of the injury, as these are the precise issues which are to be determined by the court.

      (Roberts v. Pew York El. R. R. Co., 40 N.Y. State Rep., 454, followed.)
    Appeal from judgment in favor of plaintiff.
    Action in equity for an injunction against the maintenance and operation of defendants’ railway, and for past damages.
    The judgment awards both an injunction and damages.

      Samuel G. Adams and Allen Lee Smidt, for resp’t; Julien T. Davies, Brainard Tolles and T. C. Thomson, for app’lts.
   Pryor, J.

We are of opinion that, for manifest error, the judgment must be reversed.

Edmund H. Martine, an expert witness in behalf of the plaintiff, after stating the physical effects of the railway upon the premises, was asked: “In your opinion, based upon your experience, do you consider that these physical effects in any way affect the value of these premises?” To this question the defendants objected on the grounds that it was incompetent, and that it called for the opinion of the witness on a matter which it is the exclusive province of the court to determine. The objection was overruled, the defendants excepted, and the witness answered, “I do.” The plaintiff inquired, “ How ?” The defendants objected upon the same grounds, the objection was overruled, the defendants duly excepted, and the witness answered, “It depreciates the value, both fee and rental.” The plaintiff then asked, “In your opinion, based on your experience and knowledge of values, does it depreciate the' fee and rental values to what extent?” The defendants objected on the same grounds; but the court overruled the objection, to which the defendants duly excepted, and the witness answered, “It would probably be worth thirty-three and a half per cent more than it is to-day.” Thereupon the defendants moved to strike out the answer, and to the denial of the motion duly excepted.

It is evident beyond the possibility of dispute that the questions challenged by the defendants called for and elicited the opinion of the witness on the very issue before the court for judicial decision. That issue was, whether and how much the railway depreciated the value of plaintiff’s property; and, if there were such depreciation, that depreciation was the exact measure •of plaintiff’s injury. But the fact of the injury, and the amount of the injury, were the precise issues which the nature of the .action' and the state of the pleadings propounded to the court for determination.

“ The amount of damages thus caused to the plaintiff’s fee is the precise question which the court or jury must determine. * * * The precise and specific question which is to be determined bv the court or jury is, by this interrogatory, placed before the witness for his opinion and decision. To permit it to be asked and answered is, beyond all question, against the great mass of authority in this and other states.” Roberts v. R. R. Co., 40 Ñ. Y. State Rep., 454.

“ It is the province of the jury to determine, upon the facts ■.spread before them in the evidence, whether the plaintiff has suffered damages, and the amount of the compensation therefor.” Avery v. R. R. Co., 121 N. Y., 31, 44; 30 N. Y. State Rep., 471.

Again, the answer: “ It would probably be worth 33^ per cent more than it is to-day,” is, in effect, a statement of the opinion of the witness as to what would be the value of the property without the railway; evidence which, in Roberts' case and Doyle's case, the court of appeals has just decided to be incompetent, and its admission sufficient ground for reversal. The refusal, therefore, to .strike out the answer was error.

We are of opinion that the trial court committed errors as well in the exclusion as in the admission of evidence; e:g., in rejecting evidence of the course of values of adjacent properties, Doyle's case, 40 N. Y. State Rep., 474, and evidence of benefits to plaintiff’s property from the presence of the railway, Doyle's case; but we forbear the discussion of these errors, since, in any event, another trial is inevitable.

Judgment reversed and new trial ordered, costs to abide event.

Daly, Ch., J., and Bischoff, J., concur.


text:
    Karl M. Wallach, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 4, 1891.)

    Railboad—Elevated—Evidence—Expert testimony.
    In an action to enjoin the operation of an elevated railroad and for damages, it is error to allow an expert to testify as to the value of plaintiff's property without the railroad in front of it.

      Appeal from judgment on the decision of a judge at equity term. Action to enjoin the maintenance and operation of defendants’ elevated railroad along the street in front of plaintiff’s premises, and for past damages. The judgment awards damages and an inj unction.

      Philip Carpenter and Joseph B. Reilly, for resp’t; Julien T. Davies and Samuel Blythe Rogers, for app’lts.
   Pryor, J.

Of the several points presented by the appellants, but one will be considered; because that one is obviously and indisputably fatal to the judgment.

To a witness called by the plaintiff he propounded this question: “What would be the present value of this property without the road in front of it?” The defendants interposed, timely and sufficeint objection to the question ; but the court allowed it,, to which the defendants duly excepted, and the witness answered “About $17,000 each.” The witness had already testified that, with the railroad in front of the houses, they are worth $14,00(> each. Again, the witness was asked: “ What would be the fair rental value without the structure in front and the passing trains ? ” Timely and sufficient objection was interposed to the objection; but the witness was allowed to answer it, to which the defendants duly excepted, and he said, “ about $1,550 or $1,600 each house.” The witness had already testified that the present rental value of the property is “about $1,250 for each house."

Whatever doubt may have prevailed hitherto in the courts' and with the profession as to the incompetency of this evidence is dissipated by recent decisions of the court of appeals. In Roberts v. The Manhattan Railway Company, 40 N. Y. State Rep., 454, the court ruled that such evidence is inadmissible, and'that its introduction is reversible error, although other evidence in the case might suffice to sustain the judgment. The adjudication is the same in Doyle v. The Manhattan Railway Company, 40 N. Y. State Rep., 474, and Gray v. The Railway Company, id, 478.

The respondent argues that error in the admission of evidence-as to fee value is inoperative to affect the judgment, but the contention is untenable; for, first, here the incompetent evidence was admitted to show depreciation in rental value, and, secondly, the court of appeals has decided that such evidence as to fee valuéis equally fatal error. Roberts' case; Gray's case. This and other courts below had ruled the contrary; but the authority of the court of appeals is imperative upon us.

Judgment reversed, and new trial ordered, costs to abide event.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Mary B. Delafield, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (NewYork Common Pleas, General Term,

      Filed November 4, 1891.)

    1. Railboad—Elevated—Evidence.
    In an action to restrain the operation of an elevated railroad and for damages, evidence of an expert as to the amount of the injury to plaintifE's premises caused by the railroad is incompetent, and its admission adequate ground for reversal.

      % Same.
    The opinion of an expert as to whether the street would have been better and with higher values if the railroad had never come there is incompetent, because purely conjectural and speculative.
    Action in equity to enjoin the maintenance and operation of defendant’s railway. Plaintiff had judgment of injunction.

      Peckham & Tyler, for resp’t; Edward C. James, for app’lts.
   Pryor, J.

To prove the fact and the amount of damage to her property from defendants’ railway, plaintiff called one Water-low as a real estate expert, and propounded to him these inquiries: “ How many thousand dollars do you say that elevated railroad, in respect to injuries to light and noise, have damaged that lot?” Defendants objected to the question as “ incompetent and improper thereupon the court modified it, and to the question as modified defendants objected on the same grounds. The court overruled the objection; and the witness, answering the question as first propounded, said, “To the par ” (fee?) “value of the lot it would be about 20 to 25 per cent.” Again, “ Please state your estimate of the injury from the elevated railroad to the light and also to the building on the lot, in dollars and cents, confining your estimate to the injuries from the road in respect of noise and the impairment of light ?” To this question defendants objected on the grounds above stated, and also on the ground that “ it is incompetent for the witness to give his opinion upon the amount of damagebut the objection was overruled, exception duly taken, and the witness answered, “ Taking all the elements of the railroad together, I cannot suggest light and noise alone, I should say, dirt and cinders and gases, the depreciation of the rental value would be about 38-J- per cent, in combination.” Upon the opinion in Me Gay's case, herewith decided, this evidence was clearly incompetent and its admission adequate ground of reversal.

Again, to the same witness, plaintiff propounded this inquiry: “ Have you formed an opinion as to whether Sixth avenue, near Twenty-third street, would have been a better street with higher values, supposing that elevated railroad had never come there, or the reverse?” To this question defendants objected, that it was “ incompetent, irrelevant and immaterial; also, as speculative and conjectural, and not a proper subject for opinion.” The objection was overruled, defendants duly excepted, and the witness answered, “ It would have improved materially for the better without the elevated road in all ways,” etc. Upon the opinion in Wallach v. R. R. Co., herewith decided, and the adjudication in Roberts' case and Gray's case, this evidence was incompetent because purely conjectural and speculative, and its admission sufficient ground for reversal.

Waiving consideration of other points presented by appellants, for the errors specified the judgment must be reversed and a new ’trial had, costs to abide the event.

Daly, Ch. J., and Bischoff, J., concur.