text:
    Henry Shanley, App’lt, v. Union Railroad Company of New York City, Resp’t.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Negligence—Contbebutoíby.
    It is not contributory negligence, as a matter of law, for the driver of a. vehicle, who is within ten feet of a street railroad track, to attempt to cross the same, when the nearest car is two hundred yards away.
    Appeal from a judgment dismissing the complaint.

      M. P. O’.Gonnor, for app’lt; Hoadly, Lauterbach & Johnston, for resp’t.
   Fitzsimons, J.

This is an action for damages for the alleged negligence of the defendant. The trial judge dismissed the -complaint because of the plaintiff’s contributory negligence and the defendant’s freedom from negligence. The examination of the evidence shows that plaintiff and three other persons were driving down town along the Southern Boulevard in this city; and while driving across Boston avenue, along which defendant’s cars run, and when the horse’s head was about ten feet away from the westerly rail of the south-bound track, they saw one of the defendant’s cars going north, and about 200 yards away from them, towards the south; that they continued on, the horse being on a dog trot, and when their horse and part of the wagon had crossed over the north-bound track, the rear wheel of the wagon was struck by said north-bound car, and plaintiff was thrown out of the wagon and injured. This state of facts was sworn to by several witnesses.

The plaintiff certainly had a right to cross the defendant’s tracks, and defendant had a right to use its tracks for the ordinary streetcar uses. Both were required to exercise their respective rights in a careful and prudent manner, and whether or not they were doing so in this instance, it seems to me, after reading the appeal record was a question for the jury to determine. To say, as a matter of law that the driver of a vehicle, who is within, say, five yards of a street-railroad track in this city, is guilty of contributory negligence in attempting to cross the same, because the nearest car to him is 600 feet away, is carrying that doctrine of the law too far.

I can find no precedent which justifies such conclusion. The facts and circumstances of a particular case might justify a jury in so holding, but I think it error to so hold as a matter of law.' I therefore think it was error to dismiss the complaint upon the ground of plaintiff’s alleged contributory negligence. As to defendant’s negligence, it also seems to me that that question should have been submitted to the jury, and it was error to refuse to do so. x

The judgment must be reversed.

A new trial is ordered, with costs to the appellant to abide the event of the action.

All concur.


source: Caselaw Access Project

author: Conlan, J.

license: Public Domain

text:
    John Fylnn, Resp’t, v. Maine Steamship Company, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Master and servant—Liability.
    The fact that there were no fenders between the vessel and the lighter at the time of the accident, if such fenders were provided by the master and were near at hand and could have been placed in position if deemed necessary, cannot avail an employe of a steamship company, who was an experienced longshoreman and was injured in consequence of the absence of such fenders.
    Appeal from a judgment in favor of plaintiff and from an order denying a motion for a new trial.

      Charles C. Nadal, for app’lt; Grossman & Worhaus, for resp’t.
   Conlan, J.

This appeal is taken from a judgment entered upon a verdict and from an order denying a motion for a new trial.

The, action was brought to recover damages for alleged injuries sustained by the plaintiff while engaged in unloading the cargo of the steamer Cottage City onto the lighter Holland, at the defendant’s dock in the city of New York, on the 16th of March, 1894. Upon the trial of the action there was some conflict of evidence as to what was the proper use or employment of fenders between vessels when engaged in loading or unloading cargo. It was contended for the plaintiff that the use of these fenders was to prevent accidents of the kind complained of, while the claim on the part of the defendant was to the effect that their sole employment was to prevent the vessels coming together, and by so doing chafing the side of the vesses].

The defendant claims that fenders were put between the steamer and the lighter as soon as the lighter came alongside of the other vessel. There is no dispute but what fenders, and also a gang plank, were at hand, and provided by the defendant, and were always to be had at the dock when required. Indeed, it is asserted by the plaintiff’s witnesses that they were brought from the dock, and placed between the vessels, immediately after the accident; and there does not appear to have been any further accident after this alleged employment of the fenders. It is also in evidence that when the lighter is much lower than the unloading vessel a gang plank is sometimes used for the passage to and fro of persons engaged in the work of removing the cargo.

In this case it does not appear that the deck of the lighter was more than ten inches below the guard rail of the steamer at the time of the accident, or that any one thought of the necessity 'for the use of a gang plank, although one was near by and on the dock alongside of which, the steamer was moored. It is in evidence also that rope fenders are sometimes employed, and at others fenders made of wood, there;being some dispute as to the superiority of one kind over the other.

However, that is not material to the questions to be determined upon this appeal, since it is practically conceded by the plaintiff that the use of either would have prevented the accident. It was not necessary for the jury to pass upon the question as to what kind of fenders were used, nor do they appear to have done so.

Upon the plaintiff’s theory, they found that no fenders were employed, at least until after the accident; and if we are correct in this view of the case, the judgment below was predicated upon tho theory that—First, fenders were necessary to prevent accidents of this kind, and second, that it was the duty of the defendant to provide and use them.

The first of these propositions may be conceded to the respondent without running counter to any conclusions which may be reached by an application of the principles of law governing the second, viz. as to the duty of the master to provide and use the fenders, in order to properly protect the person of the plaintiff anc) such other persons as were singularly employed. The .plaintiff was an experienced longshoreman, in the employ of the defendant at the time of the accident, and under the direction of the head stevedore, whose duty it was to superintend the unloading of the steamer; and it is evidence that the latter was under the orders of the mate, who was in charge of the steamer at the time of unloading. The accident consisted in the plaintiff’s heel being caught between the deck of the lighter and the guard rail of the steamer as the former vessel rose against the side of the latter from the action of the tide or some other disturbance of the water in the slip where the vessels were unloading.

It is the well-settled rule of law in cases like the one at bar. that the master must provide adequate and safe appliances, and such as are -usual in the particular employment in which the servant is engaged;,and the court below, following out this principle, charged the jury at folio 188 of the printed case: “ That if the c defendant provided or had at hand a gang plank which might have been used, but which McQuaig (the stevedore) or the men of his gang neglected to use, the defendant is not guilty of negligence, and the -plaintiff cannot recover;” and, also, at the same folio: “ That if the plaintiff noticed or might have noticed the absence of the fenders before the accident, and made no protest, he assumed the risk incident thereto, and cannot recover.” As we have said before, it cannot avail the plaintiff that the jury may have found that there were no fenders between the vessels at the time of the accident, if such fenders were provided by the master, and were near at hand, and could have been placed in position, if deemed necessary. It is nowhere disputed that fenders were provided, and were near at hand, as also a gang plank, and that they were put in position by the persons engaged in unloading the steamer, after the accident to the plaintiff. In a recent case it was said by the court, after reviewing many authorities: “It is impossible that a master himself can control the detail work "of any corporation or any private business of any size.” This injury arose from negligence which was connected with the detail work. “Such negligence is not the negligence of the master, but is purely the negligence of the co-servant, and of this there is no possible question.” The evidence is overwhelming that proper appliances were at hand, and could have been used; and the failure to employ them is not negligence chargeable to the master. He did all the law reasonably required of him in providing and having at hand to be used proper appliances; and, as we have seen above, their nonuse was negligence consequent upon the detail work in which the plaintiff was engaged, and was not the negligence of the master.

Sympathy for the plaintiff does not carry us to the extent of sustaining a judgment which is not founded upon coiTect principles of law, and we are inclined to the views of the court in the recent case of Ludlow v. Bridge Co., that “this case is one of those unfortunate accidents which no one can be made to pay for, at least no employer;” and we are forced to the conclusion reached by the court in that case. The complaint should have been dismissed upon the trial. We do not think it necessary to enlarge further upon this question, nor to discuss any of the other questions presented upon this appeal, having reached the conclusion that the judgment appealed from must, for the reasons stated, be reversed.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.


author: OsBOEíTE, J.

text:
    Terence F. Wynne, Resp’t, v. Atlantic Avenue Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    1. Negligence—Collision.
    Where an electric car is coming on the same track behind a horse car, it is the duty of the motorman, on seeing the horse car ahead of him, to so manage and control the speed of his own car as to prevent a collision.
    2. Evidence—Pebsonal injubies.
    In an action for personal injuries, the plaintiff may recover for lost time where the evidence establishes the fact;
    3. Damages—Excessive.
    A verdict for $3,200 for personal injuries was held, in this case, not excessive.
    Appeal from a j udgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Chas. J. Patterson, for resp't.
   OsBOEíTE, J.

— Plaintiff brought this action to recover.damages, for injuries alleged to have been sustained by the negligence of defendant. It appears from the evidence that, on the afternoon of October 6, 1893, plaintiff was a passenger on a horse car of the Brooklyn Heights Bail road Company proceeding along Atlantic avenue ; that the car stopped near Clinton street to permit some passenger to alight, and, before it started Up again, a trolley car of the appellant, coming on the same track from behind, crashed into the rear of the horse car with force sufficient to make a hole in the rear dashboard of the horse car; that the shock of the collision threw plaintiff from his seat against the 'seat on the opposite side of the car, causing the injuries complained of. Plaintiff had a verdict of $3,200, and this appeal is taken from the judgment entered thereon and the order denying the motion for a new trial.

The learned counsel for the appellant contends that the motion to dismiss the complaint should have been granted for failure of proof of negligence on the part of defendant. We think there was ample proof on which to tsubmit to the jury the question of defendant’s' negligence. The motorman of defendant’s car admits that he saw the horse car slowing up gradually when it was about fifty feet ahead of him, but that he did not put on his brake until his car was within twenty or twenty-two feet of the horse car, and that then he was unable to stop his car in time to avoid a collision in consequence of the rails being slippery. We think that it was clearly the duty of the motorman, on seeing the horse car ahead of him, to have so managed and controlled the speed of his own car as to prevent a collision. Here was no sudden emergency presenting itself, for the motorman knew, or ought to have known, that the car in front of him was liable to stop at any time to permit passengers to get on or off, and we think that it was his plain duty to maintain such a distance from the preceding car, or to so-reduce the speed of his own car, that he could stop it in time to prevent a collision.

The learned trial judge charged the jury that it might compensate plaintiff, in case of a verdict in his favor, “for the loss of the value of his time,” to which exception was taken. The learned trial judge was also asked to charge that there was no evidence upon which a jury could base an estimate as to the value of plaintiff’s time, and also that no verdict could be rendered on the basis of four or five dollars a day while plaintiff was away from his business, and exceptions were taken to the refusal so to charge. Bo one of these exceptions is tenable. Plaintiff claimed, in his complaint, as an element of damage, that he “ was prevented and will be prevented from attending to his business for a long space of time.” He testified that he had been in the junk business for twenty-five years, and for sixteen or seventeen years of that time at the placo where his store was at the time of the accident; that he bought and sold goods, worked himself, kept books, and everything; that his purchases and sales were from $300 to $400-daily; that he employed five persons in his business; that, for two months after the accident, he was only able to call at the store and then return home, and some days he was unable to go at all; that he was not able to carry on his business himself, and that he was not able to do any active work up to September of the following year; that he attended to business until February, and then the business stopped ; that “ before he was hurt, he used to buy and sell, or drive the truck sometimes, and go and collect bills,— drove the truck with the goods sometimes, took part in the lifting and loading of the goods, and was not able to do anything in that line after the injury.” A witness called on behalf of the plaintiff, who had been in the business for over forty years, testified that men were hired to manage the business as extensive as that of plaintiff, and that a man who had the necessary capacity to conduct such a business as plaintiff's was worth four to five dollars a day. In Masterton v. Village of Mount Vernon, 58 N. Y. 396, the court says:

“ The plaintiff had the right to prove the business in which he was engaged, its extent, and the particular part transacted by him, and, if he could, the compensation usually paid to persons doing such business for other. These are circumstances the jury have a right to consider in fixing the value of his time.”

These are precisely the elements which the plaintiff proved, and we think that, from these elements, the jury had a right to estimate the value of plaintiff’s loss of time, and there being evidence that the value of such services as this plaintiff rendered was worth from four to five dollars a day, the court was right in declining to charge the jury that no verdict could be rendered on that basis. The cases cited by the learned counsel for the appellant go no further than to hold that in the absence of evidence^ the jury cannot be permitted to speculate, as to the value of loss of time.

Flor can we say that the verdict is excessive. The evidence of the plaintiff showed that, when thrown against the opposite side of the car by the shock of the collision, one of his ribs was broken. That he was compelled to go home and go to bed. He started to go to his shop next day and was obliged to return. Was confined to his bed for two or three days suffering all the time from pain in his side and limbs and feet, then went to the doctor’s and was prescribed for, and for two months after that he was only able to call at his store, and then had to return home again and go to bed. The fracture developed a bloody tumor about two and a half inches wide and four or five inches long, and also pleurisy, and from the date of the injury, October 6, 1893, up to September, 1894, he suffered pain and was not able to do anything. That he cannot-use his left side as well as he used to, and is unable to lift any heavy weight with his left hand. Plaintiff was corroborated as to his injuries by his physician, who also testified that it takes three or four weeks for a fracture of the rib to unite; that he had examined plaintiff a week or ten days previous to the trial (March 5, 1895), and that there was still a tumor visible over the place of fracture, and also some adhesion of the lung to the wall of the chest where the pleurisy had occurred, and that such adhesion interfered with the action of the lung in that particular spot, and that drawing long breaths or lifting heavy weights would cause paia, and that, in the doctor’s opinion, there will always be some trouble at that spot Taking into consideration the stffferings of the plaintiff, their long duration, his incapacity for hard labor, and the present existence of the tumor and the adhesion, coupled with the loss of the plaintiff’s time, as hereinbefore mentioned, we are of the opinion of that we are not called upon to interfere with the verdict.

For the reasons above stated, the judgment and order appealed from must be affirmed, with costs.

Yan Wyck, J., concurs.


text:
    Daniel C. Moynihan, App’lt, v. Matthew J. McKeon, Resp’t.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Appeal—Conflicting evidence.
    A verdict, upon conflicting evidence, will not be disturbed on appeal, where the questions of fact were fairly submitted to the jury, under proper instructions as to the law of the case.
    Appeal from a judgment in favor of defendant.

      Tiernan & Halsey, for app’lt; Duffey & Kiernan, for resp’t.
   Conlan, J.

Appeal from a judgment in favor of the defendant, from an order denying a motion for a new trial. This action was brought on a promissory note against the maker and indorser. The answer of the maker admits the making of the note, and alleges as a defense that it was made without consideration, and for the accommodation of the plaintiff and the payee. The defendant, having the affirmative of the issue thus raised, offered proof tend- • ing to show that Smith, the payee, was at the time of making the note indebted to one Russell for a bill of lumber, and that the plaintiff had indorsed or guaranteed the bill; that said Smith call on the maker, and stated to him that if he would make his promissory note at three months, payable to his order, he and the plaintiff would indorse it, and give it to Russell, who would accept it for the bill then falling due; that thereupon, and for the accommodation of the payee and the plaintiff, he made the note in suit.; that the note so made was indorsed by the payee and the plaintiff, and delivered to Russell in payment of the lumber account ; that, after the maturity of said note, it was taken up by the plaintiff; that the note was indorsed by the plaintiff with full knowledge of the purpose for which it was made. The testimony of the plaintiff was to the effect that he did not indorse or guaranty the bill of lumber sold to Smith, the payee; that the-payee and maker of the note were doing business together, and that Smith represented to him that the note was business paper, and that he indorsed it for the accommodation of the payee, who transferred it thereupon to Russell; that, about a week after maturity, he paid the amount of the note to Russell, and received it in his possession. The questions of fact thus presented were fairly submitted to the jury, under the proper instructions as to the law of the case, and we do not think the verdict should be disturbed.

Judgment affirmed, with costs.

All concur.


author: Fitzsimons, J.

text:
    William D. Chapin, Resp’t, v. L. Candee & Company, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    1. Evidence—Contracts—Performance,
    Evidence, in an action to recover for the construction of a well, that the well was useless by reason of an inadequate water supply, is properly excluded, where the contract does not require that it should supply a given number of gallons per minute.
    2. Contracts—Substantial performance. -
    A failure to perform a small requirement of a contract will not bar a recovery, where the cost of such requirement is trifling and is deducted by the jury from the amount due plaintiff.
    Appeal from a judgment in favor of plaintiff.

      Chas. Be Hart Brower, for app’lt; Arnoux, Bitch & Woodford, for resp’t.
   Fitzsimons, J.

The plaintiff herein claimed that the original contract made between him and the defendant was, subsequent to the commencement of the work required to be done thereunder, modified and changed, and, as so modified, he completed his part thereof. As to whether or not such modification was made was one of the questions in dispute, and was properly submitted to the jury, and determined against defendant. The evidence was certainly sufficient to justify a verdict in plaintiff’s favor. Therefore, the trial justice was right in refusing to set aside the verdict upon defendant’s motion as against the weight of evidence and contrary to law. Under the contract the plaintiff was not required to build a well that would supply a given number of gallons per minute. Therefore, it was immaterial whether or not the well, when finished, was useful"to defendant or fit for the purpose of its intended use by defendant No such contract was made herein, and the evidence sought to be introdued by defendant tending to show that the well was useless to it was properly excluded.

As to She failure of plaintiff to properly cover over the top of the well, that evidently was an insignificant and unimportant- part of the work, particularly in view of defendant’s claim that the well was entirely unfit for use. That being so, it is evident that it would have properly covered it at a trifling cost. Even plaintiff says that such costs could not have exceeded twenty dollars, which amount the jury allowed defendant in their verdict. It is very evident from defendant's testimony, that it did not attach any importance to the failure of plaintiff to cover the well as the contract required. Its whole and sole objection appears to be that the well fnrnished only 100 gallons per minute. In our opinion, under the facts and circumstances of this case, the objection at present under consideration is technical, and not substantial in merit or law.

We have examined the record carefully, and think that the plaintiff performed his contract. The result was undoubtedly unsatisfactory to defendant, but that fact does not affect plaintiff’s right to recover herein, as he did not contract that the well, as before stated, when completed, would supply any given number of gallons of water.

The judgment must be affirmed, with costs.


text:
    Joseph Davidoff, Resp’t, v. Wheeler and Wilson Manufacturing Company, App'lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    1. Malicious prosecution—Advice oe counsel.
    The advice of counsel, as a defense for a wrongful arrest, must have been given on a full and fair statement of the facts.
    2. Same—Probable cause.
    The arrest, in this case, was held to have been procured maliciously and without probable cause.
    Appeal from a judgment against the defendant on a verdict.

      Holden & Allen, for app’lt; Mashbir & GuJcor, for resp’t.
   Fitzsimons, J.

The testimony on plaintiff’s behalf shows that he purchased a machine from defendant, the title thereto to remain in defendant until fully paid for; that before the machine was fully paid he transferred possession thereof to one Eisenstadt, with the consent of descendant’s agent, one Ludlow, who said, “ You can give it (the machine) to the other man ; ” he then transferred the machine to Eisenstadt, and wrote the defendant to that effect; that subsequently the defendant, failing to receive further payments upon the machine, demanded its return, and, not receiving it, caused plaintiff’s arrest and imprisonment for eight days ; that he was then duly discharged. This version of the difficulty in question the jury evidently believed, and it shows such a wanton and reckless disregard of plaintiff’s rights that, as a matter of law, it followed that in causing the arrest of the plaintiff the defendant acted without probable cause, and with malice, and therefore the trial justice was right in refusing to dismiss the complaint. The defendant, 'having consented to the transfer of the machine, could not thereafter hold the plaintiff responsible for its whereabouts. If it desired its return for any reason, it was defendant’s duty to search for the holder of it,, and, upon his failure to deliver it up, seek the proper legal redress against such person. In our opinion, under the circumstances of this case, the arrest of the phiintiff was unlawful, and was without probable cause, and was malicious. The defendant's testimony contradicts the testimony submitted by the plaintiff, and the jury evidently believed the plaintiff’s, which they7 had the right to do. and rendered their verdict accordingly.

The defendant., in attempting to show that in all it did herein it was guided and acted under advice of counsel, for the purpose of justifying its course of conduct, did not do so in a proper way. In no part of its testimony does it appear that the defendant fully and fairly stated the facts of the transaction in question to its counsel, and after such a statement procured his advice, upon which it acted. Granting that it was upon the advice of counsel that the arrest of plaintiff was caused, that surely would not benefit the defendant in the least, unless such advice was given after a full and fair statement of all the facts. No testimony tending to show such a state of affairs was offered by defendant. What advice counsel gave was of no consequence herein until it was first shown that such advice followed, as before stated, a full .and fair statement of the facts; and therefore the exceptions taken at folios 86, 89, are without merit. The exception taken to the j udge’s charge at folio 107, we think, was not well taken, and the judge was justified in refusing to charge the request; for the reason, as above stated, that the advice of counsel could not benefit the defendant, because it (defendant) failed to state upon what facts such advice was rendered.

As to the exception taken at 108, it was immaterial what defendant believed. The true inquiry for the jury was, did the defendant believe the plaintiff guilty of the charge preferred by it against him, and was such belief based upon reasonable grounds? Therefore the request, as framed, was wrong in law, and the refusal to •charge it was proper.

The judgment is affirmed, with costs.

AH concur.


author: Van Wyok, J.

text:
    Mary A. Anderson, Resp't, v. Elizabeth A. Rowland, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    Appeal—Objection.
    An exception to a question, not answered, is not available to the appellant.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Wm. A. Abbott, for app’lt; John F. Foley, for resp’t.
   Van Wyok, J.

It is alleged in the complaint that plaintiff, at the special instance and request of defendant, assigned to defendant, for her benefit, a bond and mortgage- for $2,000, the defendant promising and agreeing to pay plaintiff that sum for the same. This issue' was submitted to the jury, who rendered a verdict for plaintiff. This is an appeal from the judgment and an order denying motion for a new trial.

We have carefully considered all the testimony in this case, and do not think the plaintiff should have been nonsuited, or that the verdict should have been set aside as against the weight of evidence. There is testimony, which the jury credited, that shows that the plaintiff assigned the bond and mortgage to the defendant at her request, for the consideration of $3,000, and we see no reason for disturbing the verdict. The question at folio 18, to-which an exception was taken, was not answered, and that disposes of it. The motion, at folio 17, to strike out the statement of the witness that defendant said to her that she intended to pay plaintiff her mortgage of $2,000, was properly denied, as was also the motion to strike out the statement of the witness that defendant said to her that she wanted her lawyer to settle with plaintiff, and supposed he would pay the money. These were admissions, made by defendant tending to sustain plaintiffs’ contention of a promise to pay her for this bond and mortgage. We find nothing in the other exceptions requiring special consideration.

J udgment and order must be affirmed, with costs.


text:
    Joan Courtney, as Sheriff et al., App’lts, v. Eighth Ward Bank of Brooklyn, Resp’t.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    Attachment—Certified copy.
    An indorsement upon the copy of a warrant served with the words, “A Copy,” “ Warrant of Attachment,” accompanied by a notice of the property attached, complies with subdivision 3, section 649 of the Code.
    Arpeal from a jugment in favor of defendant.

      Parsons, Shepard .& Ogden, for app’lts; Tunis T Bergen, for resp’t.
   Van Wyok, J.

Sheriff Courtney claims to have levied an attachment granted by Justice Vann, of the supreme court, in the action of Edward F. Bice against the Cowles Engineering Company upon the credit of the latter for $1,495.46 in the defendant bank. J udgment was rendered in favor of the defendant, and from that this appeal is taken.

The Code of Civil Procedure (section 649, subd. 3) provides that property incapable of manual delivery may be attached “ by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same,” and section 650 provides'that such person must furnish the sheriff a certificate specifying the property so held. On August 26, 1893, the sheriff left with the defendant ,a copy of such warrant of attachment, with the title of the action and the words, “A copy,” “Warrant of Attachment,” indorsed thereon, and also with the following indorsement thereon, duly signed, viz.:

“ To Eighth Ward Bank: You are hereby notified that the deposit of the Cowles Engineering Co. in your bank and in the indebtedness owing it by your bank is hereby attached by virtue of the annexed warrant. Dated Aug. 26, ’’93. .John Courtney, Sheriff. Wm. J. Cunningham, Deputy.” Plaintiffs’ Exhibit, 1, p. 39.

The defendant failing so furnish a certificate of indebtedness, in accordance with section 650, the sheriff, by letter of September 9th, reminds the defendant that, on August 22, 1893, he served on it this copy of attachment, and requests it to furnish such certificate (Defendant’s Exhibit B, p. 49), wliich the defendant does on September 12th (Plaintiffs’ Exhibit 2, p. 41).

The referee herein decided that this levy on August 26, 1893, was fatally defective, in that the copy . of the warrant of attachment left with the defendant was not a certified copy. If he was in error in this respect, then the judgment herein must be reversed. The original warrant of attachment is always delivered to the sheriff. Therefore, it is a certification by him that is called for. Crocker, Slier. (3 ed.) p. 642, forms Nos. 140, 141; Hayden v. Nat. Bank, 130 N. Y. 146 ; 41 St. Rep. 263. Furthermore, the courts have favored a liberal rather than a strict construction of, and a substantial rather than a technically exact compliance' with, the provisions of section 649 of the Code of Civil Procedure. Hayden v. Nat. Bank, 130 N. Y. 146; 41 St. Rep. 263 ; Warner v. Fourth Nat. Bank, 115 N. Y. 251 ; 26 St. Rep. 213 ; O'Brien v. Insurance Co., 56 N. Y. 52; Adams v. Speelman, 39 Hun, 35. To certify “is to testify.in writing.” And. Law Diet. The plain object of this provision is to furnish the holder of such property a written declaration of the official custodian of the warrant of attachment under his hand, that the paper left with .him is-a copy. The sheriff did leave with defendant a copy of such warrant, with the indorsement thereon, “A copy;” “Warrant of Attachment,” and did inform defendant in writing, under his hand, and he attached the Cowles Engineering Company’s deposit by virtue of the annexed warrant of attachment, the paper so served. We think the sheriff has substantially complied with this provision.

' Judgment must be reversed, and a new trial ordered, with costs to abide the event.

All concur.


author: Tompkins, S.

text:
    In the Matter of a Proceeding to subject the estate of Mary Hacket, Deceased, to the Transfer Tax.

      (Surrogate's Court, Rockland County,

      Filed October, 1895.)

    1. Transfer tax—Assessment.
    The fact that the administratrix, as next of kin, has received the whole amount adjudged to her under the decree upon the final settlement and paid it out on her own account prior to the assessment of the tax, furnishes no legal excuse for its nonpayment.
    2. Same—Objection.
    Where the administratrix was given full opportunity before the appraiser to have deducted from the bulk of the estate the debts and proper charges, it is too late, upon a proceeding to compel the payment of the tax, to make the claim that the estate, liable to the payment of the tax, was less than the sum upon which the assessment was laid.
    3. Same.
    In such case, where the order fixing the tax is served upon her, she is, by failing to take advantage of her right of appeal from the determination, barred from raising any question as to the correctness of the amount assessed.

      Proceeding to subject an estate to the transfer tax.

      Frank Oomesky, for administratrix.
   Tompkins, S.

This is a motion made by the district attorney to compel payment of the transfer tax heretofore assessed herein. Mary Hacket left but one next of kin, to wit, Elizabeth Hacket, the administratrix. On the 12th day of June, 1893, the final account of the administratrix was settled, by which the sum of $13,-465.37 was found in her hands, which amount, by the decree, the administratrix was directed to retain as the only next of kin of the deceased. No proceedings were ever taken by the administratrix to have the" transfer tax determined, and, subsequent to the said accounting, an appraiser was appointed by the surrogate, and subsequently an order made fixing the amount of the tax to which the said estate is liable at the sum of $134.65. This order was made on the 11th day of June, 1894. A motion was immediately thereafter served upon the administratrix of the making and filing •of the order assessing the tax, and the amonnt thereof. No appeal has ever been taken from that determination, and no proceedings have been taken by the administratrix, and the tax has not been paid. In answer to this motion, the administratrix alleges that the whole amount of $13,465.37, received by her under the decree, had been paid out by her on her own account prior to the assessing of the tax. This is no legal excuse for the nonpayment of the tax. The law makes it the duty of the representative to have the tax assessed and paid, and an executor or administrator is personally liable for the tax until its Daym'ent. The tax- is further declared to be a lien upon the property transferred until paid. The statute is positive and mandatory, and the surrogate has no discretion in the matter.

The further claim is made by the administratrix that in making her - account she did not credit herself with physician’s charges, undertaker’s bill, cemetery charges, and other charges, and that she waived the commissions to which she was entitled by law, and that by reason thereof the balance found'by the decree to be in her hands was more than the.amount of the estate which was liable to the tax, and the claim is made that the estate which was liable to payment of the tax did not exceed the sum of $6,750. It is too late now to make this claim, and there is no way under the statute by which I can permit the matter to be opened, and proof taken to correct the mistake. The administratrix had full oppor: tunity before the appraiser to state the facts now alleged in her affidavit, and there was given a full opportunity to have deducted from the bulk of the estate the debts and proper charges.

Again, the order fixing the tax was served upon her, and by it she was appraised of the amount of the tax, and the statute" gave her sixty days within which to appeal from the determination. By failing to take advantage of her right of appeal, she is barred from raising any question now as to the correctness of the amount assessed. It is a well-established rule that the time fixed by the statute within which an appeal may be taken cannot be extended or enlarged by the court.

Let an order be presented requiring payment - of the tax and accumulated interest within ten days, with $10 costs of this-motian.

Ordered accordingly.


author: Bischoff, J.—The

text:
    Louise Hoff, as Administratrix, ets., Resp’t, v. Jean Coumeight, App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    Pleading—New cause of action—Substitution.
    Where a defendant has consented to the litigation of a substituted cause of action by omitting to object to the proof, he will not on appeal be heard to complain that the recovery was upon a cause of action which was not alleged in the complaint.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      Joseph G. Rosenbaum, for app’lt; II. G. Eudlich, for resp’t.
   Bischoff, J.—The

action was in conversion, and at the trial, before any evidence was taken, the defendant’s counsel moved the dismissal of the complaint for insufficiency in substance. The motion was denied, and the complaint was not thereafter amended.

We think that the exception to the ruling presents error for which the judgment rendered at trial term of the court below would have to be reversed but for the waiver and substitution of a cause of action differing from the one attempted to be alleged in the complaint, and hereinafter referred to. Baylie, Trial Prac. 160, and cases collated. It was alleged in the complaint that the plaintiff’s intestate had on deposit in the Manhattan Savings Institution in the city of New York the sum of three hundred and fifty-four 72-100 ($354.72) dollars, under the name of Philibertha Bailly, aud on which deposit she received and held a bank book, issued by said bank under said name; further, that between the 15th day of September, 1892 and the 22d day of November, 1892, at the city of New York, the defendant came into the possession •of the said bank book, and between said days drew from said deposit, wrongfully obtained possession of, and converted to his own use, the sums so on deposit in said bank, excepting the sum of nine 72-100 dollars to the damage of intestate of three hundred and forty-five ($345.00) dollars.

' Viewing the complaint in either aspect, the allegations were insufficient to show a conversion of the bank book or of moneys belonging to the plaintiff or her intestate. It was not alleged that the defendant tortiously secured possession of the bank book, in which event an allegation of demand and refusal of its return would have been unnecessary. . Powell v. Powell, 71 N. Y. 71; Horey v. Bromley, 85 Hun, 540; 67 id., 147; Hayes v. Insurance Co., (Ill. Sup.) 1 Lawy. Rep. Ann. 303, 307, and cases collated in note (18 N. E. 322); Cooley, Torts (2d ed.) 530, 531. In the absence of an allegation to the effect that such possession was tortiously acquired, however, a cause of action in conversion was not apparent, without an allegation of the defendant’s refusal to return the bank book after due demand therefor. Hall v. Robinson, 2 N. Y. 293; Tripp v. Pulver, 2 Hun, 511; 5 Am. & Eng. Enc. Law, ‘‘Demand,'’ subtit. “ Trover,” p. 528. No such demand and refusal were alleged.

With regard to the moneys which the defendant was alleged to have withdrawn from the Manhattan Savings Institution, the complaint not only failed to show the right of the plaintiff or of her intestate to the possession thereof, but it affirmatively appeared that neither of said persons was entitled to the possession of such moneys : yet the plaintiff’s right to the possession of the thing alleged to have been converted is a constituent of a valid cause of action in conversion. Deeley v. Dwight, 132 N. Y. 39; 43 St. Rep. 409; Clements v. Yturria, 81 N. Y. 285; Kerner v. Boardman, 39 St. Rep. 61. The moneys deposited by the plaintiff’s intestate became the property of the bank; her relation to the bank, in respect to those moneys, being that of creditor. Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; 2 Am. & Eng. Enc. Law, “ Banks and Banking,” sub tit. “ Depositors and Customers,” p. 93, and cases in notes. Hence, if the defendant wrongfully secured possession of moneys from the bank, the latter, and not the plaintiff or her intestate, was prima facie entitled to the return thereof.

Without objection, however, the plaintiff was permitted to introduce evidence which was abundantly to the effect that while the plaintiff’s intestate was confined to her cot in the hospital of the Societe Erancaise de Bienfaisance,” stricken with paralysis, and wholly or partially bereft of her mental powers, the defendant secured her signature to checks to his order, and aggregating $345, by means of which he obtained that amount from the Manhattan Savings Institution for the account of the plaintiff's intestate. That the procurement of the checks under the circumstances mentioned was a fraud upon the intestate, their possession by the defendant tortious ah inito, and the receipt of their amount from, the bank, to the detriment of the intestate, a conversion of the checks, are self-evident propositions. Under the authorities hereinbefore referred to, therefore, a demand for the return of the checks was not essential to a sufficient cause of action ; and having consented to the litigation of the substituted cause of action, such consent being inferable from the omission to object to the proof thereof, the defendant will not on appeal be heard to complain that the recovery was upon a cause of action which was not alleged in the complaint. Knapp v. Simon, 96 N. Y. 284 ; Frear v. Sweet, 118 N. Y. 454; 29 St. Rep. 972. As to the weight of the evidence, the judgment of affirmance of the court below is conclusive upon us. Meyers v. Cohn, 4 Misc. Rep. 185; 53 St. Rep. 223.

Viewing the action as having proceeded for the conversion of the checks, the trial justice properly refused the request of the defendant’s counsel to charge that no conversion was shown. Other exceptions to rulings which are urged on the appeal do not present sufficient merit to require discussion.

The judgment of the trial and general terms of the court below should be affirmed, with costs. „

All concur.


author: Clement, 0. J.

text:
    Henry B. Ballou, App’lt, v. John C. Orr, Resp’t.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    Landlord and tenant—Assignment oe lease.
    Where a lessee assigns his right, title and interest in a lease when he is in default for rent, his assignee, after paying the same to avoid summary-proceedings, has no claim against the assignor in the absence of a covenant that the rent is paid to the date of the assignment.
    Appeal from a judgment sustaining a demurer to the complaint.
    Sproull, Earner & Sproull, for app’lt; Gannon & Atwater, for resp’t.
   Clement, 0. J.

The appellant, in his complaint, alleged that on or about October 2, 1891, the respondent Orr, by an agreement in writing, rented from John M. Cunningham and others certain real property in this city, situated on the westerly side of Franklin street, for a term of three years and two months from September 1, 1891, and thereupon entered and occupied the said premises; that by the said lease it was agreed by Orr that he would pay the annual rent In quarterly payments of $125 each on the first days of November, February, May, and August in each year, and that, if he or his assigns failed to pay the rent when due, the lessors could re-enter the demised premises. The appellant further alleged in his complaint that on or about October, 22, 1891, one Bragaw sublet the said premises from Orr, and paid him the rent due during the period of such subletting, and included in such payments was payment for the quarter from August 1,1892, to November 1, 1892. It is then set forth in the complaint that Orr failed to pay the rent to his lessors, Cunningham and others, for the quarter ending October 31, 1892, and that on the last day of the quarter, Orr, by an agreement under seal, and with the consent of his lessors, assigned to Bragaw “ all his right, title, and interest in and to the aforesaid lease ” ; that thereafter, and on or about November 3, 1892, Cunningham and others threatened to disposses Bragaw unless he paid the rent for the quarter ending October 31, 1892, and thereupon he (Bragaw) requested Orr to pay such rent, who refused so to do, and that on November 11th Bragaw paid such rent; that thereafter Bragaw again demanded of Orr the payment of said sum of $125, and subsequently Bragaw assigned his claim. against Orr to this plaintiff. The defendant demurred to the complaint on the ground that no cause of action was stated against the defendant. The demurrer was sustained at special term, and plaintiff took this appeal.

We are of opinion that Bragaw, as assignee of the lease although he had been a subtenant of Orr for a year prior to the assignment, and, as such subtenant, had paid his retit, acquired no greater right than a stranger. He had enjoyed the use of the premises demised to him tor the full term for which he had paid rent. In so far as the subtenancy is concerned, the fact that Orr, for three months of the timé, did not pay his rent is immaterial. The complaint should be considered/as if the allegations as to the subletting and the payment of rent by the subtenant were stricken out. The question is then presented whether or not, if a lessee assigns his right, title, and interest in a lease when he is in default for rent, his assignee, after paying the same to avoid summary proceedings, has a claim against the assignor. The complaint does not even show that Bragaw did not know that the rent was unpaid when he took the assignment. Again, the complaint does not show that in making the bargain for the transfer the unpaid rent was not considered in fixing the consideration. The right, title, and interest of Orr on November 1st was the right to remain in possession, provided rent was paid in accordance with the terms of the lease, whether overdue or to become due in the future. A covenant that the rent is paid is usually inserted in an assignment of a lease, and, in the absence of a covenant, none can be implied, particularly when the assignment, on its face, only transfers the right, title, and interest of the party in the lease. The case of Alford v. Cobb, 35 Hun, 651, is almost directly in point on the questions involved in this appeal, and wé follow that case in our conclusion.

Judgment affirmed, with costs.


author: Osborne, j.

text:
    Mary E. Taft, as Administratrix, etc., Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    1. Negligence—Question for jury.
    The fact that a car, while moving rapidly, enters an open switch, leaves the track, and throws plaintiff’s intestate from the front platform, on which he is riding, and thereby causes his death, fairly and reasonably warrants the inference that deceased was free from contributory negligence at the time he was thrown from defendant’s car and makes the question of his negligence one for the jury.
    2. Evidence—Negligence—Question for jury.
    Where three physicians testify that the intestate died from peritonitis resulting from the injuries while three others testify that the peritonitis was attributable to natural causes, the cause of the peritonitis is for the jury.
    3. Evidence—Opinion—Weight,
    The trial judge cannot determine whether a witness has or has not maintained his ground on the cross examination, and, if he concludes that he has not, strike.out the witness’ testimony.
    4. Same—Expert.
    A physician, called as an expert to answer a hypothetical.-question involving matters in evidence, may, in answering it, introduce elements or incidents from his own knowledge and experience, though not previously in evidence.
    Appeal from a judgment entered on a v.erdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Moore d? Wallace, for app’lt; Ayres & Walker and Almet F. JenJcs, for resp’t.
   Osborne, j.

Action to recover damages for injuries to plaintiff s intestate, which it -is claimed resulted in his death. From the evidence it appeared that deceased was, on the 10th day of May, 1893, a passenger riding on the front platform of one of defendant’s cars going along Troop avenue; that, when the car came to Gwinnett street, it was moving very rapidly, and there took an open switch, which caused it to turn into Gwinnett street, and to jump the track, and travel some distance over the stones, the effect of which was to throw deceased violently to the ground. He was out and bruised about the head, and complained of a pain in the lower part of the abdomen, and a mark of a bruise was subsequently discovered there. Fifteen days after the accident, peritonitis developed, this peritonitis was the result of, and due to, the injuries deceased received when thrown from the car. Plaintiff had a verdict, and this appeal is taken from the judgment entered thereon, and the order denying a motion for a new trial.

The learned counsel for the appellant contends that the motion to dismiss the complaint, made at the close of plaintiff’s case, and renewed at the close of the testimony, should have been granted, and that it was error to deny the same. This motion was based mainly on the ground that there was no proof of the absence of contributory negligence on the part of the deceased, and also that there was no proof that the death of plaintiff’s intestate was due to the injuries received, but that, on the contrary, the evidence showed that such death was due to an independent cause, for which defendant was ndt liable.

We think that the circumstances disclosed by the evidence were of such a character that it might be fairly and reasonably inferred that deceased was free from contributory negligence at the time he was thrown from defendant’s car. The jumping of the switch by the car while going at a high rate of speed, so that it was dragged some ten or fifteen feet over the stones, and, in part, thrown from the track before it was stopped, was certainly a most unusual incident, and the fact that deceased was thereby thrown from the car to the ground would not seem to be incompatible with the exercise of due care by the deceased. We think it was a question for the jury to determine, aud the learned trial judge in his charge to the jury fairly laid down the law on that question, as well as the risks and dangers that deceased assumed in riding on the front platform of the car.

As to the question whether the death of plaintiff’s intestate was due to, and the result of, the injuries he received when thrown from the car, that also became, on all the evidence, a question for the jury, and it was left for them to determine. The attending physician, a physician called in consultation, and an expert physician were called on behalf of the plaintiff, and they all testified that death resulted from peritonitis, which was the result of the injuries. The physician who made the post mortem examinatian, and two other physicians, as experts, were called on behalf of defendant, and they all testified that the peritonitis was not due to, or the result of, the injuries, but was attributable to natural causes. Amid such a conflict of testimony, there was no other course left for the learned trial judge.but to submit this question to the jury. Lyons v. Second Ave. Railroad Co., 69 St. Rep. 816.

Our attention is called to two exceptions in the case. The attending physician had testified that, in his opinion, the death of plaintiff’s intestate was due to peritonitis resulting from the injuries received, and he gave the reasons which induced him to adopt that opinion. On cross-examination the witness admitted that he never had or read of a case where traumatic peritonitis developed fifteen days after the injury, as the result thereof ; that he had read of one case where peritonitis developed nine or ten or twelve days after the accident, and that in his opinion in the present case was based, in part, on reading of the case above mentioned, and also on the conditions surrounding the case of the deceased. Thereupon, the learned counsel for the appellant moved to strike out all che testimony of the witness in regard to his opinion that this peritonitis came from the injury, on the ground that it had no basis, either by the actual experience of the witness, or by any reading ; and to the denial of the motion counsel excepted.

We are of the opinion that this exception was not well taken. The witness on his direct examination had testified what, to a reasonable certainty, caused the death of plaintiff’s intestate, and given his reasons therefor. The office of cross-examination was to dissect the reasons for that opinion, and to show, if possible, that those reasons were insufficient, or had no reliable foundation, and therefore that the witness’ testimony should not weigh with the jury. Both the direct and cross-examination were before the jury, and constituted a legitimate subject of discussion in the summing up of counsel, and it was for the jury to weigh it, and to determine what, if any, reliance should be placed upon it. We think it would be a usurpation of the powers of the jury for the trial judge to determine whether a witness had or had not maintained his ground on the cross-examination, and, if the trial judge concluded that he had not, to strike out that witness’ testimony.

At folios 190 and 192 of the case the learned counself or the appellant excepted to the refusal of the court to strike out all testimony of the expert physician then under examination in regard to adhesions, and also in regard to an abscess, on the ground that there was no testimony in the case as to adhesions or an abscess. These exceptions are not well founded. The witness had already testified that in all cases of peritonitis adhesions were formed. A hypothetical question, involving matters in evidence, was put to the witness, and he was asked to tell, if he could, the cause of gas being found in the right thigh of "the patient during the last days of his life, and of the perforation of the intestine at the seat of the veriform appendix. In answering these questions the expert proceeded to account for the presence of gas in the right thigh of the patient, and also for the perforation of the intestine, and in so doing he had, of course, to draw upon his own knowledge and experience. He laid it down as a general proposition that adhesions are always present in peritonitis, and that such adhesions had, in this case, caused an abcess, which, on breaking, produced the perforation of the intestine, and allowed the gas to escape into the thigh. We fail to see anything improper in the answer of the witness that should require to be stricken out. He had never seen the patient, but a given state of facts was propounded, and the witness was asked, if he could, to account for certain results. This he proceeded to do, according to his professional knowledge and experience. If the answer introduced elements or incidents not previously in evidence, that constituted no objection to the answer. To ask á witness, as an expert, to account, if he could, for certain results, and then to confine him in his answer to those matters only which were already in evidence, would, it seems to us, present a barrier to a truthful answer to the question.

For the reasons above stated,- we "think the judgment and order denying motion for a new trial should be affirmed, with costs.


author: Clement, C. J.

text:
    Edward Chapman, Resp’t, v. Atlantic Avenue Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    1. Street railroads—Rights.
    Where a truck driver is driving across the tracks of a street railway, on an intersecting street, the right of way is equal between the parties.
    Si Damages—-Personal injuries.
    In an action for personal injuries, the plaintiff is entitled to compensation for loss of wages during the time he cannot work, for all pain and suffering which are the result of the injury, and for permanent injury,
    3. Same—Excessive.
    A verdict for $15,000, for personal injuries was held, in this case, to be excessive.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for a-pp’lt; Ghas. J. Patterson, for resp’t.
   Clement, C. J.

We áre of the opinion that the question as to the contributory negligence of the.plaintiff, and the other question as to the negligence of the motorman in the employ of the defendant, were properly submitted to the jury. The railroad company did not have the paramount right of way, as would be the case if the truck had been driving in the street on which the tracks of the defendant were laid. The plaintiff was driving across the tracks, on an intersecting street, and the right of way was equal between the parties. O'Neil v. D. D., E. B. & B. Railroad Co., 129 N. Y. 125; 41 St. Rep. 107; Buhrens v. D. D. E. B. & B. Railroad Co., 25 St. Rep. 191; affirmed, 125 N. Y. 702.

We have carefully considered the testimony in the case bearing on the question of damages, and conclude that the verdict for $15,000 was excessive. The plaintiff was earning, at the time of his injury, $12 per week, and was confined in the hospital, by reason of his injury, for a period of about a year. During a portion of the time he suffered pain, and for his loss of time while in the hospital, and for his'suffering, he is entitled to just compensation. His permanent injuries,' for which he is also entitled to-compensation, are as follows: The fleshy part of the calf of the right leg is two inches larger in circumference than the other, the veins are in a varicose condition, there are three scars, and the leg is so impaired by the varicose veins that he cannot do hard or heavy work. He can walk and use his leg, but, if he engaged in' hard work, his leg might be further injured. The only permanent injury which is seriously to be considered is the varicose veins. It is a well-known fact that many persons are so afflicted, and that, such a condition impairs-the use of a limb for long walks, or, perhaps, heavy work; but, with care and proper appliances, such an injury does not deprive the person of the use of the leg for nearly - all- practical purposes. As said before, the plaintiff was entitled to compensation for loss of wages during the time he could not. work, for all pain and suffering, the result of the injury, and for the permanent impairment" of the use of his leg. The sum of $15,000 seems to us grossly excessive, in view of the injuries sustained by plaintiff, and we conclude that the verdict should be reduced to the sum of $8,000.

Judgment and order denying new 'trial reversed, and a new trial granted, costs to abide the event, unless plaintiff consents to reduce the verdict to $8,000, and the allowance of five per cent, on that amount, in which case the judgment and order denying new trial should be affirmed, without costs.

Yah Wyck, J,, concurs.


author: Yan Wyck, J.

text:
    Catharine S. Faurot, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    1. Negligence—Street railways.
    4- motorman, who drives his car over street crossings in a large city at about the rate of fifteen miles per hour, or at such speed as renders it impossible to stop under seventy feet, is not, as-a matter of law, free from negligence.
    2. Same—Question for jury.
    The questions of negligence and contributory negligence were held, in' this case, to be for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Chas. J.] Patterson, for resp’t.
   Yan Wyck, J.

It can be fairly inferred from the evidence herein: That defendant’s cars run east and west on Halsey street, the track of the eastward-bound cars being on the south side of that street, and that of the westward-bound cars being on the north side thereof; and that Howard avenue crosses this street at right angles. That plaintiff, a lady of 58 years,was walking along the westerly side of Howard avenue, in a southerly direction When she reached the curb of the northerly side of Halsey street, she paused till a westerly-bound car passed her about 141 feet, and then she looked to see if any easterly-bound car was in sight, which would come from the direction in which the ear whicu had just passed her was going. Seeing none, she proceeded to cross Halsey street on the westerly crosswalk, taking a look the other way to see. if a car was coming from the east, and when she got upon the track, on the south side of Halsey street, about twenty-two feet from the curb which she had left, she was struck by a trolley car coming from the west, knocked down, and dragged or pushed along the street. That this car was approaching this street crossing at the excessive rate of speed of about fifteen miles per hour, or at such a rate that the motorman was unable to stop it under seventy feet by the most prompt use of all his appliances for that purpose. Under these circumstances, the question of negligence of defendant’s motorman was properly submitted to the jury. We do not see how it can be seriously contended that a motorman is free from negligence, as a matter of law, who drives his car over street crossings in a large city at about the rate of fifteen miles per hour, or at such speed as renders it impossible to stop under seventy feet. We likewise think the question of plaintiff’s freedom from negligence was correctly left to the jury. Before leaving the curb, she looked to see if a car was coming from the east. She, seeing none, and there being nothing to obstruct her view except the car which had passed her, then 141 feet away, continued on her journey. It was for the jury to decide whether she had the right to assume that no car was nearer than 141 feet, and that she could safely cross over, or whether it was her duty to assume that a car was approaching at a dangerously high rate of speed which would make it unsafe for her to attempt to cross, though it was over 141 feet from her at'the time she left the curb. We think the motion for a nonsuit was properly denied under the circumstances. Young v. Atlantic Railroad Co., 64 St. Rep. 124.

Judgment and order must be affirmed, with costs.


text:
    Michael Degnan, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    1. Street railroads—Right of way.
    The rights of the street car company and a person traveling along an intersecting street are equal. 16
    2. Same.
    Each should use such reasonable care in the exercise of such right, as not to interfere with the right of the other.
    3. Same—Question for jury.
    Whether they did or did not use such reasonable care to avoid such interference with or injury to one another, is properly submitted to the jury.

      4. Damages—Excessive. ,
    The verdict for $4,000, for personal injuries was held, in this case, not to be excessive.
    Appeal from a judgment entered "on" a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt, Thos. E. Pearsall, for resp’t.
   Yan Wyck, J.

There is testimony from which ft can he fairly inferred that plaintiff was in a buggy with one Hart, going along Classon avenue in a southerly direction, towards Putnam avenue, through which defendant’s cars run; that as they reached Putnam avenue they looked up and down that avenue, and saw no car, and that, as their horse stepped on the northerly or down track, they saw a car about seventy-five feet away ; that the horse was urged across, and the car struck the hind wheel of the buggy,. tipping plaintiff out. and going some forty feet further before it stopped, though the car could have been stopped, if going at the speed defendant claims it was, in aboqt five feet. The right of way of plaintiff and defendant was equal at the intersection of these two streets. Bach had to cross the line of passage of the other, to, enable them to proceed on their journe}*-. Bach should have used reasonable care in the exercise of such right, so as not to have interfered with the right of the other. Whether they did or did not use such reasonable care to avoid such interference with or injury tq one another was properly submitted to the jury, and we see no cause for disturbing the decision of the jury that defendant was negligent, and the plaintiff free therefrom. Buhrens v. D. D., E. B. & B. Railroad Co., 25 St. Rep. 191; affirmed, 125 N. Y. 702 ; O'Neill v. D. D., E. B. & B. Railway Co., 129 id. 125; 41 St. Rep. 107.

There is medical testimony which shows that plaintiff’s injuries from this accident are of a most serious character, viz. a permanent paralysis of the large muscle that caps the shoulder, impairing the lifting power of the arm, and also a permanent curvature of the spine. Bor such injuries we think the jury was fully justified in giving a verdict of $4,000.

Judgment and order must be affirmed, with costs.


author: Per Curiam.

text:
    Michael G. Cannon, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    Damages—Personal injories.
    In an action by a husb' id for personal injuries to his wife, a verdict of $10,000, is not excessivt where she was, at the time of the accident, a strong, healthy woman, irty-eight years old, and since then has been, and always will be, a phy cal wreck.
    Appeal from a judge |ent entered on a verdict in favor of plaintiff, and from an ord \ denying a motion for a new trial.

      Morris & Whitehouse, fo iapp’lt; Chas. J. Patterson, for resp’t.
   Per Curiam.

We have considered all the exceptions to which our attention has been called in the points of the appellant, and conclude that our decision on the appeal in the case of Annie Cannon against The Appellant, 29 S'. Y. Supp. 722, is conclusive as to the correctness of the rulings of the learned trial judge.

It is claimed that the verdict for $10,000 is excessive. The jury found, on conflicting testimony, that the wife of the plaintiff, just prior to her injury, was a strong, healthy woman, about thirty-eight years of age, and that ever since the injury she has been a confirmed invalid ; that her health will not improve, and that during her future life she will be a burden to her husband, and not a comfort; that she can never be a wife to him again. The future damages to the plaintiff are, in a certain sense, speculative; and yet the law leaves it to a jury to decide the amount, in actions of this kind,- provided that such damages are reasonably certain. The preponderance of the evidence is with the plaintiff as to the good health of his wife prior to her injury, and it appears at the date of trial she was a physical wreck, and will always so continue. The verdict, though large, does not seem to us, in view qf the evidence, to be the result of passion, prejudice, or si^mpathy.

Judgment and order denying new trial, affirmed, with costs..


text:
    Thomas Watson, App’lt, v. Brooklyn City Railroad Company et al., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    Negligence—Contributory.
    "A person, who undertakes in daylight to drive a horse over a temporary crossing, known by him to be dangerous, assumes the risk.
    Appeal from a judgment dismissing the complaint.

      Wood & Hill, for app’lt; Morris & Whitehouse, for resp’ts.
   Per Curiam.

We think the judgments dismissing the complaint herein should be affirmed. Plaintiff sued for damages for injuries to himself and his horse, alleged to have been received while driving over a temporary switch, the rails of which were so laid, as he alleged in his complaint, that they ‘‘were hazardous and dangerous to drive a horse across.” As to the defendant the Brooklyn City Railroad Company, it was plain that it was simply the lessor to the Brooklyn Heights Railroad Company of the tracks in question, and had nothing to do with the repairing and relaying thereof. It appeared that the Brooklyn Heights Railroad Company was engaged in relaying the tracks on Flushing avenue where the accident occurred. A "temporary switch had been laid from the north to the south track, and granite blocks were “ thrown in loosely on the flat, just to fill up the vacancy there.” Plaintiff started in broad daylight to drive over this ditch. A portion of his evidence was as follows.:

“ Q. Were you looking down on the ground as you were driving along there? A. Well, I was looking out to see, that my horse did not get catched. * " * Q. Were you looking ahead or down on the ground, where your hoise was stepping? A. Well, I was watching. I was sitting this way, and looking that way, to see ií I could get him over very carefully.”

It appears from the evidence that, notwithstanding plaintiff’s alleged care, his horse “ stepped on a stone, and the stone turned np, and the heel of his shoe caught in another one of the bars (of the switch), and he pitched headforemost in trying to pick up his feet and I went up against the upright which holds the top in front, and struck my face,” etc. We think the evidence clearly shows that plaintiff deliberately attempted to drive over the track in question, with full knowledge of the danger. He voluntarily assumed the risk, and is himself alone responsible for the consequences.

Judgment appealed from affirmed, with costs.


text:
    Helen R. Porter, Resp’t, v. Aldes S. Swan, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 25, 1895.)

    1. Appeals—Findings.
    The finding of a referee, on conflicting evidence, that a contractor has performed extra wo:k, for which he is entitled to compensation, will not be reversed, as against the evidence, merely because the contractor did not present his bill for extras until after he had received his final payment on the contract.
    3. Building contract—Waiver.
    A clause in the specifications in a building contract that no allowance should be made for extra work to the contractor unless its value should be agreed upon in writing before the performance, can be waived by the acts and subsequent oral agreements of the parties.
    3. Same—Arbitration.
    The plaintiff, in an action on a contract providing for arbitration of differences, need not allege compliance with such provision, where such question was not raised by the defendant and the defendant refused to pay, not on the ground that the arbitration clause was not complied with, but for other reasons.
    Appeal from a judgment in favor of plaintiff.

      Bergen & Dyhman, for app’lt; Daniel S. Cameron, for resp’t.
   Clement, C. J.

This action was'brought to recover the value of extra work and material on two building contracts, one for the erection of a dwelling house, and the-other of a stable. The referee reported in favor of the plaintiff for the sum of fifty-two dollars for extra work on the stable, and for the sum of $1,132.96 for extra work on the house. The defendant contests, on this appeal, only the claim, of plaintiff for extra work on the house.

There was a sharp conflict in the testimony. The assignor of plaintiff, Elihu Porter, who was the contractor, was contradicted by the defendant. There seems to be reason why the report of the referee should be set aside as against the evidence. The rule is well settled that a referee.or a trial judge is more competent to pass upon the testimony than judges who sit upon appeal, who do not see the parties, and only read their testimony in a printed book. The fact that the contractor did not presented his bill for extras until after he had received his final payment on the contract, does not require the appellate court to hold that the denial of the defendant is more weighty than the affirmative statement by the contractor. This was a matter to be considered by the referee, and his conclusion is binding on us. We held, on the former appeal, Porter v. Swan, 44 St. Rep. 375, that the clause in the specifications that no allowance should be made for extra work to the contractor unless its value should be agreed upon in writing before the performance could be waived by the acts and subsequent oral agreements of the parties. We based our decision on the case of Stout v. Jones, 9 St. Rep. 570; affirmed, 120 N. Y. 638. There is testimony in the case, which, though contradicted, was believed by the referee, tending to show that the clause in question was waived, and that no attention was paid to it, except in a single instance, where the value was agreed upon before the item of extra work was performed.

The contract contained a clause that, should any dispute arise respecting the true value of the extra work, the same should be valued by two competent persons, one employed by the owner and the other by the contractor, and that the two should have power to name an umpire whose decision should be binding. It is contended by the appellant that the respondent was bound, under this clause, to produce a certification of valuation or show that the defendant refused to carry out his agreement to arbitrate, or that, after appraisers were appointed, they unreasonably refused a valuation. This question seems to have been considered by the court of appeals in the case of Varian v. Johnston, 108 N. Y. 645; 13 St. Rep. 651. Judge Earl there said:

“ There is no allegation in the answer that there was dispute, or that the plaintiff refused to submit any such dispute to arbitration, or that the defendant ever offered to submit the dispute to arbitration, and there was no proof of any refusal on the part of the plaintiff, or any offer or request on the part of the defendant, to submit the valuation of the extra work to arbitration. The refusal to pay the plaintiff, when the demand was made by him for payment before the commencement of the action, was not put upon the ground that any dispute should first be settled by the architect or by arbitration, and the defense cannot now prevail.”

In the case of Smith v. Alker, 102 N. Y. 87, 92, it was decided, under a similar clause, that it was as much the duty of the defendant as of the plaintiff to take steps for the selection of arbitrators. The defendant in this case, before the action was brought, refused to pay, not on the ground that the arbitration clause had not been carried out, but for other reasons. Applying the law as decided by the court of appeals, we hold that this point, that there was no arbitration as to value of extra work, was not well taken.

Another point is made that the architect was allowed to testify that the extra work was done to his satisfaction, and no certificate ■of the architect was produced as to the extra work. The defendant produced and put in evidence the certificates of the architect ■called for by the contract. The last payment made was $900, which, by the contract, was due when the contract was completed. The architect certified that the house was finished, and, by the-contract, he could riot determine the value of the extra work. We think that the architect furnished the certificates as required by the contract, and the plaintiff was bound to furnish no other. The answer given by the architect was not material to the issue,, but it in no way prejudiced the rights of defendant.

The other questions raised by the appellant seem to be of fact, and, as the testimony was conflicting, as said before, we cannot, disturb the decision of the referee.

Judgment affirmed, with costs.

All concur.


author: Bookstaver, J.

text:
    Charles L. Thorp, Resp’t, v. Solomon S. Carvalho, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Pleading—Joindeb op actions.
    False imprisonment and malicious prosecution may be united in one-complaint under subdivision 8, section 434 of the Code.
    8. Malicious prosecution—Malice—Pbobablb cause-Question for jury.
    The question of malice and probable cause, in an action for malicious, prosecution, were held, under the evidence in this case, to be for the jury..
    3. Damages—Malicious prosecution.
    A verdict for $1,000, in an action for false imprisonment and malicious prosecution, was held, in this case, not to be excessive, though the plaintiff was imprisoned but an hour and a half.
    4. Trial—Charge.
    It is not error to refuse requests to charge, where the main charge contains in substance such requests.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Bowers & Sands (John M. Bowers and Charles N. Harris, of counsel), for app’lt; J. Noble Hayes, for resp’t.
   Bookstaver, J.

The plaintiff, an agent, had desk room in the office of Post & Davidson, dealers in horses. ' On the morning of the arrest Mr. Davidson asked him if he was going.down town, and on his replying that he was, requested him to call at the World office and get an order cashed. It seems that a stranger had called upon Mr. Davidson that morhing and bought a horse,” giving the following order in payment, written by him' on Post & Davidson’s letter head:

“ New York, June 19, 1893.

1 “ C. B. Shaw, World Bldg.: Pay bearer, for cob, bought by order.of Mr. Carvalho from above party, two hundred and seventy-five, $275. “Yours, Geo. G. Pulitzer.”

Mr. Davidson gave the plaintiff an envelope, containing this order, a bill of sale, and Post & Davidson’s business card. The plaintiff handed this envelope, with its contents, to the cashier at the World Building, who said : “I will have to show this to Mr. Carvalho. Won’t you come in and have a seat ? ” Plaintiff went into the cashier’s office, and waited ten or fifteen minutes, Mr,. Carvalho- being engaged conversing with other parties. Presently he turned to the plaintiff. Plaintiff gave him his visiting card, and said that Mr. Davidson gave him the papers, and had requested him to call and collect the money at the World office, telling him that he had sold a horse, and that was an order on the World people for the money for it; that Mr. Davidson had given him a bill, and asked him to receipt it if the money was paid, and to ask the use of their telephone to notify him that the order was all right, so that lie could deliver the horse.. Mr. Carvalho, the defendant, went out for a few minutes and returned with a Mr. George 0. Ledlie. Mr. Carvalho said: “You know you are in possession of a forged paper ? ” Plaintiff answered that he did not know anything about it; that Mr. Davidson had given him the order and asked him to call with it. Plaintiff had previously asked the cashier if he might use the telephone,' if the order was all right. On being told that he was in possession of a forged paper, plaintiff was very much excited, and does not recall the exact words he used. He explained his instructions, and that he was simply Mr. Davidson’s agent. Defendant said to plaintiff: “ You will have to go with Mr. Ledlie. He will go around with you;” and said to Mr. Ledlse: “ Yo go around to the station house. He will go around to the station house with you.” The door was then opened and an officer touched plaintiff on the shoulder and said: “ You come with me.” The defendant had previously sent Mr. Ledlie to the station house to state the.circumstances to the sergeant, to get an officer, and ask that the case be investigated. Plaintiff and. Ledlie walked around to the station house, the officer following ten or fifteen feet behind. They testify that they stopped outside, and the officer went into the station house alone, returning and asking them to step inside. The officer and sergeant testify that they all three went in together, and that the officer did not first go in alone. Mr. Ledlie made the charge that the plaintiff was found with a forged order in his possession and the sergeant thereupon had him locked up. He sent for Davidson and a Mr. Butler, his brother-in-law, and on their arrival the plaintiff having been locked up but an hour and a half, they were all sent around to the Tombs police court with an officer. Mr. Ledlie made the same statement to the justice that he had made at the station. The plaintiff was then discharged, on Mr. Butler’s promising to be responsible for his appearance in court the next morning. He attended at court the next day, and was finally discharged.

The police officer testified that he went around to the World building with Mr. Ledlie, that the defendant told him that the plaintiff-had a forged order, and thereupon he arrested him. The police sergeant testified that Mr. Ledlie, when he first went to the station house, showed him the order, and said it was a forgery, wanted to have an officer sent around, and asked him to have the matter investigated. He then send an officer to bring the plaintiff to the station house. Mr. Butler testified that Mr. Ledlie told him in so many words that he represented ¿Mr. Carvalho. The * defendant denied having told the officer to arrest the plaintiff or that he had told the plaintiff that he would have to go around to the station house. Both the defendant and Mr. Ledlie testified to the effect that the defendant told the officer to go up to the stable, and the plaintiff would point out the man who gave the order.' Mr. Ledlie says that they started for the elevated station, and the policeman said he would have to go around to the station to tell the sergeant where they had gone. They went with him, were invited inside, and the plaintiff was locked up. The defendant denied that the plaintiff said anything about telephoning to Davidson. This was the case as presented by both sides.

The appellant’s first contention is that the court erred in denying his motion to compel the plaintiff to elect between the two causes of action, false imprisonment and malicious prosecution. While the earlier cases seems to hold that these two causes of ac: tian are essentially distinct, and cannot be united in the same ■complaint, this rule appears to have been changed. Code Civ. Prdc. § 484, subsec. 2 ; Marks v. Townsend, 97 N. Y. 594; Cunningham v. East River Light Co., 42 St. Rep. 512; Neil v. Thorn, 88 N. Y. 270; Am. & Eng. Enc. Law, p. 16.

In order that a plaintiff may maintain an action for malicious prosecution, three things must be shown: Malice, want of probable cause, and the termination of the prosecution. Malice may be actual, or a mere wanton or carelessness, disregard for the rights of others, or the doing of the act complained of without that ordinary prudence and discretion which persons of sufficient age and sound mind are presumed to have. ' 14 Am. & Eng. Enc. Law, p. '23. Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the-knowledge of the prosecutor, that the person ■charged was guilty of the crime for which he was prosecuted, id. p. 24.

False imprisonment is the unlawful restraint of a person contrary to his will, either with or without process of law. 7 Am. & Eng. Enc. Law, p. 661. Two things are requisite: Detention of the person and the unlawfulness of such detention. Malice need not be shown, and is immaterial, except as it may affect the question of damages. Id. pp. 662, 663. But in such case, as in the case of malicious prosecution, it is necessary to show want of probable cause. Where there is no dispute as to the facts, the question of the existence of probable cause, is for the court. Anderson v. How, 116 N. Y. 336-338; 26 St. Rep. 787. The question is whether the prosecutor’s belief was based upon reasonable grounds. Id.

The defendant denies that he ordered the plaintiff’s arrest. The circumstances testified to by the plaintiff and police officers tend to establish the fact that he was responsible therefor. Did the circumstances justify the arrest? The plaintiff made no effort to escape. He explained how he came.by the. order, and that he was sent to ascertain if it was good, as Davidson would not deliver the horse until he Teceived the money on it. The defendant could have telephoned to Davidson and verified the plaintiff’s story, or he could have sent the parties up to the stable. His case rests upon the contention that he did not direct the arrest, nor authorize Mr. Ledlie to make the complaint. He, by inference, admits that the arrest was unjustified. We think, upon this disputed state of facts, the questions of malice and want of probable cause were therefore, properly left to the jury, and the justice did not err in denying the motions to dismiss at the close of the plaintiff’s case, and when the whole testimony was in, or to direct a verdict for the defendant. The verdict is sufficiently sustained by evidence which the jury were justified in believing, and we .cannot say that it was against the weight of the evidence.

We do not think that the verdict of $1,000 was excessive. While plaintiff was only locked up an hour and a half, or thereabouts, in arriving at the amount o£ damage he has suffered, we must consider the injury to his reputation, besides any actual injury he has sustained. It is difficult to measure the damage suffered by any one in his business and private reputation; but, under the circumstances of this case, we do not think that the verdict should be set aside as excessive, or that the jury were influenced by prejudice in awarding the amount they did. The evidence of what the plaintiff said to the cashier when he presented the order, was competent, as part of the res gestae, as it tended to show how the defendant was brought into the matter. In any event, the evidence being merely that plaintiff presented the order and explained how he came by it, and that then the cashier asked him to step inside, could have had had no influence with the jury, inasmuch as the plaintiff made the same explanation to the defendant in person. What took place at the station house and police court, in the presence of Mr. Ledlie, was competent. Mr. Ledlie was acting under defendant’s direction, and the jury could find, from the evidence, that his acts were the defendant’s acts. The justice had charged, m substance, the requests which were submitted by the defendant, to the refusal to charge which he excepted; and this refusal was, therefore, not error. The charge, as made, was comprehensive of both the law and the facts. Ho exception was taken to any part of it, and we think the verdict of the jury is conclusive.

J udgment and order affirmed, with costs.

All concur.


author: Pryor, J.

text:
    Dederick Hamel, Resp't, v. Weeks W. Culver et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Conversion—Payment.
    Where money is given to defendant by plaintiff for the purpose of paying the interest on a mortgage and the costs of a pending foreclosure action for the payment of the interest, not in its extinguishment, but so as to keep it alive and obligatory against the plaintiff, is not a payment but is a conversion of the money by the defendant to its own purposes.
    Appeal from a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial.

      With a mortgage on his property overdue, and unable to pay it, plaintiff applied to defendants, as lawyers, to procure him" an assignee of the mortgage. He gave them $600, as he says, to pay interest and costs for discontinuance of a pending foreclosure suit by the Excelsior Savings Bank, then owner of the mortgage. The defendants got an assignee of the mortgage, and interest and costs being paid to the Excelsior Bank, its action for foreclosure was discontinued. Within about two months afterwards, defendants, Culver and Wright, commenced an action for the assignee, ■ in which the mortgage was foreclosed, and the property-sold.

      Spink & Martin (.Frederick Smyth, of counsel), for app’lt; William F. Handel, for resp’ti
   Pryor, J.

In effect, the action, as tried and determined, is to recover the sum of $600, which the plaintiff claim he delivered to the defendants, and they accepted, for the purpose of paying six months’ interest on a mortgage upon his property, and the costs of a pending foreclosure suit. The complaint charges that the defendants omitted to pay the interest on the mortgage out of the money deposited with them for that purpose, but instead appropriated the $600 to their own -use. The answer concedes the receipt of the $600, but alleges that it was paid to defendants as the stipulated compensation for services as counsel. The answer further alleges that at the request of plaintiff, and upon his promise of reimbursement, the defendants advanced the money for payment of the interest and costs; that the money so advanced was to be deemed as unpaid interest on the mortgage ; and that the money has not been returned to them. Whether the $600 was paid as counsel fee or intrusted to defendants for discharge of the interest, and whether, although the defendants paid the interest, it was not to be considered as paid, were questions which, upon sufficient evidence, the jury determined in favor of the plaintiff. "We cannot say that upon these issues the verdict is so against the weight of evidence as to require us to set it aside. Nelson v. Easten & A. Railroad Co., 7 Misc. Rep. 656; 58 St. Rep. 384. • Assuming, in conformity with the finding of the jury, that the $600 was given to the defendants for payment of interest and costs, the real controversy is whether the money was in fact so expended. About the costs there can be no dispute, since, by the verdict, they were credited to the defendants. Wright swears to the payment of the interest, and the defendants insist that the evidence is. without contradiction. Were this so, still, the testimony being that of a party, the question was for the jury. Volkmar v. Man. Railroad Co., 134 N. Y. 418, 422; 47 St. Rep. 631. But in truth the nonpayment of the interest was supported by affirmative proof. Plaintiff testified to an admission of the fact by Wright, and to his confession that the defendants had appropriated the" $600 to their own use. Furthermore, the referee in the final foreclosure suit found and the judgment established that the interest had not been paid. Foreclosure for a default in interest already paid is certainly a paradoxical proposition. Defendants’ explanation of the phenomenon is unsatisfactory. Even upon default proof was to be made oí the amount due, and that proof we find in the affidavit of defendant Wright, who swore that “the whole amount of said mortgage is due." As the principal of the mortgage could be due only in consequence of the nonpayment of the very interest in dispute, Wright made oath in effect to the nonpayment of that interest. The complaint in the final foreclosure suit contains the explicit allegation that this plaintiff omitted to pay “the sum of three hundred and fifteen dollars, being six months’ interest which became due on the 1st day of August, in the year one thousand eight hundred and seventy-five,”—the identical installments of interest in controversy,—and that statement is subscribed by Culver and Wright, these defendants. In view of the defendants’ connection with the final foreclosure, the judgment roll in that action was competent proof of their admissions; and those admissions— ■one under oath—of the nonpayment of the interest in question abundantly justified the jury in deciding the issue against them.

It is not difficult to reconcile the apparent discrepancy in the evidence. Ho doubt the Excelsior Bank was paid the amount of interest and costs, else it would not have assigned the mortgage. But the interest was not paid by plaintiff’s money, nor with the effect of discharging him from liability for it. As to him, the interest was not paid; and upon allegation and proof by these defendants that he was still debtor for the interest, the mortgage on his property was foreclosed. Payment of the $600 upon the interest, not in its extinguishment, but so as to keep it alive and obligatory against the plaintiff, was not a payment directed by the plaintiff, but was a conversion of-the money by the defendants to their own purposes. Hpon the merits this is a righteous judgment, and it must stand unless invalidated by manifest error. Of such the record discloses no instance.

The imputed error mainly relied on is the introduction, of the judgment roll in the final foreclosure suit, -but for reasons already apparent the evidence was incontestably competent. Other objections were to evidence upon points of no moment, and which ■obviously coufd not have been of prejudice to the appellants.

The refusal to charge that if the defendants paid the interest and costs in controversy the verdict must be in their favor was plainly right. As already said, a payment which still left the plaintiff liable for interest, and upon which liability these defendants foreclosed the mortgage on his property, was, as to him, no payment. Hence, too, what was 'the agreement between the parties, and did defendants in fact pay the interest and costs, was not the whole issue, as the court was asked to charge.

The proposition that “ all evidence as to tranasctions after that time is immaterial ” might have been rejected for obscurity. What time ? A request to exclude defendants’ agency in the final foreclosure proceeding from the consideration of the jury was not to be entertained for a moment.

Judgment and order affirmed, with costs.

All concur.


text:
    Frederick S. Myers, App’lt, v. Moses S. Rosenback, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Appeal—General exception.
    Where the plaintiff’s motion at the close of the case for a verdict in his-favor on the whole case, and on the counterclaim, and on the question of damages, are united, to the denial of which but one exception is taken, the single exception does not present an error in any one of the motions unless the plaintiff is entitled to the granting of all such motions.
    2. Appeal—Leave to go to the court of appeals.
    That the decision of the general term may result in the defendant being compelled to pay costs in the numerous actions which he has brought, is not ground for granting leave to appeal to the court of appeals.
    Appeal from a judgment to the general term óf the city court, affirming a judgment' in favor of defendant. Also motion for leave to appeal to the court of appeals.

      Hamilton R. 'Squier, for app’lt; Horwitz & Hershfield (Otto Bbrwitz, of counsel), for def’t.
   Per Curiam.

All the questions which the appellant desires fopresent to the court of appeals were fully discussed and disposed of upon authority in the opinion of the general term, and there-seems to be no good reason, within the uniform adjudication in this court, for sending this case to the court of appeals. The-point made on this motion that the error in the reception of evidence on the counterclaim may have influenced the jury on the merits of the action cannot be considered, as1 it -was not presented-on the appeal'by any exception taken at the trial. The plaintiff’s motions at the close of the case for a verdict in his favor on the whole case, and on the counterclaim, and on the question of damages, were united, to the denial of all which but one exception was taken ; and as plaintiff was not entitled to the granting of all of such motions, the single exception taken does not present the particular error complained of. Bosley v. Nat. Machine Co., 123 N. Y. 550-557; 34 St. Rep. 277. That the decision of the general term may result in the defendant being compelled to pay costs in the numerous actions he has brought for the installments of rent he claimed, and which such decision may prevent his recovering, is not ground for granting leave to appeal.

Motion denied, with,$10 costs. -