text:
    Martin Reed, Resp’t, v. The Rome, W. & O. R. R. Co., App’lt.

      W. F. Porter, for resp’t; Edmund B. Wynn, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 16 N. Y. State Rep., 58.


source: Caselaw Access Project

license: Public Domain

text:
    David T. Bayles et al., as Com’rs, etc., App’lts, v. Scudder Jayne, Resp’t.

      Thos. J. Bitch, for app’lts; Wilmot M. Smith, for resp’t.
   Appeal dismissed, with costs. All concur.

See 22 N. Y. State Rep., 19.


text:
    Allan C. Dalzell, App’lt, v. The Fahy’s Watch Case Co., Resp’t.

      Edmund T. Oldham, for app’lt; Wm. A. Jenner, for resp’t.
   Appeal dismissed, with costs. All concur.

See 32 N. Y. State Rep., 96.


text:
    Second Division.
    Filed December 2, 1890.
    Thos. H. Rodman, Ex’r, et al., Resp’ts, v. The City of Buffalo, App’lt.
   ¡No papers.

Motion to open default and restore case to this calendar granted on payment of ten dollars costs of motion. Cause ordered to be placed upon day calendar of December 8, 1890.

See 15 N. Y. State Rep., 583.


text:
    Edward Ufer, Resp’t, v. Frederick Hollender et al., App’lts.

      J. A. Shoudy, for resp’t; John E. Brodsky, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 15 N. Y. State Rep., 1001.


text:
    The Paris Hill Mfg. Co., Resp’t. v. Seymour Lyman et al. and George P. Sheldon, Assignee, etc., App’lts.

      Chas. F. Haviland, for resp’t; Bobert Sewell, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 13 N. Y. State Rep., 370.


text:
    The Bank of America, Resp’t, v. Henry S. Berger et al., App’lts.

      R. L. Kingsbury, for'resp’t; Wm. W. MacFarland, for app’lts.
   Judgment affirmed, with costs. All concur, except Haight, J., absent.

Affirming 47 Hun, 638, mem.


text:
    The Fourth Nat. Bank, City of N. Y., Resp't, v. Henry S. Berger et al., App’lts.

      David Wilcox, for resp’t; Wm. W. MacFarland, for app’lts.
   Judgment affirmed, with-costs. All concur, except Haight, J., absent.

Affirming 15 N. Y. State Rep., 101.


text:
    The Germania Fire Ins. Co., App’lt, v. John R. Francis, Resp’t.

      G. W. Ootterill, for app’lt; John M. Kisiey, for resp’t.
   Judgment affirmed, with costs. All concur, except Haight, J., absent.

Affirming 7 N. Y. State Rep., 310.


text:
    Jacob Edick et al., Resp’ts, v. Harvey A. Foltz et al., App’lts.

      James B. Bafterr, for resp’ts; Geo. W. Smith, for app’lts.
   Judgment affirmed, with costs. All concur, except Follett, Oh. J., and Vann, J., not sitting.

Affirming 45 Hun, 593, mem.


text:
    The Mayor, etc., of New York, Resp’t, v. Daniel G. Wylie, App’lt

      David J. Dean, for resp’t; Wm. F. MacBae, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 43 Hun, 547.


text:
    Charles G. Dahlgren, App’lt, v. Jeremiah Devlin, Resp’t.

      W. E. Osborn, for app’lt; Frank J. Dupignac, for resp’t.
   Judgment affirmed, with costs. All concur, except Haight, J., absent.

Affirming 39 Hun, 656, mem.


text:
    Deborah C. Folk, App’lt, v. Darwin Stocking et al., Resp’ts.

      Frank J. Dupignac, for app’lt; Augustus Babcock, for resp’ts.
   Judgment affirmed, with costs. All concur, except Follett, Oh. J., and Haight, J., not sitting.

Affirming 12 N. Y. State Rep., 373.


text:
    James Fitzpatrick, Adm’r, etc., App’lt, v. The N. Y., N. H. & H. R. R. Co., Resp’t.

      E. A. Jacobs, for app’lt; Henry W. Toft, for resp’t.
   Judgment affirmed, with costs. All concur, except Haight, J., absent.

Affirming 22 J. & S., 557, mem.


text:
    Adelbert Merritt, App’lt, v. Henry J. Sullivan, as Ex’r of Oliver C. Merritt, et al., Resp’ts.

      Geo. W. Lamb, for app’lt; Henry J. Sullivan, for resp’ts.
   Judgment affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting.

Affirming 3 N. Y. State Rep., 484.


text:
    Cornelius Jackson, Resp’t, v. The Fire Ass’n of Philadelphia, App’lt.

      Ghas. J. Buchanan, for resp’t; L. M. Brown, for app’lt.
   . Judgment affirmed, with costs. All concur, except Potter and Parker, JJ., not sitting.

Affirming 13 N. Y. State Rep., 257.


text:
    Miles Case, Resp’t, v. Frank Perew, App’lt.

      J. M. Humphrey, for resp’t; B. H. Williams, for app’lt.
   Judgment affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting.

Affirming 10 N. Y. State Rep., 811.


text:
    John M. Burkhard, Resp’t, v. James Babcock, App’lt.

      Jnsiah Sullivan, for resp't; J. & Q. Van Voorhis, for app’lt.
   Judgment affirmed, with costs. All concur, except Bradley and Haight, JJ , not sitting

Affirming 3 N. Y. State Rep., 458.


text:
    Wm. B. Van Deusen, App’lt, v. The L. S. & M. S. R. Co., Resp’t.

      Wm. B. Fuller, for app’lt; James Fraser Gluck, for resp’t.
   Judgment affirmed, with costs. All concur, except Follett, Oh. J., and Haight, J., not sitting.

Affirming 12 N. Y. State Rep., 351.


text:
    John Forey, App’lt, v. The Syracuse, B. & N. Y. R. R. Co., Resp’t.

      W. P. Goodelle, for app’lt; Louis Marshall, for resp’t.
   Judgment affirmed, with costs. All concur, except Follett, Ch. J., and Haight, J., not sitting.

Affirming 12 N. Y. State Rep., 199.


text:
    John W. Pratt, Resp’t, v. Charles Peckham, App’lt.

      Giles F. Piper, for resp’t; Wm. B. Fuller, for app’lt.
   Judgment affirmed, with costs. All concur,' except Follett, Ch. J., and Haight, J., not sitting.

Affirming 7 N. Y. State Rep., 621.


text:
    Filed December 9, 1890.
    David H. Flack et al., App’lts, v. The Village of Green Island, Resp’t.
   FTo papers.

Motion for re-argument denied, with ten dollars costs.

See 33 N. Y. State Rep., 339.


text:
    Elbert S. Jemison et al., App’lts, v. The Citizens’ Savings Bank of Jefferson, Texas, Resp’t.
   Ho papers.

Motion for re-argument denied, with ten dollars costs.

See 33 N. Y. State Rep., 335.


text:
    Harley J. Peet, Resp’t, v. Eri Kent, App’lt.

      Jerome Be Witt, for resp’t; Geo. F. Jjyon, for app’lt.
   Judgment affirmed, with costs. All concur, except Bradley and Parker, JJ., not voting, and Follett, Ch. J., not sitting.

Affirming 5 N. Y. State Rep., 134.


text:
    Filed December 16, 1890.
    Dwight Johnson et al., App’lts and Resp’ts, v. The Shelter Island Grove & Camp Meeting Ass’n, Resp’t and App’lt.
   FTo papers.

Motion for re-argument denied, with ten dollars costs. Brown, J., not sitting.

See 33 N. Y. State Rep., 514.


text:
    Augustus Frank et al., Trustees, etc., App’lts, v. The Erie & Genesee Valley R. R. Co. et al., Resp’ts.
   Ho papers.

Motion to recall remittitur from the supreme court denied, with ten dollars costs.

See 33 N. Y. State Rep., 235.


text:
    Joseph J. Little et al., App’lts, v. Charles L. Webster et al., Resp’ts.

      James B. Marvin, for app’lts: Jacob F. Miller, for resp’ts.
   Judgment affirmed, with costs. All concur, except Vann and Haight, JJ.a not sitting.

Affirming 16 N. Y. State Rep., 107.


text:
    Annie H. Jackson, App’lt, v. Phillips Weeks et al., Resp’ts.

      W. H. Guddeback, for app’lt; Theo. Fitch, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 1 N. Y. State Rep., 511.


text:
    George Bellman, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Thos. B tines, for resp’t; Edward Harris, for app’lt.
   Judgment affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting.

Affirming 5 N. Y. State Rep., 153.


text:
    William R. Vines, Resp’t, v. Alexander R. Chisholm, App’lt.

      Horace E. Deming, for resp’t; Geo. Putnam Smith, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 15 N. Y. State Rep., 820.


text:
    Supreme Court—General Term—Third Department.
    Filed December 12, 1890.
    Rachel S. Lynk, by Guardian, Resp’t, v. Charles Weaver, App’lt.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Abram V. Morris, App’lt, v. John McFarlan et al., Resp’ts.
   Order affirmed, except as to the part permitting defendant to make marks on notes; as to that fact reversed. No costs.


text:
    Fred. H. Hill, Resp’t, v. Lineas S. Beldon, App’lt.
   Order vacating, etc., reversed, with ten dollars costs and printing disbursements, and motion to vacate denied, with ten dollars costs.


text:
    James W. Tufts, Resp’t, v. George E. Sharpe, App’lt.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Nancy Rexford, App’lt, v. George W. Hawn et al., Resp’ts.
   Judgment reversed, new trial granted, referee discharged, costs to abide event.


text:
    Harmon N. Van Benschoten, Resp’t, v. Rodney A. Gilbert, App’lt.
   Judgment of county court and of justice of the peace affirmed, with costs.


text:
    General Term—Fourth Department.
    Filed December 6, 1890.
    Charles D. Collins, App’lt, v. The Village of Little Falls, Resp’t.
   Motion denied, without costs.


text:
    Timothy Dasey v. Wm. I. Skinner et al.

   Motion for leave to appeal to the court of appeals denied. ' Hardin, P. J.s not sitting.


text:
    Thomas R. McQuade v. Lodema Scrafford.
   Motion granted, with ten dollars costs, unless appellant, within thirty days, either serve his proposed case and exceptions, leave to do which is given, or the printed papers in case of his desire of being heard on the judgment-roll alone, and in case either is done, then this motion is denied, without costs.


text:
    Isaac Matteson, Resp’t, v. Edward Tracy, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Edward E. Buck, Resp’t, v. Minnie A. Buck, App’lt.
   Order affirmed, without costs.


text:
    Wilson H. Gardenier, App’lt, v. The Oswego City Savings Bank et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The Bagley & Sewall Co., App’lt, v. The Saranac River Pulp & Paper Co., Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Delora M. Hunter et al., Adm’rs, etc., Resp’ts, v. The Cooperstown & Susquehanna Valley R. R. Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    John Savelle, App’lt, v. George W. Waufel et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Dwight H. Murray, Resp’t, v. Antonio Battua, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Henry Hallenbeck, App’lt, v. Giles Hallenbeck and Lewis M. Smith, Resp’ts.
   Order affirmed, with, ten dollars costs and disbursements.


text:
    Wm. O. Mills, Resp’t, v. The N. Y., O. & W. R. R. Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Luther G. Williams, Resp’t, v. The N. Y., O. & W. R. R. Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Lewis H. Emerson, Resp’t, v. The N. Y., O. & W. R. R. Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Louis Bernstein, Resp’t, v. Sarah Goldman, App’lt.
   Judgment of the county court of Oneida county affirmed, with costs.


text:
    Mary T. Webb, Resp’t, v. Gavin Morton, App’lt.
   Judgment of the county court of Onondaga county affirmed, with costs.


text:
    Margaret Murray, Resp’t, v. John Bierhardt et al., App’lts.
   Judgment of the county court of Onondaga county affirmed, with costs.


text:
    The People ex rel. Stalham W. Sherman v. Albert P. Seaton.
   . Judgment ordered for the plaintiff against defendant. Held, that there was no vacancy in the office of excise commissioner when the defendant claims his appointment was made.


text:
    Wilson H. Gardenier, App’lt, v. Michaol Taylor et al., as Officers and Trustees of The Mutual Savings & Aid Ass’n, Resp’ts.
   Interlocutory judgment affirmed, with costs.


text:
    The People ex rel. Agnes Moulton, App’lt, v. Frank Moulton, Resp’t.
   Order modified by striking therefrom that portion thereof allowing costs and disbursements against the relator, and a provision inserted in said order to the effect that neither party shall have costs against the other, and as thus modified the order is affirmed, without costs of this appeal to either party.


text:
    Sarah Briggs, App’lt, v. James B. Williams et al., Resp’ts.
   Judgment reversed, without costs to either party, and a new trial ordered, with leave to bring in as parties the persons interested in the fund. Judgment to be settled before Justice Martin on five days notice. Held (1) that the judgment appealed from does not hind all parties interested in the fund; (2) that an adjudication as to the amount needed for the support of the plaintiff cannot he made until all the parties interested in said fund are brought before the court.


text:
    In the Matter of the Estate of George C. Bronson, Deceased. Nancy Bronson, App’lt; Josiah Bronson et al., Resp’ts.
   Decree of the surrogate of Oswego county reversed, with costs of the appellant payable out of the fund.


text:
    George W. Venable et al., App’lts, v. Le Grand Hollon, Resp’t.
   Judgment of the county court of Onondaga county affirmed, with costs.


text:
    The Robert Graves Co., Resp’t, v. Nathaniel Ayres, App’lt.
   Order reversed, with ten dollars costs and disbursements, and motion granted.


text:
    Charles A. Stone, as Overseer, etc., Resp’t, v. Peter E. Launt, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    New York Common Pleas
    General Term.
    Filed December 18, 1890.
    Leopold Levy, Resp’t, v. John Krakowsky and John King, App’lts.
   Appeal from fifth district court.

Judgment affirmed, with costs.


text:
    Peter A. Broe, Resp’t, v. Alfred Setan, Jr., App’lt.
   Appeal from first district court.

Ordered, that the judgment be reversed, with costs.


text:
    Philip Koeber, Resp’t, v. Wm. H. Goetting, App’lt.
   Appeal from seventh district court.

Ordered, that the judgment be affirmed, with costs.


text:
    Marie L. Le Graw, Resp’t, v. Elodie Giraud, App’lt.
   Appeal foam eighth district court.

Ordered, that the judgment be affirmed, with costs.


text:
    John Schumacher, Resp’t, v. Samuel Nichols et al., App’lts.
   Appeal from seventh district court.

Appeal dismissed, with costs.


text:
    Antonio Garofalo, Resp’t, v. Joseph Moore, App’lt.
   Appeal from final order of the ninth district court.

Ordered, that the final order be affirmed, with costs.


text:
    Filed January 5, 1891.
    The People v. Daniel Lavery and Thos. Hayden.
   Motion to vacate judgment entered on forfeited recognizance. Motion granted.


text:
    William P. Durando, App’lt, v. The New York & Norwalk Steamboat Co., Resp’t.
   Appeal from judgment of the city court. Judgment affirmed, with costs.


text:
    Filed January 8, 1891.
    Alice Hillis, Adm’rx, Resp’t, v. The Southern Pacific Co., App’lt.
   Appeal from judgment of this court, Hon. H. W. Allen, J. Judgment affirmed, with costs.


text:
    Anna C. Edstrom, Pl’ff, v. Samuel Blumenthal et al., Def’ts.
   Exceptions to he heard in the first instance at general term. Exceptions overruled, and defendants allowed to enter judgment.


text:
    Thos. C. Lyman et al., Resp’ts, v. Francis W. Stephenson, App’lt.
   Appeal from judgment of this court, Hon. H. Bischoff, Jr., J. Judgment affirmed, with costs.


text:
    Filed January 9, 1891.
    Louis Silberstein, Resp’t, v. Charles Dietrichs, App’lt.
   Appeal from judgment of the seventh district court. • Judgment affirmed, with costs.


text:
    Gabriel Spero, Resp’t, v. Isaac A. Singer, App’lt.
   Appeal from judgment of the seventh district court. Judgment reversed and new trial ordered, costs to abide the event.


text:
    John McPhelemy, Resp’t, v. The Granite State Provident Ass’n, App’lt.
   Appeal from seventh district court.

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


text:
    George E. Righter, Resp’t, v. Edwin P. Merritt, App’lt.
   Appeal from judgment of the first district court.

Judgment affirmed, with costs.


text:
    Ann S. Young, Resp’t, v. Louis Hernsheim, App’lt.
   Appeal from judgment of the city court.

Ordered, that the judgment be affirmed, with costs.


text:
    Filed January 12, 1891.
    Louise Ray, Resp’t, v. Samuel Ray, App’lt.
   Appeal from order of the special term, Hon. H. W. Bookstaver, J.

Order affirmed, with costs.


text:
    New York Superior Court
    General Term
    Filed December 1, 1890.
    Morrison v. Press Pub. Co.
   Re-argument ordered.


text:
    Witcher v. Tribuke Ass’n.
   Re-argument ordered.


text:
    City Court Brooklyn
    General Term.
    Filed November 23, 1890.
    Berger v. Wheeler.
   Judgment affirmed, with costs.


text:
    Duer v. The Twelfth Street Reformed Church.
   Motion denied, without costs.


author: Finch, J.

text:
    The People, Resp’ts, v. Harris Smiler, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Criminal law—Homicide—Evidence. Upon the trial of defendant for murder, Mrs. Wilson was the principal witness for the people. Maunders, one of defendant’s witnesses, was offered to impeach Mrs. Wilson's reputation, but was not present when she was examined, and could only identify the Mrs. Wilson whom he knew as “ living at 284 Seventh avenue.” He was therefore dismissed with the right to recall him, but this right defendant’s counsel did not see fit to exercise. Held, that his exclusion was not a ground for a reversal of the conviction.
    2. Same—Hypothetical questions—Expert testimony.
    In an examination made up of hypothetical questions, the hypothesis submitted for an opinion must be based upon the proofs and must not go outside the facts as to which some evidence has been given and which, therefore, could be assumed as the possible truth.
    .3. Same.
    Evidence that the accused, when arrested, asked what he was arrested for, will not justify along the line of inquiry as to epileptical insanity the question “ Suppose that, a man commits a crime and that when arrested for the crime, from his language, he had forgotten all about the crime if he has committed it ? ”
    Appeal from judgment of the New York general sessions, ■convicting defendant of the crime of murder in the first degree.

      Jno. R. Heinzelman, for app’lt; Jno. W. Goff, for resp’ts.
   Finch, J.

Nothing in the facts developed on the trial of the prisoner throws a doubt upon the correctness of the verdict. The testimony fully establishes a deliberate and intentional homicide ; and, whatever may have been the personal character of the principal witnesses for the prosecution, their account of the transaction is strongly corroborated, both by admitted and established facts and by the evidence of the prisoner himself. No one can read his attempted denial of the killing, and the test to which it was subjected upon cross-examination, without a thorough conviction that the four shots which killed his wife were fired by him.

It is claimed, however, that he was deprived unjustly of a full opportunity to impeach Mrs. Wilson, who was the principal witness for the People, by the ruling of the court which excluded the testimony of the witness Maunders. That ruling rested upon the failure of the defendant to identify the Mrs. Wilson who testified and whose evidence was assailed with the Mrs. Wilson whom Maunders knew and about whose reputation he was prepared to speak. He was not present when she was examined, and the only approach to an identification was in describing her as “ living at No. 284 Seventh avenue.” But a description of that house had already been given. It was occupied by numerous tenants and among them there may have been another Mrs. Wilson whom Maunders knew and about whom he was ready to-testify. He was, therefore, dismissed with the right to recall him. It was easy for the prisoner’s counsel to have proved that no other Mrs. "Wilson than the one who had testified resided in the house described if that was the fact, or to have required the prosecution to recall their witness so as to permit of an identification. If without such identification Maunders had been allowed to testify, his evidence would remain open to a doubt whether he was speaking of the Mrs. Wilson who testified, and it was to the interest of the prisoner 'to remove that doubt and make that criticism impossible.

Abundant opportunity was afforded him to remove the difficulty, and that Ms counsel failed to do so for some reason of their own furnishes no sufficient ground of complaint. The propriety o£ requiring an identification of the person whose reputation was sought to be assailed became manifest from the statement of Maunders that he did not know Mrs. Wilson personally, but only that “ such a party resided there.”

One ground of the defense asserted was the insanity of the prisoner. After it had been shown that he was subject to fits of epilepsy, and to what were claimed to have been delusions, that his mother died of. paralysis and softening of the brain, that he occasionally talked in a manner which the witnesses deemed irrational, and that his mother had epileptic fits during her lifetime, and her death was described in the certificate of the, health department as in consequence of the disease of pachymeningitis, after this general proof Dr. O’Brien was called by the defense as an expert. After several efforts to frame a suitable question, the doctor was permitted to answer that any man whose mother died of pachymeningitis would be predisposed to insanity. Such predisposition having been shown, the attention óf the expert was drawn to the prisoner’s actual mental condition, and a series of hypothetical questions were framed, to some of which objections by the prosecution were sustained. The ruling of the court in these instances was based upon the doctrine that the hypothesis submitted for an opinion must be based upon the proofs and must not go outside of the facts as to which some evidence had been given, and which, therefore, could be assumed as the possible truth. If the trial judge at one stage of the case expressed this doctrine somewhat more rigorously, he made no ruling which went beyond it. People v. McElvaine, 121 N. Y., 250; 30 N. Y. State Rep., 977. The first question assumed that the symptoms of the prisoner's fits indirectly proved that they were epileptic, and wholly omitted the other facts relied on. The court complained that the opinion of the expert was being "asked “piece-meal,” and -the prisoner’s counsel tried again. The second attempt included an injury to the skull, of which it was conceded that there had been no proof. The third attempt was not objected to, and the expert answered that the facts indicated epilepsy, and that “ in epilepsy of course a person might at any moment become insane.”

Very naturally, the prisoner’s counsel was not satisfied with this answer, and for the fourth time framed a hypothetical question, but in doing so assumed as a fact proved, which had not been sworn to by any one, that the fits and fainting spells “ indicated disease of the brain.” The counsel renewed his effort, and after some discussion the fifth question was framed, and the court allowed it to be answered, but the expert replied: “ I can’t answer you with those facts that you mention.” Then followed a sixth effort to get an opinion. The question rested mainly upon the facts claimed to indicate the existence of delusions. The expert answered that thp facts indicated delusion and a “ symptom of a form of insanity.” The prisoner’s counsel, having obtained his answer, further inquired in several forms whether the prisoner “ couldn’t have committed the crime in one of these fits,” and the questions were excluded. They were wholly immaterial. Nobody had denied that an insane person, whether made insane by epilepsy or any other cause, could commit a homicide. There was no such issue raised, and until some proof was given showing, or tending to show, insanity existing at the time of the homicide, what could or might have happened was of no consequence. What did happen was the issue on trial, and nobody claimed or pretended that an insane epileptic might not kill. Then, for the seventh time, the defense framed a hypothetical question. It covered quite fairly the general facts relied on, and the court permitted it to be answered. In all this we discover no ground of error. The trial judge was very patient and careful to protect the rights of the prisoner. .

Explanation and discussion transformed improper questions into proper ones, which fairly presented the facts claimed to have been established by the defense, and those questions were permitted to be answered. We need not waste time over the unsuccessful efforts when the final result sought was fully accomplished in obtaining the opinion of the expert.

Along this line of inquiry a specific question was asked and excluded. It was this: Suppose that a man commits a crime, and that when arrested for the crime, from his language, he had forgotten all about the crime, if he has committed it ? ” The court asked for the evidence tending to support the hypothesis, and it turned out to be that when arrested he asked what he was arrested for. The inquiry did not indicate forgetfulness of what had occurred, and no rational argument to that purport could be founded upon it. The prisoner ran away after the shooting; he did not know whether his victim was alive or dead; and so was ignorant of the crime with which he was charged. He might very naturally desire to know whether he was arrested for murder or assault with a deadly weapon, and so whether his wife was living or dead. How utterly without foundation in fact the inquiry was became manifest upon the prisoner’s examination. He remembered every detail of the homicide, almost exactly as the witnesses had described it, and swore that be did -not fire the shots, but that he heard another man’s voice before the firing. Whatever else might be said, it is certain that he did not forget.

We have examined some other objections to evidence and to rulings, .but are satisfied that no error was committed to the prejudice of the prisoner.

The judgment should be affirmed.

All concur.


author: Ruger, Ch. J.

text:
    Stephen M. Chester, Resp’t, v. Francois Henry Jumel et al., App’lts and Resp’ts.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. CONTKACT—IUTEEJBST.
    The defendants, heirs of Stephen Jumel,owner of property in New York city, made an agreement with De Chambrun, solicitor of the French legation at Washington, that lie should take measures to obtain their property for them, he to receive 474 per cent, of the amount obtained. One Schermerhorn was employed by De Chambrun as attorney in the litigation brought, he agreeing to pay him $30,000, which was, by an agreement dated August 18,1880, made a lien upon the entire amount recovered. In an action brought to compel the sale and distribution of the Jumel property, it was, in 1888, sold and converted into money; and its distribution, according to the mode prescribed by the original judgment, rendered on the report of the referee in this action, was thereby confirmed. The last-named referee added interest to the $30,000 from the date of the agreement, which the general term refused to allow, confirming the rest of the report of the referee. Held, that the general term erred in reversing the allowance of interest to Schermerhorn, as the agreement of transfer in plain language imported the liquidation of an existing debt then due.

      2. Same.
    The sales and transactions taking place on the division of the property between the Chases and Juméis in 1882 were not in any way intended to. fix a value upon the property for the purpose of estimating the interest of De Chambrun therein, but were amounts arbitrarily but mutually agreed, upon to effect an equitable separation of the interests of the Juméis and. Chases in. the property which had theretofore been held between them as tenants in common.
    3. Same.
    Gesner, one of the .claimants to a share in the Chambrun portion of the fund, claimed that her assignment should take preference of prior assignments which she claimed were not assignments, but personal contracts of De Chambrun. Held, not tenable, that he had aright to alienate his rights, in the property at his will and plesaure, and that .whether the contracts were in form assignment or mortgages, they were intended to convey an interest and would operate as equitable assignments.
    4. Same.
    A trustee has no power as such to change or control the legal or equitable rights of the beneficiaries of a trust by his voluntary action and his-acceptance of Gesner’s claim added nothing to it.
    Appeal from judgment of the supreme court, general term, first department, modifying judgment confirming report of referee.

      Everett P. Wheeler, John J. Macklin, Herbert B. Titus, David Thornton, R. Duncan Harris, Albert Stickney and Louis Marshall, for app’lts; George C. Lay and Edward Winslow Paige, for resp’ts.

       Reversing 24 N. Y. State Rep., 214.

   Ruger, Ch. J.

We agree with the general term in the conclusions reached by them, except in regard to the subject of the interest on the Schermerhorn claim. The action was brought by the plaintiff, claiming as one of the beneficiaries in a trust estate held by one John Elliot, to obtain an accounting by said trustee in regard to the trust; a determination of the respective rights of the several parties claiming an interest in such trust fund, and the payment to him of such share in said estate as he might show himself entitled to. The trust fund consisted of property recovered by the heirs of one Stephen Jumel from various parties, either by suit or compromise, who had, upon the death of Jumel in 1832 and' subsequently, taken possession of such property, and claimed to hold the same as the owners thereof. The title of such property being so in dispute, the heirs of Jumel residing in Erance in 1876 entered into a contract with one De Chambrun to prosecute their claims to such property and recover possession thereof, and whereby, among other things, they bound themselves to pay to him a sum of forty-seven and a half per cent, of all the gross sums which he shall recover for the J umel heirs, they henceforth give the said De Chambrun a lien and a mortgage to the amount of the sum of forty-seven and a half per cent, on all the property on which the said De Chambrun shall establish the rights of the Jumel heirs. This share is attributed to him voluntarily and freely as much for his having made known to them the existence of that estate as for fees, and also to repay him for advances, disbursements and whatever expenses he may have made and shall make to bring about the recovery of the sum hereinabove mentioned of fifty-two and one-half per cent, paid to the Jumel heirs, so paid out of all sums recovered before taking any sum whatever for expenses, fees and disbursements.”

It was also provided that the action should be prosecuted at the sole cost and expense of De Chambrun and that he should have no authority to incur any expense on behalf of said heirs. Powers of attorney were at the same time executed by the heirs of J umel to De Chambrun, authorizing him to prosecute all necessary actions and to take all necessary proceedings to enforce the rights of said heirs in such property and to recover possession thereof; and he was also authorized to negotiate a sale at a minimum sum of the interest of the Jumel heirs amounting to fifty-two and one-half per cent in the property recovered, and in case he made such sale to transmit the proceeds thereof to said heirs. Under this power of attorney certain actions, in the appropriate courts, to recover real estate from the several persons having possession of the same, were brought, or caused to be brought, by De Chambrun from time to time, which resulted in the acquisition by such heirs of an undivided interest in a large amount of real property. Prior to the commencement of these actions, and also during their pendency, De Chambrun, in consideration of pecuniary and professional aid and assistance extended to him by various persons, from time to time, alienated and assigned to such persons fractional parts of his interest in his anticipated recoveries.

It is not seriously contended by any one but that De Chambrun rendered the services which entitled him to the compensation provided by the contract; By virtue of certain other powers of attorney, subsequently given by said heirs to De Ohambrun and to John Elliot, the title to said real estate, so recovered, was, for the purpose of effecting a sale thereof and a distribution of its proceeds, by nominal sales, purchases, and otherwise, vested in John Elliot, in trust, for the joint benefit of the Juméis, De Chambrun and his several assignees.

Yarious appeals have been taken by different parties from the order of the general term disposing of the case in that court; but we do not think it necessary to travel over the ground so well covered by that court in its opinions, but shall confine ourselves to a brief reference to some additional considerations bearing upon the questions raised in this court and to a discussion of the single point in which we differ from the conclusions reached by the general term. By virtue of a decree in an action in the supreme court instituted by the Tanziedes (a part of the Jumel heirs), against the other heirs and all other parties to this action, including De Chambrun and his several assignees, for the purpose of compelling a sale of said JumeL property and the distribution of its proceeds among the various claimants thereto, the said property was in the year 1888 sold and converted into money and available securities and its distribution according to the mode prescribed by the original judgment rendered on the report of the referee in this action was thereby confirmed and decreed. The questions as to' the validity of the trust created for the benefit of the Jumel heirs and De Chambrun and the legality of De Chambrun’s contract, the fact that it gave him a lien upon and interest in the property recovered for the Juméis to the extent of forty-seven and a half per cent, thereof, that such lien was transferred upon the. sale of such property by the consent of all parties to the proceeds thereof in the hands of the trustee, and that the assignees of De Chambrun, as described in'the original judgment in this action, were, in accordance with the priority of their respective assignments, entitled to share in such proceeds in the proportions named in such judgment, would seem to have been necessarily litigated and decided in that action. There would seem to have b’een no absolute necessity for the prosecution of both the Tanziede and the present action at the same time, as their objects were substantially the same, but, inasmuch as the courts below have entertained jurisdiction of both actions and have proceeded to judgment therein, we have no alternative but to give effect to their determination so far as they have been legally declared and have come before us for consideration and review on this appeal.

The voluntary creation by the Jumel heirs of a trust in their property recovered by De Chambrun from the adverse claimants thereto, for the joint benefit of themselves and De Chambrun in voluntary performance of the obligations of the De Ohambrun contract, would seem to present an insuperable objection to any claim now made that such contract was, for any reason, void, or did not give De Chambrun a present interest in the property thus recovered and held in trust. This trust was created by the express authority of the Jumel -heirs after the property had been recovered by them from its former occupants, and if De Chambrun then had no interest in the property under his contract, no reason is apparent why he was made a joint beneficiary of the trust with the Juméis. The fact that the extent of De Chambrun’s interest in the property was not particularly specified in the trust conveyances shows that no liquidation of his share had then been effected and it was considered to be forty-seven and a half parts thereof, the only amount which had theretofore been considered or agreed upon. At all events, the present situation of the property to be administered and distributed in this action is an existing fund created for the express benefit of the Juméis, De Chambrun and his lawful assignees, and its distribution is to be controlled by the terms of the trust as manifested in its creation. The object and intention of the trust and the respective interests of the various claimants in such fund have been found by the referee and his findings have been approved by the general term. These findings having been based upon sufficient evidence to sustain them, must now be considered as conclusively established by the judgment of the court below.

Some question has been made under the De Chambrun contract by the Jumel heirs as to the amount of the funds in which De Chambrun was entitled to share or upon what sum his percentage should be computed, whether upon the nominal sum bid for the property in 1882 or upon its actual value as determined by the sale in 1888.

It does not impress us as at all material whether such percentage is computed upon one amount or the other. In either event the forty-seven and a half per cent concededly due to De Chambrun must result in the same aggregate sum. It is not claimed that any division of the respective interests of the Juméis and De Chambrun was made in 1882, or but that by the consent of all parties the property was thereafter kept unsold and intact until it was vested in the trust in 1884. If De Chambrun was entitled to forty-seven and a half parts of the property in 1882, that interest continued to remain his share so long as the property was held undivided in trust for the joint benefit of the several parties interested in the trust fund, and when the real value was actually determined by a sale his interest in the fund still remained forty-seven and one-half per cent, thereof. If it be insisted that the nominal sale in 1882 for $152,000 amounted to a Iona fide liquidation of the sums due De Chambrun under his contract and entitled him to forty-seven and a half parts of that sum only, it would still follow that his interest was practically used either with or without his consent by the Juméis in buying and carrying the real estate which was afterwards vested in trust in Elliot and Do Chambrun, and his assignees were entitled upon well settled principles to share in any increase in value of the property purchased in proportion to the respective interests which they had contributed to effect such purchase. But we are entirely satisfied that the sales and transactions taking place on the division of the property between the Chases and. Juméis in 1882 were not in any way intended to fix a value upon the property for the purpose of estimating the interest of De Chambrun therein, but were amounts arbitrarily but mutually agreed upon to effect an equitable separation of the interests of the Juméis and Chases in the property which had theretofore been 'held between them as tenants in common. This is quite apparent from the fact that the trust was created in the form which was given to it by the Juméis after such separaation and through the acquiescence of all parties in the retention of the property until a favorable opportunity arrived for its conversion into money and its distribution among the beneficiaries of the trust.

For these reasons, as well as those expressed in its opinion by the general term, we are of the opinion that' no error was committed by the court below in affirming the judgment as against the Jumel heirs.

The other questions in the case relate to the respective rights of the several claimants to the fund under alleged assignments from De Chambrun, in which the Juméis have no interest We are of the opinion that the appeal taken by the representatives of John Elliot, one of the claimants under contract with De' Chambrun, cannot be maintained. The claim of Elliot to be paid twelve per cent of the trust fund as a compensation for the indefinite services he is alleged to have rendered while acting as attorney in fact for the Juméis, seems to us to be quite inequitable and to be supported by very insufficient evidence. He had already been allowed $5,000 for counsel and an additional percentage as trustee upon a large sum of money by the referee, and the further claim for a very large sum of money seems to have a very insufficient foundation to rest upon. Elliot testifies that it was agreed to be paid to him for the trouble he was likely to have in making conveyances in the partition suit and his anticipated interviews with De Chambrun, his counsel and others, in relation to the property. That the compensation stated was extravagant and out of all proportion to the services expected to be rendered would not of itself defeat the claim if it was founded upon a valid agreement, accompanied by an actual assignment of a portion of De Chambrun’s share, free from any taint of fraud or collusive practice. There was, in fact, no written assignment to Elliot, and the parol agreement testified to by Elliot and De Chambrun was not only rendered improbable by the circumstances surrounding the transaction, but by the contradiction of their evidence furnished by the proof of inconsistent declarations, under oath and otherwise, made by both witnesses upon several occasions to different parties. 'The question as to the existence of this agreement was, we think, upon the evidence, a question of fact, and we confess our satisfaction with the findings of the referee upon the subject, as well as the conclusions of the general term in affirming those findings.

Gesner, one of the claimants to a share in the De Chambrun portion of the fund, also appeals from the judgment, upon the alleged ground that she is entitled to a preference in the distribution of the fund over other claimants thereto The assignments thus sought to he displaced were prior in point of time to her’s, but are attempted to be deferred upon the alleged ground that they are not in fact - assignments, but personal contracts of De Chambrun with the respective claimants, and conferred no interest in the fund upon the several transferees thereof. G-esner’s assignment is practically the latest in date, and if she fails to defeat some of the prior assignments, she fears the fund will be insufficient to pay all of the claims upon it, and she may not be able to collect her whole claim. How this may be we know not, and if we did, it could have no bearing upon the legal aspect of the question. That is to be determined by a consideration of the several agreements between De Chambrun and his various assignees and their nature and effect, and, in the absence of any other controlling equity, by the order of priority in which the several transfers were made. These transfers were all made at a time when De Cham bran’s right rested in contract alone. That was then a contingent interest in real property belonging to the Jumel heirs, which was yet to be recovered for them from adverse claimants by the aid of De Chambrun. As this property was recovered from time to time, this right ripened into an equitable lien thereon and was fully recognized and protected by the trust thereafter created in such property. The voluntary performance by the Juméis of their contract with De Chambrun having been accomplished by the conveyance of the property recovered in trust for the joint benefit of De Chambrun and themselves, with his consent, effectually bars any claim that the interest of De Chambrun in the trust property was invalid by reason of any infirmity in the original contract, or that he had not the power to transfer his interest, or any part thereof, in such fund to others as he might, from time to time, find it necessary or profitable to do. That the rights of De Chambrun in this property, whether vested or contingent, and whether the property was in existence or not, were at all times alienable by him in whole or in part, at his will and pleasure, is too well settled by authority to admit of controversy. Field v. Mayor, 2 Seld., 179; Fairbanks v. Sargent, 104 N. Y., 108; 5 N. Y. State Rep., 531; Risley v. Phenix Bank, 83 N. Y., 318; Jones v. Mayor, 90 id., 387.

On this branch of the case it only remains to be seen whether any of the transfers preceding G-esner’s in date, which have been sustained by the court below, were in form sufficient to create an interest in his share of the property or not These transfers, although varying somewhat in phraseology, are in force and effect substantially the same, and each purports to give to their respective assignees an interest in or lien upon the property recovered for specified amounts, or a proportionate share thereof. They were executed in the individual name of De Chambrun, and although he was described in some of them as the agent of the Juméis, they were notwithstanding that fact, the individual contracts of De Chambrun and bound his interest alone as he had no power to bind any other. These contracts plainly attempted to confer an interest upon their several assignees in property belonging to the Juméis, by virtue of authority given to De Chambrun by them to do so to the extent of his interest in it. De Chambrun had, by virtue of his contract, acquired an equitable interest in such property and it was this interest that he attempted to dispose of and no other; so that whether these contracts are regarded as being in form assignments or mortgages, the question is as to the intent of the parties in making them, and if it is clearly inferable from their terms that they were intended to convey an interest in the property, they will operate as equitable assignments of the specified fund to the extent of De Chambrun’s interest therein, in favor of their respective assignees. Fairbanks v. Sargent, supra; Jones v. Mayor, supra.

That such was their object and purpose we entertain no doubt. It is also claimed by Gesner that because her assignment was accepted by the trustee she acquired a preference over those whose assignments were not so accepted. This claim we also think is untenable. A trustee has no power, as such, to change or control the legal or equitable rights of the beneficiaries of a trust by his voluntary action, and his acceptance added nothing to the claim thus accepted. The various claimants under De Chambrun took an equitable interest in his share according to the priority of their assignments and the trustee had no power, as trustee, to defeat, defer, or prefer any interests lawfully created by De Chambrun in the fund.

For the reasons stated, as well as those given in the opinion of the court at general term, we think there is no reason, upon the appeals of either the Jumel heirs, Elliot or Gesner for disturbing the order of affirmance.

We are,, however, of the opinion that that court erred in reversing the allowance of interest made by the referee to the defendant Schermerhorn on the sum of $30,000. No one having an interest in this question, or a right to raise it, has appeared in this court to sustain this reversal. On Gesner’s appeal from the original judgment she did not appeal from that part allowing interest to Schermerhorn, but confined her appeal to so much of the judgment as held that she was not entitled to a preference over the other claimants to the fund. Neither did Gesner take any exception to the findings of the referee allowing interest to Schermerhorn. . That part of the judgment could not, therefore, have been reversed on her appeal; but, notwithstanding this fact, she now attempts to take up the decision procured by the Juméis and De Chambrun on that question, and use it here for the purpose of defeating a claim, which, so far as this action is concerned, has been finally adjudicated against her by the referee. This she is not authorized by the rules of practice to do. But, supposing the question is fairly raised on this appeal, we are of the opinion that interest was properly allowed to Schermerhorn. The agreement of -transfer in plain-language imported a liquidation of an existing debt from De Chambrun to Schermerhorn at the sum of $30,000 and the creation of a lien on the fund as a security for such debt. The giving of the security did not postpone the time for the payment of the acknowledged debt, or shield De Chambran from prosecution for its immediate collection, if the creditor elected to pursue that course. The contract operated as an admission of an existing debt for a good consideration, and the law implies a promise to pay it. There being no time specified for its payment the law makes it payable immediately, and gives interest for delay in discharging the obligation after it becomes due. Purdy v. Philips, 11 N. Y., 406.

It cannot be disputed but that De Chambrun was liable to prosecution for the debt at any time after the liquidation of the amount, or but that interest was recoverable from him in such an action as damages for not satisfying the debt when it ought to have been paid. How then can it be claimed that Schermerhorn is not entitled to interest when seeking to enforce payment against the property of his debtor pledged as security for such indebtedness. De Chambrun was by force of his contract liable to pay interest, and it was this debt he attempted to secure. The debt was the sum liquidated with the necessary incidents attached to its non-payment. The debt by operation of law necessarily grew in amount as the duty of paying it was delayed, and cannot be legally satisfied except by the payment of the sum due upon it when it is attempted to be discharged. People v. County of New York, 5 Cow., 334; Dana v. Fiedler, 12 N. Y., 40.

We do not think, and, indeed, it is not claimed by any one, that the debt was exclusively made payable from a particular fund, or that the creditor was confined to a particular fund for its enforcement. The contract unqualifiedly admits an existing indebtedness, and refers to a fund only as security for its payment. The fact that the contract does not specially provide for the payment of interest does not affect the legal rights of the "parties, for the law supplies the omission of the contract, if any there be, and makes the interest an integral part of the debt.

The court below has sought to make a distinction between the amount of the debt admitted to be due and the amount for which security is given. The language of the contract in referring to the two sums is precisely the same, and we cannot suppose the debtor referred to one sum when he fixed' the amount of his liability, and to another when he provided security for its payment. To hold this would be to infer that the creditor intended to accept satisfaction of the principal sum and abandon his interest, provided it was paid from the property pledged. Such an inference is not permissible. We think this question is settled by authority.

In Carey v. Doyne, 5 Irish Ch., 104, it was held that interest was collectible out of the proceeds of property pledged for the payment of the specific sum of £830, although the property was not sold until ten years after the pledge was made. The agre'ement under which this was held was contained in a letter from the debtor to one Curtis, reading as follows:

“ Dear Sir—I beg to direct you to retain the deeds of Derryfore for Mrs. Casey until the £830 is paid out of the proceeds of the sale of that property, and request you will have the goodness to hurry Mr. Elliot in conducting the business.
“ Yours truly, B. Doyne.”

We can see no difference in principle between that case and the one under consideration.

In the case of In re Kerr's Policy, L. R., 8 Eq. Cases, 331, the debtor had deposited with his creditor a policy of life insurance to secure the repayment of the sum of £300, without any stipulation as to time of payment or interest. Vice Chancellor Jones, in discussing the case, says: “If this case had had to be determined for the first time I should have decided it exactly as the case of Carey v. Doyne was decided by the master of the rolls in Ireland. I think that a deposit of title deeds to secure a loan is to be considered as an agreement to execute a mortgage of the property comprised in the deeds, with interest.”

In Farquhar v. Morris, 7 T. R., 124, where the action was on a bond in the penal sum of £800, conditioned to pay £400, in which no day of payment was specified, or reservation of interest made, it was held that the bond was payable on a day certain, and hence drew interest from that time, the court saying: “it is payable on the day of the date, no other time being mentioned for payment,” and that “ interest is payable from the time of payment, namely, from the date, though not expressly reserved.”

For the reasons stated, the order of the general term should be reversed and that entered on the report of the referee affirmed, with costs in this court (to the several respondents appearing therein) against the appellants, the Jumel heirs, Elliot and Gresner, and to the appellant Schermerhorn against the Jumel heirs and De Chambrun.

All concur.


author: O’Brien, J.

text:
    Daniel B. McKee, Resp’t, v. The President, etc., of The Delaware & Hudson Canal Co., App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Riparian owner — Allowing water to escape from dam in large QUANTITIES.
    Where a riparian owner builds a dam so as to detain or store the waters of a natural stream, and then discharges it into the stream in such quantities as to overflow the lands of, and injure the riparian proprietor below, the latter is entitled to recover his damages, and restrain such trespass in the future by injunction.
    2. Same.
    A special provision for assessing damages in such case, contained in defendant’s charter, does not deprive plaintiff of the remedy by suit at law or in equity.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff.

      Thornton A. Niven, for app’lt; T. F. Bush, for resp’t.

      Affirming 23 N. Y. State Rep., 224.

   O’Brien, J.

This .was an action of an equitable character, to restrain the defendant from discharging water upon the plaintiff’s land through the means of a dam or reservoir constructed to store water for the use of its canal. The' case was tried by the court with the aid of a jury. The plaintiff recovered damages and the ■equitable relief claimed was granted and the general term has sustained the decision. The judgment rests on the following facts found by the trial court: In the year 1851 the plaintiff became the owner and went into the possession of the farm, for the alleged injury to which the damages were recovered. It embraced some thirty or forty acres of low, flat land, through which flowed a stream or small brook about six inches deep and from three to six feet wide. The land on both sides of the stream was marshy and the plaintiff straightened the course of the stream and made it considerably wider and deeper and then, by a system of drainage through the flat land and into the stream, thus enlarged, the land was reclaimed and became valuable for agricultural purposes. After the land became so improved the defendant, in the year 1871, constructed its dam and reservoir across this stream on its own land at a point above the lands of the plaintiff. This dam was used for the purpose of retaining and holding back the water in dry seasons, from which it was discharged through the stream on plaintiff’s land into the Neversink river, and from thence into defendant’s canal below.

The defendant in fact used the brook that ran through the plaintiff’s farm as a feeder through which water was discharged from the dam above into the canal. At certain seasons of the year, during the period of canal navigation, the defendant dischrged the water in much larger quantities than would othewise naturally flow in the stream and to such an extent that its banks were overflowed and the ditches, constructed by plaintiff to drain his land, filled and rendered useless and the flat land submerged and rendered until!able and the crops thereon destroyed. To prevent these injuries to plaintiff’s land a perpetual injunction was granted against the use of the stream as a feeder for the canal to discharge water through it in quantities greater than would naturally flow therein. It was not claimed that the injuries were caused by any want of skill, or negligence on defendant’s part in the ■construction of. the dam or reservoir, but to the fact that more water was discharged by defendant into the stream than it was capable of carrying off without overflowing the adjoining lands. The defendant had never acquired the right to use this stream for the purpose of conducting water to the canal by condemnation proceedings ■Or otherwise. The discharge by the defendant of water upon plaintiff’s land in the manner found was an inj ury in the nature of a trespass, for which the plaintiff was entitled to recover his damges and to restrain in the future by injunction. It is the case of a riparian owner above who has detained or stored the waters of a natural stream and then discharged it into the stream in such ■quantities as to overflow the lands and injure the riparian proprietor below. Cases are cited by the defendant to the effect that where a dam is constructed by legislative authority the party constructing it is not liable for damages caused by overflow or percolation in its use.

That principle has no application to this case. If the plaintiff's land had been damaged by water which percolated or accidentally «escaped from this dam without any neglect or fault on the part of the defendant, then these cases would probably apply. But here the defendant intentionally'pours water upon the land of an adjoining owner, because the water is discharged into a stream running through his land in such quantities that the channel of the stream cannot carry it away. If it should open its canal ¡at some point and intentionally overflow adjoining land causing damage it would be no answer to a suit by the owner to show that the canal at this point was well and skillfully constructed and that it was authorized by the legislature. It is quite true that the defendant’s agents are not moved hy any malice toward the plaintiff or any actual intention to injure him, but still they perform acts that have that result In such cases an action will lie at the suit of the injured party. St. Peter v. Denison, 58 N. Y., 416; Noonan v. City of Albany, 79 id., 470; Sipple v. The State, 99 id., 284; Vernumv. Wheeler, 35 Hun, 53; Scriver v. Smith, 100 N. Y., 471; Silsby Mfg. Co. v. The State, 104 id., 562; 6 N. Y. State Rep., 463.

The special provision for assessing damages in such cases contained in the defendant’s charter, Laws 1823, chap. 238, § 10, does not deprive the plaintiff of the remedy by suit at law or in equity.

The judgment should be affirmed, with costs.

All concur.


text:
    Frederick Miles, App’lt and Resp’t, v. The Dover Furnace Iron Co. et al., App’lts and Resp’ts.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Specific performance.
    The right to a specific performance by the decree of a court of equity rests in judicial discretion, and may be granted or withheld upon a consideration of all the circumstances and in the exercise of a sound discretion.
    2. Same—Agreement to execute—Mining lease.
    Where, by the terms of a contract, plaintiff was entitled to a twelve year lease of the right to take out iron ore from a mine twenty-five feet below the working of defendant, at a fixed price per ton, and the evidence justified a conclusion that the lease would bé of little benefit to plaintiff and yet work almost a destruction of the mine, the court has a right to substitute damages for' the breach in the room of specific performance.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff for damages on trial by judge without jury, but not giving judgment for specific performance of agreement to execute lease.

      Homer A. Nelson, for pl’ff; H. D. Hufcut, for def’ts.

       Affirming 25 N. Y. State Rep., 1036.

   Finch, J.

These are cross appeals; the defendant questioning the judgment for damages awarded against him, and the plaintiff complaining that a specific performance of the contract for a twelve years lease of the iron mine.was refused, and small damages giyen him as the value of the lease.

I am unable to discover any question of law raised by the defendant’s appeal. None is suggested by its counsel’s brief, but the whole argument made is addressed to what is claimed to be the hard and unconscionable nature of the agreement. It is quite possible that the plaintiff made a better bargain for himself than he could have made if the necessities of the defendant company had been less pressing, but the court has found that the agreement was made upon a full and adequate consideration, and was entered into by the defendant freely, with full knowledge of its terms and effect, and without fraud or deception. The part of the contract ont of which these damages grew provided for the sale and delivery of certain quantities of iron ore at a certain rate per ton, and the hardship, if any, originated in the contract price. But men often sell their property at a serious reduction in prices, induced to do so by the necessities of their business or the dullness of the market, and the advantage gained by the purchaser, when the sale is freely made and without fraud or deception, is rightfully his, and cannot be challenged on that account. There is no ground upon which the defendant’s appeal can be sustained.

But the principal discussion has grown out of the plaintiff’s appeal. By the terms of the contract he was entitled to a twelve years lease of the right to take out iron ore from the mine at a level twenty-five feet below the working of the defendant, paying therefor a royalty of twenty-five cents a ton. Proof was given tending to show that the mine could not be profitably worked in that manner; that the upper drifts or areas could not be adequately supported from below at any cost leaving room for profit; that the earth and ore would be likely to fall in; and that difficulties and disagreements would prove inevitable. Upon the proofs the court found as facts that the plaintiff could not work and take out ore below the existing level without interfering with the owner of the mines in working the upper part, and that the mine would probably be very much injured in value should the lease be made; injured beyond the lease itself; and if worked by both interests would probably result in litigation and trouble. The court thereupon awarded damages in lieu of a specific performance, which was refused, and that refusal, it is claimed, was erroneous and should be reversed.

The right to a specific performance by the decree of a court of equity rests in judicial discretion, and may be granted or withheld upon a consideration of all the circumstances and in the exercise of a sound discretion. Seymour v. Delancey, 6 Johns. Ch., 222; Margraf v. Muir, 57 N. Y., 155. Enough appeared in the evidence to justify a conclusion that the lease would be of little benefit to the plaintiff and yet work almost a destruction of the mine, and so a specific performance would simply injure both parties and benefit neither. Under such circumstances the court had a right to substitute damages for the breach in the room of specific performance.

It is now objected that such defense should have been pleaded, and that the question was raised in time. I do not think the facts were new matter constituting a defense. Indeed they were not a defense at all. They left the defendant guilty of a breach of its contract and liable for its default, and so respected merely the form of the remedy which the court should administer. The plaintiff in his complaint asked, as he had a right to, both damages for a breach of the entire contract, and a specific performance of a single branch of it, and himself raised the question which, relief should be granted, and made admissible all the facts of the situation bearing upon the alternative and the exercise of the discretion invoked. It was his duty to show that the specific performance he sought would be, under the circumstances, an equitable and just remedy, and what he was required to establish the defendant might disprove, so long as he confined himself to the-character and consequences and effect of the very contract in issue.

It is further objected-that the Dover Iron Company cannot raise the question, because it had sold the mine to the Dutchess Mining-Company, and had no longer an interest in the land. Of course,, the Dover Company had put it out of its own power to grant a. lease, or give possession, and the only effective decree when the action was commenced must necessarily he against the Dutchess Company, if specific performance was awarded at all,, and that Company defending had a right to resist the relief sought if the Dover Company did not.

On the whole case we think substantial justice was done, and in entire accordance with settled equitable rules.

The judgment should be affirmed, without costs to either party against the other.

All concur.


author: Earl, J.

text:
    The People, Resp’ts, v. Jakes J. Slocum, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    Criminal law—Homicide—Appeal.
    Upon a trial for murder there was no dispute about the facts and the defendant was not sworn; there was no evidence given to establish any defense, that for the People having been ample to establish the crime charged, and no exceptions were taken either to the evidence or to the judge’s charge which was full and fair. Held, that the appeal could not have been brought for any purpose but delay, and the judgment should he affirmed.
    Appeal from judgment of the New York general sessions, convicting defendant of the crime of murder in the first degree.

      John R. Heinzelman, for app’lt; John W. Goff, for resp’ts.
   Earl, J.

The defendant was convicted of murder in the first degree for killing his wife in the city of New York on the last day of the year 1889. They had been married about four years and their married life had evidently not run smoothly. They were of a low order and lived in the third story of a tenement house in squalor, both somewhat "given to strong drink. He was jealous of her, and during the six weeks before the homicide had, on several occasions, declared that he would take her life. On the night of the homicide, toward midnight, he brought her, in the room where they lived, some liquor which' she asked him to partake with her. This he declined, and left. While he was gone she stepped into' a man’s room near by to get some kerosene oil, and when he returned soon afterward he found her there, and asked her what she was doing there. She told him, and then he struck her several times and knocked her down. He told her to get np and go to her room, which she did, and then, with an axe or some other implement, he pounded her to death, breaking her skull and inflicting other bruises upon her person. He then laid her upon the bed and left her there and disappeared from that neighborhood The dead body was not discovered until January 2d, and in about twenty days he was found and arrested. He then declared that he killed his wife while intoxicated.

There was no dispute upon the trial about the facts. The defendant was not sworn, and no evidence was given to .establish any defense.

There can be no doubt whatever that the evidence was ample to establish the crime charged, and we do not see the least reason to interfere with the verdict The charge of the trial judge was full and fair, and no part of it was excepted to. Hone of the defendant’s requests were refused. The counsel for the defendant did not in this court present a brief or argue the case in his behalf. The appeal could not have been brought for any purpose but delay.

The judgment should be affirmed.

All concur.


author: Gray, J.

text:
    Sarah S. Chellis, Resp’t, v. John B. Chapman, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Breach op promise—Evidence op dependant’s wealth.
    Evidence of the defendant’s general reputation as to wealth at the time of an alleged agreement of marriage is admissible upon the trial of an action for breach of promise to marry. (Earl and Peckham, JJ.', dissent.)
    2. Same.
    The home offered, the freedom from the personal exertions for daily support,' the social position accompanying the marriage, are all facts which have their proper bearing upon the question of marriage.
    3. Same—Exemplary damages.
    It is the province of the jury to determine upon the proof of the facts and of the surrounding circumstances what damages should be awarded.
    4. Same.
    If the conduct of the defendant in violating his promise is characterized by a disregard of the plaintiff’s feelings, or reputation; if he has placed her or induced her to place herself in a false position, or to forego temporal advantages; if the breach of his promise is unjustifiable; if he spreads upon the record matters in defense of the action which are scandalous and tend to reflect discredit upon the plaintiff or to stain her reputation; then these are all circumstances which may be considered by the jury and may be availed of by them to enhance the damages.
    5. Same.
    The judge charged the jury that “ in fixing the amount of damages the plaintiff is entitled at least to such damages as would place her in as good pecuniary condition as she would have'been if the contract had been fulfilled.” Hold, that though it was a careless use of language, it could not have prejudiced defendant’s case.

      Appeal from, judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff entered on a verdict.

      Watson M. Rogers, for app’lt; Hannibal Smith, for resp’t.

       Affirming 26 N. Y. State Rep., 953.

   Gray, J.

The plaintiff has recovered a verdict for as damages for the breach by defendant of his promise to marry her. The proofs abundantly justified the jury in finding as they did ; but the defendant insists that the trial judge erred in his rulings upon the evidence and in his charge. He does not raise any question about the fact of his agreement to marry the plaintiff, and, indeed, he could not well do so; as it was established out of his own mouth. But he thinks his case was prejudiced by the admission of certain evidence and by the way in which the trial judge submitted the question of the damages to the consideration of the jury, and that he should, therefore, have a new trial. The general term, in affirming the judgment, have passed upon various points raised by the appellant and we might well remit the case without further expression of opinion. But some of the questions still insisted upon seem to deserve further consideration from us.

Evidence of the defendant’s general reputation as to wealth, at the time of the agreement of marriage, was admitted against 'the objection to its competency upon the subject of damages in such an action. The exception to its admission presents an interesting-question and one which may be deemed not altogether free from difficulty. Such evidence, on first consideration, seems to conflict with the general rule that in actions for a breach of contract evidence as to the defendant’s wealth is inadmissible. The plaintiff, in such actions, is entitled to recover-only those damages which he may prove that he has suffered in consequence of the defendant’s failure to perform on his part. The defendant’s solvency, or insolvency, have nothing to do with the issue and furnish no measure for the computation of damages. And this rule of exclusion as to such evidence has been also applied to cases where damages are sought to be recovered for seduction, or for criminal conversation. James v. Biddington, 6 Car. & P., 589; Dain v. Wycoff 3 Seld., 191.

Baron Alderson, in James v. Biddington, an action by a husband for criminal conversation with his wife, assigned as the reason for holding such evidence to be improper that “ the plaintiff is entitled to as much damages as a jury think is a compensation for the injury he has sustained, and the amount of the defendant’s property is not a question in the case.” Judge Gardiner, in Dcdn v. Wycoff, an action by a father for the seduction of his daughter, reasoned, upon the exclusion of proof of what defendant was worth, that the jury should not be allowed “ to go beyond the issue between the parties litigating, and after indemnifying the plaintiff for the injury sustained by him, proceed as conservators of the public morals to punish the defendant in a private action for an offense against society.” The principle underlying the exclusion of this kind of evidence, in the latter class of cases, is that vindictive, or punitive damages would be improper ; as the recovery in them should be confined to what the jury may deem to be a sufficient compensation for the injury sustained by the plaintiff. But the present action in quite other in its nature, and constitutes an exception to that general rule upon the subject of damages for violation of contract obligations which has been assented to by the judges of the courts in this country and in England. It is apparent that, in such an action as this, there can be no hard and fast rule of damages, and that they must be left to the discretion of the jury. Of course, that discretion is not so absolute as to be independent of a consideration of the evidence. It is one which is to be exercised with regard to all the circumstances of the particular case and, as it has frequently been said, where the verdict has not been influenced by prejudice, passion or corruption, the verdict will not be disturbed by the court. That the amount of the suitor’s pecuniary means is a factor of some importance in the case of a demand of marriage, cannot fairly be denied. It is a circumstance which very frequently must have its particular influence upon the mind of the woman, in determining the question of consent or of refusal; and, as I think, in a proper case, very naturally and properly so. The ability of the man to support her in comfort and the station in life which marriage with him holds forth, are matters which may be weighed in connection with an agreement to marry.

In the case at bar the plaintiff was forty-seven years of age and the defendant seventy-four. Six years previously he had sought her acquaintance, unsolicited by her, and with matrimonial views on his part. He had visited her more or less frequently and had twice proposed marriage before their engagement in 1886. She was and had been supporting herself as a teacher and superintendent in city schools. He had never been married and had lived in the country as a farmer. He was possessed of pecuniary means, considerable in amount in the general estimation of his neighbors and not inconsiderable if we take his own estimate. Though pretending to some cultivation of mind, which, among other ways, if we may judge from this record, he seemed to delight in displaying by a versification of the homely though not very inspiring, or romantic, topics and events of his farm life and surroundings, he yet was seemingly lacking in those outward graces of the person which are not infrequently deemed a substitute for more solid possessions. Mor does he seem to have had recourse to the adventitious aids of the wardrobe to adorn his exterior person and thereby to compensate for personal shortcomings. I think that the jury should be made aware of all the circumstances which, in this case and in every such case, might be supposed to have presented themselves to the mind of the plaintiff when asked to ■change her position by a marriage. Of these circumstances, the .home offered, which for i'ts comforts and ease would depend upon the more or less ample pecuniary means of the defendant; the freedom from the personal exertions for daily support; the social position accompanying the marriage; all these are facts which have their proper bearing upon the question of marriage. The wealth and the reputation for wealth of a man are matters which, as this world is constituted, often aid in determining his social position, notwithstanding he may have other and more intelligible rights to it, and despite objectionable characteristics or traits. Where, therefore, the defendant has demandéd an engagement of marriage, it seems proper enough that the jury should know what possible reinforcement his suit may have had and what were the inducements offered by his social standing and surroundings.

In the case of James v. Biddington, supra, Baron Alderson, while holding it improper to give evidence óf the amount of defendant’s property in an- action for criminal conversation, said: “In a case of a breach of promise of marriage, the amount of the ■defendant’s property is very material, as showing what would have been the station of the plaintiff in society if the defendant had not broken his promise.” And see Berry v. Da Costa, L. R., 1 Com. Pleas, 331; Wood v. Hurd, 2 Bing., N. C., 166. It has been so held in this court, and in the courts of other states, to some of whose decisions the respondent’s brief has directed our attention. Kniffen v. McConnell, 30 N. Y., 285; Lawrence v. Cooke, 56 Me., 187; Bennett v. Beam, 42 Mich., 346; Allen v. Baker, 86 N. C., 91. In Mayne on Damages, Wood’s Ed., § 677, upon the strength of the English authorities I -have cited, the same rule is given. I apprehend, however,-that the difficulty in the question before us of the evidence is not so much in adducing proof as to defendant’s pecuniary means as in the mode of their proof. But assuming, as I think we are bound to do under the authorities, that the amount of defendant’s property is material in such an action, then evidence of the reputation which he enjoys for wealth is unobjectionable. Reputation is the common knowledge of the community, and if it is exaggerated or incorrect, the defendant has the opportunity to correct it, and of giving the exact facts upon the trial. The admission of the evidence is not to establish an ability to pay; but to show the social standing which defendant’s means did, or might, command. '

In Kniffen v. McConnell, 30 N. Y., at p. 289, which was an action for a breach of promise of marriage, Judge Ingraham, delivering the opinion for the court, held that “ It may be objectionable to particularize the defendant’s property, and such evidence should be confined to general reputation as to the circumstances of the -defendant. To that extent I think it admissible.”

The learned judge does not reason upon the rule, but I am not aware that this decision has ever been questioned, and I do not think it well can be.

In Kerfoot v. Marsden, 2 Foster & Finlason’s Nisi Prius Reports, 160, an action for breach of promise of marriage in 1860, Wilde, B., ruled: “You may ask in a general way as to defendant’s property, but you cannot go into particular items as to his property.” ,

I think we must conclude upon authority, as well as upon the. reason of the thing, that evidence of the reputation of the defendant as to wealth is admissible in these cases. The belief of the plaintiff must have been influenced by the opinions or beliefs of the members of the community in which the defendant resided. She could not be presumed to have personal cognizance of a matter which is so peculiarly one within the individual’s exclusive knowledge, and what credence she gave to general report was not without justification. She had some right to rely upon it.

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

The appellant insists upon the error of the trial judge in submitting to the jury the question of exemplary damages. But we think, in such a case, that it is the province of the jury to determine upon the proof of the facts and of the surrounding circumstances what damages should be awarded. If the conduct of the defendant in violating his promise is characterized by a disregard of the plaintiff’s feelings, or reputation; if he has placed her, or induced her to place herself, in a false position, or to forego temporal advantages; if the breach of his promise is unjustifiable; if he spreads upon the records matters in defense of the action which are scandalous, and tend to reflect discredit upon the plaintiff, or to stain her reputation; then these are all circumstances which maybe considered by the jury and may be availed of by them to enhance the damages. Here the trial judge did not say in his charge that this was a case for the infliction of punitive damages. He instructed the jury, in substance, that if the plaintiff was entitled to damages they should certainly give compensatory damages, and that in the exercise of a discretion based on the proofs and circumstances of the case they might award exemplary or punitive damages. Upon this subject of when such damages might be awarded he read at length from the opinions of this court in Thorn v. Knapp, 42 N. Y., 474, and Johnson v. Jenkins, 24 id., 252, for the purpose of showing the rule to be applied. It is clear that he left it to them to arrive at a decision upon the propriety of giving exemplary damages from a consideration of the defendant’s motives and conduct.

How, there was evidence in the case upon which a verdict might well include exemplary damages. The wedding day was agreed upon; the usual preparations were made by the plaintiff, and relatives and guests were bidden to the ceremony. But the defendant did not" appear. He alleged physical ailments in excuse of not fulfilling his marital engagement; but there was evidence that he was evading it and shamming illness. He admits that he had no fault to find with her; She had resigned her position to marry him. He denied requesting her to do so; but his attempt at denial is weakened by his subsequent admission that he expected her to do it Then, in his pleading, he charges the plaintiff with having no affection for him, but with entertaining a purpose to procure money from him, on the pretense of his promise to marry her and his breach thereof. These were elements in the case which might properly enter into the decision of the jury as to the amount of damages.

The appellant alleges another error in the charge when the trial judge instructed the jury “in fixing the amount of damages the plaintiff is entitled at least to such damages as would place her in as good pecuniary condition as she would have been if the contract had been fulfilled.” This was, of course, a careless use of language; but it could not have prejudiced the defendant’s case. It was very plain from all the charge, in what preceded as in what immediately followed the sentence picked out for objection, that the trial judge intended to and did instruct the jury that they should compensate the plaintiff for what she had lost and was deprived of by the failure of the marriage. They might affix to the marriage with the defendant that pecuniary value which, in their judgment, upon the circumstances of the case, it would have to the plaintiff. The jury could not reasonably have understood the judge otherwise. It may often occur in a charge to the jury that particular words or expressions used, when taken by themselves, will be objectionable or seem to be erroneous; but they should not be considered independently of contextual phrases. If, when read in connection with the rest of the charge, the sense of language used is made clear and its meaning explained and the instruction is not uncertain as to the subject matter, the result of the trial should not be disturbed for mere inaccuracies, or carelessness in speech!

There is no occasion for a further discussion of any questions, and the judgment and order appealed from should be affirmed, with costs.

All concur, except Earl and Peckham, JJ., who dissent, on the ground that it was error to receive proof of defendant’s wealth by reputation.