text:
    Charles J. Close, Pl’ff, v. Edward W. Potter, Def't. Charles J. Close, Pl’ff, v. Pascal P. Beals, Def't. Charles J. Close, Pl’ff, v. William J. Millring, Def’t.
    (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    1. Manueactueing companies—Statutes—Repeal.
    Chap. 40, Laws of 1848, was not repealed by chap. 564, Laws of 1890, so as to affect the existence of corporations organized under it. The repealing clause óf the act took effect simultaneously with the re-enactment of the statute, and did not affect existing corporations, except so far as it amended or modified the law under which they were incorporated.
    3. Same.
    Assuming that the stock corporation laws of 1890 were repealed by chap. 687, Laws . f 1892, rights existing against stock corporations at the time of such repeal were not affected, the statutory construction act passed at the same time providing against such contingency.
    Demurrers to complaints.

      Simon Fleischmann, for pl’ff; Frank F. Williams, for def'ts.
   Titus, Ch. J.

The above cases, involving the same question, were all argued at the same time. But one brief was furnished, that in the case of Charles J. Close v. Edward W. Potter. The questions arise upon a demurrer to the plaintiff’s complaint. The plaintiff, in his complaint, claims that on the 12th day of December, 1887, the American Bit Brace Company was organized under the act to authorize the formation of corporations for manufacturing, mining, mechanical or other purposes, passed February 17, 1848; that the capital stock of the company is $50,000, but that the whole amount of the stock has not been paid in, and that no certificate has ever been filed as required by law; that on the 2d day of January, 1892, $10,000 was advanced and loaned to the company, it in return giving its note for that amount, and that the plaintiff is the owner and holder of it; that after the note became due, and on May 23, 1892, the plaintiff brought an action .against the American Bit Brace Company on the note, and recovered a judgment for the amount, with interest and costs; that the judgment was docketed and execution issued to the sheriff of Erie county, where the company has its place of business, and the same was returned wholly unsatisfied; that at the time the debt was contracted by the company the defendant Potter was a stockholder to the amount of $2,400, and demands judgment for $2,400.

The defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The only question which the defendant raises by the demurrer in his brief is, that chapter 40 of the Laws of 1848, which is the act under which the American Bit Brace Company was incorporated, has been repealed, and the corporate existence of the company, after the revision of the corporation laws took effect, namely, on May first, 1891, has ceased, and that at the time this debt was incurred, on the second day of January, 1892, the company had no legal existence, and consequently no authority to create any liability against the company upon which a stockholder can be held.

By § 10 of the act of 1848, “ stockholders shall be severally individually liable to the creditors of the company of which they are stockholders to an amount equal to the amount of stock held by them respectively for all debts aud contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in." Section 24 of the same act provides: “ Ho stockholder shall be personally liable for the payment of any debt contracted by any company formed under this act which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall become due, and no suit shall be brought against any stockholder who shall cease to be a stockholder in any such company for any debt so contracted, unless the same shall be commenced within two years from the time he shall have ceased to be a stockholder in such company.”

In 1889 the Legislature passed an act (chapter 289) to revise and consolidate the general statutes of the state relating to the organization, government and control of corporations, and other statutes. In 1890 the commission appointed in pursuance of this act reported to the legislature various acts relating'tp corporations. These acts, on an examination, appear to be substantially the same as the corporation laws which they are intended to supersede; in some instances amendments have been introduced, and modifications made to the language used in former acts.

These acts are practically a consolidation and revision of the statutes of the state, evidently following a systematic plan adopted by the revisers.

Chapter 564 of the Laws of 1890 is the act which has reference to stock corporations, and is the only one which it is necessary to consider here. Section 72, relating to the construction of the act, provides that the act “ shall be construed as a continuation of such laws, modified or amended, and not as a new enactment.” By this act chapter 40 of the Laws of 1848 is repealed. Section 57 is a re-enactment of § 10 of chapter 40 of the Laws of 1848, with a slight amendment. It provides : “ The stockholders of every stock corporation shall jointly and severally be personally liable to its creditors to an amount equal to the amount of stock held by them respectively for all debts and contracts made by the corporation until the whole amount of its capital stock shall have been paid in.” Section 58 is a re-enactment of § 24 of the act of 1848, and provides that “ no stockholder shall be personally liable for any debt of the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against the corporation within two years after the debt becomes due.”

It will be seen that the only changes made in these .sections are that, while the act of 1848 made the stockholders severally liable, the act of 1890 created a joint and several liability, and instead of the stockholder being liable for the debt of the corporation payable within one year, the amendment extends it to two years, and the same is true of the right to bring an action against the ■corporation being extended to two years, instead of one, as provided by the act of 1848.

Section 72 provides what construction shall be placed upon the aót itself, namely, that it shall be considered as a continuation of .such laws, modified or amended, and not as a new enactment. This of itself is sufficient authority for holding that the law of 1848 was not repealed by the act of 1890 so as to affect companies organized under it.

Independently of this saving clause, it cannot be presumed that the legislature intended to repeal the act under which the American Bit Brace Company was incorporated in the sense that it is now without corporate existence, and not subject to the general law governing corporations. Such a construction would work great harm and confusion to the business interests of the state, and is not to be so construed unless it can be clearly seen that the legislature intended such a result. It is rather to be construed in harmony with the general policy of the legislature to revise .and consolidater the general statutes, re-enacting and continuing them, without affecting the rights of corporations organized under ■them. The repealing clause of the act took effect simultaneously with the re-enactment of the statute, and did not affect existing corporations, except so far as it amended or modified the law under which they were incorporated. People ex rel. Ullrich v. Bell, .24 St. Rep., 114.

The only change made by the new act, so far as it is applicable here, was to make stockholders jointly and severally liable, when ■before they were severally liable, and extending the limit to debts not to be paid within two years from the time such debts became due. The debt which is sought to be recovered, here originated in January, 1892, and is subject to the new provisions of the new act. The change in limitation made by the act of 1890 does not affect the question here, because it enlarges the time in which a party may act, and either under the act of 1848 or 1890 the plaintiff has commenced his action in time. The debt was payable within one year from the time it was contracted, and the year has not elapsed. The action was commenced on the note on the 23d of May, 1892, less than five months from the time the note was given.

The legislature of 1892, by chapter 688, re-enacted the act of 1890 without any essential change in the language of the statute, and did not, except by implication, repeal the act, but by chapter 677 of the same year, § 32, it was enacted that so far as the revised act was substantially the same as the statute existing at the time the act takes effect, it shall be construed as a continuation and not as a new enactment; so that, in any event, the acts of 1892 can have no effect upon the rights of the party to this action, because the statute itself has provided a rule of construction which the court must follow.

This would be so in the absence of the continuing act. The rights of the parties had become fixed before the act took effect, and the defendant’s liability must be measured by the law as it stood when the debt was contracted, and no act of the legislature can have the effect to change or affect the existing liability. The People v. Supervisors of Westchester Co., 4 Barb., 64; Conant v. Van Schaick, 24 id., 87; Story v. Furman, 25 N. Y., 214 ; Town of Cherry Creek v. Becker, 123 id., 161; 33 St. Rep., 411.

The claim made by the defendant that by chap. 567 of the Laws of 1890 corporations may re-organize, and that the American Bit Brace Company has not re organized under that act, and has no legal existence, is not well taken. It has already been seen that no re-organization was necessary, that the act was not repealed so as to affect the rights of corporations organized under it, but chap. 567 of the Laws of 1890 has reference especially to business corporations, and not to such as are organized under the Stock Corporation Law of 1848. Besides, the language is permissive. The statute leaves it optional with the stockholders whether they will re-organize or not, and in case the corporations provided for under that act did not re-organize, their corporate existence is not affected by such lack of re-organization. The cases cited by the defendant to sustain this proposition are not applicable, for the reason, as has been said, that corporations organized under the act of 1848 are not affected by the repealing clause of the act of 1890.

The defendant claims that the Stock Corporation Laws of 1890 were expressly repealed by chap. 687 of the Laws of 1892. I do not find such to be the case, unless it is by implication. Undoubtedly the act of 1890 has been superseded by the more recent act of the legislature, but, assuming that it is repealed, I do not think it helps the defendant in his contention, for the same reason which has been stated with reference to the effect of the act of 1890 upon the act of 1848. But by chap. 677 of the Laws of 1892, known as the statutory construction act, § 31, it is provided that the repeal of a statute shall not affect or impair any act done or right accrued or liability incurred, but that the same may be asserted and enforced as fully and to the same extent as if such repeal had not been effected. These revision acts of 1892 were all passed and took effect on the same day, and they should all be construed together, as such evidently was the intent of the legislature.

This disposes of the questions raised by the defendant, and if the law has been correctly stated, it leads to the conclusion that the demurrer is not well taken. I think, therefore, that the demurrer should be overruled, with leave to the defendant within twenty days to answer on payment of costs.

Hatch and White, JJ., concur.


source: Caselaw Access Project

author: Titus, Ch. J.

license: Public Domain

text:
    Mary Weiss, Admr’x, App’lt, v. Walter B. Tennant, Treasurer of the Journeymen Stone Cutters’ Association, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    Tbade unions—Death benefits.
    Where the by-laws of an association organized to benefit its members by

      regulating the price of labor and all other matters appertaining to the stone-cutters’ trade provides that " any member being three months in arrears shall not be considered ‘ in benefits ’ until one month after he is clear on the books,” and that “ this union shall appropriate the sum of fifty dollars towards defraying the funeral expenses of deceased members who are clear of all finés and in good standing, but no member will be eligible for this provision who is three months in arrears,” Held, that the representative of a member who two days before he died paid his dues to the association for the past five months is entitled to the funeral allowance.
    Appeal from judgment of the municipal court of Buffalo in favor of defendant.

      Henry W. Brendel, for app’lt; Frank M. Loomis, for resp’t.
   Titus, Ch. J.

This action was brought in the municipal court to recover fifty dollars for funeral expenses incurred in burying the husband of the plaintiff, as provided by the by-laws of the defendant.

The Stone Cutters’ Association is an incorporated joint stock association, of which the defendant Tennant is treasurer. Henry Weiss, the deceased husband of the plaintiff, was a member in good standing before and on the first day of January, 1891. He died on the 5th day of June, with his name on the roll of membership of the association. It appears from the by-laws, article XXVI, § 1, that the membership dues shall be twenty-five cents a month, but in the statement of facts stipulated by the attorneys for the respective parties the monthly dues of members are ten cents. As the statement of facts stipulated is controlling as to what was the amount of monthly dues, it is assumed that ten cents was the amount required to be paid.

On the 3d day of June, 1891, Weiss caused to be paid to Michael Scheade the sum of fifty cents for five months dues, which said Weiss owed at that time. Michael Scheade was a “ shop steward,” who, on the 8th day of June, paid said sum of fifty cents to the financial secretary at a meeting held on that day, which sum was received by the association and credited to Weiss. This, under the stipulation of facts, would pay the dues which Weiss was owing the association up to the 1st day of June. By article XXXTT, § 2, of the by-laws, it is made the duty of the ‘‘shop stewards ” to collect the initiation fees, dues and all moneys belonging to the association. This section authorized Scheade to receive the money for Weiss’ dues, and constituted him the agent of the defendant for that purpose, and a payment to him was a payment to the society. There is nothing m the by-laws prohibiting a member three months in arrears for dues from paying, and when he paid the officer designated to collect and receive dues it was a payment to the association, and whether Scheade turned it over to the financial secretary before or after Weiss’ death does not affect this question. By article XXIV, § 3, any member being three months in arrears shall not be considered “ in benefit ” until one month after he is clear on the books. The benefits to which this section relates are not very clearly pointed out by the by-laws. The association was organized tp benefit its members by regulating the price of labor and all other matters appertaining to the trade, and it assumes to say who of its members shall work and when they shall work, and the price per day they shall receive, and the number of hours they shall work. A member of the association on a strike shall receive from the association six dollars a week; a system of fines and penalties is provided for members who violate the rules of the association. The benefits, contemplated by the section evidently refer to the advantage of constant employment, of indemnity for the loss of time in case of a strike, and the facility of employment which a membership in the association affords.

By article XXXVII, it is provided that this union shall appropriate the sum of fifty dollars towards defraying the funeral expenses of deceased members who are clear of all fines and in good standing, but no member will be eligible for this provision who is three months in arrears, nor new members until six calendar months have elapsed after date of initiation.

So far as anything appears in the case, the deceased was in good standing and clear of all fines, and. was not at the time of his death three months in arrears for dues, his dues having been paid to the “Shop Steward” up to the first of June preceding his death, and while he was yetualive. Nothing in the by-laws requiring dues to be paid in advance, his dues for June could be paid at any time during the month. He was not in arrears for his dues for June, as they were not payable until the end of the month.

I do not think the by-law providing that members who are in arrears for three months shall not be considered “in benefit” has reference to the provision for'defraying funeral expenses of de-' ceased members. The by-law fixes the condition upon which such appropriation for funeral expenses shall be made, and there is nothing in the conditions, namely, “ clear of all fines .and in good standing and not three months in arrears for dues,” which applies to the deceased.

The objection that the deceased had not been a member for six months is not well taken. It does not appear when lie was made a member, except that he became a member on or before January 1st, 1891. He was a member at the time of his death, and it was a matter for the defense to show that he had not been a member the required length of time. The court will not presume, in the absence of proof, that he had not been a member for six months, as must be done to sustain the objection.

I think, therefore, that the judgment of the court below must be reversed, with costs.

Hatch and White, JJ., concur.


text:
    William Dunn, by Guardian, Resp’t, v. Andrew Ultsch, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    Teial—Chaege.
    Where a trial court in its charge to the jury errs on a question of law not properly before it, the judgment will not be reversed on that account.

      Appeal from judgment of the municipal court of Buffalo in favor of plaintiff.

      J. W. Russell, for resp’t; Emery & Sickmon, for app’lt.
   Titus, Ch. J.

This is an appeal by the defendant from the municipal court Various errors are claimed to have been committed on the trial, but none of them seem to be sufficient to warrant a reversal of the judgment.

The first error complained of is the refusal of the court to allow the defendant on his direct examination to answer the question : “ Whether it was an accurate machine ? ” The question clearly calls for the opinion of the witness. He had already stated that he always found it to register correctly the cash in the drawer corresponding with the amount shown by the register, which amounted to saying he had never found any mistake made by the machine. That is as far as the plaintiff can go. His opinion was not competent evidence.

The proof is not at all conclusive that a correct inventory showed that the defendant had $632 in stock in the store when he was taken sick. He did not measure the liquors, the vessels which contained them were not full, nor did he count the cigars, and the jury probably came to the conclusion that his testimony was not of that precise and accurate character which entitled it to great weight, in view of the fact that no inventory was produced in court, and of the further fact that the store was robbed and some of the property stolen.

The witnesses were before the court, the jury had an opportunity to see them, and their manner of testifying, and of judging whether the defendant’s testimony was to be taken against the other circumstances in the case. They are the best judges of that fact, and the court cannot interfere with their conclusion.

It is claimed the court erred in charging that a person who employs a minor takes all chances of his negligence and carelessness, and that his carelessness is no defense to his recovering his wages. It is a sufficient answer to this to say that the question of the plaintiff’s carelessness was not before the court, and if the court did err on a question of law not properly before it, the judgment will not be reversed on that account

The defendant is charging the plaintiff with tampering with the register so as to defraud him of the receipts, and with not turning over the funds belonging to him. If "he did so, his acts were wrongful and criminal; and when the court charged that the jury must find that the plaintiff took these goods cor. ruptly and wrongfully, it was in accordance with the theory of the defendant’s case. While the defendant has waived the tort in his answer, as he may, yet the acts charged against the plaintiff are more or less tortious, if the defendant’s claim against him is true. He simply waives the right to sue for the wrong, and seeks to recover in assumpsit.

I do not think the court erred in charging that there was no evidence that would warrant the jury in finding that the plaintiff took any money wrongfully from the register. The charge by the court does not accompany the return, and we are unable to say, with this request standing alone, that it was not modified by the court in his charge to the jury.

There was evidence that the register had been opened; the plaintiff has no key ; the register corresponded with the cash in the drawer. Others had access to the register equally with the plaintiff, and the single statement of the plaintiff that he left the card in the register with “ No. 183 ” marked upon it, as indicating its position when he last opened it before his sickness, and the number 186 when he opened it after his sickness, I do not think was sufficient to charge the plaintiff with having wrongfully taken money.

This disposes of the objections raised by the defendant, and I think the judgment must be affirmed, with costs.

Hatch and White, JJ., concur.


author: Per Curiam.

text:
    The People, Resp’ts, v. Nicholas N. Betsinger, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Abduction—Evidence.
    On the trial of an indictment for abduction alleged to have been committed in 1886, evidence of declarations of defendant made in 1889 and of physicians as to the physical condition in 1890 of the female alleged to have been abducted, is inadmissible.
    Appeal from a judgment of the court of sessions of Onondaga county and from an order of said court denying a motion for a new trial on conviction of the appellant of the crime of abduction. The indictment was found on the 8th day of May, 1891, and charged the defendant of the crime of abduction on the 1st day of June, 1886, at the town of Marcellus; and that the defendant did “feloniously take one Zada Young for the purpose of sexual intercourse, she, the said Zada Young, being then and there a female under the age of sixteen years, and he, the said Nicholas N. Betsinger, not being then and there her husband, against the form of the statute in such case made and provided and against the peace of the People of the state of New York and their dignity.” And the indictment contained a second count charging the defendant with the same crime in that he did “ feloniously receive, employ, harbor and use one Zada Young for the purpose of sexual intercourse, she, the said Zada Young, being then and there a female under the age of sixteen years, and he, the said Nicholas N. Betsinger, not being her husband, against the form of the statute,” etc. And the third count alleges that on the same day the defendant “ feloniously did take, receive, employ, harbor and use •one Zada Young for the purpose of prostitution, she, the said Zada Young, being then and there a female under the age of sixteen years, against the form of the statute,” etc. The trial took place in the court of sessions of Onondaga county on the 16th day of June, 1891.

      Harrison Hoyt, for app’lt; B. J. Shove, assistant dist.-atty., for resp’ts.
   Per Curiam.

We think it was error to admit the evidence of Alice Higley of the conversations between her and the defendant in'1889.

(2) Also, in admitting the evidence of physicians who made an examination of Zada Young in 1890, and who gave evidence tending to indicate that upon such examination they found a broken hymen.

(3) We think in the cross-examination of Sarah Betsinger, wife of defendant, improper questions were allowed to be put to her touching the declarations alleged to have been made by her to Mrs. Richards. The conviction, judgment and order must, therefore, be reversed.

Conviction, judgment and order reversed and a new trial ordered, and the clerk, of Onondaga county directed to enter judgment and remit certified copy thereof with the return and decision of this court to the court of sessions of Onondaga county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Hardin, P. J., Martin and Merwin, JJ., concur.


author: Per Curiam

text:
    In the Matter of the Application of The St. Lawrence & Adirondack Railroad Company, Resp’t, to Acquire Real Estate of Julia L. De Camp et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Condemnation pboceedings—Constitutional law.
    Section 3379 of the Code, giving the court power in condemnation proceedings to authorize the plaintiff, if in possession of the property sought to be condemned, to continue in possession, and to stay all actions against him on account thereof, upon his giving security, is constitutional.
    2. Same—Possession.
    Where the petitioner has come into possession in good faith without intending to commit a trespass, he will be allowed to remain in possession under § 3379 of the Code, upon his giving proper security.
    Appeal from an order made on the 13th day of February, 1892, in Oneida special term, which provides that upon depositing with the clerk of Herkimer county the sum of $5,000, subject in all respects to the order of the court, “to be held as security for the payment of the compensation which may be finally awarded to the defendants as owners or parties interested in said lands, and the costs of this proceeding, that the plaintiff, the said St. Lawrence & Adirondack Railroad Company, be authorized and allowed to continue in possession of the lands described in the petition herein and so sought to be condemned.”
    Among the papers recited in the order and read upon the motion is “the answer of the defendant Julia L. DeCamp, verified herein on the 10th day of February, 1892;” the order recites that-it “appearing to the satisfaction of the court that the plaintiff is in possession of the premises hereby sought to be condemned, it is hereby ordered and directed, etc.” On Movember 21, 1891, the St. Lawrence & Adirondack Railroad Company filed a map locating a route of its road; the road, as located, crossed township Mo. 7, in the town of Wilmurt, in the county of Herkimer, over lands described in the petition. December 12, 1891, plaintiff’s petition was prepared, in which it was stated, among other things, that the lands described and sought to be condemned were necessary for public use, viz.: for railroad purposes. And the petition also averred: “ That it is now in possession of the said described lands which are sought to be condemned in this proceeding, as will more fully appear in the annexed affidavit of Charles E. Snyder, verified on the 12th day of December, 1891, and to which your petitioner hereby refers and makes the same a part of this, his petition. That your petitioner is now in possession of the same under a defective title thereto, viz.: under the title of the Adirondack Timber & Mineral Company, who have an undivided interest in the lauds hereby sought to be condemned," and that the defendants above named are the other persons having undivided interests in the said described property, and liens thereon.” In the affidavit, so referred to of Snyder, after setting out the sources of title, it is. alleged “ that the plaintiff in this proceeding has acquired from the Adirondack Timber & Mineral Company all its right, title and interest of the said Adirondack Timber & Mineral Company in and to the lands sought to be condemned in this proceeding, and is now in possession of the same under the title of the said Adirondack Timber & Mineral Company.”
    And the affidavit further states : “ That the plaintiff has settled with the Adirondack Timber & Mineral Company for all its interest, right and title in and to the land sought to.be condemned in this proceeding, and that with the consent of the said Adirondack Timber & Mineral Company has, under title of the said Adirondack Timber & Mineral Company, gone into possession of the lands which are so sought to be condemned in this proceeding, and is now in possession thereof, with its servants, agents and contractors, and is busily engaged m the construction of its said railroad. And deponent further says that the plaintiff 1ms, for a long time, been in possession of the said described premises which are sought to be condemned in this proceeding, with the full knowledge of the agent of the defendants in charge of their interests in the said township, the said Walter DeCamp; and with the said knowledge and acquiescence of the defendant’s agent, has cut timber from the proposed right of way of plaintiff’s railroad over said township to a large extent.” Other affidavits were read in behalf of the plaintiff in support of the allegations, of the'petition.
    Mrs. De Camp’s answer, which was verified February 10, 1892,. contains denials of most of the allegations of the petition, and sets up that “ she is the owner, and sole owner, of the lands described by metes and bounds in the petition herein.” And in opposition to the motion, her affidavit, sworn to February 11th ; the affidavit of Scudder Todd, sworn to February 10th : and the affidavit of W. S. De Camp, sworn to February 18, 1892, were read, which contain denials of allegations of the petition and averments tending to support the allegations of the answer.

      C. D. Adams, for appl’ts; Charles E. Snyder for resp’t.
   Per Curiam

The discretion and power of the special term were exercised after considering the affidavits and allegations found in the papers. Upon those affidavits and papers the special term found, as is stated in its order, that it appeared to its satisfaction “ that the plaintiff- is in possession of the premises sought to be condemned.” It may be fairly assuiped that the special term readied the conclusion that the company was in possession under a color of claim or had acquired possession in good faith ; and that the special term was not of the opinion that the possession which the company asserted originated in a trespass known to have been such or that it was taken without color of authority. The case made before the special term therefore differs from the one appearing upon the papers in the' case reported in 133 N. Y., 270 ; 45 St. Rep., 207, between the same parties. Section 3379 of the Code of Civil Procedure. Under this section the court apparently exercised its discretion and allowed the plaintiff “to continue in possession ” upon depositing the sum of $5,000. It was assumed by this court in its decision made in February, 1892, of the case between these parties reported 133 N. Y., 270; 45 St. Rep., 207, that § 3379 was constitutional. We see no reason why we should not adhere to that conclusion. W e understand the court of appeals simply to have decided that where a railroad company has unlawfully entered upon land “ under the claim or pretense of right, in clefiance of the will of the owner, under no mistake or misapprehension and without color of authority ” that § 3379 does not apply to such a case. If the findings of the special term in the case now before us are upheld, as upon an examination of the papers before the special term we are inclined to think they should be, the decision so made by the court of appeals is not applicable to the case in hand.

In Cherokee Nation v. Kansas Railway Company, 135 U. S., in the opinion at page 659, it was said “ The constitution declares that private property shall not be taken ‘ for public use without just compensation.’ It does not require or provide that compensation shall he actually paid in advance of the occupancy of the land to be taken. But the owmer is entitled to reasonable, certain and adequate provision for obtaining compensation before its occupancy is disturbed ;” and in that case a deposit had been made in court to pay a compensation to the owner and it was held to be an adequate provision for the owner.

In 9 Colo., 190 ; 11 Pacific Rep., 85, it was held that a statute authorizing the court to permit a petitioner in condemnation proceedings to have temporary possession is not unconstitutional.

In Bloodgood v. Mohawk & Hudson River Railroad Company, 18 Wend., 9, it was held: “It is enough that such provision is made : it is not necessary that the damages or compensation should be actually ascertained and paid previous to the appropriation of the property.”

In Smith v. Helmer, 7 Barb., 426, Allen, J., in speaking for the general term of the fifth district, said : “ It is sufficient for this case that by the settled construction of the constitution which prohibits private property to be taken for public use without just compensation, actual compensation need not precede the appropriation, and that the law authorizing the reconstruction and alteration of the road in question provides for compensation, but does not make it a condition precedent to the entry upon and appropriation of premises for the purposes of the road.” According to the order brought before us authorizing a deposit in court of the sum of $5,000, a deposit was made “ subject in all respects to the order of the court to be held as security for the payment of the compensation which may be finally awarded to the defendants as owners or parties interested in said lands and the costs of this proceeding.” It appeared to us upon the argument that condemnation proceedings are now pending, and that the road of the petitioner is substantially completed across the premises in question, and that commissioners have been appointed to assess the damages sustained by the defendants. And from the views already expressed, it may be assumed that the rights and interests of the defendants are sufficiently guarded and protected by the order appealed from. We think it should remain.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., Martin and Merwin, JJ., concur.


author: Barrett, J.

text:
    George W. McLean, Rec’r of Taxes, Resp’t, v. The Wyandance Brick & Terra Cotta Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)
    Cokpohations—Taxes.
    Where the allegation of the petition to compel payment of a tax by a cor-i poration that it had its principal office or place for transacting business in the city of New York is not denied, but is supported by the return made by the company, it will be presumed to be correct and the proceeding maintainable, although its cerlificate of incorporation, which is not produced, was filed in another county.
    Appeal from an order directing the appellant, its president, officers, trustees and directors forthwith to pay to the clerk of the city and county of New York, for the benefit of George W. McLean, as receiver of taxes, the sum of $1,038.96, the fine imposed on said appellant for its misconduct in neglecting and refusing to pay the personal tax imposed on it for the year 1890.

      D. G. Harrman, for app’lt; John G. H. Meyers, for resp’t.
   Barrett, J.

The appellant claims that it is not taxable in this county, for the reason that its certificate of incorporation was not filed here, but was filed in the clerk’s office of the county of Suffolk, and that such certificate states that “ the name of the town and county in which the operations of the said company are to be carried on is town of Babylon, county of Suffolk.” Upon this state of facts, the appellant contends that its case comes within the authorities holding that the location, for the purpose of taxation, of a manufacturing corporation organized under the general act of 1848 (chapter 40), is the place designated in its certificate as that where the operations of the company are to be carried on. Starch Co. v. Dolloway, 21 N. Y., 449 ; Union Steamboat Co. v. City of Buffalo, 82 N Y., 351; Chesebrough Manufacturing Co. v. Coleman, 44 Hun, 545 ; 9 St. Rep., 360. This contention is not well founded, .for two reasons: First, the appellant fails to show that it was incorporated under the act of 1848; and, second, no copy of the certificate having been presented in opposition to the motion, we cannot assume that such certificate is silent 'as to the company’s principal office or place for transacting its financial concerns. It may well be that the certificate fixes the company's principal office or place for transacting its financial concerns, as well as the county in which its operations are to be carried on. The respondent’s petition states that, “ in the year 1890, the Wyandance Brick & Terra Cotta Company was a moneyed or stock corporation, having its principal office or place for transacting its financial concerns in the city of New York.”

This statement is not denied, and it is supported by the return made by the company for the year in question, which was filed in the office of the commissioner of taxes and assessments. The case is thus taken out of the rule laid down in Starch Co. v. Dolloway, supra, and is brought within the Revised Statutes and the case of McLean v. Couper Milling Co., 88 St. Rep,, 893, affirmed 133 N. Y, 603 ; 44 St. Rep., 931. The provision of the Revised Statutes is as follows: “All the personal estate of every incorporated company liable to taxation ón its capital shall be assessed in i the town or ward where the principal office or place for transacting the financial concerns of the company shall be; or, if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.” 2 Rev. St. (Banks’ 8th ed.) 1094, § 6. The facts of this case are almost precisely similar to those in McLean v. Milling Co., supra. The petition of the receiver of taxes there, as here, stated that the company was a moneyed or stock corporation having its principal office oj- place for transacting its financial concerns in the city of New York. The latter statement was denied by the president of the company, Taut the court held that his statements were discredited and overcome by a return made to the commissioners similar to that which was made in this case. Here the affidavit of the treasurer, filed in opposition to the motion, fails to meet the material averments of the petition either by positive denial or by the statement of affirmative facts. It is not necessary, therefore, to discredit his affidavit in order to sustain the proceeding. The proof is clear as to the company’s principal office or place for transacting its financial concerns, and we are not informed whether this principal office was or was not fixed in its certificate. The language of Finch, J., in Union Steamboat Co. v. City of Buffalo, supra, is therefore applicable: “ If the company had a principal office, fixed by its certificate, that, and that only, was its residence for purposes of taxation. If it had no principal office, so located by its certificate, "then it was to be taxed where its financial concerns were transacted.” The point with regard to the defects in the petition need not be specially considered. It is the same form of petition as was sustamed, in McLean v. Milling Co., supra, and it is sufficient. The order appealed from should, therefore, be affirmed, with ten dollars cos's and disbursements.

O’Brien. J., concurs._


author: Lawrence, J.

text:
    Augustus Cruikshank, Trustee, Pl’ff, v. Lorenzo Goodwin et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Attorneys—Authority to appear.
    The authority of an attorney to appear for his client ceases after the entry of the final judgment in the action, except that he may issue execution and take necessary steps to collect, and may execute a satisfaction within two years unless his authority is revoked.
    Appeal from an order denying a motion for attorneys to show their authority for appearing in the action as attorneys for certain defendants herein.

      A. Edward Woodruff, for app’lt; Young & Ver Planch (Henry A. Prince, of counsel), for resp’ts.
   Lawrence, J.

The authority of an attorney to appear for his client ceases after the entry of the final judgment in the action, with the exception that he may issue execution and take the necessary steps to collect the judgment, and, under the provisions of the old Revised Statutes and the Code of Civil Procedure, may, in the absence of a revocation of his authority, execute a satisfaction of the judgment within two years after its entry. Lusk v. Hastings, 1 Hill, 659 ; Walradt v. Maynard, 3 Barb., 584 ; Egan v. Rooney, 38 How. Pr., 121. We are of the opinion that the order below was right, and it is, therefore, affirmed, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


author: O’Brien, J.

text:
    Michael Bowen, Resp’t, v. Michael Sweeney, impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Costs—Amendment op pleadings.
    Where, after reversal of a judgment with costs to defendant to abide the event, the plaintiff is permitted to amend the complaint on payment of a full bill costs and disbursements to date, this includes the costs of the appeal.
    2. Same—Term pees.
    Where the defendant places the cause on the calendar before it is in a condition to be tried, this gives him no right to a term fee, as the case is not properly on the calendar.
    Appeal from order denying motion for a retaxation of costs.

      William H. Arnoux and Francis C. Devlin, for app’lts; Flamen B. Candler, for respondent.
   O’Brien, J.

The action in which the motion is made was brought in partition, and, after one amendment of plaintiff’s complaint, was brought on for trial, and resulted in a judgment in plaintiff’s favor, from which an appeal was taken to this general term, where it was reversed, and a new trial ordered, with costs to defendants to abide the event 44 St Rep., 182. The right to amend the complaint upon the trial having been questioned in the opinion of the general term, the plaintiff moved at special term to again amend, which motion resulted in the making of the following order by Mr. Justice Andrews: “ Ordered, that said motion be, and the same is hereby, granted, and that' plaintiff have leave to serve such second amended complaint on condition that within ten days after the adjustment by the clerk of the costs hereinafter mentioned, etc., the plaintiff pay to Francis G. Devlin, attorney, etc., and to William H. Arnoux, attorney, etc., each a full bill of costs and disbursements to date, to be taxed by the clerk of this court.” The clerk, upon the taxation, disallowed all the general term costs, and thereafter defendants moved for a relaxation, which was denied, and from such denial this appeal is taken.

It was no part oí the clerk’s duty, any more than it was of the learned judge who heard the motion for retaxation, nor is it our duty, to determine the terms which should have been imposed; the question being, what is the true construction of the judge’s order allowing the amendment, which has never been modified or appealed from ? We think it reasonably free from doubt. It meant to award to the defendants exactly what it states, “ a full bill of costs and disbursements to date.” The judge bad undoubted power, as a condition of granting the favor, to include the costs which by the general term were made to abide the event, because he had a right to consider whether the effect of the amendment was to make a new cause of action, and thus to conclude that the failure to serve a proper complaint had caused the appellants the waste of time, labor and expense incident to the preparation of a trial, the judgment thereon, and the subsequent appeal. Costs are so imposed as a condition for the amendment, and cannot be regarded as being a payment of the costs of the action; and the effect of compelling, as a condition, an amount of costs to be paid equal to those which by order of the general term were made to abide the event, in no way affects or overrides the disposition made by the general term of the appeal. In other words, the learned judge allowing the amendment did not attempt to change the direction made by the general term with respect to what should be done with costs which were ordered to abide the event. And should the appellant finally succeed in the action he will be entitled to tax the costs over again, pursuant to the order of the general term. This latter order, moreover, affected the costs at special as well as those at general term ; and to be consistent, if it was thought that the order of the general term requiring the costs to abide the event in any way restricted the right to allow costs as a condition of the amendment, then the special term costs should have been excluded as well as the general term costs. The question, as stated, however, is simply, what terms did the judge allowing the amendment to the complaint impose as a condition ? His order, as shown, says, “ a full bill of costs and disbursements to date.” In Havemeyer v. Havemeyer, 44 N. Y. Super. Ct., 170, it was held that the phrase, “on payment of costs of the action to the present time,” as the consideration of an amendment, meant such costs as would go to the party against whom the amendment was allowed in case there had been a determination favorable to him at the date of the order granting leave to amend. We think, therefore, it was an erroneous construction of the judge’s order to hold that thereunder the general term costs were to be excluded. In addition to these, the clerk disallowed $30 term fees; this item being disputed on its merits. It would appear that at the first term, after all the defendants were served, and the case was ready to be tried, it was reached and disposed of. We do not think the fact that one or all of the defendants placed the cause on the calendar and noticed the same for trial before the same was in condition to be tried, gave them any right to term fees, because the cause was not properly on the calendar until all the parties were served and had answered ; and it would appear that, as soon as the cause was thus ready, it was reached and tried; and the clerk’s ruling, excluding the item of $30 term fees, we think was correct. We think, however, that so much of the order as sustains the clerk in disallowing the general term costs should be reversed, with costs and disbursements. In view of the fact that the terms imposed by these orders seem to be very stringent and onerous, this disposition of this appeal is without prejudice to any application which respondent may make to Mr. Justice Andrews to modify the terms of the original order.

Van Brunt, P.J., concurs.


text:
    Michael Bowen, Resp’t, v. Michael Sweeney, impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Appeal from order directing a retaxation of costs and disallowance of general term disbursements.

      Francis C. Devlin ( William H. Arnoux, of counsel), for app’lts; Flamen B. Candler, for resp’t
   O’Brien, J.

The facts necessary to present the question urged on this appeal have been referred to in the opinion in Bowen v. Sweeney, herewith handed down. This appeal is from so much of the order of May 2, 1892, as reads as follows: “ Save and except as to the general term disbursements, which should, on retaxation, be disallowed by the clerk.” It is insisted with respect to those disbursements, as it was insisted in regard to the costs, that when the general term ordered a new trial, with costs to appellant to abide the event of the action, it ordered that the appellant should only become entitled to those costs, and to the disbursements which formed a part of them, when and if the defendant should finally succeed in the action. The error in this reasoning we have endeavored to point out in the former appeal, and it will be seen that we would agree with the respondent if it could be held that the order of the general term in any way controlled the right of the judge granting the amendment to impose such terms as he thought proper and just. It remains for us only to construe his order, which stands unappealed from and unmodified. The plaintiff was asking a favor of the court, which was granted on certain conditions, namely, that the costs and disbursements should be taxed by the clerk. As to what costs and disbursements were intended we have already pointed out. We think, therefore, that the appellant is right in the construction given to the order of the learned judge, and that the order appealed from must be reversed, with costs, and the clerk directed to restore to such bill of costs all the items of disbursements disallowed, and toretax the same accordingly. In view of the fact that the terms imposed by these orders seem to be very stringent and onerous, this disposition of this appeal is without prejudice to’any application which respondent may make to Mr. Justice Andrews to modify the terms of the original order.

Van Brunt, P. J., concurs.


text:
    The People ex rel. James Bohen v. Henry D. Purroy et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Municipal corporations—Firemen—Removal.
    The court will not interfere with the action of the board of fire commissioners of New York in dismissing a fireman after trial on written charges, where no question of want of jurisdiction or of irregular procedure is raised by the record and the evidence was conflicting.
    Certiorari to review action of the Board of Fire Commissioners of the City of New York dismissing relator from the service of the fire department.

      Louis J. Grant, for relator; William L. Findley, for resp’ts.
   Lawrence, J.

We are of the opinion that the record in this case presents no question which calls for a reversal of the judgment of the fire commissioners by this court. Written charges of misconduct and neglect of duty were preferred against the relator! He was heard in his defense, and after such hearing, upon conflicting testimony, the commissioners adjudged him guilty, and dismissed him from the service of the department. No question of want of jurisdiction or of irregular procedure is raised by the record, and with the decision of the commissioners on conflicting evidence this court cannot interfere. People v. Board of Fire-Com'rs, 100 N. Y., 85 ; People v. Same, 82 id., 358; People ex rel. Masterson v. French, 110 id., 497; 18 St. Rep., 231. The writ must be dismissed, and the judgment of the fire commissioners-affirmed, with costs and disbursements.

Van Brunt, P. J., and O'Brien, J., concur.


author: Van Brunt, P. J.

text:
    The West Side Bank, Resp’t, v. Frank C. Meehan, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892)

    1. Attachment—Proof of fraud.
    In order to establish fraud for the purpose of the issuing of an attachment,'the evidence must necessarily tend to establish a probability of guilt and be inconsistent with innocence.

      2. Same—Appeal—Objections.
    An objection to the reading of additional affidavits on motion to set
    aside an attachment cannot be raised for the first time on appeal.
    Appeal from an order denying a motion to vacate or set aside an attachment.

      W. M. Safford, for app’lt; Henry Daily, Jr., for resp’t
   Van Brunt, P. J.

It seems to be assumed by the counsel for the respondent, and he seems to be fortified in his assump. tian by a few precedents, that, in order to establish fraud foi the purpose of the issuance of an attachment, a different rule prevails as to the weight of evidence from that which prevails in the case of an action based upon fraud. It is familiar law that, in order that an action may be maintained for fraud, the plaintiff must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt; but, if the evidence is capable of an interpretation equally consistent with innocence as with guilt, the former meaning must be given to it. Therefore, the evidence must be of greater weight than simply to justify a conclusion of guilt. It must necessarily tend to establish a probability of guilt, and be inconsistent with innocence. This rule also prevails in respect to. provisional remedies, and is just as stringent as in an action. This is expressly-held in the case of Morris v. Talcott, 96 N. Y., 100, and, if it had not been so held, it must be apparent that there is no reason that, in the pursuit of a provisional remedy, a defendant should be branded with fraud upon lighter evidence than would be sufficient to maintain an action upon that ground. Attachments and orders of arrest cannot be maintained upon mere presumption. In the case at bar the original affidavits were clearly insufficient to justify the issuance of the attachment. The allegations of fraud were made upon information received from a third party, and no reason whatever is given for the failure to produce his affidavit. The affidavits subsequently read, however, showed the sudden withdrawal from defendant’s bank, and the existence of deposits in savings banks, fortifying the information received by proof of actual facts necessarily-tending to show a withdrawal of property not for the purposes of business. It is true that it is now objected that the respondent should not have been permitted to read these additional affidavits. But the difficulty .is that this objection now comes too late. It does not appear to have been raised in the court below. If it had been, we think it would have been error to have allowed these affidavits to be read. It is true it is claimed in appellant’s points that these affidavits were read over defendant’s objection, but we cannot find any objection in the record, and consequently cannot consider the same. The order appealed from should be affirmed, with ten dollars ■ costs and disbursements.

O’Brien and Barrett, JJ., concur.


author: McAdam, J.

text:
    Alexander P. W. Kinnan, Executor, Resp’t, v. The Forty-second Street, Manhattanville & St. Nicholas Avenue Railroad Company, App’lt.

      (New York Superior Court, General Term,

      Filed January 3, 1893.)

    Corporations—Stock—Lost certificates—Jurisdiction.
    Chapter 151, Laws of 1873, providing a remedy at law to compel a corporation to issue certificates of stock in place of those lost, does not deprive the court of its original equitable jurisdiction of such cases.
    Appeal from a judgment directed at equity term in favor of the plaintiff.

      William C. Truitt, for app’lt; Hahn & Myers, for resp’t
   McAdam, J.

The action was to compel the defendant to make and issue to the plaintiff two certificates, for fifty shares each, of the capital stock of said defendant, in place of certificates alleged to have been lost The complaint alleged, and the plaintiff proved, that in the year 1883 the defendant issued to one Daniel D. Con-over two certain instruments known as scrip certificates for fifty shares each of the capital stock of the defendant, under and by virtue of which the holder thereof became entitled to receive one hundred shares of the capital stock of the said defendant. (2) That Conover on May 28. 1883, sold and transferred said scrip certificates to Joseph W. Burnham. (3) That Burnham departí, d this life leaving a last will and testament, in and by which he appointed the plaintiff his executor, and that the latter duly qualified as such. (4) That said certificates have been lost.

Upon these facts the court below made its decree that upon executing and delivering to the defendant a proper bond of indemnity (which was thereafter duly executed and approved), the said defendant issue and deliver to the plaintiff a certificate m due form (according to the prayer of the complaint), stating that Joseph W. Burnham was the owner of and entitled to one hundred shares of the capital stock of said defendant. The defendant in its first point challenges the jurisdiction of the court upon the ground that the plaintiff had an adequate remedy at law, hence was not entitled to invoke the aid of equity. The claim is based upon the act of 1873 (chap. 151), which provides that “ whenever any company incorporated under the laws of this state shall have refused to issue a new certificate of stock in place of one theretofore issued by it, but which is alleged to have been lost or destroyed, the owner of such lost or destroyed certificate, or his legal representatives, may apply to the supreme court, at any special term thereof appointed to be held in the judicial district where such owner resides, for an order requiring such corporation to show cause why it should not be required to issue a new certificate of stock in place of the one so lost or destroyed.” The procedure is simple and summary in its nature and fully regulated by the statute in question, which provides, among other things, for a deposit or bond of indemnity by the applicant, and directs that “ any person or persons who shall thereafter claim any rights under said certificate so alleged to have been lost or destoyed, shall have recoursed to said indemnity, and the said corporation shall be discharge of and from all liability to such person or persons by reason of compliance with the order ” made in said proceeding. The objection now urged was taken by the defendant in its answer, was insisted upon at the trial, and must be met and decided. The statute does not assume to abridge the equity powers of the courts, but it is contended that because it furnishes an ádequate remedy at law, the jurisdiction of all courts to furnish equitable relief fails as a necessary consequence, and this without infringing any of the constitutional principles decided in Popfinger v. Yutle, 102 N. Y., 38; 1 St. Rep., 384, and kindred cases.

Pomeroy, in Ids work on Equity Jurisprudence, vol. 1, § 279, lays down the rule applicable to the condition as follows: “ Where-the new power is conferred upon the law courts by statutory legislation, the rule is well settled that unless the statute contains, negative words or other language expressly taking away the preexisting equitable jurisdiction, or unless the whole scope of the-statute, by its reasonable construction and its operation, shows a clear legislative intent to abolish that jurisdiction, the former jurisdiction of equity to grant its relief under the circumstances, continues unabridged. It follows, therefore, that where the statute-merely by affirmative words empowers a court of law to interfere in the case, and to grant a remedy, even though such remedy may be adequate, and even though it may be special and equitable in its nature, the previous jurisdiction of equity generally remains.” Among the illustrations given in the succeeding section, to sustain the text, are actions on lost instruments, bonds, notes, bills and the like, in which jurisdiction is retained, notwithstanding the enlarged powers of the law courts to entertain actions on such instruments. To substantially the same effect, see 1 Beach Eq. Jur., §§ 2 and 26; Story’s Eq., § 64, i; Force v. City, 27 N. J. Eq., 408; Atkinson v. Leonard, 3 Bro. Ch., 218.

In Frey v. Demurest, 16 N. J. Eq., 236, the chancellor said r “ The court of chancery is not deprived of its original jurisdiction in any case, either by the operation of a statute conferring similar jurisdiction upon the common law courts, or by the adoption of the principles or practice of courts of equity.” Citing Atkinson v. Leonard, 3 Bro. Ch., 218; King v. Baldwin, 17 Johns., 384; Sailly v. Elmore, 2 Paige Ch., 497 ; Varet v. N. Y. Ins. Co., 7 id., 560; White v. Meday, 2 Edw. Ch., 486.

In the recent case of Schroeder v. Loeber, 24 Atlantic Rep., 226, the court said: “It is well settled that the jurisdiction of equity is not divested by a statute which gives a court of law power over the same subject. This is the established doctrine.” Sedgwick, in his work on Constitutional Law, 93, says: “ Where a" right originally exists at common law, and a statute is passed giving a new remedy without negative words, the party has an election either to sue at common law or to proceed under the statute.”

. If the original jurisdiction had been statutory, the new statute-might, perhaps, have been held to have been intended as a substitute for the former, as the repeal of a statutory rule is more easily implied than the repeal of a common law rule. Johnstons Est, 33 Penn. St., 511. A mere grant of jurisdiction to a particular court, without words of exclusion as to other courts possessing the like powers, will only have the effect of constituting the/former a court of concurrent jurisdiction with the latter, Delafield v. State, 2 Hill, 159, cited and approved in Teall v. Felton, 1 N. Y, at p. 545; 1 Kent’s Com., m. p. 397, 398, for the reason that concurrent jurisdiction is not inconsistent. Cooke v. State Bk., 52 N. Y., 106. The practice in regard to street assessment matters throws no light on the matter, for in those cases the courts do not exercise their ordinary jurisdiction, but act in execution of the power specially conferred upon them by thé statutes under which the improvements are made. In re Morse v. Williamson, 35 Barb., 472. The act of 1873, supra, which gives a summary remedy to the holder of lost stock certificates contains no negative words; does not make the jurisdiction exclusive; takes away nothing; is permissive, not mandatory, concurrent and not exclusive, and gives merely a choice or election of remedies. In Shepard v. Manhattan R. Co., 131 N. Y., 223; 43 St. Rep., 117, it was clearly enunciated that none, of the equitable powers of the courts under the constitution are to be taken away by implication. , As the legislature has not declared the act exclusive, either in words or by necessary intendment, it must be assumed that the jurisdiction, so long vested in this court, remains unimpaired by the new summary remedy.

Courts possessing jurisdiction in certain matters sometimes decline to exercise it on grounds of public policy, or where the interests of justice dictate that the party ought to be relegated to some other forum or remedy. Of these cases, a few only need be ^ mentioned. Congress, for example, may confer jurisdiction upon the state courts, but cannot compel these tribunals to entertain the jurisdiction conferred, 1 Kent’s Com., 403, and the court of appeals, in Burdick v. Freeman, 120 N. Y., 426; 31 St. Rep., 427, held that “ the courts of this state may, in their discretion, entertain jurisdiction of an action (for a personal injury) between citizens of another state actually domiciled therein, where the action was begun and tried, though the injury was committed in the state of their residence and domicil.” íf the court, in such a case, declined jurisdiction, the decision would not prove want of authority to act, but merely an indisposition to exercise power iri the given instance.

Such is the effect of the decision in Andrews v. Monilaws, 8 Hun, 67, relied on by the defendant. There the court declined to exercise its equitable powers because a more suitable remedy had been recently furnished at law. That case is, therefore, no authority against the jurisdiction asserted here. The distinction between declining to exercise a valid and vested jurisdiction and the acts of a court assuming to adjudicate without any jurisdiction is too marked to require elaboration. The objection to the, jurisdiction was, therefore, properly overruled, and the exception to the ruling wholly without merit.

The evidence sufficiently sustains the findings of the court below upon the facts, and an extended review of the evidence becomes unnecessary. The certificates were unquestionably lost, and identified as satisfactorily as the nature of the case required. If the defendant cannot satisfy itself in reference to such identification, there must be something deficient in its system of bookkeeping, a misfortune not chargeable to the plaintiff. The„ defendant objected at the trial that no judgment could be awarded in favor of the plaintiff, unless Mrs. Burnham, the widow of the testator, was first brought in as a party defendant, under § 452 of the Code, which provides that “ where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in.”

It appeared that Mrs. Burnham at one time made some sort of claim on the defendant for new certificates in place of those which were lost, and tendered a bond of indemnity in which it was recited that the lost certificates belonged to her. The defendant, with knowledge of this claim, did not plead the non-joinder of Mrs. Burnham, nor make any application prior to the trial to have her brought in as a party. But all difficulty on this subject was removed when Mrs. Burnham was called and examined on the part of the plaintiff and denied that she ever claimed the certificates. She evidently intended to disclaim any ownership, and testified that the original certificates were given to her by her husband merely “to take care of,” showing that whatever claim she made must have been in the interest of her husband’s estate rather than in her own right, for she had nothing more than the naked possession without title. Her testimony on the witness stand in favor of the claim made by the executor estops her from making any claim on her own behalf now. Barney v. Dewey, 13 Johns., 224.

The theory urged by the defendant, that it may be guilty of an over issue of stock if it complies with the decree, is answered by the fact that the new issue merely takes the place of the scrip certificates previously issued, (not over issued), and about which there is no substantial dispute. The number of shares is the same, and if any over issue results, it must be attributable to something not before the court, having no relation to the plaintiff’s stock, and not germane to the issues decided. The court below had power to award costs and an allowance, and as no fault is found with the amount, we are not disposed to disturb the discretion exercised, which does not appear to have been abused. For these reasons, the judgment appealed from must be affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.


text:
    The People ex rel. Michael G. Minchen, v. Charles F. MacLean et al., Com’rs.

      (New York Superior Court, General Term,

      Filed January 3, 1893.)

    Municipal corporations—Police—Removal—Bar.
    Relator, a police officer, was charged with “ neglect of duty” on a cer-

      tain day, and fined “ three days pay;” he was also charged with being “ under the influence of liquor and unfit for duty," on the same day, and on this latter charge he was dismissed from the force by the police board.

      Held, that the charges were entirely independent, one of the other, and that the fine imposed on the first charge constituted no bar to the second.
    Certiorari to review action of the board of police respecting the relator.

      L. J. Grant and A. S. Warner, for relator; Wm. H. Clark and Wm. A. Sweetser, for police board.
   McAdam, J.

The writ was issued to obtain a review of the action of the police board in dismissing the relator from his position as patrolman on the charge of being so much under the influence of liquor as to be unfit for duty on August 29, 1890.

The appeal book shows that the relator had performed duty until six o’clock on the morning of August 29th, and was entitled to be relieved from duty for the balance of the day. That after leaving the station house, the relator, in company with Officer Cullen, went to Brown’s baths at Sixty-fourth street and East river, and remained there over three hours. From thence they went to Second avenue and Sixty-ninth street. At Second avenue the relator and Cullen observed a crowd at the liquor store, on the northeast corner of Sixty-ninth street; a young man came up to them and said, “ There is an officer in the liquor store on the corner who is raising the deuce, and the bartender wants to get him out.” The relator and Cullen went in the saloon and found Officer O’Brien there; he had an organ belonging to an Italian, was grinding it, and, as one of the witnesses said, “ looked as if he was crazy.” The Italian was endeavoring to get his organ from O’Brien, but the latter would not give it up. The bartender and Cullen finally succeeded in returning the organ to the b Italian, gave him some money to pacify him, and he left the place. The evidence not only establishes these facts, but proves that from half-past eight to ten A. M., O'Brien practically dominated the saloon, as if he owned it; that he dragged the organ-grinder in from the street and took his organ from him. The bartender gave his testimony :

Q. The object of your sending this young man out for these officers was to get O’Brien out on account of his disorderly conduct? A. Yes.

Q. What did you say to this man ? A. I said: “For God’s sake get this man out of the place.”

Q. What had O'Brien done? A. He wanted everything for nothing. 1

Q. What do you mean, cigars ? A. Cigars and drinks ; everything ; a bottle of wine.

Q. Had he been drinking? A. He was loaded.

All three officers were in uniform, and not absolutely free from duty. Finally the sergeant came in, and, in the language of the witness, “ grabbed O’Brien by the neck and pulled him out.”

It is needless to say that such conduct on the part of officers sworn to protect the peace and property of our citizens was not only unbecoming, but disgraceful. O’Brien (who has since resigned from the force), should have been arrested at once by the relator and taken to his captain, and finally before a magistrate, that he might have received the punishment he deserved for his riotous conduct The relator had no right to stand at the bar of the liquor store trying to reason with his drunken brother officer; he had a more serious duty to perform and failed to do it, and was properly charged by the sergeant with “Neglect of duty.” It is made the duty of the police force “ at all times of the day and night * * * to preserve the public peace * * * and protect the rights of persons and property * * * to inspect all places having excise licenses and to repress and restrain all * * * disorderly conduct therein.” Consol, act, 1882, § 282. It is a sacred trust, to be performed with care and fidelity. Peace officers are those upon whom the public rely for the protection of their lives and property, and for which they pay liberally. The uniform and insignia of office of such officials carry with them the authority of the law, and at once command obedience and respect. They are chosen exemplars of the people, and when they depart from the straight path of duty and assume the role of law breakers, common decency requires that they first divest themselves of their uniform, the symbol of representative character, that their official position may not be held up to the scorn and ridicule of the multitude to the detriment of the many others who are deserving officers. The position is a responsible one, and as honorable as the official seeks to make it. It is nearer the people than other officials and concerns them more, and if the incumbent sinks so low as to forget self-respect, he should never permit his misconduct to bring discredit upon a department which, as a whole, is renowned for its valor and accredited for its honor.

The idea that a citizen is compelled to ask protection against the lawless acts of a sworn protector of the public peace, loaded with rum,” is almost too revolting to be credited. This officer, clothed in the dignity of his office, representing in theory “ law and order,” should have been an exemplar of all that was orderly and becoming. In point of fact, the very acts he was sworn to suppress at all hazards were the very things he was committing in the most unseemly manner, and in a tone calculated to excite attention and adverse criticism. He should have been arrested then and there and consigned to prison for his offenses. The relator neglected his duty when he failed to arrest him, and at the same time lost an opportunity of assisting in vindicating the integrity of the department of which he was a member, as the offense committed in the presence of the relator was more serious than an ordinary breach of the peace, because committed by an officer. For this infraction of discipline the relator was fined three days’ pay.” No fault is found with this sentence, and the matter would never have been called to the attention of the court, if the thing had concluded there. But the sergeant after “ pulling ” O’Brien out of the liquor store, took the relator and his companion, Cullen, before the captain, who discovered that the relator was at that time (10:45 A. M.) “ under the influence of liquor and unfit for duty.” Though nominally off duty that day, the relator was liable to be called, upon by his superior officers whenever the exigencies of the department required his services. He was in uniform, and subject to police discipline, which cannot be maintained if its officers are to be allowed upon the public streets and in public places in a state of inebriety. The captain made a formal charge against the relator upon the ground stated. It was satisfactorily proved before the police board, and the relator was upon this charge dismissed from the force. It is now urged that'because the relator was fined “ three days’ pay ” on the charge of “ neglect of duty ” made by the sergeant, that he could not be dismissed from the force upon the charge made by the captain that he “was under the influence of liquor and unfit for duty,” as both offenses occurred on the same day. The proposition is based on § 272 of the consolidation act, which provides that “ the board of police shall have power in its discretion on conviction of a member of the force * * * to punish the offending party by reprimand, forfeiting and withholding pay for a specified time, suspension without pay during such suspension or dismissal from the force.” The point is, that though the board can inflict any one of the several modes of punishment, it cannot inflict more ; and that having first punished the relator by withholding his pay, the board could not later punish him by dismissal.

The point would have been well taken, if the acts complained of had constituted a single offense, for the second judgment would have been void because in excess of the power conferred. Ex parle Lange, 18 Wall, 163.

But the two charges made against the relator (though tried at one and the same time, at his request), were entirely independent, one of the other. They were the subject of separate trials and punishments, and the fine'imposed on the charge for “neglect of duty,” first made and decided, October 3, 1890, constituted no bar to the second charge, “ for being under the influence of liquor and unfit for duty," which was decided November 14, 1890. A fair test of this is, that the first charge was complete in itself without reference to the second, and the latter was likewise complete without reference to the first. But even if the question were a close one, we would be inclined to place that construction upon it which properly sustains the enforcement of that discipline so essential to the efficiency of our military and police forces. The commissioners had the witnesses before them, an opportunity of observing their manner of testifying, passing upon their credibility, and determining from appearances and inherent probabilities the true value of the evidence offered before them. The means afforded by a viva voce examination of judging of the credit due to witnesses, especially where their statements conflict, are of incalculable advantage in the investigation of truth ; they not unfrequently supply the only test by which the real character of the witnesses can be appreciated. Starkie on Ev., 9th ed., 728. The finding made by the board is satisfactorily sustained by the proofs, and, like the verdict of a jury made on conflicting-evidence, ought to be accepted as equally conclusive as to the facts.

Indeed, the rule is that the commissioners are the statutory judges, and when they find upon the fact, the judgment is generally accepted as conclusive. 7 N. Y, 253; 25 id., 40 ; 82 id., 358 ; 100 id., 82; 110 id., 494; 18 St Rep., 231; 119 N. Y., 502; 30 St. Rep., 72. The proceedings of the commissioners while acting judicially are to be reviewed with liberality, with a view of sustaining rather than reversing their judgments. This is necessary for the reason that the commissioners are to a large extent responsible for the efficiency of the force under their control, and their methods of discipline should be interfered with only in extreme cases, where the charges have been unsupported by evidence, or the action of the board clearly arbitrary, and not in accordance with legal requirements.

The board weighed the evidence presented, and made its findings on-the facts, and upon these the extent of punishment rested in its discretion under the law we have cited. The board decided that the dismissal of the relator from the force was proper disciplinary punishment, a conclusion difficult to resist, particularly in view of the previous record of the officer, printed at folio 116 of the case.

For these reasons, the judgment of the police board must be affirmed, with costs.

Freedman and Gildersleeve, JJ., concur. v


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    Frank Goff, by Guardian, Resp’t, v. Frederick Aken, App’lt.

      (New York Superior Court, Central Term,

      Filed January 3, 1893.)

    Negligence —Infants—Charge.
    In an action to recover damages resulting from injuries to plaintiff, a boy of thirteen, caused by his being struck by a wagon belonging to defendant, which was being backed upon the sidewalk in front of defendant’s store, plaintiff’s counsel requested the court to charge, “that the same degree of care is not exacted from an infant as from an adult,’’ to which the court responded: “Tes, that is true,” subsequently charging “ that the plaintiff was sui juris.” Held, that no error was committed.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

      Jas. P. Niemann, for app’lt; Charles Steckler, for resp’t.
   McAdam, J.

The action was to recover damages resulting from the negligent acts of the defendant’s servant.

It appears that on August 12, 1890, the plaintiff, then thirteen years of age, while walking through Jay street in this city, was struck by a wagon belonging to the defendant, by reason of which the plaintiff’s leg was crushed between the wagon and the skids upon a permanent platform extending over part of the sidewalk in front of the defendant’s coffee mills, at Ho. 16 Jay street aforesaid. The plaintiff was on the sidewalk walking towards Hudson from Greenwich street, looking ahead of him. The-defendant’s wagon was on. the street near the gutter, and the driver had his back toward the building, backing the wagon from the street to the platform in front of the defendant’s place of business. The driver turned the horses around very suddenly in backing the wagon, and the plaintiff was hemmed in so that he could not pass. The plaintiff had not as yet been struck by the wagon. The plaintiff was immediately picked up by Mr. Froehlich, the next door neighbor of the defendant, and lifted upon the platform to save him from the peril then imminent, and while on the platform after being picked up by Mr. Froehlich, the wagon still kept backing with great force, and while on the platform with his foot resting against the skid he was struck by the wagon, and received the injury complained of.

The plaintiff was lawfully upon the sidewalk at the time of the accident, and seeing the thoroughfare clear had the right to continue his journey without anticipating that a driver without wrarning would attempt to back a team across the sidewalk and imperil his life. The jury having found in favor of the plaintiff upon evidence which satisfactorily sustains their verdict, we must assume for the purpose of this appeal that the facts are as stated by the plaintiff and his witnesses, and not as claimed by the defendant and his witnesses, whose version o£ the affair was rejected. According to the plaintiff’s evidence it was not the case of a foot traveler attempting to cross a public thoroughfare ahead of vehicles upon nice calculations of the chances of injury, and the authorities relating to such controversies have, therefore, no application whatever. Nor was it a case where the plaintiff saw the impending danger in time to avoid it so that it would have been error for the trial judge to have decided as matter of law that the plaintiff brought the mischief upon himself, by his own neglect. True, there were different versions of the affair, and inferences were to be drawn from each, leading to different results, but all the various theories, with the circumstances following each, were sent to the jury, who have found, upon evidence warranting the verdict, that the defendant’s driver was guilty of negligence, and the plaintiff free from fault.

No rule is better settled than that where there is a conflict of evidence or where from the facts and circumstances shown inferences are to be drawn which are not certain and incontrovertible, the question involved becomes essentially one of fact for the jury. Weil v. D. D. R. R. Co., 119 N. Y., 152; 28 St. Rep., 944. So where the facts are capable of more than one construction, or inferences are to be drawn respecting which minds might differ, the question is one for the jury. Belton v. Baxter, 58 N.Y., 411, and kindred cases.

The defendant had the undoubted right to back his truck upon the sidewalk in front of his place of business for the purpose of loading or unloading merchandise. People v. Cunningham, 1 Den., 524; People v. Horton, 64 N. Y., 610; Welsh v. Wilson, 101 id., 254; 1 St. Rep., 19. But the right must be exercised with care commensurate with the danger. Like the duty imposed upon drivers of vehicles upon the highway to notice foot passengers at street crossings, and take reasonable care not to injure them, Murphy v. Orr, 96 N. Y., 14; Moebus v. Herrmann, 108 id., 849; 13 St. Rep., 648; so with ,drivers who back their trucks upon the sidewalk, they must in like manner notice foot passengers on the sidewalks and exercise like care not to injure them. The owner of the truck had no right to the use of the sidewalk by his truck superior to that possessed by the plaintiff as a pedestrian or traveler.

With these observations upon the facts and law applicable, we must next consider the exception to the judge’s charge upon which the appellant chiefly relies, which was in answer to the fol lowing request made by the plaintiff’s counsel: “ I ask your honor to charge the jury that the same degree of care is not exacted from an infant as from an adult, ’ to which the court responded, 11 Yes, that is true.” We find no error in this. The rule is that if a child is non sui juris, it is incapable of contributory negligence in the sense that deprives it of a recovery in a proper case, and the doctrine of imputable negligence chargeable to the parent or guardian may become applicable. If found to be sui juris, however, then the rule applicable is that the child must exercise that degree of care which could reasonably be expected of one of his age and capacity. 4 Am. & Eng. Enc. of Law, 43 et segr.

But the trial judge charged more favorably to the appellant than this. He instructed the jury in these words: “ How, this boy, who was thirteen years old and intelligent, must be held to substantially the same degree of responsibility as to the exer cise of care as a grown person; if he fails to exercise ordinary-care and prudence in efforts to avoid a collision with the truck, from which he subsequently suffered; if you believe this is the way he was injured, the defendant is entitled to a verdict.” The same proposition was reiterated at fols. 241, 242, and at fol. 237 the trial judge distinctly charged “ that the plaintiff was sui juris." Substantial justice has been done; no fault is found with the amount of the verdict ($1,000), which is conceded to be moderate, and the judgment and order appealed from must be affirmed, with costs.

Freedman, J., concurs.


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    Julius Bien et al., Resp’ts, v. Theodore Hellman et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 3, 1893.)

    Discovert—Inspection of papers.
    Plaintiffs sued upon an express agreement, whereby it was agreed that they should do certain printing. The complaint did not state that the agreement was in writing. Defendant H. petitioned for an inspection of the agreement, annexing an affidavit made by a eo-defendant that the agreement is in writing and signed by all the defendants except H., and denied the alleged partnership. Held, that an order for inspection was properly denied.
    Appeal from order made at special term denying a motion made by the defendants for an inspection of a paper writing in the possession of the plaintiffs.

      Geo. W. Seligman, for app’lts; F. Bien, for resp’t.
   McAdam, J.

The plaintiffs sue upon an express agreement entered into May 22, 1891, wherein and whereby it was agreed that the plaintiffs should do certain theatrical printing and furnish the material therefor, for a play called “A Wolf’s Wedding,” at the agreed price of $4,200. The complaint does not state that the agreement declared on is in writing, and as it would be valid without that formality, there is no presumption as to how it is evidenced. The defendant and appellant Heilman annexes to his petition an affidavit made by one of his co-defendants, in which he states that the agreement is in writing, that it was signed by the defendants Jurgens and Reynolds, but not by the defendant Heilman.

Such being the case, the issue is narrowed down to the performance of the work and the partnership of the defendants, which Heilman denies. There is little room to doubt that the agreeYment sustains the allegations of the complaint in regard to the work and the price to be paid for it, and that Heilman can in nO' manner be held upon it except on the theory of partnership in the venture, a fact provable only by evidence aliunde. Having proved that the agreement was signed by the co-defendants, and not by Heilman (a fact not disputed), there is no conceivable ground for asking an inspection on the theory of possible forgery, as was allowed in Hepburn v. Archer, 20 Hun, 535.

The mere fact that the plaintiffs may have in their possession the agreement sued upon does not entitle the defendants to an inspection of it, as of course, for whether we observe the old chancery rule as to bills of discovery, pure and simple, or those in which other relief was claimed, some necessity for inspection must exist before it can be directed; curiosity alone will not suffice. S. C. rule 15 ; N. E. Iron Co. v. N.Y.L.& 1. Co., 55 How., 351; Holtz v. Schmidt, 34 N. Y. Supr. Ct., 28, and kindred cases. The defendant also insists that the rule declared in Roosevelt v. Ellithorp, 10 Paige, 417, applies. It was there held that “ where the defendant in his answer states the effect of a deed in his possession, without annexing a copy thereof, but for greater certainty craves leave to refer to the same when produced, he makes it a part of the answer so far as to entitle the complainant to an order for the production of the deed.”

This had reference to the practice which formerly prevailed of pleading “ Oyer,” see Bouvier L. Diet., but it is now obsolete and, therefore, requires no discussion. Bright v. Currie, 5 Sandf. 433; 10 N. Y. Leg. Obs., 104; Mayor v. Doody, 4 Abb. Pr., 127; Welles v. Webster, 9 How. Pr., 251. The former practice applied only to specialties, and where the plea did not show that the agreement was under seal, profert was unnecessary and oyer not demandable. Mealey v. Met. L. I. Co., 23 Fed. Rep., 25. In the ■ present instance, there is no intimation that the agreement sued upon is even in writing, except that furnished by the defendant Heilman, and the description of the paper furnished by him negatives all idea of its production being essential to any substantial purpose in his defense of the action. For these reasons the order appealed from must be affirmed, with costs.

Freedman and Gilderlleeve, JJ., concur.


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    Diederich H. Wersebe, Resp’t, v. The Broadway & Seventh Avenue Railroad Company, App’lt.

      (New York Superior Court, General Term,

      Filed January 3, 1893.)

    1. Negligence—Damages—Charge.
    In an action to recover damages for personal injuries caused by the negligence of defendant, the plaintiff’s counsel requested the court to charge “ that $5,000 would not be an exorbitant amount of damages as a matter of law,” to which the court responded, “ I so charge." Held, error.

      2. Evidence—Improper testimony.
    Where incompetent testimony has been admitted in the presence of the jury, under objection and exception, which may have affected the verdict, a direction subsequently given that it be stricken out, with an admonition that the jury must disregard it, does not cure the evil impression the testimony may have made upon the minds of the jury, and the error still remains.
    Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

      Root & Clarke, for app’lt; G. Fine and Thos. J. Farrell, for resp’t.
   McAdam, J.

The action is to recover $5,000 damages for injuries resulting from the negligence of the defendant’s servant (in running over the plaintiff) while driving one of defendant’s cars. The jury found in favor of the plaintiff, and awarded him a verdict for $2,500.

As the proofs satisfactorily sustain the finding of the jury both as to negligence upon the part of the defendant’s servant and freedom from fault on the part of the plaintiff, the only questions necessary for us to review are those arising from the exceptions taken during the trial. The first is that at folio 211, wherein the plaintiff’s counsel requested the court to charge “ that $5,000 would not be an exorbitant amount (of damages) as matter of law,” to which the court responded “ I so charge; ” whereupon the defendant duly excepted. Though not pointed out upon the appellant’s brief, we do not understand that the exception stated is waived; on the contrary, that it is insisted upon. The trial judge disclaimed any intention of indicating to the jury what sum would be a proper measure of compensation to the plaintiff, and told them that they were the sole judges thereof, yet the charge itself was not recalled or otherwise modified in its purpose, and may have produced an effect on the minds of the jury injurious to the appellant, and presumptively it did. Havemeyer v. Havemeyer, 43 N. Y. Superior Ct, 506; Greene v. White, 37 N. Y., 405. The trial judge may sometimes state the impressions which testimony makes •on his mind, leaving it, however, for the jury to come to their own conclusions. Baylies Trial Pr., 236. At the same time, in view of the just regard which is paid by jurors to the opinion of the judge, it is proper that in case of conflicting evidence he should use great caution in expressing his opinion. Id.

The fairer and safer course is for the trial judge to refrain from expressing any opinion on the facts, leaving the jurors to make their, own findings and draw their own inferences therefrom, uninfluenced by the opinion of the trial court. Where damages are unliquidated in their nature, and depend, as they must in negligence cases, upon the findings the jury make on the facts and inferences they may draw from the conflicting evidence, it is next to impossible for a trial judge, in advance of the result, to assure a jury that, as matter of law, $5,000 would not in the given case be an exorbitant amount of damages to allow a plaintiff. The instructions from the trial court are to aid the jury in the work of reaching a result, and where such an intimation is made by the court, no matter how guarded the language, it cannot fail to have its weight with the jury, and when the plaintiff’s counsel made the request he must be held to have intended it to influence the jury, or otherwise we are forced to assume the request to have been idle in its purpose and meaningless in its effect, conclusions hardly imputable to the ability and character of the learned counsel who tried the cause in the court below.

In actions to recover damages for personal injuries caused by. negligence, there is no fixed standard or measure by which a moneyed remuneration is to be made. True, there are rules by which certain compensatory items of damage are recoverable, but beyond these, much is left to the good judgment, experience and intelligence of the jury, and has no legal measurement save their discretion. While the burden of proof of damages rests, in a general sense, upon the plaintiff, yet if, through no fault of his, the precise damage sustained cannot be accurately determined, the wrong-doer must bear the burden of that difficulty. Shearm. & Redf. on Neg., 4th ed., § 740. While it is proper for the trial judge to instruct the jury as to the rules of law which are to guide them in their deliberations, and to control them in arriving at an agreement as to the amount of damages, they should in other respects be left free to reach a result of their own. We think it dangerous practice for the trial court to instruct the jury in a case where the quantum of damages rests largely in their discretion, “that $5,000 would not be exorbitant as matter of law.” See Sedgwick on Damages, 8th ed., § 388.

If such directions were sustained, confusion would ensue, for the defendant might, with equal propriety, have asked the trial court to instruct the jury that a verdict for $2,000, or even a smaller amount, would be sustained. The verdict was for exactly one-half the sum specified by the trial judge _ The jury may have been influenced in fixing the amount by the instruction they had received, and perhaps, by way of compromise, met the intimation half-way. The appeal book shows also that certain evidence admitted under the defendant’s objection and exception was stricken out by the trial judge, who instructed the jury to disregard it, and again, at fol. 151, tbe same course was taken as to certain other testimony, and, in this instance, at the request of the plaintiff’s counsel. Where incompetent testimony has been admitted in the presence of the jury, under objection and exception, which may have affected the verdict, a direction subsequently given to the stenographer to run his pen through it, with an admonition that the jury must disregard it, does not cure the evil impression the testimony may have made upon the minds of the jury. Erben v. Lorillard, 19 N. Y., 299 ; Wright v. Ins. Co., 41 N. Y. Supr. Ct„ 1; Allen v. James, 7 Daly, 13; Furst v. R. R. Co., 72 N. Y., 542, and cases collated in Baylies Trial Pr.,500, 501.

For these reasons, and without considering the other exceptions in the case, the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event

Freedman, J., concurs.