author: Hardin, P. J.

text:
    Loren Doing, Adm'r, v. The New York, Ontario & Western Railway Co., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    New trial—Mistrial.
    In an action against a railroad company for negligence causing the death of an employee, the court, on motion for nonsuit, was inclined to hold that the decedent had equal means of knowledge of the risk with his employer, but offered to submit the questions to the jury if plaintiff would stipulate that on motion for a new trial, in case he was successful, the verdict might be set aside and the motion granted as of non-suit. Plaintiff agreed thereto provided he should stand in the same position as if a nonsuit had then been granted, and the court stated it would protect him. After verdict for plaintiff a motion for a new trial was granted without regard to plaintiff’s stipulation. Held, that there was a mistrial, and that a new trial should be had.
    Appeal by the plaintiff from an order entered on tKe 14th of August, 189Í, in Chenango county clerk’s office granting a hew lírial. °

      At the circuit in that county the plaintiff recovered a verdict of '$4,000. On the 3d day of March, 1890, Robert P Hare, the deceased, was in the employ of the defendant as car repaireu and at work in the defendant’s repair shop in the village of Norwich re pairing one of its cars which stood upon a track running into and through the building and extending from the building to another track in defendant’s yard connected therewith by a switch. The servants of the defendant coupled one of its engines and tender to a platform car heavily loaded with scrap-iron and drew it be yond the intersection of the track that ran into the repair shop and then uncoupled the platform car, reversed the engine and ran up said track leading into said shop; and it is alleged in the complaint that the car was “ carelessly and negligently shunted or kicked * * * with so much force that it could not be •stopped by the brakeman thereon, but said car went crashing through the closed doors of said shop and came in collision with the car under which said Robert P. Hare was at work for the defendant, repairing the same as aforesaid, and pushed said car upon and against said Hare with so much forcé that he died on the 4th day of March, 1890, of the injuries thus sustained.’’ After the •opening made by the. plaintiff the defendant moved to dismiss the complaint, which motion was made upon the complaint itself; •and the defendant’s counsel stated “ that there is a direct allegation of custom to do this very thing set out in the complaint, a •custom that had been existing for some time, and they say that the company ought to have knowledge of it; and if the company -ought to have knowledge of it the man working on the same track ¡should have knowledge o.f it; and of course if he did there could be no recovery.” In response to that motion and statement the •court observed: “ I will hear the evidence in the cáse and deny the motion ; ” an exception was taken by the defendant The general rules of the defendant found in a printed book containing •690 were introduced in evidence by the plaintiff, “from which it appeared that there was no rule forbidding the kicking or shunting of cars upon these three cripple tracks, or- in terms regulating the ■movement of cars thereon.”
    When the plaintiff rested the defendant moved for a nonsuit ’Thereupon the plaintiff’s counsel stated “ the cause of action is 'that they were bound to establish a reasonable and proper rule for the protection of the workmen in the machine shop.” Thereupon the court observed: “My present impressions in this case •are that a rule by the company, assuming the practice to be dangerous, would not be called for unless the practice was so prevalent as to give them constructive notice of the fact that it was being done; and if the practice was prevalent enough for that purpose, that it would be prevalent enough for the purpose of giving notice to this man, who had an equal opportunity at least •of ascertaining what the fact was and ascertaining the danger, and if he remained an employee of the company I don’t think the defendant would be liable. But I will not decide the case now, but will hear the evidence of the defendant on the other branch of 'the case, on. the question as to the defect m this car; * * «- I will deny the rqption for a nonsuit at present.” An exception was taken by the defendant. After the defendant’s evidence was. closed the plaintiff again stated: “We say that this is a question for the jury to say as to whether this company should have madeá rule prohibiting the kicking of cars on these cripple tracks. And if they should have made such a rule and failed to do so,, that they are liable in this action. And also whether this deceased was chargeable with knowledge of this custom to an extent to relieve the defendant from liability.” In the course-of the observations made by the court in denying the motion, it was. said; “ Now if it had notice of the fact that such was the custom,. I think it would be a question for the jury to say whether, first,, it was a dangerous custom; and second, whether the defendant, had this notice, and third, whether having this notice of the dangerous custom it was the defendant’s duty to. promulgate a rule-forbidding it. Now that would create a liability on the part of the defendant for any injury resulting, unless the plaintiff had knowledge of the fact that such custom existed, in which case the-defendant would be relieved from liability; because a railroad corporation, or any master, is not bound to take any more care-for. the safety of an employee than ■ he is bound to take for his. own safety. And if he knew of the fact of a dangerous custom existing, and made no complaint and no request to obviate it, then it is very clear that if he does not take care of his own safety his employer is not bound to take care of his safety.
    “There is some evidence from which possibly the .jury might, find that he did not know; that is, there is enough I think possibly to submit to the jury on the question as to these two or three-other employees or co-employees of the plaintiff. They, some of them, haying sworn .they did not know of that fact, there may besóme, evidence to submit to the jury as to whether he did know of the custom notwithstanding the fact that he had been there-eight months. I shall hold .this as a matter of law unless the plaintiff will stipulate that upon a motion for a new trial, in case-he should be successful, that if I determine that the evidence is. not sufficient to go to the jury, I may then set aside any verdict he may obtain and grant the motion as of npn-suit, and as of the time before the verdict was taken. If he will stipulate to that, effect, I will,submit this case to the jury upon the questions:
    “ First. As to whether there was a custom of shunting or kicking these cars into these .cripple switches.
    “Second. As to whether this defendant had constructive notice; of such custom.
    “ Third. As to whether there should have been a rule of the company forbidding the shunting of these cars into these cripple, switches. ■
    “ Fourth. As to whether the plaintiff’s intestate had notice of the-custom of shunting these cars in.
    “ Fifth. As to whether the plaintiff’s intestate was guilty of contributory negligence." Thereupon the" counsel for the plaintiff stated: “ That is satisfactory to us; only we wish it understood. • that if you should decide against us we shall stand in precisely the same relation and position that we would if you granted them a non-suit here to-day.” In response thereto the court ob.served: “ The court will protect the plaintiff in the matter. You may insert any requests to go to the jury, and a refusal and exception." Thereupon the defendant’s counsel took an exception to the denying of the motion for a non-suit at this time. In the course of the charge delivered to the jury the court observed: “ But if you find that such a custom existed, that it was known to the defendant’s officers to exist and that a reasonable regard for the safety of employees required that a rule should be made for•hidding the kicking of cars into these cripple tracks, then you 'will reach the fourth proposition, which the plaintiff must establish in order to recover, and that is that Robert P. Hare did not himself have knowledge of this custom. * * * If Robert' P. Hare had been working there from July and he had had knowledge of the fact that these cars were being kicked in, and he had made no complaint to the company, then if the company were held liable for this death you can see it would be unreasonable; for the company is not bound to take greater care of his life than he himself chooses to take.”
    At the close of the charge the court in response to certain requests charged “ That if Robert P. Hare had the means of knowledge he should have known of the custom. Second, that if he had the opportunity of knowing, he should have known of, the ■custom.” In response to a request to charge “ If the custom was in operation, was used around him, he would be presumed to know,” the court observed: “I decline to charge upon that •other than I have already charged,” and the defendant took an •exception. After the verdict of $4,000 was given for the plaintiff, an order was made allowing the defendant to have ninety days •to make and serve a case and exceptions, and the plaintiff to have a like time to make amendments, “ and that until the hearing and determination of said motion for a hew trial, entry of judgment .and all other proceedings herein be stayed.”

      W. F. Jenhs, for app’lt; Howard D. Newton, for resp’t
   Hardin, P. J.

We have looked into the opinion delivered by the learned circuit judge commenting upon the case, and we find the conclusion of his opinion to be as follows: “ It must be held, therefore, as matter of law, that the decedent Hare had equal opportunities of knowledge of the custom of the employees in kicking cars into that cripple track as had the defendant company, and that by continuing in their employ without protest and with that knowledge he has assumed the risk, and for the injury resulting therefrom the company cannot be held liable.” The court made an order “ that the motion for a new trial be, and the same is hereby granted, with costs to the defendant to abide the -event of the action.”

Important and serious questions were involved in the trial. . It was in effect stipulated upon the trial that if the court should at a subsequent stage be of the opinion that the plaintiff was for .any reason not entitled to recover the decision should be made and the plaintiff should “ stand in precisely the same relation and position that ” he had if the nonsuit were granted upon the trial. Apparently the court yielded to the language used by the plaintiff' in the stipulation given by the plaintiff on the trial. The order made upon granting a new trial does not observe and carry out. the stipulation made during the progress of the trial. Without passing upon the serious questions involved in the merits of the action, we are inclined to hold that there was a mistrial. We are therefore inclined to the conclusion that the rights of the respective' parties can be more safely and reasonably protected by requiring a new trial to be had before expressing our opinion upon the-questions involved in the merits. We therefore direct a new trial, and in form sustain the order appealed from. We think the order should be affirmed, without costs to either party.

Order affirmed, without costs.

Merwin, J., concurs ; Martin, J., concurs in result.


source: Caselaw Access Project

license: Public Domain

text:
    John D. Brunner, App’lt, v. Francis W. Downs et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Municipal corporations—Binghamton—Ordinances—Fire limits.
    The ordinances of the city of Binghamton passed in 1867 in relation to- ■ the fire limits and regulating building therein, were fully legalized and. ' confirmed by the charter of 1888.
    3.' Same—.Recorder—False imprisonment.
    A violation of such ordinances is a misdemeanor of which the recorder of the city has jurisdiction, and upon complaint thereof being made tO' him he acts judicially in granting a warrant, and cannot be held liable for false imprisonment in so doing.
    3. Appeal—Hew trial.
    Where neither the motion for a new trial, nor the order denying the same, state the grounds on which it was made, the appellate court cannot review such order.
    Appear from a judgment entered upon a nonsuit granted at. the' Broome circuit; also, from an order denying a new trial on the m inn tea. Action for alleged false imprisonment; defense,. that the défendant Downs was recorder of the city of! Binghamton, and as -such issued a warrant upon the complaint, of defendant Newell for a violation of an ordinance of the city of Binghamton in respect to fire limits therein, in which warrant it was stated that Brunner, the plaintiff here, “ did violate-section three of an ordinance of the city of Binghamton, entitled! An ordinance providing for security against fires, passed May 22d, 1867, by building or -repairing a building within the limit, of said .city, which has been damaged to more than fifty per cent, of its value, without the permission of the common council ; ” which warrant was issued against Brunner, the plaintiff here, on the 12th of February, 1889, by Downs as recorder. In the affidavit or deposition presented to the recorder by Newell,, it was alleged that Brunner and others “did violate section three of an ordinance of said city, entitled An ordinan.ce providing for security against fires, passed May 22d, 1867, by building or repairing a building which was injured by fire to more than fifty per cent, of its value, without permission of the common council of the city of Binghamton; ” the affidavit was sworn to by Newell on the 12 th of February, 1889, before Downs as recorder. Brunner was taken into custody by an officer, and went to the recorder’s office, and proceedings were there had resulting in several adjournments, and finally in a trial before the recorder and a conviction, and a fine was imposed of $100, and an imprisonment not exceeding twenty days. After the termination of the proceedings before the recorder an appeal was taken to the court of sessions of Broome county, where the ■conviction and judgment were reversed for errors in rulings in respect to the admission and rejection of evidence. The deposition, warrant, evidence and proceedings before the recorder were offered in evidence". At the close of the evidence the court granted a nonsuit.
    Babcock, Sperry & Van Cleve, for app’lt; George B. Curtis, for resp’ts.
   Hardin, P. J.

By the evidence it appears that the common ■council adopted an ordinance May 22, 1867, which was amended September 20, 1875, relating to the fire limits; that ordinance provided “No building or part of any building, unless constructed with outside and party walls of brick or stone, and fire proof roof, shall, without the permission of the common council, given by a vote of two-thirds of all the members' elected thereto, hereafter be erected or placed or moved from one point to another within, or moved from another place into the following described' territory, which shall constitute the fire limits of the city of Binghamton, viz: The city limits of the city of Binghamton shall ■constitute the fire limits of said city.” The ordinance further provided as follows: “ No building within said limits which may hereafter be damaged by fire to the extent of more than fifty per ■cent, of the value thereof, shall be rebuilt, except in the manner, and of the materials hereinbefore authorized to be used, without the permission of the common council, given by a vote of two-thirds of all the members elected thereto.” By chapter 214 of the Laws of 1888, the charter of the city was revised (Session Laws, 1888, p. 821) and in subdivision 23 of § 5 of title 3 the common ■council is given power “ To regulate the thickness and manner of construction of brick, stone or wooden walls for building; to prohibit the construction of any such building or wall as it may deem dangerous to life, and require the removal of any such so constructed; to prohibit the erection of sheds and fences in such a manner as unnecessarily to vex or annoy the adjoining proprietors and to require the removal of any such so erected, etc.;” and in subdivision 25, power was given to the common council “ to extend and define, 'from time to time, the ground to be included within the fire limits; to require, regulate or prohibit all such •other acts to be done as it may deem proper to prevent the occur* renee or to provide for the extinguishment of fires in the city.” Im § 25 of the revised charter (Session Laws, 1888, p. 380) it xvas; provided that “All' ordinances heretofore made by the common council of said city are hereby legalized and confirmed and declared legal and valid, provided they are such ordinances as said common council is authorized to pass under this act as hereby-amended, and whenever by said ordinances a .penalty is prescribed for their violation,, the word ‘penalty’ as therein used shall be construed to mean, and include penalty or fine, and either a penalty or a fine to the amount therein named may be imposed for the violation thereof, as the court or officer before whom complaint shall be made may determine.”

In § 8 of tit, 3 power was given to the common council to provide that imprisonment might be made in the Broome county jail, and discretion was given to the court to impose “ punishment im the discretion of the court, but no penalty or fine shall exceed one-hundred dollars (except in the case of constructing or repairing buildings within the fire limits as hereinafter directed), nor the; length of such imprisonment exceed one hundred days.” Hollowing this provision in the charter is one as follows: “ The violation of any such ordinance is hereby declared to be a misdemeanor, and may be punished as such when the mode of punishment shall not be prescribed in such ordinance. Violations of all ordinances- and resolutions may also be restrained by the injunction order of any court having jurisdiction, etc.” In tit. 4 of the revision- the-recorder is given jurisdiction to issue criminal process and to hold a court of special sessions; and by § 4 of tit. 4 he is authorized 'to “ hear, try and determine in a summary way any complaint for any violation of the laws of the state, * * * or of the ordinances of the city.” In § 3 the recorder is authorized “to hear and entertain complaints and conduct all examinations in criminal, cases; ” that section further provides that “ The court of special sessions held by said recorder shall also have jurisdiction of, and power to hear and determine charges for every other misdemeanor committed or charged to have been committed within said city,,, for which the accused shall elect to be tried before said court. Whenever a defendant tried before a court of special sessions held by said recorder shall be convicted, said court shall render judgment upon such conviction, and shall inflict such punishment, by fine or imprisonment, or both, as any other court having jurisdiction of the offense could inflict, and shall have the same jurisdiction to sentence and punish the persons so convicted as courts of sessions have for the same offense.”

We are of the opinion that the recorder had jurisdiction over offenses known as misdemeanors committed in the city of Binghamton in virtue of the provisions of the statute which we have-quoted.

We are further of the opinion that § 25 of the charter “legalized and confirmed ” the ordinances passed in respect to the fire-limits already referred to. We are also of the opinion that § 8 of title 3 declares every violation of an ordinance to be a misdemeanor; and it further provides that such violation “may b& punished as such when the mode of punishment shall not be prescribed in such ordinance.” Section 8 of title 3 seems to limit the fine to be imposed for the violation of the ordinance in question to a sum not exceeding $100 and to declare that the imprisonment shall not exceed 100 days.

We are inclined to think this limitation takes a violation of the •ordinance in question out of the general provision of § 15 of the Penal Code which applies to cases where punishment is not specifically prescribed in a statutory provision or in that Code. The penalty imposed by the recorder did not exceed that permitted in | 8 of title 3. We are of the opinion that when the affidavit or deposition of Newell was presented to the recorder on the 12th •of February, 1889, he was called upon to decide whether a misdemeanor had been committed within his jurisdiction, and that when he issued the warrant on that day for the arrest of the plaintiff he had jurisdiction of the subj'ect matter and of the person of the plaintiff who was accused of violating § 3 of an ordinance of the city by “ building or repairing a building which was injured by fire to more than fifty per cent of its value, without permission of the common council of the city of Binghamton.”

In Harman v. Brotherson, 1 Denio, 537, it was held that although an affidavit was insufficient to sustain an order to hold to bail against a motion to set it aside it protected the officer making it ■against an action for false imprisonment. In that case it was said : “ If Brotherson had moved the court the order to hold to bail would have been revoked. But it is a very different question whether the officer who made the order can be treated as a trespasser. It was a case where, upon proper proof, an order to hold to bail might be made. A copias and an affidavit were laid before the officer; the affidavit making out a fair case for the exercise of his judgment. The plaintiff might have been relieved •on motion from the effect of the order; but he cannot maintain an action against the officer.”

A similar doctrine was laid down in Landt v. Hilts, 19 Barb., 283, and many other cases bearing upon the question were referred to and commented upon in the opinion of Hardin, P. J., •delivered in Austin v. Vrooman and Chase, which opinion lias been approved by the court of appeals, as appears by the opinion •of Peckham, J., reported in 40 St Rep., 338.

Other questions are presented in the argument of the counsel for the appellant, but we find them quite satisfactorily discussed and disposed of in the opinion of Parker, J., delivered in denying the motion for a new trial upon the minutes. The motion for a hew trial on the minutes did not specify any grounds upon which it was made, nor does the order specify any grounds upon which the same was made; we therefore, may not review the same.

The appeal from the order should be dismissed and the judgment entered upon the nonsuit should be affirmed, with costs. Appeal from the order dismissed.

Judgment affirmed, with costs.

Martik and Merwik, JJ, concur.


text:
    Charles K. Grannis, Resp’t, v. Addie L. Hobby, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Foreclosure—Evidence.
    In an action to foreclose a mortgage brought by an assignee thereof,, ■where the defendant seeks to establish that the mortgage has been diverted from its original purpose, it is competent for the plaintiff to show . the circumstances attending its ownership by his assignor and the purposes for which it was taken and held.
    2. Same—Ratification.
    Evidence sufficient to show knowledge and ratification by the mortgagor of the acts of her agent.
    Appeal from a judgment entered upon a decision made at the Oneida special term m an action to foreclose a mortgage made by the defendant upon property m the city of Utica, bearing date August 26th, 1880, for $1,000 and interest, payable one year from date, given to Charles Curtis and recorded on the 2d day of September, 1880; and by Curtis assigned- to the plaintiff January 24, 1884; the amount claimed in the complaint to be due is-$731.97.

      O. M. Dennison and W. A. Matteson, for app’lt; E. D. Matthews,. for resp't
   Hardin, P. J.

Plaintiff made out a prima facie case by the production of the bond and mortgage mentioned in the complaint, and an assignment thereof by the mortgagee to the plaintiff. The defendant sought to establish that the mortgage had been diverted, from its original purpose and gave evidence bearing upon that, question; thereafter it was competent, within the pleadings and to meet the proof given by the defendant, for the plaintiff to show the circumstances attending the ownership by the assignor of the-mortgage and the purposes for which it was taken and held. We-think no amendment of the pleadings was required. The evidence received related to the issue's presented by the pleadings, and that offered by the plaintiff was admissible to overcome or explain the evidence offered by the defendant.

(2) We are of the opinion that the findings of fact made by the trial judge are supported by the evidence. He saw and heard the witnesses, and was called upon to consider the conflict in the evidence and the contradictions and impeaching evidence and to-form Ms conclusions upon a survey of all the facts and circumstances developed upon the trial. After reading the evidence- and giving to the findings as made such influence as we think they should receive, we are inclined to sustain the same.

(3) Apparently Hobby, the father of the defendant, was having-credit from T. O. Grannis & Co., the bankers, at the time and prior to the execution of the mortgage in question, and the defendant was cognizant of. the general course of dealing between her father and the bankers, and -apparently she understood when the arrangement was entered into looking to the cancelling of prior incumbrances and giving a mortgage on the premises for $6,000, which should be a first mortgage, she understood that the mortgage of $1,000, existing prior to the one in suit, was held by the bankers for the benefit of supporting her father’s credit with the bankers. In order to effectuate the larger loan she manifestly conferred certain discretionary powers upon her father in respect to the antecedent thousand dollar mortgage, and in respect to the use to be made of the mortgage in suit Acting upon that discretion, and as her agent, he consummated the arrangement as best he could after a personal interview with, the bankers, and as part of that arrangement lodged with them the mortgage in suit. They continued to hold the same for several years, and the facts and. circumstances disclosed in the evidence are very persuasive and potential to indicate that the defendant became aware of the use-made of the mortgage in suit by her father, and acquiesced in and. ratified the same.

In Hamlin v. Sears, 82 N. Y., 330, it is said “ The general doctrine that one may, by affirmative acts, and even by silence, ratify the acts of another who has assumed to act as his agent is not disputed. It is illustrated by many cases to be found in the books, and set forth by 'all the text writers upon the law of agency. But. the doctrine properly applies only to cases where one has assumed to act as agent for another, and then a subsequent ratification is. equivalent to an original authority.” We think the case before-us does not fall within the exception- to the general rule stated in the case from which we have made the quotation.

(4) In the opinion delivered by Merwin, J., at special term we find the questions in the case quite satisfactorily considered, and having found no prejudicial errors in the rulings made upon the trial, and being satisfied with the result reached at the trial, we-approve the opinion delivered at special term and sustain the judgment.

Judgment affirmed, with costs.

Martin, J., concurs; Merwin, J., not sitting.


text:
    Charles E. Ogden, Resp’t, v. Elizabeth Alexander et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Mechanics’ men—Pebsons entitled to file libn.
    A contractor who was engaged in building a house for defendant’s predecessor in title made a contract with plaintiff and his partner to put in a furnace and do the plumbing. Before the work was completed plaintiff’s partner retired, assigning all the assets, including the claim under the contract, to plaintiff, who completed the work. Held, that plaintiff was authorized to file a lien against the property notwithstanding what had transpired between him and bis partner ; that it might be assumed that he became the agent or servant of the firm for that purpose.
    Appeal from a judgment entered in Delaware county on the report of Hon. W. B. Edwards, referee, in an action to foreclose a mechanic’s lien against the property of the appellants. Other parties were made defendants- but they did not appear before the-referee and do not appeal.
    August 26, 1888, Charles Alexander was the owner of a lot situated in the village of Walton, and on that day he entered into .a written contract with Horace Hill to erect a dwelling house thereon for the sum of $3,425; Hill commenced performance of .his contract and continued in the performance until August 21, 1889, when he abandoned the same and shortly thereafter made a general assignment for the benefit of his creditors. When the contract was made, Oliver & Ogden, a firm consisting of Robert -Oliver and Charles E. Odgen, the plaintiff, were co-partners doing . business as hardware merchants in the village of Walton; in the month of April, 1889, Hill entered into a contract with the firm for a furnace to be put into the said dwelling and for plumbing .required by the terms of the contract between Alexander and him, and a request was make for a slate roof on the house and •other work which was not completed July 29, 1889. On the 29th of July, 1889, the plaintiff purchased the interest of his co-partner, Oliver, in the partnership property and assets for the sum •of $700, and took possession of all the assets, including the claim .against Hill, agreeing to pay the partnership debts of the firm. Plaintiff continued the work and furnished materials down to the 20th of August, 1889, when he filed the lien for the labor and materials in the office of the county clerk of Delaware county. ‘On the 21st of August, 1889, Hill made an assignment for the ■benefit of his creditors. A subsequent lien was filed by Gr. Y Selden & Co. On September 15, 1889, Alexander died intestate, leaving him surviving his widow and heirs at laws, the appellants.

      Samuel H.' Fancher, for app’lts; Alexander Neish, for resp’t. -
   Hardin, P. J.

(1) Upon the evidence given before the ref-eree he was not able to determine the exact amount which had ■ been paid prior to the filing of the notice of lien by Alexander to Hill or to others for him, but the referee did find, viz.: That the amount remaining unpaid at that time was sufficient to pay for the labor and material required to complete the contract, including the sum of $75 toward the mantel, and also to. pay the amount unpaid on the plaintiff’s claim, August 19,1889, and stated in finding seventeenth at the sum of $507.45.” After a careful consideration of the evidence we are of the opinion that the findings', should be sustained.

(2) We are of the opinion that the plaintiff was authorized to file the lien against the property, notwithstanding what had transpired between him and Oliver.

In § 1 of chap. 342 of the Laws of 1885, it is provided: “Any ■person or persons, firm or firms, corporation or association, who shall hereafter perform any labor or service, or furnish any materials which have been used or which' are to be used in erecting, altering or repairing any house * * * may, upon filing the notice of lien prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor.” According to the literal language of the section from which we have quoted the.plaintiff was at all times after the performance of the work; and. delivery of the materials, entitled to the benefit of the provision of the statute. He has done nothing to forfeit his right to file a lien. But it is contended by the appellants because he became a purchaser of the.interest of Oliver in the assets, that a right to file a lien was not available, and they rely upon the general principle that liens given by a statute in-general are a personal right given to the mechanic, material-man, and laborer for his own protection,” and they call, our attention to Rollin v. Gross, 45 N. Y., 767, where the general rule was asserted. In the course of the opinion in that case it was intimated that where “the assignment is madefor the benefit of the assignor, and to beheld as his agent, so that the lien may be preserved” is an-exception to general rule; that opinion refers to the opinion of Lord Ellen-borough, 7 East, 5 (McCombie v. Davies) where it was suggested that the general rule did not apply “ to the case of one who, intending to give a security to another to the extent of his lien,, delivers over the actual possession of goods on which he has the lien to that other, with notice of his lien, and appoints that other as his servant to keep possession of the goods for him ; in which case he might preserve the lien.” The same doctrine was approved in Urquhart v. McIver, 4 Johns., 111; and in the latter case-judge Kent observes: “ A factor may deliver the possession of goods, on which he has a lien, to a third person, with notice of the-lien, and with a declaration that the transfer is to such person as agent of the factor, and for his benefit. This is a continuance, in effect, of the factor’s possession, etc.”

When the plaintiff acquired the interest of his retiring partner and added that interest to his own interest in the materials furnished and in the contract to supply materials and services to Hill, it may be assumed that he did not intend to relinquish any rights-which he theretofore possessed or to release the firm’s interest in the materials furnished, services rendered, the contract uncompleted and unperformed, and when he assumed to carry out the-contract made by the firm, it is not too much to assume that, he became the “ agent ” or “ servant ” of the firm.

The statute before us in its 25th section is declared to be remedial, and it is provided that it “ is to be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for, and to-give jurisdiction to the courts to enforce the same.”

We are of the opinion that the plaintiff was entitled to file notice of his lien and to have the same enforced pursuant to the-provisions of the statute.

(3) Other questions are presented by the learned counsel for the appellants, but we think they are satisfactorily disposed of. for the reasons stated in the opinion of the learned referee.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Henry J. Sprague, Resp’t, v. Robert L. Gibson, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Malicious prosecution—Probable cause.
    Defendant lost money which had been wrapped in a paper and the paper was found by a wood pile near where plaintiff was at work. Two weeks later, hearing that the plaintiff was displaying a large roll of money, he procured warrants on which plaintiff was arrested and ■ his premises searched. Defendant knew at the time that plaintiff was engaged on a contract and that a considerable sum was to be paid him about that time. In an action for malicious prosecution, Held, that the court properly refused to hold as matter of law that plaintiff could not recover; that the case was one for the jury.

      2. Same—Damages.
    Plaintiff was discharged without a trial and was put to no pecuniary expense. Held, that a verdict for $250 was not excessive.
    S. Trial—Requests to charge.
    Where the charge as delivered in effect covers the question raised by a request, the judge is not called upon to repeat it in answer to the request.
    Appeal from a judgment entered upon a verdict for $250 taken at the Onondaga circuit; also from an order denying a motion for a new trial made upon the minutes at that circuit. The action was brought to recover damages for malicious prosecution and for trespass in the execution of a search warrant upon the person and premises of the plaintiff. Upon the trial the court granted a nonsuit as to the second count of the complaint, and the case went to the jury as an action for malicious prosecution against the defendant for procuring and instigating maliciously and without probable cause a search of the plaintiff’s house and person. In June, 1890, the plaintiff, being a carpenter, residing ■on Canon street, Syracuse, was in the employment of the defendant, a builder, who resided on Colvin street, a short distance from the plaintiff; the defendant was building a house next to his residence, and the plaintiff, as such carpenter, was working for the defendant on the house. The defendant alleged that he lost $310 in money, which had been rolled up in a piece of paper and handed to his wife, who, on decoration day morning, went out to a pile of kindling wood adjacent to the new house being built by the defendant, to pick up some kindling wood with this roll of money in her dress pocket.
    This pile was adjacent to a side piazza underneath and around which the plaintiff was engaged that morning in putting on lattice work. When defendant’s wife missed the money she went to this pile of kindling wood, and after a while found the piece of paper in which it had been wrapped, and the money gone. The defendant, after this piece of paper was found, went to the chief of police, having reported his loss to the plaintiff and ■other men who were working inside the building; under the .advice of the chief he went to the hardware store of Merriam & Gregory, and to the lumber yard of Mack & Dooley, where he learned that the plaintiff was trading, and reported to them bis loss, and the circumstances which led him to suspect that plaintiff had found his money, and intended to keep it, and he requested -them to watch for him to see if the plaintiff disposed of any considerable sums of money when he should come to pay his bills. -Some two weeks thereafter, to wit, on the 15th of June, the defendant received a message to come to the store of Merriam & ■Gregory; he there learned that the plaintiff had been in the store and traded to the- amount of eleven dollars, and that when he went to the desk to pay his bill he produced twenty dollars to pay the bill, and the book-keeper inquired if he had nothing ¡smaller; the plaintiff then put his hand in his pocket and drew -out a roll of bills, saying he bad considerable more; thereupon the book-keeper sent a messenger after the defendant, who went to the store and received the information from the book-keeper; thereafter the defendant went to the house of the police justice, accompanied by the book-keeper, and stated the facts and circum-stances, and made an affidavit and procured a warrant, and also a -search warrant, and defendant took the warrants and delivered them to the police officers. The defendant knew of a contract held by the plaintiff* for the building of a house on Midland avenue, a short distance from the residence of the parties; the defend-ant knew of this contract, and knew that on the 15th of June, upon the foundation being up, that the plaintiff was entitled to $200 on the contract, and there is some evidence that the defendant knew that the plaintiff had money, as he had from time to -time changed money for the defendant previous to that time.
    The police officers on receiving the warrants went to the plaintiff's premises, and the plaintiff claims he was arrested on one of the warrants after being informed by the officers of the warrants; a search was made of the person of the plaintiff and of the ■different rooms on the premises occupied by him. The plaim tiff explained to the officers as to all the money he had and the money he had received on the Hickman contract; and the defendant was sent for and shown the Hickman contract and the search was discontinued, and on the following Monday morning the plaintiff went to the police officers where the warrants were lodged and was discharged: nothing was found" under the search warrant, and no evidence was given that the plaintiff ever had pos.-session of the defendant’s money.

      T. jK. Fuller, for app’lt; Ceylon H. Lewis, for resp’t.
   Hardin, P. J.

In Carl v. Ayers, 53 N. Y., 17, Andrews, J., -said: “Probable cause which will justify a criminal accusation is defined to be a reasonable ground of suspicion supported by •circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the •offence with which he is charged. * * * Public policy re•quires that a person shall be protected, who, in good faith and upon reasonable grounds, causes an arrest upon a criminal charge, and the law will not subject him to liability therefor. But a ■groundless-suspicion, unwarranted by the conduct of the accused, or by facts known to the accuser when the accusation is made, will not exempt the latter from liability to an innocent person for damages for causing his arrest. A man has no right to put the criminal law in motion against .another and deprive him of his. liberty upon mere conjecture that he has been guilty of the crime. He cannot be- allowed to put a false and unreasonable construction on the conduct of another, and then justify himself for causing an arrest by claiming that he acted upon appearances.” Applying that rule to the facts of the case as they were developed upon the trial now brought in review we are of the opinion that, the circuit judge properly refused to hold as a matter of law that, the plaintiff could not recover, and we .are of the opinion that the case was a proper one for the jury. The doctrine of the case: from which we 'have quoted was followed in Hazzard v. Flury, 120 N. Y., 223; 30 St. Rep., 906.

(2) In the course of the charge the judge instructed the jury that in case they find the plaintiff “is entitled to recover at all,, he is entitled to his compensatory or actual damages anyhow, * * * There is not in this case, as frequently there is in cases,, money paid out for counsel, in order to relieve plaintiff from the-prosecution. There was no trial; no counsel employed, as you will recollect; but while the search was going on, upon talk and consultation, it was stopped, and that was the end of it. There was no counsel called upon to aid in the proceedings, so there was-no money paid out for counsel fees. The plaintiff is entitled to-recover such amount as would fairly compensate him, if he is. entitled to damages at all, for the injury to his character, the indignity to his feelings, and the disgrace naturally attendant upon this prosecution. That is about all I can say to you upon this-subject There is no established rule by which to measure those things. They are left to the discretion of the jury.” It is how insisted by the learned counsel for the appellant that error was* committed by the trial judge in refusing “ to say to the jury that there is no proof in this case of any actual damages.” An exception was taken to such refusal. We think the charge as delivered in effect covered the question raised by the request and that the judge was not called upon to repeat in answer to the request. - The charge as delivered was very full and careful and there is no exception thereto which presents any error; we think no error was-committed in any refusals that were made to the requests propounded by the defendant. Appellant calls our attention to Turner v. Dinnegar, 20 Hun, 466; we find nothing in that case contrary to the principles laid down by the ti’ial judge in his charge.

(3) In the course of the cross-examination of the chief of police-he stated that he remembered the defendant coming to him and stating his loss of $310 some two weeks before the warrants were-issued. At fol. 46, witness testified “ I don’t recollect positively giving him any advice about getting a warrant; ” he next answered;: “ The best of my recollection would be I did advise it; ” he next testified “ I don’t remember of it; ” he was then admonished by the court “ You should not state it then ; ” thereupon the witness: •says “I don’t remember advising him ; there are so many of those cases I don’t remember; it is a bard matter. * * * I don’t; remember any particular one so as to be able to give it distinctly unless there is something about it which calls my attention especially to it.”

If the intimations of the trial judge in the early part of the cross-examination were too stringent, we think before the cross-examination terminated the defendant obtained all the evidence which the witness could give upon the questions in issue; we therefore think the language of Judge Bockes in Johnson v. Comstock, 14 Hun, 243, is applicable, where he says: “ It is true, as a general proposition, that a party is entitled to have his case tried upon an entirely correct theory of law; but when it appears well -determined on an' application of sound principles, erroneous rulings which do not and cannot affect the merits constitute no ground of error.”

(4) We are. of the opinion that the damages are not excessive, and the trial judge properly refused to set aside the verdict. Johnson v. Comstock, 14 Hun, supra.

Judgment and order affirmed, with costs.

Martin, concurs; Merwin, J., concurs in result


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

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Negligence—Contributory—Charge.
    Plaintiff was standing in a crowded horse car when the car jumped the track and struck a bridge, and plaintiff was thrown forward and injured. In an action for such injury the court submitted the questions of negligence to the jury, stated that the evidence established that plaintiff was not guilty of contributory negligence, büt in concluding that portion of the charge said: “If this be answered in the affirmative then you come to the next question.” Seld, that taken in connection with what preceded and followed it, the expression of opinion by the court did not take from the jury the question of contributory negligence.
    3. Same.
    The question whether defendant was guilty of negligence which caused the injury was.one of fact for the jury.
    3. Same—Married women."
    A married woman whose husband has left her, and who is carrying on business m her own name, receiving and enjoying her wages for the purpose of supporting herself and her children, may • maintain an action for personal injuries sustained by her by reason of the negligence of others.
    •4. Same—Evidence.
    ,, Where plaintiff testifies that after the injury she could work but part of the time and did so for a certain time, it is not error to allow her to be asked “why did you stop?”
    -5. Same.
    Nor is it error to allow the plaintiff to state what her income from her business was before the accident where no specific objection is made.
    sS. Same.
    A doctor who had attended plaintiff was asked if people falling upon her as she had described would be sufficient to cause the shock, and was allowed to reply that in his opinion it would not; that it was the jar or fall that did it. He had been fully examined previously as to plaintiff’s injuries, and was familiar "with the circumstances, although he had not heard her testimony. Held, that the admission of his answer was not. error.
    7. Same.
    Nor was it error to allow the physician to testify as to plaintiff’s appearance when she reached home and the doctor first examined her.
    8. Same.
    In such an action it is not improper to allow the driver of the car, on ■ cross-examination, to state that if the car had not been overloaded on the rear platform" it would not have left the track; such evidence is admissible: in explanation of testimony given by him on the direct.
    Appeal from a judgment entered upon a verdict taken at the- ' Oneida circuit and from an order denying a motion for a new trial on the minutes. Plaintiff was a passenger in the defendant’s street, carón the 23d of August, 1888, having entered the same at the driving park in East Utica, being in the locality now known as-the sité for the Masonic Home, with a view of being carried along; its road which passed under the West Shore Railway bridge. She-was standing in the car as the seats were all occupied, and á large number of persons were in the car at the time of the injury. The car lurched from the track and struck the bridge and came to a sudden stop, precipitating the plaintiff forward and her right breast. came in contact with the seat and was somewhat injured; her-knee was injured and her ankle turned, and she suffered from other passengers being precipitated upon her back when she fell, forward at the time when the car came to a sudden stop. She-partially recovered from such injuries, and upon allegations of negligence of the defendant this action was brought.

      William JS. Lewis, for app’lt; M. H. Sexton, for resp’t.
   Hardin, P. J.

When the plaintiff rested the defendant moved for a non-suit on the grounds: “ 1. That no negligence on the part of the defendant which in any way contributed to the accident has been shown. 2. That the plaintiff has failed to show that she was free from contributory negligence which tended to* produce the accident. 3". That upon the evidence it appears that she was guilty of- contributory negligence. 4. That she is a married woman; having a husband; and the right of action or cause of action, if any, is his and not hers.” The motion was denied and the defendant took an exception. At the close of the whol evidence a similar motion was made and denied. In the course-of the charge to thé jury the trial judge observed: “It is only after three things are established,” the question of damages can be considered. The court further observed: “Those questions-are (1) Was the plaintiff free from negligence which contributed to the injury which she received? (2) Was the defendant guilty of negligence which contributed to the injury which was received? and (3) If the defendant is found guilty of negligence, was that a negligence which actually produced the injury for which the action is brought? If those three questions are answered in the affirmative then you come to the question of damages.” Later-on in the charge he observed : “ I think I must charge you, gentlemen, that the evidence establishes fairly and affirmatively in. favor of the plaintiff that she was not guilty of contributory negligence in this case. She, it is true, entered into a car which was already full so far as the seats were concerned, but it was a car with standing room in it. She was anxious to get to town, and she was not excluded by the agents of the defendant who were in charge of the car; she went in, as it appears, and was standing in the aisle; and standing there, so far as appears here, entirely guarded until the moment the collision occurred when she was thrown down. So far as that question is concerned it must be held here that the plaintiff has affirmatively shown that she was not guilty of negligence in what she did on that occasion. If the defendant did not desire to take more than the twenty-four persons for whom they had provided seats, they had a right to say so and .to have the persons who were in charge of the car warn away the crowd who were rushing to gain admittance, but that was not done and that cannot now be claimed as an exemption or relief on the part of the defendant from any liability which they may otherwise have incurred. If this be answered in the affirmative then you come to the next question.” An exception was taken to the portion of the charge just quoted: “to each and every part of the instruction on that subject given to the jury.”

(1) We are of the opinion that when the plaintiff rested the evidence did not warrant the court in holding, as a matter of law, that the plaintiff was guilty of contributory negligence. Apparently she was standing in the aisle of the car where other passengers were permitted to stand by the defendant, and in the usual manner of occupying the car after the seats were filled, and it is not apparent that any act of hers caused or contributed to the injuries which she received, and the circumstances warranted the inference that she was free from contributory negligence. Again, what may be considered as a strong intimation of an opinion on the part of the trial judge in the course of his charge as to the facts surrounding the question of contributory negligence must be taken in consideration with the antecédent portion of his charge and the subsequent expressions found therein to the effect that the question is to be solved by the jury. In leaving' the subject he observed: “If these be answered in the affirmative then you come to the next question.” Apparently the question of contributory negligence was left for the jury to consider in connection with the opinion somewhat pointedly expressed by the language used in the charge.

In Massoth v. D. & H. C. Co., 64 N. Y., 524, it was said: “ An exception will not lie to an expression of opinion upon a matter of fact if no binding instructions thereupon were given to the jury.” Hurlburt v. Hurlburt, 40 St. Rep., 436.

(2) We are of the opinion that it was a question of fact for the • jury to determine whether the defendant was guilty of negligence which caused the injuries received by the plaintiff. The defendant was a common carrier for hire, and owed to its passengers “ the utmost foresight as to possible dangers and tjie utmost prudence in guarding against them.” Bowen v. N. Y. C. R. R. Co., 18 N. Y., 411; followed in Deyo v. The Central, 34 id., 11. In the latter case it was said “ that after the onus had been cast upon the carriers they are bound to show that ‘there has been no negligence whatever, and that the damage or injury has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent.” ■

This rule was followed in Gainard v. Rochester City, etc., R. R. Co., 50 Hun, 24; 18 St. Rep., 692; and in Maverick v. Eighth Ave. R. R. Co., 36 N. Y., 381, the rule was asserted, and the court said: “ Applying the rule to the case before us, it cannot be doubted that the jury were authorized, from the testimony adduced by the plaintiff, to find that if the conductor had exercised such a degree of care and diligence the injury to the plaintiff would not have occurred.” Whether the defendant was guilty of negligence which caused or contributed to the injuries which the plaintiff received was a question of fact for the jury. We aré, therefore, of the opinion that the motion for a nonsuit was properly denied on each occasion, so far as it rested upon this aspect of the case, and that the question of fact was properly submitted to the jury, and that their verdict is supported by evidence given upon the trial.

In Lehr v. & H. P. R. R. Co., 118 N. Y., 556; 30 St. Rep., 1, it was said: “The exposure of a passenger to danger which the exercise of a reasonable foresight would have anticipated, and due care avoided, is negligence on the part of a carrier; ” and in the course of the opinion, at page 561, it is said: “ The exposure of a passenger to a danger which the exercise of reasonable foresight would have anticipated and due care avoided, is negligence on the part of a carrier. It clearly appears that the defendant undertook to carry more passengers than could sit and stand within the car, and that both platforms and their steps were filled to their utmost capacity. * * * Whether the defendant was negligent in carrying so many passengers was a question of fact for the jury.” In the case before-us, as in the one to which we have just referred, “the defendant made no attempt to show that persons entered on the car against the wish or protest of the conductor or driver; or that the rules of the defendant required that the car should not be overloaded, or that the conductor or driver made any attempt to prevent the car from being unduly crowded.”

(3) So far as the motion for a nonsuit was based upon the idea that the plaintiff could not maintain the action because she was a married woman, it was properly denied. It appeared from the evidence that her husband had left her, and that she was carrying on business in her own name, receiving and enjoying her wages for the purpose of supporting herself and her five children.

(4) The plaintiff testified that prior to the injury she was_ “in the employment business, * * * the nature of the business was getting situations for parties and supplying help ; I did the office work and took care of the office. * * * I was employed at this generally every day ; after the accident I did not attend to it only half a day after the first two or three days' after I was injured, for three or four weeks, I couldn’t say how long, for two or three hours in the afternoon ; I continued to do that for three or four weeks.” She was then asked, “ Why did yon stop?” This was objected to and the defendant took an exception. Her answer was, viz: “ Because I was unable to do so; because I couldn’t climb the stairs; I was not strong enough to go up and down stairs; I did not feel able to attend to it” We think no error was committed in receiving the evidence. The witness continued: “ After the three or four weeks I have spoken of I was not able to continue going therethen the following question was put to her, to wit: “ Prior to the time of this accident, describe what was your income from that business?” This was objected to, and the objection was overruled and an exception taken by defendant’s counsel. Her answer was, “ Anywhere from twenty to seventy-five dollars a week; it depended on the time of year; that was the income of the business; it had continued at that average not quite a year.” Ho specific objection was made to the evidence; the court’s attention was not called to the pleadings nor upon any other ground upon which the evidence could be claimed to be inadmissible. We think the exception presents no error. Stevens v. Brennan, 79 N. Y., 259.

(5) During the cross-examination of the plaintiff she was asked to state if there was a judgment against her for rent. The -questian was objected to and the evidence excluded. It appeared that the rent which was referred to accrued after .the injuries, and we think it was not an improper exercise of the discretion of the court to sustain the objection to the question. The witness had already stated that she paid part of the rent and stated that she did not pay it all. It was immaterial whether a judgment had been recovered against her for the balance.

(6) We think no error was admitted in excluding the question put to her at folio 109 on the cross-examination as to whether this was the first action she had brought to recover damages. At the time the question was propounded no suggestion was made to the court indicating any materiality or importance in the question.

(7) We think no error was.committed in sustaining the objection to the question put to Leary as to bis knowledge of Jones “ having been engaged quite extensively.in driving horse cars.”' Jones had already testified on the subject of his experience, and no testimony was brought into the case contradictory thereof.

(8) We think no error was committed in allowing the witness Dr. Merrick to testify in her re-direct examination in answer to‘ the question “Would people falling upon her as she has described upon the witness stand be sufficient to cause this shock ?” Her answer to the question was “ Ho; ■ I don’t think it would; I think, it was the jar that did it, the falling suddenly.” Ho objection was, made at the time that the witness had not heard the testimony of the plaintiff upon the subject embraced in the question, Wallace v. The Vacuum Oil Co., 38 St. Rep., 441, the witness had been extensively examined in chief, and a very protracted cross-examination had taken place on the subject of the plaintiff’s injuries, the nature, character and extent thereof, and it appeared that the witness was familiar with the circumstances attending, the injury; the questian in effect called for the express opinion as to whether “ people falling upon her would cause the shock’’ which had been referred to in the antecedent testimony of the expert. We think the ruling was not violative of the principle laid down in Griswold v. The Central, 115 N. Y., 61; 23 St. Rep., 729; 40 St. Rep., 662; Stouter v. Manhattan R. R. Co., 127 N. Y., 661; 38 St. Rep., 162.

(9) We think it was not error to receive the testimony of Dr. Merrick as to the appearance of the plaintiff when she reached her home and the doctor first examined hen

In Hagenlocher v. C. I. & B. R. R. Co., 99 N. Y., 137, it was said:

“ Evidence may be given that a person appeared to be in great agony; was emaciated; looked haggard and feeble, and why not that he screamed with pain.. * * * So, too, the absence of such exclamations, with other appearances, may be proved as a circumstance bearing upon the question of suffering.”

Our attention is called to Ryan v. The Porter Mfg. Co., 57 Hun, 256; 32 St. Rep., 621. That case differs from the one before us ; the declarations there which were questioned were made by the mother of the injured party, not an expert, and were made “long after the accident.”

(10) We think no error was committed in receiving testimony tending to show how fast the car was running at the time of or preceding the accident. Ho objection was taken that the witness was not qualified to speak. When the witness Daniels was upon the stand he detailed the circumstances, as he understood them, attending the accident, and in the course of his cross examination he was asked to answer the question: “ If this car had been properly balanced with the load it would not have left the track, would it? ”

This question was objected to and the objections were overruled and the defendant took an exception; the witness answered: “ Ho, sir; that is, if it had not been overloaded on the rear platform it would not have left the track.” We think there was no impropriety in allowing the witness, in cross-examination, to state the facts mentioned by him. He had had experience in operation of cars. He had stated the horses were in the center of the track and that they were not off the track at all, and he thus contradicted other evidence to the effect that one of the horses was off the track.

He had stated that “ as we were going down this grade the tugs or traces of the horses were loose and as the tugs loosened up the car teetered a little up and down; the hind end going down and the forward end up. * * * I did not see the hind platform, but I thought it was loaded heavily,” and that he thought the car was overloaded on the rear platform. We think the evidence objected to given by' this witness was properly received in explanation of portions of the evidence, or as furnishing some test of the correctness of the statements and opinions put forward by the witness, who was the driver of the car at the time the injury occurred.

We have looked at the other exceptions presented by the appellant and especially those to the charge, and we are of the opinion that they required no especial consideration as they do not, in our opinion, call for a reversal.

We think the dajnages, $600, awarded by the jury are not ex- . cessive, but that the evidence given upon the trial warranted the - findings made by the jury.

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.