text:
    Farmers’ National Bank of Adams, Resp’t, v. Sanford S. Thomas et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Bills amd motes.
    The indorsement of a blank time note does not authorize the holder to make it payable on demand, or to add the words “ with interest.”
    Appeal from a judgment in favor of plaintiff.

      Levi H. Brown, for app’lt W. H. Seward Thomas; L. E. Pruyne and Watson M. Rogers, for resp’t.
   Martin, J.

—This action was to recover the amount secured by twelve promissory notes made by the defendant Sanford S. Thomas, and claimed to have been indorsed by the defendant W. H. Seward Thomas, aggregating the sum of $17,000, besides interest. The principal defense was that the notes in suit were inr dorsed by Seward before they were either signed by Sanford, or the date, time they were to run, the name of the payee, or the amount were inserted therein; and that, when they were delivered to the plaintiff, they had been filled out by Sanford or the plaintiff’s cashier in a manner wholly unauthorized, to the knowledge of the plaintiff; and, therefore, that they void as against the defendant Seward. Before each of the notes in suit was given, the defendant Seward indorsed and delivered to Sanford a blank therefor, which was as follows:

These were .subsequently filled out by the defendant Sanford, or the cashier of the plaintiff for him, so as to make them payable on demand, instead of at a specified time after date, and by adding either the words “ with use” or “ with interest.” They were indorsed by Seward for the accommodation of Sanford, to enable him to fill them up and procure them to be discounted at the plaintiff’s bank. They were taken by the plaintiff for a valuable consideration, but with a knowledge that Seward was an accommodation indorser and of the change made in the form of the notes. When such indorsements were made by Seward, there was no express agreement between him and Sanford, or any direction by him to Sanford, as to when the notes should be used, the amounts for which they should be given, the time within which they should be made payable, or whether the same should be made payable on demand, or with or without interest. Man3' times prior to indorsing the blanks upon which the notes in suit were written, Seward had indorsed blank notes for the defendant Sanford as the notes in suit.were indorsed. All of those notes had been made payable at specified times after date, usually about three months, and without intsrest. When the first note in ¡«nit was filled up, tlie plaintiff’s cashier told Sanford that the notes might be made payable on demand, if he desired, so they would not lie going to protest, and that the bank would charge interest on tlmrn every three or six months. The change in the form of the notes indorsed by the defendant Seward, for the accommodation of Sanford, from time notes without interest to demand notes with interest, was made without consultation with Seward, and without his knowledge or consent.

The single question presented upon this branch of the case is whether Sanford had authority to change the form of the notes indorsed by Seward from time notes without interest to notes payable on demand with interest. If he did not possess that authority, then the plaintiff’s judgment could not be upheld. As he had no express authority to make such change, it follows that the only authority he had was such as was to be implied from the fact that blanks were left in the form of the notes indorsed. The leaving of blanks in a note or written contract, and delivering it, creates an agency in the receiver and his transferees to fill the blanks in the way agreed upon or contemplated by the maker. That authority is derived wholly from the implied agency, created by the maker’s delivering the paper with blanks therein; extends only to cases where a blank had been left in the instrument; and does not include any authority to make additions. The general principle seems to be that a person who signs and delivers a note in blank, to be used as security, authorizes the holder to fill the blanks so far as is essential to make the note complete. The date, the amount, the name of the payee, the time and place of payment may be all be inserted in their appropriate places, where they are left blank. This authority, however, extends only to cases where a blank was so left in the body of the nóte as to indicate that something was necessary to be supplied to make the note operate as the note for which it was intended; but, in the absence of an express agreement, no authority can be implied from the delivery to insert anything not necessary to the completion of the note in accordance with the form when delivered, and nothing can be inserted or added which would vary or alter its material terms or be repugnant to what was expressed in the instrument when delivered. Weyerhauser v. Dun, 100 N. Y. 150; Nat. Ulster Co. Bank v. Madden, 41 Hun, 113: 4 St. Rep. 1; Id., 114 N. Y. 280; 23 St. Rep. 220 ; McGrath v. Clark, 56 N. Y. 34; Reeves v. Pierson, 23 Hun, 185; Angle v. Ins. Co., 92 U. S. 330; Tied. Comm. Paper, § 283.

In Weyerhauser v. Dun, 100 N. Y. 150, 155, Finch, J., said: “The general doctrine .appears to be that one who signs and delivers a note in blank, to be used as a security, authorizes the holder to fill the blanks in respects essential to the completeness of the note as a note. The transaction implies that the indorser meant to become liable as such upon a completed and perfected note, and so far as the same is, at the time of his signature, an .incomplete and imperfect instrument, he must- be held to have authorized the filling of such blanks by the agent intrusted yith the note for use. The date, the amount, the name of the payee, and place of payment may be inserted, in their appropriate blanks. Page v. Morrell, 3 Keyes, 117; Van Duzer v. Howe, 21 N. Y. 531; Kitchen v. Place, 41 Barb. 465 ; Angle v. Ins. Co., 92 U. S. 339. But in all the cases cited there was a blank so left in the body of the note as to indicate to the eye of the indorser, when it left his hand, that something needed to be supplied which was necessary to be inserted to make the instrument operate as the note for which it was intended. The form of the note in question, as signed by the indorsers, gave no indication that it was to draw interest at all, and left no blank for that purpose. At its commencement, in the place usually occupied by a date, a blank was left between the word ‘Indianapolis’ and the figrues ‘1875,’ which the indorser would expect, and so authorize to be filled by completing the imperfect date. Another blank existed at the beginning of the note, before the words ‘after data’ The length of time the note should run before maturity was here indicated, and properly filled by inserting the words ‘Four months.’ The printed form ran on in the usual way, until a remaining blank was left between the words ‘to the order of’ and the word ‘dollars,’ which ended the body of the note. The words ‘to the order of’ indicated and so authorized the insertion of the name of the payee, and the word ‘dollars’ permitted the prefix in the blank of the principal sum to be paid. In that blank, and between those printed words, nothing else was indicated or authorized, nothing else can be said to have been within the intention or expectation of Griggs, or within his authority, he standing as a mere accommodation indorser, and ignorant of the particular purpose or precise debt to which the completed note was to be applied. To go further than that would be to break down prudent barriers, and reach beyond any reasonable inference to be derived from the presence of the blanks In this case, matter wholly foreign to the indicated words of completion, and needless for such completion,, was inserted and crowded in for want of sufficient room. Such matter consisted of a special agreement that the note, from and after its maturity, should draw ten per cent, interest. That was a material alteration of the note from its terms, as authorized by the indorsement and delivery of Griggs. It was a stipulation in no manner essential or necessary to the note as a completed instrument. It altered the legal rule as to damages for a breach; looked to a new liability beyond the maturity of the contract; and imposed upon the indorser an added risk and burden, which nothing in the record shows that he ever contemplated or deemed pas si ble. We think the courts below were right in saying that the alteration was material, and discharged the indorser, not authorizing or ratifying it.”

The Weyerhauser Case, was followed in Nat. Ulster Co. Bank v. Madden, 41 Hun, 113; 4 St. Rep. 1, and the court there said : “The maker or indorser who delivers his note or check to a third party does not thereby authorize him to fill existing blanks therein unless it is obvious that such blanks must be filled to make the note or check operate as the instrument for which it was intended.”

This case was reversed (114 N. Y. 280; 23 St. Rep. 220) ; but upon this question it was held that the alteration was a material one, and having been made after the defendant’s indorsement, and without his consent, it presumptively required the conclusion that the checks so altered were invalid as against the indorser; that the presumption in such a case is that it was so made as to vitiate it, and the burden is with the party seeking to make an altered instrument the basis of recovery to relieve it from the effect of the unauthorized alteration.

In McGrath v. Clark, 56 N. Y. 34, the defendant indorsed a promissory note, the blank upon which it was written being like the blanks in this case, except that the place of payment was blank, and the date and amount were inserted, thus leaving the time and place of payment blank, and delivered the same to the maker, who filled the blanks, and added the words “with interest.” In an action against the indorser, it was held that, while the delivery of the note to the maker gave him an implied authority to fill the blanks by inserting any time and place of payment he chose, it did not authorize the addition of the words “with interest,” and that this was a material alteration, which invalidated the note as against the defendant, in the absence of proof of some authority therefor aside from the delivery. The doctrine of that case was followed in Reeves v. Pierson, 23 Hun, 185.

In Angle v. Ins. Co., 92 U. S. 330, in delivering the opinion in that case, Mr. Justice Clifford said: “Persons dealing with an agent are entitled to the same protection as if dealing.with the principal, to the extent that the agent acts within the scope of his authority. Pursuant to that rule, it is settled law that where a party to a negotiable instrument intrusts it to another for use as such, with blanks not filled up, such instrument, so delivered, carries on its face an implied authority to complete the same by filling up the blanks ; but the authority implied from the existence of the blanks would not authorize the person intrusted with the instrument to vary or alter the material terms of the instrument by erasing what is written or printed as part of the same, nor to pervert the scope and meaning of the same by filling the blanks with stipulations repugnant to what was plainly and clearly expressed in the instrument before it was so delivered. By virtue of the implied authority, such a depositary may perfect, in his discretion, what is incomplete by filling the blanks; but he may not make a new instrument by erasing what is written or printed, nor by filling the blanks with stipulations repugnant to the plainly-expressed intention of the same, as shown by its written or printed terms. Goodman v. Simonds, 20 How. 361; Bank v. Neal, 22 How. 108.”

In Tiedeman on Commercial Paper (§ 283) it is said : “But, in every case where the maker is held, to be bound to the hona fide liolder on an instrument filled up by the agent in violation of instructions, it will be found that the additions or insertions made by the agent are in conformity with the apparent character and object of the blank. A bona fide holder cannot recover on an instrnment containing unusual provisions, which conflict with the ordinary parts oí like instruments, or which are repugnant to its object. Indeed, the holder of such an instrument cannot properly be called a ‘bona fide holder for a holder is charged with every inconsistency or defect appearing on the face of the instrument.”

Where one whose rights are to be varied by a transaction was not present when it was'consummated, it is to be presumed, in the absence of other evidence, that it was done without his consent. McNulty v. Hurd, 86 N. Y. 547.

• The form of the blank notes indorsed clearly evinces that they were intended to be filled out and used as blank notes only; that the holder was authorized to insert there-" in a specified time after date for their payment; that they were to be used by being discounted at the bank; and that they were not to be so drawn as to become a continuing security for the debt of the maker, with interest. This not only appears from the form of the note in which there was no blank for the words “with interest”, and in whicli the blank preceding the words “after date” plainly indicated that a specified time was to be inserted, but it also appears from the course of dealing between the parties which had existed for several years before the notes in suit were given. It is quite obvious that the plaintiff, through its cashier, must have known and understood when these notes were taken that such was the purpose and intent of the indorsement, and that the unusual and inconsistent form of the notes as filled out was not within the implied powers given by the delivery of the notes in blank. I think it is manifest that, while the holder of these notes had implied authority to make them payable at any specified time for any specified amount he saw fit, he had no authority to make them payable on demand and with interest. The indorser could not have contemplated the making of such notes when he indorsed the blanks upon which they were written, as the form was that of a time note without interest. The change of the notes from time notes without interest to demand notes with interest was repugnant to the plain intention, as expressed by the printed form of the notes. It cannot be said that this was not a material change. In the time note the extent of the indorser’s liability would be measured by the amount inserted when the note was made. It would become due at a specified time, and, if not paid, the indorser would be entitled to notice of its nonpayment and protest. When changed to a note payable on demand with interest, it became a continuing security for the amount of the note and interest. On such a note the indorser’s liability would be measured neither by any definite time nor .definite amount. He would remain liable until an actual demand was made. If kept alive as to the maker, it might remain unpaid, and his liability continue until the interest equaled or even exceeded the principal debt, and the statute of limitations would be no bar to an action thereon. Shutts v. Fingar, 100 N. Y. 539. That any such added burden or risk was contemplated by the indorser, or that any authority to create such liability was to be implied from the indorsement of these notes in the form in which they existed, cannot, I think, be properly maintained. I am of the opinion that neither the maker nor the holder of these notes had any authority, either express or implied, to so alter them as to make them payable on demand with interest, and that the act of so altering or filling them out was unauthorized ; and, as the facts were known to the plaintiff’s cashier, the notes were void as to the defendant Seward Thomas, and the plaintiff was not entitled to recover thereon as against him. This conclusion renders it unnecessary to consider the other questions discussed by counsel in their briefs. Judgment as to W. H. Seward Thomas reversed, and a new trial granted, with costs to abide the event; and, as to Sanford S. Thomas, judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    The People, Resp’t, v. Albert Mackinder et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Evidence—Confessions—Threats.
    Where the district attorney states to defendant that, if he makes any statement, it must be voluntary and without threats or promises, the confession is admissible, though a police officer, in whose custody he was, had previously used strong language to induce him to confess.

      2. Same—Robbery.
    On the trial of an indictment for robbery, evidence that defendant, soon after the time of the transaction, displayed a quantity of money, is admissible.
    Appeal from a judgment of conviction for robbery in the first degree, and from an order denying a motion for a new trial.

      Hoyt & Farrington, for app’lts ; B. J. Shove and T. E. Hancock, for the People.
   Martin, J.

—The first and most important question involved upon this appeal relates to the admission in evidence of the confessions made by the appellants. They contend that these confessions were made under duress, were obtained by threats, were involuntary, and therefore inadmissible. If these confessions were made under the influence of fear produced by threats, then it is manifest that the court erred in admitting them in evidence, and, as there was no other sufficient evidence upon which to convict the defendants, the judgment must be reversed. Thus, the important question to be determined is whether the confessions made by the defendants were voluntary, or were produced by fear engendered by threats of the officer having them in charge. On the trial, considérable evidence was given upon the question. The evidence of the defendants was to the effect that these confessions were obtained by threats, and, if believed, was perhaps sufficient to show that the confessions were involuntary, and produced by threats and promises made by the officers in whose charge they were. The defendant Albert Mackinder testified : That'he was in the custody of the chief of police of Syracuse. That he told him that if he did not tell him the truth he would give him 20 years for perjury, and that he would apply to the court for him, and get him off with a light sentence; that he would make him out with a light sentence, and there was no good in his lying about it; that if he lied he would give him 20 years for lying. That the chief of police called him up, and asked him if he was ready to tell the truth. That he told him the whole truth. That the chief swore at him, and called him a liar. That the chief said that there was no good of his lying about this, for those two men had been out, and investigated this case, and if he did not tell them all about it he would give him 20 years. That the two men were Mr. Hoxsie and Mr. Hancock. That the chief said he would lock him up till he did tell; that it would be better for him to tell him, and he would apply to the court, and get him off with a light sentence. That, upon the strength of what the chief said to him, he signed the confession offered. The defendant Frank testified : That he was arrested on the forenoon of August 14th. That he had some conversation with the chief of police on that day, and that on the next day he asked the chief what he was arrested for, and he told him for highway robbery, and an attempt at murder. That he then asked him if he could give bail, and he said he would not need bail for some time. That, on that day Officer Kratz came where he was, and asked him if he had anything to say, to which the defendant replied, “ No,” that he did not know anything. That he was then taken to the office of the chief of police, where Becker, Kratz, Hoxsie, Hancock and Wright were. Kratz and Becker were police officers; Hoxsie, the sheriff; Hancock, the district attorney ; and Wright, the 'chief of police. That it was about ten o’clock in the forenoon. That Kratz and Becker said there was no use of his holding back, for they had all the evidence in the world against him; that they had a man that saw the gray hairs in his head. That Mr. Wright asked him if he had anything to say. That he said he did not know anything. That he said he had an affidavit 'of the whole thing. That he asked him to read it; and he read over one affidavit. That he told him, if he put anything down against him, to put down the same as the rest. That he wrote it down, and he signed it. That he did not read it over to him after he made it out. That that was all that took place with reference to the confessions. That Mr. Wright told him that his brother George had testified, and said that he had traded revolvers for blankets. That, in signing that paper making the statement that was offered, he acted upon, and was induced to sign it upon, the statements that had been made to him by Becker and Kratz with reference to the disclosures that had been made by his brother, threats in reference to the affidavits, and believing that it would be better for him than to withhold his statement. On the other hand, the people called as witnesses Officer Kratz, Chief of Police Wright, and Sheriff Hoxsie, who testified as to what transpired prior to and at the time these confessions were made and signed by the appellants. The evidence of these witnesses tended to show quite conclusively that, the confessions admitted in evidence were voluntary ; were not made under the influence of fear pro lived, ty threats, or in 1 need by any promise by such officers. It was proved by several of these witnesses that before either of these confessions was made or signed the district attorney stated to the defendant making it, that, before he made any statement, he wanted him to know that he did it of his own free will and accord, voluntarily, without any threats or promises of any name or nature, and the district attorney asked him if he understood it, and he said he did, and that it was after such statement to each of the defendants that the confessions offered in evidence were made, read over to each of the defendants, and signed by him. The chief of police admitted that the day when Albert Mackinder made the confession introduced in evidence, he said something to him about committing perjury; that he read him the law on the subject, and told him that he was a liar,—but he testified that he had no recollection of telling him he would be arrested for perjury, and thinks he did not, but would not undertake to say he did not; that he thought he told them it would be better for them to tell the truth ; that he did not say that if they would tell the truth he would use his influence with the court to have their sentences lightened, but that he told Albert that the best thing for him to do was to tell the truth; that all thieves, from bank robbers down to clothesline thieves, squealed when they got in tight places; that he thought he did not say to Albert that he would ask the court for mercy for him if he would tell the truth about it; but that he would not swear that he did or did not; that he did not say that, in substance, to both of them. He also testified that this conversation was before the defendant Albert was informed of the charge against him, and related to his statement as to his whereabouts, and where he obtained the money which he spent in going west, buying furniture, paying house rent, etc.; that he was not informed of the. charge until the district attorney and the sheriff were present; and that it was after the district attorney had said to him that, before he made any statement, he wanted him to know that he did it of his own free will and accord, voluntarily, and without any threats or promises of any name or nature, that the confession was made. After the introduction of the evidence upon both sides bearing upon the circumstances under which these confessions were made, the court admitted them in evidence. In submitting the case to the jury, the court said : “It was the duty of the court, at the outset, to pass upon the question, particularly, whether these instruments or statements called ‘confessions’ should be received in evidence or not. The court has performed what it deemed its duty in that regard, and they have been received, but that is not conclusive upon you. You are now, as a jury, to pass upon the question whether they do come within the law permitting them to be received as evidence against the defendants ; and I will read you the statute itself, which lays down the rule as to the confessions, and their reception. ‘A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless—and this is the exception—made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.’ In other words, that the crime itself has been committed by somebody. The authorities go a little further than the statute itself, and authorities which I ¡.kink this court is bound to regard. The statute itself says, as' I have read, that such confessions can be given, unless made under the fear produced by threats. That is one thing. Or, unless made upon'a stipulation of the district attorney that he shall not be prosecuted therefor. That is another thing. But the cases themselves go a li'ttle further, and say, in effect, that, if they are induced by promises or reward,—particularly, by anybody having immediate connection with the case,— such inducement may vitiate the confession. Now, gentlemen, you have heard the testimony on this branch of the subject very fully. You are able to sift it out, and reach some conclusion as to what the truth is about the obtaining of the confessions. The fact that these defendants were in confinement is not duress, in the sense of making the confession valueless. The fact that they were prisoners of itself, does not vitiate the confessions. The question is whether the confessions were made voluntarily, without threats, without inducements, without promises, whether they had been imprisoned one day or more. But you are to take into consideration all the facts and circumstances surrounding their imprisonment, to determine the question whether there were threats or inducements or promises. If you believe these confessions should be rejected, as valueless, and as against the law, as I have stated it to you, then, as I said before, it would be your duty to acquit these defendants on the evidence that is in this case. If, on the other hand, you accept and receive in evidence and conclude that these confessions were properly obtained, and are right and proper evidence in this case, then it is for you to say whether they substantiate the charge beyond a reasonable doubt, taken in connection with other testimony in the case,—substantiate the charge that these defendants were guilty of the crime charged in the indictment One other thing I must call your attention to: Bach confession is to be taken, if taken at all, as against the one who makes it, and not as against the other.”

While, perhaps, the evidence shows that the chief of police who had these defendants in charge was more zealous than wise in trying to obtain from the defendant Albert Mackinder a true statement as to where he obtained the money that he had expended in traveling, in the purchase of furniture, and for other purposes, and that his language to the prisoner was not commendable, and while it may be that if the defendant Albert had then been informed of the charge made against him, and his confession had been procured at that time, and before he was apprised of the fact that no promises or threats should be considered by him in making such confession, it would have been inadmissible, yet, as the evidence was to the effect that the confession was not made at that time, and not until he had been expressly^ informed by the district attorney that if he made any statement it must be voluntary, made of his own free will and accord, and without any threats or promises, and not until after he had stated that he understood that any statement he might make was to be voluntan’, unaffected by any threat or promise of any kind, we are of the opinion that the court properly admitted the confessions in evidence, and properly submitted to the jury the question whether they were obtained through the influence of fear produced by threats, or by reason of any promises made by the officers having them in charge. Section 395 of the Code of Criminal Procedure provides : “A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor.”

In People v. Mondon, 103 N.Y. 211, 219; 2 St. Rep. 713, it was said :

“The rule thus established (§ 395) is founded upon the common law rule on the subject of confessions, but is much more definite and stringent. The rule as laid down in Hawkins is stated to be that ‘a confession, whether made under an official examination, or in discourse with private persons, which is obtained from a defendant either by the flattery of hope, or by the impression of fear, however slightly the emotions may be implanted, is not admissible in evidence.’ By the section of the Code quoted, the fear produced by threats, and the hope must be based upon the stipulation of the district attorney, promising immunity from prosecution for the crime confessed.”

A confession made by a defendant in a criminal action, voluntarily, is competent evidence against' him, although made when he was under arrest. Cox v. People, 80 N. Y. 500, 515; People v. Mc Gloin, 91 N. Y. 241; People v. Druse, 103 N. Y. 655 ; 3 St. Rep. 617 ; People. v. Chapleau, 121 N. Y. 266 ; 30 St. Rep. 989. A statement by a police officer to a prisoner, after she saw she was suspected of the crime, that “they had found enough to convict her, and she might as well own up,” was held not to be a “threat,” within the meaning of § 395. People v. McCallam, 3 N. Y. Cr. R. 189. See, also, People v. Wentz, 37 N. Y. 303; Cox v. People, 80 N. Y. 500; People v. McGloin, 91 N. Y. 241. Where there is no conflict in the evidence as to the circumstances under which such statements were made, the question of their admissibility in evidence should be decided by the court, and not left to the jury. Willett v. People, 27 Hun, 469. But where thqre is a conflict of testimony, or room for doubt, the court should submit the question to the jury, with instructions that, if they are satisfied that the confession was procured bv such inducements they should disregard and reject it. People v. Kurtz, 42 Hun, 335; 3 St. Rep. 715; People v. Fox, 121 N.Y. 449, 453; 31 St. Rep. 570; People v. Cassidy, 133 N. Y. 612; 44 St. Rep. 869. Within the doctrine of these authorities, we think it is obvious that the question whether the confessions of the defendants were improuerlv procured was for the jury ; that, it was justified in finding; that they were not, and consequent! v justified in finding the defendants guilty of the offense charged in the indictment.

The appellants also contend that the court erred in permitting the witness George A. Mackinder to testify as to the number of pistols he had sold the defendant Albert Mackinder. The question was asked and answered before any objection was taken, and there was no motion to strike out the answer. Moreover, we think the evidence was admissible, and that the exception was not well taken.

On the cross-examination of the witness George A. Mackinder, who had testified to having sold his brother Albert two pistols about two and a half months before the robbeiy, he was asked: “What did you let him have the pistols for? (Objected to.) The Court: Do you mean whether he sold them to him or not? Mr. Kennedy: No, sir; the purpose he let him have the pistols for. Mr. Hancock: I object to that The Court: The objection is sustained. "(Exception taken by defendants’ counsel.)”

The defendants contend that the court erred in rejecting this evidence. As I construe the question of the defendants’ counsel, it called for the purpose or motive of George in letting his brother have the pistols. It is not quite apparent how evidence of his purpose was admissible. If it was, the defendants’ counsel should have explained to the court how. If, however, I am wrong in construing the object of the question, and it should be construed ns calling for the purpose of Albert in buying them, then it would seem that the witness could not have known his purpose unless Albert stated what it was; and thus the evidence would have been, at most, the declaration of the defendant in his own favor. But, be that as it may, if it be admitted that this evidence ought to have been received in explanation of the evidence of the witness given upon his direct examination, and that it was error to exclude it, it is obvious that the error was harmless, as the court clearly and positively instructed the jury that, unless it found that the defendants’ confessions were voluntary, they could not be convicted. As § 542 of the Code of Criminal Procedure provides that the court must give judgment, without regard to technical errors, or to defects or to exceptions which do not affect the substantial rights of the parties, it follows, we think, that if this ruling was erroneous, it should be disregarded, as it could not have affected the-substantial rights of the defendants

On the trial the prosecution asked the witness Purnell, who had testified to having seen the defendant Frank Mackinder after the robbery, and the same month he was arrested, the following question: “Now, state whether he had a quantity of money he was displaying there i:i your shop.” This was objected to as “incompetent and improper and immaterial, and too remote.” The objection was overruled, and the defendants excepted. We think there was no error in receiving this evidence.

The people was also permitted, under the defendants’ objection that the evidence was incompetent, immaterial, and not a part of the res gestee, to prove by the witness Hoxie that, in the conversation which took place after the statement or confession had been made by Frank Mackinder, he had said to him, “ Frank, would you have shot those men that morning?” to which he said, “I don’t know; I was pretty nervy that morning.” From an examination of the appeal book, it would seem that this conversation took place at the time that the statement by Frank Mackinder was made, and amounted at least to an admission that he was there at the time the offense was committed. We think the evidence was admissible. If not, we are unable to see how, under all the evidence in the case, its reception was prejudicial to the defendant. Section 542 of the Code of Criminal Procedure provides: “After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” If the confessions made by the defendants were believed by the jury, they were entirely sufficient to justify the verdict, and, if they were not believed, the jury was instructed by the court that it could not find a verdict against them; so that the question of the guilt or innocence of the defendants was made dependent upon the validity of the confessions, and this evidence could have in no way affected the result. People v. Chacon, 102 N. Y. 669; 1 St. Rep. 386; People v. Dimick, 107 N. Y. 13; 11 St. Rep. 739.

We have examined the defendants’ exception to the remarks of the court during the discussion as to the admission of the confessions of Frank Mackinder, but find nothing in that exception that requires us to disturb the judgment, and discover nothing in the statment of the court that could have been prejudicial to the defendants.

The following appears in the appeal book: “Mr. Kennedy: I desire to have it go upon record that counsel has made a statement that a young man of slight build, about twenty-six years old, got upon a train with a revolver, and committed one of the most infamous crimes known, and that he is now in prison for ninety-nine years. Mr. Hancock: More or less. Mr. Kennedy.; I desire to except to that statement, and I now ask that a juror be withdrawn, and that the case go over the term. The Court: That is denied. Exception taken by defendants’ counsel.”

From this statement we are unable to discover that any error was committed, or that the court erred in denying the defendants’ request.

Having now considered all the exceptions suggested by the learned counsel for the defendants upon their brief, and having found none that would justify us in reversing the judgment, it follows that the judgment and order denying the defendants’ motion for a new trial should be affirmed.

Conviction and judgment of the court of sessions of Onondaga county affirmed, and after the judgment is entered in the judgment book a certified copy of this entry shall be forthwith remitted to the clerk of Onondaga county, with whom the original judgment roll is filed, in accordance with § 547 of the Code of Criminal Procedure.

All concur.


author: Hardin, P. J.

text:
    Edward F. Byrne, Resp’t, v. City of Syracuse, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Municipal corporations—Streets—Liability.
    A city whose charter confers upon its officers the powers of commissioners of highways of towns, is charged with the duty of seeing that its streets are kept free from obstructions, even though placed there by a railroad company.
    2. Negligence—Contributory—Question op fact.
    Contributory negligence, in an action for injuries because of an obstruction in a city street, was held, in this case, to be a question for the jury-
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Charles E. Ide, for app’lt; Cook, Nottingham & Pierce, for resp’t.
   Hardin, P. J.

—In June, 1890, the common council of the city-granted a franchise to the Syracuse & Onondaga Railroad Company to build a double track road over the center of Salina street from the swing bridge south to Brighton Corners. The tracks were laid under a grade fixed by the city engineer, and at a point near where the accident occurred the grade was raised some two feet above the original roadbed. The center of the street was filled in by the railroad company, and its tracks were then laid upon the filling, which extended some two feet outside of the center rails. The work was commenced the fore part of October, 1891. An embankment or elevation was formed in the center of the street, with the driveways below on either side. The descent from the west rail was abrupt, being nearly two feet in a distance of four feet. On the evening of the 21st of June, 1892, the plaintiff, with a friend, drove along South Salina street towards Brighton, on the west side, and, when about returning to his home in the Fifth ward of the city, he was driving on the east si.de of South Salina street, and when he reached a point near Ho. 1312 of South Salina street, between Colvin street and Beard avenue, lie found the road rough, and made an attempt to cross from the east side of the tracks, and while doing so, and as the wagon was going down the embankment on the westerly slope, it was overturned and broken, and the plaintiff thrown to the ground, and sustained quite extensive injuries to his shoulders and spine. At the time of the accident -it was dark and rainy,—cloudy night. Plaintiff had not been on the street, prior to the night of the occasion of the accident, after the double tracks had been laid. The charter of the defendant confers upon its officers the powers of commissioners of highways in towns, with authority to make, regulate, and repair the highways and streets within its corporate limits. Chapter 475 of the Laws of 1888. And the law casts a duty upon the" commissioner of public works to inspect from time to time the streets of the city, and see that the same are kept free from obstruction, and in good condition and repair. Considerable evidence was given" upon the trial in relation to the obstruction, the unevenness and rough condition in which the street was left at the point where the accident occurred. Upon the evidence given upon the trial, we think it was a question of fact, for the jury to determine, whether the defendant had been guilty of negligence in leaving the street in the condition in which it was at the time of the accident, and that it would have been error for the court to have granted the defendant’s motion for a nonsuit, and held as matter of law that the defendant was not guilty of negligence in leaving the street in the condition in which it was found on the occasion of the accident. The fact that the obstruction was placed there by the railroad company does not exonerate the defendant. It had been there a sufficient length of time to arrest the attention of the defendant, and it was its duty either to require the railroad company to restore the street to a reasonably safe condition, or to make such restoration itself. Sherman v. Village of Oneonta, 49 St. Rep. 267; 21 N. Y. Supp. 137 ; affirmed, 60 St. Rep. 867; Horey v. Village of Haverstraw, 47 Hun, 356; 14 St. Rep. 498 ; Pettengill v. City of Yonkers, 116 N. Y. 558; 27 St. Rep. 531. It appears by the evidence that the road had been left, at the point of the accident, in substantially the same condition for near eight months, and therefore the defendant had ample time to' make the repair, and was chargeable with notice of its defective condition. Pettengill v. City of Yonkers, 116 N. Y. 558; 27 St. Rep. 531.

2. After a description of the situation of the-street as it was found the next morning after the accident, and after presenting the facts and circumstances disclosed by the testimony of the surveyor who made a map of the premises in the immediate vicinity of where the accident occurred, the plaintiff testified to the circumstances attending his efforts to cross the tracks and reach the other side of the street, giving his recollection of all the incidents that occurred on the occasion when he was overturned. From such evidence, it was a question of fact for a jury to determine whether the plaintiff had used reasonable care and caution, or whether he was guiltj- of contributory negligence; and we think the trial judge committed no error in refusing to hold that ho was guilty of contributory negligence as a matter of law, and in submitting the question of fact in that regard to the jury. Atwater v. Town of Veteran, 26 St. Rep. 945; 6 N. Y. Supp. 907; Campbell v. N. Y. C. & H. R. R. Co., 19 St. Rep. 659; 3 N. Y. Supp. 694. The case of Cleveland v. Town of Pittsford, 72 Hun, 552 ; 54 St. Rep. 848, differs from the one before us. In that case the plaintiff was familiar with the surroundings: “He knew the uneven condition of the highway, and was aware of the ease with which his top-heavy load might be upset, and should have known that an attempt to drive over the place he did must inevitably result in overturning his load. He could as well have driven into a ditch upon the side of the road and expect his load to remain intact. ”

In Pettengill v. City of Yonkers, supra, it was said that a person “ using a public street is not required to be vigilant- to discover dangerous obstructions, but may walk or drive, in day or nighttime, relying upon the assumption that the corporation has performed its duty, and, in that respect, lie is exposed to no danger from its neglect.” Appellant calls our attention to Cummings v. City of Syracuse, 100 N. Y. 637. The facts of that case are quiie unlike those found in the case at bar. In that case the plaintiff knew of his proximity to a bridge, and he disregarded the warning that was given to him, and neglected to employ the light and guide which were ready at his hand, and the court laid stress upon those circumstances in reaching the conclusion that he was guilty of contributory negligence. Appellant calls our attention to Durkin v. City of Troy, 61 Barb. 437. The facts of that case are quite unlike those here. There there was danger in walking over a piece of ice which the plaintiff voluntarily and unnecessarily undertook to walk over, when he could plainly see and easily avoid it, and he had been warned of it. We think the case does not aid the contention of the appellant. ■

3. It appeared by the evidence that a map was made by surveyor Mather of the road at a point between Beard avenue and Oolvin street. The witness produced it upon the trial, and gave evidence as to the surrounding facts and circumstances, in connection with the map which he had presented, showing the situation of the street, with a cross section thereof; and, after stating the condition in which he found the street, he was allowed to state, against the defendant’s objection, “the condition of the street for, say, a rod either way,—twenty feet either way.” And then he added: “This cross section that I give here, 377 feet, is the point that was pointed out to me by Mr. Byrne as the place of the accident. This is about twenty-two feet south of the tree,-—that oak tree,—and about twenty-three or twenty-four feet south of the telegraph pole.” He adds: “This point where I made my measurements was about fifty or sixty feet north- of house number 1312, the first house south, on the west side of the street.” And he stated : “For twenty feet either way it is very much the same as that cross section shown. I observed this particularly.” Thereupon, the map was offered in evidence, and was objected to “that it is a profile not of the point of the accident as stated by the plaintiff.” The objection was overruled, and the defendant took an exception. We think, upon the evidence relating to the measurements made by the engineer, and upon the evidence disclosed by him as to the circumstances under which the map was made, which had noted upon it the measurements which he had testified to, as well as the measurements given by him in giving his testimony as to the cross section, which had also been mentioned by him in bis testimony, that the trial judge committed no error in allowing the map to be received and used in connection with his testimony. No other grounds of error are alleged by the appellant, and we find upon reading the charge that the case was very carefully presented to the jury bjr the trial judge, in a charge to which no exceptions were taken, and we are of the opinion that the verdict should stand. Judgment and order affirmed, with costs.

All concur.


text:
    Iva Manwarren, Resp’t, v. Mary J. Mason, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Evidence—Declarations.
    In an action for enticing away plaintiff’s husband, his declarations are not admissible against defendant.
    Appeal from a judgment entered on a verdict in favor of the plaintiff.

      Kennedy & Ross, for app’lt; James R. Shea, for resp’t.
   Hardin, P. J.

—According to the decision made by this court in Bennett v. Bennett, affirmed 116 N. Y. 584; 27 St. Rep. 679, the plaintiff is entitled to maintain an action against one who has enticed her husband from her, alienated his affections, and deprived her of his society. In Jaynes v. Jaynes, 39 Hun, 40, it was held “that a wife has a right to the conjugal society of her husband, for the willful violation of which by a third person she may maintain an action in her own name.” After a careful perusal of the evidence, we are of the opinion that it was the duty of the trial judge to submit the question of fact to the jury, and that he was warranted in refusing t.o set aside the verdict, as against evidence, at the close of the trial. Although the defendant, as a witness, contradicted many of the facts and circumstances which were sworn to by the plaintiff and her witnesses, we think, notwithstanding the conflict thus presented, that the trial judge was warranted in refusing to hold that the verdict was against the weight of the evidence.

2. In Winsmore v. Greenbank, Willes, 577 (decided in 1745), which was an action brought by a husband for enticing away his wife, it was held that “the declarations of the wife are not admissible” in such an action. In Boues v. Steffens, 43 St. Rep. 29 ; 16 N. Y. Supp. 819, in a similar action, ■ it was held that it was error to allow the plaintiff “to prove that he made complaints to other parties in the absence of defendantand it was also held that the error must have been injurious to the defendant, and the verdict there rendered was set aside. In Erben v. Lorillard, 19 N. Y. 299, it was held that a declaration of the plaintiff, while carrying on a conversation in respect to the purchase of land, as to his compensation, was not admissible as part of the res gestos. In Stickney v. Billings, 30 Hun, 304, it was held that declarations made by the plaintiff to his attorney in the absence of the defendant were not admissible. “ They were no part of the res gestae of any transaction had then and there with the defendants.” Upon the trial now under review the trial judge suffered the declarations of the husband of the plaintiff to be received, and conversations held by the plaintiff with him both before and after the commencement of the action. Such rulings received in evidence declarations which may have had a potential influence upon the jury in determining the critical issue arising in the progress of the trial. We are not at liberty, upon an inspection of the whole case, to say that the illegal testimony could not possibly have influenced the jury, or affected the result. Root v. Borst, 142 N. Y. 62 ; 58 St. Rep. 421; Stickney v. Billings, 30 Hun, 304, and cases cited in the opinion.

3. It may well be doubted whether the letter which was written by the plaintiff’s husband to her, and offered in evidence by the plaintiff, was admissible. Hobby v. Hobby, 64 Barb. 277. It was a declaration made by the plaintiff’s husband, and in the absence of the defendant, and forming no part of any transaction had between the plaintiff and the defendant. We think there should be a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.

All concur.


text:
    Emma L. Hirsh et al., Resp’ts, v. Frederick Auer, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Tbtjst—What is.
    An agreement to receive money to become due on an insurance policy, and apply it to certain purposes, creates a trust.
    Appeal from a judgment in favor of plaintiffs, rendered on a trial by the court without a jury.

      Fuller & Glen, for app’lt; Stone, Gannon & Petit, for resp’ts.
   Hardin, P. J.

—Having critically read and carefully considered all the evidence found in the appeal book upon the question of fact arising during the trial, we are of the opinion that the findings of the trial judge are supported by evidence, and are in accordance with the weight of the evidence, notwithstanding the testimony offered by the plaintiffs upon some of the vital issues of fact is contradicted by the testimony offered by the defendant in that regard. From the findings thus made, it appears that at the time the father of the plaintiffs obtained the second certificate, and made the same payble to his sister, Clara Auer, the defendant, the same was made payable to her ‘‘ pursuant to an express agreement and understanding between the said John Hirsh and his sister, the said defendant; the purport of this agreement and understanding was that she, the said defendant, should, on the death . of the said John Hirsh, receive the proceeds of that insurance certificate, to-wit., two thousand dollars, and from these proceeds pay his funeral expenses, and pay for a monument, using for.such purposes as much money as should be necessary, not exceeding five hundred ($500) dollars. The remainder of such proceeds was, according tosthe same agreement, to be paid by the defendant, upon receipt thereof by her, to the three children, the plaintiffs, share and share alike.” The father paid the dues and assessments to the order down to the time of his death, except one, which was paid shortly thereafter by his children. His sister, the defendant, paid no premiums to the order, nor did she in any way advance any money or valuable thing to the order, or to her brother, the insured. At the time of his death all the children were under age, and lie left no other provision or property for their comfort and benefit. He retained possession of the certificate. The same was found among his papers a few days after his death, and two of the plaintiffs went to the house of the defendant, carrying the certificate, and held a conversation with her in respect thereto, in which they severally alluded to the understanding they had derived from their father in respect to the moneys that were to be received upon the certificate; and they testify that the defendant assented to the understanding which they related to have had, and that she admitted that the agreement was substantially as is found in the finding of fact which has been quoted above. It is insisted in behalf of the appellant that “no trust could be impressed upon the proceeds of the insurance in this case by an agreement between the insured and the beneficiary. ” In support of that position, it is suggested that there was no property in esse upon which a trust could fasten, and that “the right of the insured in and to the fund created is not a property right, but a right to provide a fund to be disposed of by the statute, or by the naked power of designation.” In considering the position taken, it must be borne in mind that the insured procured the certificate to be issued upon his life, and furnished all the money for the payment of the dues and assessments thereon, keeping the same in life; that he kept possession of the certificate, and that it would be reasonable and natural for a father to make provision for his infant daughters, instead of for his adult married sister, who had a settlement in life ; and that the circumstance that his children were under age, and therefore not in a situation to receive and disburse the moneys as conveniently and discreetly as a person who had arrived at years of maturity. By the terms of the certificate he was authorized to change the appointee or beneficiary any time during his life, and, as he had kept possession of the certificate, it is not improbable that his intention was to make such change in the event that he survived until his children reached years of maturity. Having possession of the certificate, with the stipulation contained therein, it was within his power, without the consent of his sister, to return the certificate to the order, and obtain therefrom another certificate naming another beneficiary. Luhrs v. Supreme Lodge, 27 St. Rep. 88; 7 N. Y. Supp. 487 ; Sabin v. Grand Lodge, 28 St. Rep. 45; 8 N. Y. Supp. 184; affirmed, 134 N. Y. 423 ; 47 St. Rep. 903. According to the doctrine of the last case cited, the beneficiary had no vested interest in the certificate until his death. Prior thereto, she had a revocable or determinable interest in it,—“a contingent interest, and one which may or may not become absolute.” Ins. Co. v. Woods, (Ind. App.) 37 N. E. 182. Although the defendant did not have a present, actual ownership of the moneys to be received (and which were afterwards received) upon the certificate at the time she entered into the agreement to receive the same and disburse it according to the agreement found, yet we are of the opinion that the agreement did create an equity or a trust which attached to the money the moment she became the recipient of it, and that the trust is impressed upon the money ; that the agreement should control her action in respect thereto until the object of the agreement was accomplished. Silvey v. Hogdon, 52 Cal. 363 ; Jackman v. Nelson, 147 Mass. 300 ; Cartland v. Hoyt, 78 Me. 355; Field v. Mayor, etc., 6 N. Y. 167; Hall v. City of Buffalo, 1 Keyes, 193. In Stover v. Eycleshimer, 3 Keyes, 620, it was held that “assignments of contingent interests and expectations, and of things which have no present, actual existence, but rest in possibility only,” will be upheld, if they are entered into fairly, and are not against public policy. In Day v. Roth, 18 N. Y. 453, it was held that a declaration or agreement, however informal, evincing an intention merely to create a trust will be upheld. In Neilly v. Neilly, 23 Hun, 651, it was said : “It is well settled that a formal or even a written agreement is not necessary to create a trust in money or personal estate.”

In Barry v. Lambert, 98 N. Y. 306, Chief Judge Ruger said: “It is well settled that a trust in personal property may be created by paroi and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal, and plainly imply that the party making them intended to divest himself of his interest in the property, and to hold it thereafter for the use and benefit of another. This is all that is required to create a trust, even as against the owner, and although he continues to retain possession of the property devoted to the trust. But when the legal title is in one party, and the equitable ownership in another, it is only necessary for those facts to appear, in order to constitute the holder a trustee for the benefit of the other.”

In Gilman v. McArdle, 99 N. Y. 451, it was again held that a trust, as to personal property, may be created without writing ; and in the same case it is observed that a trust may be created although it is to be executed after the death of the creator. The doctrine is again stated in Re Carpenter, 131 N.Y. 86 ; 42 St. Rep. 627, and cases referred to.

We cannot assent to the contention of the ■ appellant that the acts, declarations, or evidence of the admissions of the defendant in respect to the agreement were inadmissible, or that they tended “to vary or contradict the terms of the certificate itself, and are insufficient to raise a trust in respect to the proceeds of said certificate.” Doubtless, as between the order and the defendant, the certificate was the only evidence of agreement on the part of the order; and doubtless she, in view of that language, was entitled to receive, as she did, the moneys from the order in liquidation of the certificate. However, w.hen she received the money, having made the agreement to hold it for the purposes mentioned in the agreement, a trust was fastened upon the money, which she was in duty bound to carry out. In the Carpenter Case, supra, there were formal written assignments to Pierce of the notes and securities, who took the legal title thereto, and it was said in respect thereto: “The petitioner took an equitable interest only, which she could enforce through the medium of a trust. Pierce was not only vested with the legal title to the original notes, but he was to take any new notes in his name. The rights of the petitioner were those of a beneficiary of a trust. There can be no doubt but a trust may be created to collect and pay over the proceeds of notes to a person designated by the creator of the t-rúst. ”

Appellant’s learned counsel calls our attention to Steere v. Steere, 5 Johns. Oh. 1, which related to real estate; and while we may agree with the language of the chancellor, wherein he says, “But intentions and intimations of that kind cannot well be considered as amounting to a clear and absolute trust, which a court of equity will recognize and enforce, unless the declaration of it be quite positive, and free from all ambiguity,” we are unable to see anything in the case which persuasively or conclusively supports the contention of the appellant Nor do we think the case of Dean v. Dean, 6 Conn. 285, aids the contention of the appellant In that case an absolute title had been conveyed, and a bill was filed to enforce a paroi agreement in respect thereto, and it was held that the paroi testimony was inadequate to support the bill.

2. When one of the plaintiffs was upon the stand, her attention was called to a conversation which she had with the defendant, her aunt, on the occasion of carrying the policy to her house, on the 2d day of March. The questions calling for that conversation were objected to, and one of the grounds stated was “ that a personal transaction or communication with the deceased by this witness can’t be proved by a conversation had between this witness and the defendant.” Thereupon, the court observed: “What she says that the deceased stated to her is perfectly competent, but that don’t prove that the deceased said it The conversation between the witnesses and the defendant is competent I will give you an exception.” We think the ruling is in accordance with the doctrine stated in Hier v. Grant, 47 N. Y. 278.

We have looked at the other exceptions in the case,'and are of the opinion that they do not present any error which requires us to disturb the conclusion reached at the circuit. The trial judge delivered an extensive opinion, fully and fairly commenting upon the evidence, giving cogent reasons for his conclusion upon the evidence, and stated several authorities which sustain the conclusion of law announced; and upon them, as well as upon the views already expressed, we are of the opinion that the decision made at the circuit should be allowed to stand.

Judgment affirmed, with costs.

All concur.


author: Merwin, J.

text:
    Jedediah S. Kingsley, App’lt, v. Willey J. P. Kingsley, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Pleading—Libel—Justification.
    In an action for libel, a general denial does not prevent the defendant from availing himself of the defense of justification.
    2. Same.
    Facts relied up n to show justification must be pleaded.

      3. Same.
    Tlie circumstances, under which a libelous letter was written, are not admissible to disprove express malice, unless they are pleaded.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes.

      Oswald P. Backus, for app’lt; J. S. Baker, for resp’t.
   Merwin, J.

—The main struggle in this case was over the second cause of action, which was based on an article published .by the defendant in the Eome Sentinel. The question whether the defense of justification was made out was submitted to the jury, and they found for the defendant. It is claimed by the plaintiff that the answer, in its allegations on the subject of justification, was not sufficiently broad and definite to give the defendant the benefit of that defense. There is no doubt about the general rule that the justification must be as broad as the charge. Facts must be specified tending to show its truth. McKane v. Brooklyn Citizen, 53 Hun, 132; 24 St. Rep. 695. This rule, as said in Ball v. Evening Post Publishing Co., 38 Hun, 11, requires only a statement of the necessary facts, and not of the evidence of those facts. When the original charge is in itself specific, the defendant need not further particularize it in his plea. Folk. Starkie, Sland. & L. § 483; Van Wyck v. Guthrie, 4 Duer, 268; affirmed, 17 N.Y. 190. In Wachter v. Quenzer, 29 N. Y. 553, it is said that “the requirement that the answer should set up the matter to be relied on was intended to prevent surprise, by informing the plaintiff of what he must expect to meet.” In Fleischmann v. Bennett, 87 N. Y. 231, it was held that an innuendo in a complaint in an action for libel does not enlarge the matter set forth in the alleged libelous words, but only explains their application, and where not justified by the statements to which it refers, so that, rejecting it, the words are not libelous, a demurrer to the complaint will lie. It would seem to follow that in determining whether the answer, in its allegations, is sufficiently broad, the statement in the innuendo of the character of the charge does not control. Flor does the fact that there was in the answer a general denial prevent the defendant from availing himself of the defense of justification. Buhler v. Wentworth, 17 Barb. 649; Hollenbeck v. Clow, 9 How. Pr. 289; Code, § 507. A defendant may put his defense upon distinct and even inconsistent grounds. Goodwin v. Wertheimer, 99 N. Y. 150. In view of these principles, the answer was, I think, sufficiently broad and definite to give the defendant the benefit of the defense of justification. The case is in many respects a peculiar one, and many of the material facts are necessarily of a general character.

The plaintiff asked the court to charge “that the only question for the jury, upon the statement that ‘the nature and combination of my remedies is known only to myself, and any person claiming to haVe any knowledge of them is an imposter,’ is the question of damages, because of the insufficiency of the pleading in justification.” This the court refused, and the plaintiff excepted. The clause in the libelous article was, “The nature and combination of my remedies are known only to myself, and any person claiming to have any knowledge of them, or to have been my partner, is an impostor.” The argument of the plaintiff’s counsel seems to be based on the idea that there were several remedies, and that the defendant did not, in his answer, sufficiently specify all of them, and charge that plaintiff did nob know the nature and combination of any of them. There is room for the inference that the charge against the plaintiff on this subject in the libelous article, taking it all together, had reference to a specific remedy for cancer, which the defendant claimed that he had “ discovered and adopted nearly forty years ago,” “ consisting of a preparation composed of various ingredients, an application of which would destroy cancerous growth,” and did not refer to certain incidental and comparatively unimportant remedies that were used in the course of the application of the specific remedy. It should not be said, as matter of law, as the court was in effect called on to say by the request, that the incidental remedies were included in the charge. But the plaintiff claims that, assuming that the answer, in form, is good, evidence was admitted, on the theory of justification, that was’ not fairly within the allegations of the answer. Several eminent physicians were called as experts upon the question of what was the proper or recognized treatment, in the profession, for the removal of large cancerous growths, in August, 1891,-—the time of the publication in question. This evidence was objected to upon the ground, among others, that it was not admissible under the pleadings. The objection was overruled, and exception taken. The testimony was that proper treatment was removal with a knife. One of the charges inferable from the libelous justification was that the plaintiff was an ignorant practitioner. It is claimed on the part of defendant that the evidence above referred to was admissible on that subject. It is alleged in the answer, in substance, that in March, 1891, the plaintiff opened an office for the treatment of cancer by local application alone, and advertised his business upon that method of treatment alone. It is argued that if the plaintiff did not adopt the proper method af treatment he would be deemed an ignorant practitioner, and that, therefore, the evidence in question was admissible. There are in the answer allegations of facts, from the existence of which the inference might be deducible that the plaintiff was an ignorant practitioner. There is, however, no allegation that the treatment of cancer by local application alone was not proper, or that the proper treatment of large canceroqs growths was by removal with the knife. There is, in substance, an allegation—somewhat general—that the plaintiff did not possess sufficient skill to treat persons having the disease that he assumed to treat; and it is claimed that this may be shown by showing that he adopted an improper method of treatment, without any specific allegation of such fact in the answer. I think not. That is a subject that the plaintiff is entitled to have specific notice of, if it is to be litigated. It affected largely the character of his business, as well as his professional standing. The evidence was, I think, erroneously admitted; and it was of such a character that it may be said, with a good deal of force, that it may have affected the verdict to the prejudice of the plaintiff. At least, we cannot, I think, fairly say that it probably did not affect the verdict, especially in view of the fact that in some respects the case was a close one.

There is another exception in the case upon the same line, but of not so important a bearing. One of the counts of the complaint is based on a letter which the defendant, in his answer, admits that he wrote, or caused to be written, and sent to a Mrs. Brown. Evidence was admitted of the circumstances under which it was written, with a view of showing that there was no express malice, although these circumstances were not set up by way of mitigation. This would seem to be error. Bradner v. Faulkner, 93 N. Y. 515; Daly v. Byrne, 1 Abb. N. C. 150.

After the defendant rested, evidence was offered by the plaintiff which it was claimed would tend to show the existence of actual malice on the part of defendant. This was excluded on the ground that it was reopening. The plaintiff claims that it was competent to show actual malice in rebuttal. We are, however, referred to no case like the present where that practice was authorized. It was competent for the plaintiff to have proved express malice as a part of his case1 before he rested. Fry v. Bennett, 28 N. Y. 324. This being so, it would seem that it was discretionary whether he should, after the defendant rested, be allowed to give such evidence. The general rule is that the plaintiff or party holding the affirmative is bound, in the first instance, to introduce all the evidence on his side, except that which operates merely to answer or qualify the case as it is sought to be made out by his adversary’s proof. Hastings v. Palmer, 20 Wend. 226. " In Silverman v. Foreman, 3 E. D. Smith, 323, it is said that rebutting testimony must be in denial of some affirmative case or fact which the defendant has endeavored to prove. See, also, 2 Greenl. Ev. § 422; Abb. Tr. Ev. 674.

We are referred to numerous other exceptions, but it is not necessary here to consider them. Upon a retrial the questions may not be important. For the errors above specified, and especially that relating to the expert evidence, there should, I think, be a new trial.

Hardin, P. J., and Martin, J., concur in result.

Judgment and order reversed on the exceptions, and a new trial ordered, costs to abide the event.


text:
    Margaret T. Eldredge, Resp’t, v. Anne E. Eldredge et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Appeal— Curing Error.
    Unless it appears that improper evidence did not afEect the verdict, the error in its admission is not cured by striking it out.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.

      Edward K. Clark, for app’lts: Edmund O'Connor, for resp’t.
   Hardin, P. J.

—Plaintiff, in 1887, became acquainted with James Eldredge, and received his attentions from time to time (which were interrupted for a period of about six months); and on the evening of January 7, 1891, she accompanied him to the residence of a clergyman in the city of Binghamton, and they were married, and on that evening they separated (to some extent, keeping their marriage a secret), she returning to her mother’s house, and he returning to his father’s house. Subsequently, she disclosed her marriage to her mother, and shortly after returning to his father’s house lie disclosed the marriage to his father. Subsequently, and on the 28th day of January, the plaintiff and her husband went to live in rooms of the boarding house of Mrs. Ooodenough, in the city, where they remained until the 16th of March, when the husband made some arrangement to go south with a view of selling cigars, and upon his return he made an arrangement with a Mrs. Blish to board himself and wife, where they remained from the 2d of May until the 5th of June, when the plaintiff again returned to her mother’s house, and has remained there ever since, being visited occasionally by her husband. In August the husband of the plaintiff went to Sumter, S. 0., where he had an aunt, and where he had expectations of making a settlement in business, and remained there for several weeks. While he was thus absent this action was commenced, on the 1st of September, 1891, against his father, mother, and sister.

Plaintiff’s right of recovery is based upon the alleged loss of the society, affections, and companionship of her husband. Bennett v. Bennett, 116 N. Y. 584; 27 St. Rep. 679. And, to maintain the action, it was incumbent upon her to show that the defendants had wrongfully persuaded and enticed him from her, and thus deprived her of his society by means of their “tortious act.” Heermance v. James, 47 Barb. 120; Jaynes v. Jaynes, 39 Hun, 40; Bennett v. Bennett, 116 N. Y. 584; 27 St. Rep. 679. For some time prior to the plaintiff’s marriage the husband had been addicted to the use of intoxicating drinks. His health was very much impaired, and at times he was rendered entirely unfit for business. And the knowledge of such habits, and the condition of health, was communicated to the plaintiff and to her mother prior to the marriage. His habits continued very objectionable, —at intervals being accustomed to the use of intoxicating drinks to an excess,—which condition seemed to have continued, to a greated or less extent, down to the time of the commencement of this action. His habits were such that they seemed to have occasioned his father and mother and sister a great deal of trouble prior to the marriage, and more or less occasioned them annoyance and perplexities after the marriage was contracted, and doubtless the acts and conduct of the defendants were more or less influenced by the condition of his health and habits.

When Mrs. Shannon (mother of the plaintiff) was' upon the stand, she said that prior to the marriage she used to meet these defendants occassionally, “and they were always very nice to me.” Thereupon, the counsel for the plaintiff asked her this question : “Q. Since the marriage, have you frequently met them ?” The answer was, “Yes sir.” This was objected to, and received, and an exception taken, and thereupon the plaintiff’s counsel put the following question: “Q. How, since the marriage, when you met them? A. They never notice me since the marriage.” This was objected to as irrelevant, and the court remarked, “I will receive it as one of the facts in the case.”- An exception was taken. It is not apparent that this evidence was material to the issue presented by the plaintiff.

The plaintiff was allowed to give evidence of the power of attorney executed by James Eldredge to his mother on July 15, 1890, and also a deed executed by the mother to her husband, the father of James, on the 25th of July, 1890. Each of these papers were objécted to as incompetent and inadmissible, and the objections were overruled, and an exception taken. It is difficult to see how the acts of James and of his mother and father, transpiring in 1890,—six mouths before his marriage with the plaintiff,— tend to support the allegations of the complaint. Thereafter, the plaintiff offered in evidence the original complaint in an action brought by James, the husband, against these defendants and his uncle, who had created a trust in favor of the defendants. When this complaint was offered, it was objected to as not competent, and as no proof of the facts stated in the papers. Thereupon, the plaintiff’s counsel observed, “I do not offer it as proof of the facts stated, but as proof that those claims were made to the respective parties.” Thereupon, the court remarked, “I will receive it,” and an exception was taken. After that ruling, the summons and complaint, which were verified by James on the 18th of July, 1891, in the action of James C. Eldredge against Hallam Eldredge, Anna E. Eldredge, Mary E. Withington, and James Eldredge, were received and read in evidence. Upon an inspection of the complaint, it is found to contain many allegations that were calculated to affect the minds of the jury upon the vital and critical question at issue between the parties in this action. The respondent’s counsel attempts to escape the criticism upon that ruling by an assertion that “the court particularly cautioned the jury upon that question, at the defendants’ request.” Upon turning to the charge of the learned judge upon the subject we find him saying, viz.: “A suit was commenced by this young man to set aside the power of attorney, and the deed that his mother gave, and a complaint was made-and signed by him in that action, which has been read to you. Now, gentlemen, there were a good many statements of facts in that action. For instance, it was stated therein that they had said to him that unless he left his wife he could not have his property. Now, gentlemen, that statement is not evidence to you in this case. It is a pity that it was read to you, for the fear that it may influence you, and I charge you to give no credit whatever in the statement. It was answered by the sworn answer of the defendants that it was not true. If the plaintiff wanted the benefit of the young man, as to what his parents had ever said to him, she should have put it before you by his sworn evidence under oath, and on the trial of this case. What he said there, with no opportunity * * * to cross examine him,—-with no opportunity for you to look him in the face, and see whether it was true or false,—has not the slightest effect, and nobody of good judgment would consider it for a moment. Hence, I ask you to disregard it entirely. All that pleading was for was ■ to show the fact that he had commenced a suit in which he made certain charges—in which he claimed certain things'—against his mother, and the reasons chat he claimed them, and the facts upon which he claimed them. Perhaps they should not have been put before you, and I ask you to disregard entirely anything you can remember of that complaint, except the fact that there was such an action brought against the parents.”

In Erben v. Lorillard, 19 N. Y. 302, Grover, J., said: “When illegal evidence, properly excepted to, has been received during a trial, it must be shown that the verdict was not affected by it, or the judgment will be reversed. If the evidence may have affected the verdict, the error cannot be disregarded. * * * It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence.”

This rule is reasserted in Wersebe v. B. & S. A. Railroad Co., 1 Misc. Rep. 474; 49 St. Rep. 619, and several cases are there cited to the same effect.

After the plaintiff had testified that she received a letter September 5, 1891, which her husband wrote, and sent her from Sumter, which contained a $25 check, she was asked by her counsel, viz.: “For what purpose did you bring and show that letter to me ?” “Objected to as immaterial, incompetent, and calling for a conclusion.” The objection was overruled, and an exception was taken, and the witness answered, “I thought it would be for my interest.” Thereafter, the plaintiff's counsel offered in evidence the letter of September 5, 1891, which was objected to as incompetent and immaterial, and as irrelevant and hearsay, and not binding upon these defendants. Tiie objections were overruled, and an exception taken, and the letter written by the plaintiff’s husband was read. Thereafter, the plaintiff’s counsel offered a replying letter, which had been prepared under his supervision, and sent by the plaintiff to her husband, which bore date September 7, 1891, which letter contains many self-serving declarations and statements made by the plaintiff. Thereupon, the plaintiff's counsel exhibited to the witness a letter of September 10th. and asked her if that was a letter which she received in reply to the one of the 7th. She asserted that it was, and thereupon the letter of September 10th was received in evidence. During the course of the trial the defendants gave considerable evidence tending very strongly to negative the allegations of the complaint. The jury have disregarded that evidence, and followed the testimony given by the plaintiff and her witnesses, and, in effect, found that the defendants wrongfully persuaded, influenced, and induced an alienation of the affections of the husband of plaintiff from her, and thus wrongfully deprived her of his society. With the conflict thus shown in the evidence, we are not prepared to say that the rulings which we have pointed out, and the evidence so received against the defendants’ objections and exceptions, worked no barm to the defendants. We are of the opinion that the appellants are entitled to a new trial by "'reason of the errors in the rulings to which reference has been made. Winsmore v. Greenbank, Willes, 577; Boues v. Steffens, 43 St. Rep. 29 ; 16 N. Y. Supp. 819. Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event All concur.


text:
    Hotchkiss S. Finch, Resp’t, v. Frank A. Skilton et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Bills and notes—Consideration—New maker.
    An indefinite extension, followed by actual forbearance for about two years, is a sufficient consideration for the obligation of a new maker.
    2. Same—Demand.
    No demand is necessary prior to the commencement of an action upon such note against the maker.
    3. Appeal—First instance.
    A'daim, not made in the pleadings or at the trial, cannot be raised on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions.

      E. C. Aiken, for app’lts; H. Austin Clark, for resp’t.
   Merwin, J.

—This action was brought upon a promissory note, a copy of which is a follows:

“$3,000. Auburn, N. Y, January %, 1886.
Eighteen months after date, I promise to pay to the order of Finch & Allen three thousand dollars, at the First National Bank of Auburn, value received, with use.
“Frank A. Skilton,
“Harry I. Skilton.”

The execution of the note was admitted. It appeared, however, that Harry I. did not sign it until some time after it was executed and delivered to the payees by the other maker. One of the defenses of Harry I. was that he signed for the accommodation of the other maker, and without consideration. The plaintiff claimed that Harry signed the note on or about December 17, 1887, in pursuance of an arrangement between the plaintiff and Frank that the plaintiff would give time on the note if he would procure his brother Harry to sign it, and would release a certain privilege he (Frank) had under a mortgage given by him to the payees on the 25th of February, 1886, as collateral security to this and other notes. Whether there was such an arrangement was the main issue of fact at the trial. Upon it the jury found for the plaintiff, and the evidence is sufficient to sustain that conclusion. The extension, though indefinite, followed as it was by actual forbearance for about two years, was a sufficient consideration for the obligation of the new maker. Mutual L. Ins. Co. v. Smith, 23 Hun, 535 ; Traders' Nat. Bank v. Parker, 130 N. Y. 415; 42 St. Rep. 506.

A release of the privilege referred to was given. This is dated December 17,1887, and wa^ executed by Frank on March 9,1888. The defendant Harry claims that this release operated to change the terms of the mortgage; that it was done without his knowledge or consent; and that, therefore, he, being a surety, was discharged from liability, under the authority of Paine v. Jones, 76 N. Y. 274. The mortgage was upon the lands in the state of Illinois, and there was in it a provision by which the mortgagees agreed to release one or more of certain lots upon the payment of '$200 for each lot. The release signed by Frank was “for the purposeCbf waiving such agreement for the releasing of any lot or lots until the actual sale of said lot or lots, and in case any lot is sold the money for which said lot is sold shall go to the said Finch and Allen, and no lot to be released unless two hundred is paid thereon.” According to the evidence of the plaintiff, ibis release was executed in pursuance of the arrangement for time on the note, and was a part of the consideration for the extension, so that the arrangement was not complete until the release was executed. If that was so, it cannot well be claimed by Harry that his rights as surety were affected by the release. The case of Paine v. Jones would not apply. Upon this line it is also suggested by the appellant Harry I. that on .the 1st of January, 1888, the plaintiff took from Frank A. Skilton two notes, of $90 each, for interest due at that date, the notes being payable in seventy-five and ninety-days; and the claim is made that this was an extension of time on the interest, and operated to release Harry I. from his obligation as surety. One note was paid. The other was not. The time given did not exceed the extension of time to be given on the whole debt under the arrangement then pending. Ho claim seems to have been made, at the trial or in the pleadings, that the giving of these notes for the interest affected the surety. It is too late now to raise the question.

It is further claimed that a demand was necessary before suit This claim is on the theory that the. extension of time was unlimited. The plaintiff testifies on this subject as follows: “ Several times I was dunning him (Frank) for the pay on this note and mortgage, and he Wanted time, and it kept running along. Finally, I said, ‘ I can’t give any more time without I get more security ; ’ and, said he, ‘ What do you want? ’ I said, 11 want Harry’s name to this note, and I want a waiver of the 8200 clause in the mortgage.’ He said he would give it. I told him, : All right,’ I would extend the time indefinitely. And he wanted I should put it six months or a year ahead, and I told him I wouldn’t do it. I said, ‘ You must pay the interest semiannually, if it runs six mouths.’ He talked that he could fix it in three or four months. He said Harry would. He did not tell me to go anywhere for that purpose. He told me that he had talked with Harry about it, and that Harry would sign it. Frank and Harry were partners.”

This action was commenced on the 14th of December, 1889. The interest that had accrued since January 1,1888, was not paid. Upon a note payable on demand, no demand is necessary prior to the commencement of the suit, as against the maker. Wheeler v. Warner, 47 N. Y. 519; Locklin v. Moore, 57 N. Y. 362. The extension in this case was in effect for a reasonable time. Traders' Nat Bank v. Parker, 130 N. Y. 415, 420; 42 St. Rep. 506. When that time had elapsed, no demand was necessary, any more than upon a demand note. It has been held that where time of payment of a loan is not specified in a contract the law will presume that it was intended by the parties to be paid in a reasonable time, and m such cases a demand before suit is not necessary. Neimeyer v. Brooks, 44 Ill. 77. The surety, having signed as maker, has, in this respect, no better position than the principal. Brandt, Sur., § 82.

It is further claimed that “ as there was no evidence on the part of plaintiff, except his own, as to what was realized on foreclosure in Chicago, the court should have submitted the whole case to the jury, instead of directing them to find a verdict against Frank A. Skilton.” There was, however, no evidence upon which the jury had a right to say that the plaintiff realized on the foreclosure any more than he testified he did. It is therefore difficult to see how any error in this respect was committed.

Our attention is called to three exceptions on questions of evidence.

1. Oral evidence of the contract or arrangement for extension made between plaintiff and Frank A. Skilton was admissible. Only' a part of it was embodied in the release of December 17, 1887. Chapin v. Dobson, 78 N. Y. 75. The original transaction between plaintiff and Frank, under which Harry afterwards signed the note, could be shown, although Harry was not then present.

2. It is not shown that the court erred in excluding proof of the contents of a letter from Mr. Guest to the plaintiff. One of the objections was that it was immaterial. The letter is not in the case, or any statement of what the contents are. We cannot therefore say it was material.

3. The defendant Frank A. Skilton being on the stand as a witness for the defendants, the question was asked him: ‘‘Q. Did Mr. Finch state to you that Mrs. Guest was insolvent, and was not. worth a dollar?” This was objected to by plaintiff generally, and' the objection was sustained. It is not apparent that this was material. Mrs. Guest, as the grantee of Frank A. of the mortgaged premises, had agreed to pay' the mortgage, but there is no allegation in the answer that the plaintiff was ever requested to collect of Mrs. Guest.

No other questions are presented. We fail to find any good ground for reversal. The judgment should therefore be affirmed.

All concur. Judgment and order affirmed, with costs.


author: Bradley, J.

text:
    The People, Resp’t, v. Carl Oettenger, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Trial—Unresponsive answer.
    An unresponsive portion of an answer to a question, on cross-examinatian, should be stricken out on motion.
    Appeal from a judgment of conviction for grand larceny.

      Geo. M. Williams, for app’lt; Fred C. Hanford, for the People.
   Bradley, J.

—In the fall of 1891 the defendant went into the service of the Voght Manufacturing Company, at the city of Rochester, as clerk; and in July, 1893, he was promoted to the position of head bookkeeper and accountant, which place he occupied until he was discharged, in November, 1893. It was the custom of the company to pay the wages of its employees weekly. For the purpose of ascertaining the amount they, respectively, were entitled to receive, the foreman furnished to the defendant the time of their service, and be entered it in the time book kept for the purpose. Taking into account the money on hand, a slip containing a statement of the amount requisite was taken to the treasurer, who would draw the check of the company, upon its bank account, with the proceeds of which the amount to which each workman was entitled was put into an envelope for him. In the time book was entered the wages paid the men, respectively, and in the journal was entered the amount paid them. The entries in those books were in the handwriting of the defendant, and by the entries in the former it appeared that the amount paid out for wages on August 4, 1893, was $379.66, and the corresponding entry in the journal of the amount was $409.66 : thus representing a difference o.f $30, which it is charged was appropriated by the defendant to his own use. And, in support of the charge of his felonious intent, evidence was given to the effect that, in several weeks subsequent to that time, like discrepancies appear by the entries in those books, producing the same and greater differences between the entries of payment of wages in the time book and in the journal. While this indicated an irregularity in the defendant’s bookkeeping which would create suspicion against him, it did not necessarily prove that he had taken the differences in amount so represented. Another witness, who afterwards became a bookkeeper, testified that he had examined the situation on the 4th of August, 1893, as represented by the books, including the cash book of the company, and that it appeared by the cash book that there was on hand at the close of the day before. $29.87; that the receipts on that day, including the proceeds of the check of the company drawn upon its bank account, were $58.37, $3.09, $2.60, and the amount of the check, $575, making together $669.03 ; that .the amount paid out was the pay roll, $379.66, salaries, $151.77, to Mr. Voght, $41.50, sundries during the week $32.37, and the balance remaining, as appeared by the cash book, was $33.73, making $639.03, producing a like difference of $30. This state of facts was apparently sufficient to justify the conclusion that somebody had on that day taken that .amount of the company’s money.

The defendant, as a witness in his behalf, testified that the slip containing statement of wages and salaries, and such sum as was. needed, was written by another—the assistant bookkeeper; that he (defendant) took the entry made in the journal from the slip as it appeared in the latter, and that the slip and entry in. the journal would agree. The slip, as was common, appears not to have been returned after it was taken to the treasurer for the purpose of the check, but was destroyed. He also testifies that he did not take $80, or any other sum, of the company’s money. It appear that the cash book was keep, and the entries made in it, by the assistant bookkeeper, who also had access to the safe and who had charge of the petty cash drawer,' in which money was keep to pay freights, express charges, and other minor expenses. There was evidence sufficient to justify the submission of the case to the jury, for them to determine whether or not the defendant was guilty of the offense charged, and therefore the motion made at the close of the evidence for his discharge was properly denied.

After the defendant had been examined as a witness, Mr. Yoght, the president and treasurer of the company, was recalled, and after stating what the slips contained, and that they were destroyed, was, on cross-examination, asked: “They would be of some value, if you had them now? Answer. Yes, sir; they would be strong evidence against the prisoner.” Thereupon, the defendant’s counsel asked that the answer be stricken out. This was denied, and exception taken. The latter part of the answer was not responsive to the question and should have been stricken out/ and the motion may fairly have been understood to have had reference only to that part of the answer given by the witness. It is possible- that the defendant- may have been prejudiced by the expression that the slips v^ould be strong evidence against him.

The court in charging the jury, stated that on the day the check of the company was made there was a balance on hand of $29.87, and that there should have, on that day, remained in the defendant’s hands a balance of $68.33, whereas in fact there was but $33.33. The defendant’s counsel excepted to that part of the statement in the charge that $63.33 should have remained in the defendant’s hands that day. Treating the entries in the cashbook as evidence, such appeared to have been the fact. But it may be observed that the entries in the cash book were not made by the defendant, nor did he, so far as appears, have anything to do with it. In that view, the defendant’s counsel requested the court to charge the jury that it was not shown that the company-had any definite amount of money in its possession on the 4th of August, 1893. This was declined, and exception taken. The fact certainly did not appear, unless the entries in the cash book were treated as evidence of it. The fact was dependent upon the entries in the cash book as evidence. They were not made by the defendant. It does noj; appear that he had any knowledge of them, nou was any evidence verifying the entries given by the person who made them; and, while the attention of the court was not called as specifically as it ought to have been to the question sought to be raised by the defendant’s counsel, we think the ■ fact should not be overlooked that the defendant may have been prejudiced by the effect which may be treated as having been given by the charge of the court to those entries in the cashbook, the correctness of which was not supported by evidence other than that inherently manifested by them. The defendant should have a now trial.

The conviction and judgment should be reversed, and a new trial granted.

All concur.