author: Dwight, P. J.

text:
    Granger A Hollister et al., Pl’ffs, v. Jacob M. Kolb, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Pleading—Equitable assignment—Defense.
    The complaint alleged that one (3., who had contracted to build a cot tage for defendant, and who was indebted-to plaintiffs, gave them an order for $800, which was accepted by defendant, but that defendant afterwards refused to pay the same. The answer admitted all the allegations except the indebtedness of (3. to plaintiffs, and that the contract was made before the order was given, and set up that he entered into a contract with (3. to build a house; that before commencement of the work plaintiffs stated they were willing to furnish lumber for said house to the amount of said order; that they fraudulently concealed the fact, if fact it was, that G. was indebted to them; that defendant signed said order relying on said agreement; that plaintiffs did'not furnish lumber to the amount of the order, but refused to do so in excess of $328; that defendant retained that amount and tendered the same. Seld, that the order was an equitable assignment of the moneys mentioned therein and bound defendant from the moment he received notice thereof; that the answer set up no defense, and that a direction of a verdict on the pleadings was proper.
    Motion by the defendant for a new trial on case and exceptions ordered to be heard in the first instance at the general term after a verdict for the plaintiff directed by the court at the circuit.

      H. McGuire, for the motion; George F. Yeoman, opposed.
   Dwight, P. J.

The verdict in this case was directif on the pleadings; the only question, therefore, is whether the answer raises an issue either of denial or affirmative defense.

The action was on a written order for the payment of money which the answer admits was drawn upon and accepted by the defendant as follows:

, “ Rochester, N. Y., January 5, 1888.
" Jacob Kolb:
Dear Sir—Pay Hollister Bros., or order, eight hundred dollars, and charge my account on account of contract for'building your cottage at Charlotte.
Peter Gtjerinot.”
“I, Jacob M. Kolb, promise to pay said amount on or about May 1, 1888, eight hundred dollars.
“Jacob M. Kolb.”

The complaint alleges that at the date of the order Gruerinot was indebted to the plaintiffs in an amount exceeding $800; that before that time he had contracted with the defendant to build a cottage for him at Charlotte, doing all the work and furnishing all the materials for the sum of $1,600 ; that after making such contract, and in consideration of his indebtedness to the plaintiffs, Gruerinot made and delivered to the plaintiffs the order above mentioned; that the plaintiffs immediately notified the defendant of the order, and the defendant accepted it; that Gruerinot performed his contract according to its terms; that after the order became due plaintiffs demanded payment of the defendant, which was refused, and that they are still the owners and holders of such order which remains wholly unpaid.

The answer expressly admits all the allegations of the complaint except of the indebtedness of Gruerinot to the plaintiffs and that the building contract was made before the order was given, and proceeds to aver as follows: “ 10. For a further defense to the complaint of the plaintiff, the defendant alleges that on or about the 5th day of January, 1888, he entered into a contract with one Peter Gruerinot, by which said Gruerinot was to build'for defendant a frame house near Charlotte, Monroe county, N. Y., for the sum of $1,600. That before the commencement of said work plaintiffs represented to the defendant that they were willing to furnish lumber to build said house to Gruerinot provided the defendant would become responsible for the payment of the same. That the plaintiffs produced an estimate of the amount of lumber required, and, together with said Gruerinot, estimated the same at $800. That the plaintiffs fraudulently concealed from the defendant the fact, if fact it was, that Gruerinot was indebted to the plaintiffs in any sum; that plaintiffs, to induce the defendant to accept said order, promised and agreed to furnish the said lumber to the extent of $800, and to personally see that the lumber was of good quality, and such as was required by the specifications for said building; that the defendant, relying upon said agreement, and having no knowledge of the fact, if fact it was, that Grueriqggwas indebted to the plaintiffs, and being deceived thereby, signed Wd delivered to the plaintiffs the acceptance of said order; that said Gruerinot was wholly irresponsible and insolvent, and was known to be so by the plaintiffs, but was not known to be so by the defendant when defendant signed the said order; that thereafter, and on or about the 1st day of May, 1888, this defendant requested the plaintiffs to furnish the defendant with a statement of the lumber obtained by Gruerinot for the defendant's house at Charlotte, the house being then completed, and that plaintiffs furnished defendant with a statement showing the total amount of lumber so furnished as aforesaid to be $328.10; that this defendant, relying upon such statement and agreement under which said acceptance was signed, reserved from the amount of said contract the sum of $328.10, and paid the balance to Gruerinot.

11. This defendant alleges upon information and belief, that the plaintiffs after the delivery to the plaintiffs of the defendant’s acceptance, refused to deliver to said Guerinot the lumber required to build and complete the defendant’s house, and refused to deliver to said Gruerinot lumber for said house in excess in value of the sum of $328.10, and that said Gruerinot was compelled to procure the same from other dealers.’’ And he adds an averment of a tender to the plaintiff, before the commencement of the action of the sum of $328.10, and the payment of the same into court.

On the trial the defendant was allowed to amend his answer by inserting the averment, “ that if the defendant had known Gruerinot was irresponsible and largely indebted to the plaintiffs, he would not have made the contract with him."

It is very plain that no issue was made by the denials of the answer which put the plaintiff to proof of any fact necessary to a recovery. A consideration to Gruerinot for the order was to be presumed as against the defendant, and the want of it, if a defense at all, must have been affirmatively proved. Eno v, Crooke, 10 N. Y., 60; Daby v. Ericsson, 45 id., 786; Stone v. Frost, 61 id., 614; Belden v. Meeker, 47 id., 311. There is really no denial that the building contract was entered into before the order was made and ■accepted. The complaint alleges that the contract wrs made prior to January 5, 1888, and the order on that day. The answer admits that the contract was made on or about the fifth, and that the order and acceptance was made as alleged in the complaint. Moreover, the order as admitted refers ' to the building contract as already in existence and the acceptance named, as the day of payment, the day named in the contract for the completion of the work.

We come, therefore, to consider the matters affirmatively alleged in the answer, and are of the opinion that, taken together, they constitute no avoidance of the cause of action already substantially confessed.

In this branch of his answer the defendant has apparently attempted to set up the double defense, or two defenses, of fraud and breach of contract on the part of the plaintiffs. So far as fraud is concerned the attempt fails for several reasons. In the first place there is no averment that the fact which is charged to have been fraudulently concealed, did in fact exist. The charge is “ that the plaintiffs fraudulently concealed from the defendant the fact, if fact it was, that Gruerinot was indebted to the plaintiffs,” and elsewhere in his answer the defendant denies that such indebtedness did exist. He neither seeks to rescind the contract on the ground of fraud nor to recoup damages occasioned thereby; nor does he aver that he sustained any damage by reason thereof In fact, nearly, if not quite all the essentials of a cause of action or defense on the ground of fraud are absent from this pleading.

The attempted defense on the ground of breach of contract is equally unavailing. The contract which is charged to have been violated was the plaintiffs’ alleged agreement to furnish to the contractor Gruerinot lumber to the extent of $800, in value, for his^ use in the performance of his contract with the defendant. This was evidently a contract for the benefit of Gruerinot, and the breach of which gave to him and not to the defendant a cause of action against the plaintiffs. The defendant has not been in any way subrogated to the rights of Guerinot under that contract, nor has he himself sustained any loss or prejudice by reason of its breach. The defendant has had the benefit of a full performance of tho contract of Guerinot to furnish proper materials and build and complete his house according to the- specifications, and whether Guerinot procured his materials from the plaintiffs or from other persons was of no interest to the defendant

The views already expressed exclude all consideration of the questions whether the evidence offered by the defendant was in whole or in part admissible under the plaintiffs’ objection that it tended to vary or contradict the terms of a written instrument, and how far the offers were within the averments of the answer. We áre clearly of the opinion that if fully sustained by competent evidence the answer was insufficient to constitute a defence to the plaintiffs’ action.

The order in this case, under the clear doctrine of Lauer v. Dunn, 115 N. Y., 405; 26 N. Y. State Rep., 412, and Brill v. Tuttle, 81 N. Y., 454, was an equitable assignment by Guerinot of so much of the moneys to become due to him under his contract with the defendant; and it bound the defendant from the moment he received notice of its terms, even without acceptance on his part, to retain moneys in Ms hands sufficient for his payment. If the defendant had observed the obligation which the law thus placed upon him he would not have been compelled to pay a second time any portion of the contract price for his house.

The motion for a new trial must be denied, and judgment ordered for the plaintiffs on the verdict.

Motion for a new trial denied and judgment ordered for the plaintiffs on the verdict, with costs.

Macomber and Corlett, JJ., concur.


source: Caselaw Access Project

author: Corlett, J.

license: Public Domain

text:
    Edna O. Stamp, Resp’t, v. Augustus W. Franklin, Ex’r., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    •Marbled women—Eabnlngs of.
    A married woman, who lives with her husband, may recover for services performed for a person other than her husband, as such right is not derived from her husband, but belongs to her by virtue of the statute, but she is not entitled to recover for board or provisions furnished to such person in the’ absence of proof that it was furnished by her, as the presumption in such case is that the husband furnished the provisions.
    Appeal from a judgment entered upon the report of a referee in a cause tried in the county of Yates.

      John H. Johnson, for app’lt; M. A. Leary, for resp’t
   Corlett, J.

This action was brought to recover the'value of services in taking care of and nursing the testatrix and for boarding and furnishing her with supplies from December 5, 1884, until her death, the 10th of January, 1889 ; and also for some services and expenditures before that time. The complaint alleges that there was an agreement made between the plaintiff and her husband before any services were rendered or board furnished that she should have whatever she earned as tier sole and separate estate. The answer put in issue the plaintiff’s claim.

The cause was referred. The referee reported in favor of the plaintiff, $2,631.05, for which judgment was entered'and the defendant appealed to this court.

The testatrix was a widow of the age of about seventy-seven years, leaving no descendants. She was the plaintiff’s aunt, and owned a house and lot in the village of Penn Yan of the value of about $3,500, and left personal properly to the amount of $1,000. For many years she had lived alone in a part of the house, sometimes renting the portion not occupied by her. The plaintiff and her husband lived with her about two years, commencing in 1880, and then moved away. Between April 7,1883, and ¡November 5, 1884, the plaintiff rendered certain services for the deceased and also supplied her with some provisions. About the date last named the plaintiff claims that an agreement was made between them whereby she was to move back into the house and board the testatrix for twenty-five cents a meal, and give her such care and attention as her condition required, in consideration of which she was to receive the dwelling-house or its valúa

The plaintiff claims that, in pursuance of this arrangement, she and her husband moved into the house of the deceased, who boarded with her until her death, and that she bestowed upon'her much care and attention.

The evidence on the part of the plaintiff tended to show that the testatrix was in feeble health and needed much care and nursing, and. that early in ¡November, 1886, she became seriously ill, and was cared for by the plaintiff and such additional help as her necessity required; that she partially recovered, but remained feeble until her death, which occurred on the 10th day of January, 1889. The plaintiff’s evidence tended further to show that her services were worth all she charged.

The defendant’s evidence tended to show that the testatrix needed no attention. The leading controversy on the trial related to questions of fact

In June, 1890, the referee made his report, in which he finds as follows:

First. That one Martha W. Douglass was a resident of the village of Penn Yan, N. Y., for many years, where she died January 10, 1889, aged about seventy-seven years, and leaving a last will and testament, which has been fully proved, and of which defendant is executor. That she was an unmarried person, without descendants, and owning a house and lot on Main street in said village worth $3,500 ; also personal property estimated worth •■1.000. That she resided in said house during the last ten years of her life, and prior thereto, and was a feeble woman and more or less diseased, having asthma and cold attended with expectoration, and needed the care and attention of others; that the plaintiff and her family resided with said Martha W. Douglass for the period of about two years', beginning some time in 1880.

/Second. That after the plaintiff and her family removed from said house, and during the time commencing April 7, 1883, the plaintiff, at decedent’s request, performed labor and service for said decedent one day in each week until November 5,1884, and also furnished her supplies for her table; that said services were worth $94.00, and said supplies $3.55.

Third. That on said 5th day of November, 1884, the plaintiff and her family -again removed to the decedent’s house, and remained there until decedent’s death; and the decedent resided with the plaintiff in said house as a member of her family, and was boarded and nursed and attended by the plaintiff during said period, under the contract hereinafter set forth. That said nursing, attendance and other services rendered by the plaintiff for the decedent were worth twenty-five cents per day, from said November 5th to September 8, 1886, or $186.25. That the decedent, on said September 8th, was seized with a more acute and more severe disease or form of disease, which lasted for several weeks, and she was always subsequently more feeble, and required more service rendered by the plaintiff than had been previously needed. That •said nursing, attendance and other services, from September 8, 1886, to January 10, 1889, were worth ten dollars per week, or ,$1,220.

Fourth. That the contract under which said plaintiff furnished -said board and rendered said services to decedent was made on or about the 5th day of November, 1884, and thereby the plaintiff and said decedent agreed as follows: That in consideration of the plaintiff removing with her family to said house, and taking care of decedent for her natural life, she should pay the plaintiff for her board twenty-five cents per meal, or seventy-five cents a day, and would also give her said house and lot, or the value of it, for her services; that the plaintiff, in consideration of the said agreement of decedent, promised to remove to said house and board and take care of decedent on said terms, and that she did so remove, and boarded decedent and took care -of her until her said decease, January 10, 1889. That the board of said decedent during said period amounted, at seventy-five cents per day, to $1,145.25.

Fifth. That George Stamp, the husband of the plaintiff, prior to 1883, entered into an agreement, with her, by which she was to receive and own all compensation for any service she might render to other persons, and that this agreement was made known to the decedent at the time of said contract

Sixth. That the decedent never gave. the said house and lot, either by deed or devise or in any other manner, nor did she ever pay the plaintiff for said board, nursing, attendance, and the other services, or any part thereof.

On the foregoing facts, I find the following conclusions of law:

First. That the defendant, as executor of the last will and testament of Martha W. Douglass, deceased, is indebted to the plaintiff as follows : For services rendered prior to November 5, 1884, $94, and for supplies furnished during the same time $3.55, and for services rendered from November 5, 1884, to September ■8, 1886, $168.25, and from September 8, 1886, to January 10, 1889, $1,220, and for board from November 5, 1884, to January 10, 1889, $1,145.25. Amounting in all to $2,631.05; for which, sum the plaintiff is entitled to judgment”

It will be noticed from this report that between April 7,1883, and the 5th day of November, 1884, the plaintiff furnished the deceased supplies of the value of $3.55 and rendered services worth $94; that from the last date until the 8th day of December, 1886, the plaintiff’s nursing and services were worth $168.25, and from that time until her death, $1,220. That the board of the testatrix from the 5th day of November, 1884, until her death at the rate of 25 cents per meal was $1,145.25, amounting in the aggregate to $2,631.05, for which judgment was ordered and entered.

The learned counsel for the appellant comes here with two contentions ; one that the referee’s report was not warranted by the evidence, claiming that the plaintiff’s husband was thoroughly impeached; also that by his own showing his testimony was false and unworthy of credit. The other, that the referee fell into errors in the admission and rejection of evidence.

The evidence of the plaintiff’s husband appearing in the appeal papers is certainly not satisfactory. Aside from the suspicion cast upon his testimony by impeaching witnesses and seemingly inconsistent statements, an inspection of the book “ Exhibit A ” put in evidence by the defendant shows with reasonable certainty that all the entries were made in the same ink and about the same time, instead of at different times from May 30, 1879, until the death of the testatrix, as the dates on his book and his testimony indicate. It is true that all this evidence was before the referee, who, notwithstanding the suspicious circumstances above referred to, found in the manner shown by his report. How far or to what extent the referee credited the husband’s evidence does not appear. But it is fair to assume he attached some importance to it. There is other evidence in the case tending to show that the plaintiff’s services were worth all she charged and that she cared for the deceased during the time alleged.

The plaintiff’s husband had given evidence tending to show that by an arrangement with her she was to have her earnings as her sole and separate property.

Section 2, chap. 90, of the Session Laws of 1860, regulating the rights and liabilities of married women, provides, among other things, as follows:

“ A married woman may bargain, sell, assign and transfer her separate personal property and carry on any trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services shall be her sole and separate property, and may be used or invested by her in her own name.”

In Brooks v. Schwerin, 54 N. Y., 343-348, the court held that when a married woman, labors for another, her services no longer belong to her husband, and that whatever she earns is her property, the same as if she was unmarried.

In this case the services were rendered for the testatrix. This sufficiently appears without regard to the testimony of the husband.

It does not clearly appear who furnished or paid for the provisions used to hoard the testatrix, the plaintiff or her husband; nor was any distinct question raised upon that branch of the case by the learned counsel for the defendant. The plaintiff’s right to recover for her services was not derived from her husband, but belonged to her by virtue of the statute. Her right to recover accrued the same as if she was unmarried.

The case shows some exceptions to the admission of evidence on the subject of the value of the plaintiff’s services. But the witnesses showed themselves to be sufficiently competent to speak on that question.

The defendant also offered the will in evidence, which was excluded and exception taken. The case does not show in what respect the will would have been competent. It did not appear on the trial that any of its provisions were material on the questions involved in the issue.

In the case at bar, the evidence tended to show, and the referee finds that the plaintiff’s services were of the value of $1,482.25. This value was shown before the referee by competent evidence, aside from that of the husband.

In the absence of proof, the presumption would be, when ' e husband and wife were living together, that he furnished the visions. The duty of supporting the family devolves upon : i. Under such circumstances, the amount allowed for board or \ . >- visions is not warranted by the evidence.' That sum should be deducted from the judgment, which should be reduced, to the value of the services found by the referee, including interest from the date of his report.

If the plaintiff stipulates to deduct that sum ($1,148.40) from the judgment, it should be affirmed, without costs of the appeal to either party; otherwise reversed and a new trial granted, with costs to abide the event.

Dwight, R J., and Macomber, J., concur.


author: Macomber, J.

text:
    D. Hartman Taber, Rec’r, App’lt, v. Samuel Jack, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Contempt—Judgment fob payment op money cannot be enforced by THESE PROCEEDINGS IF COLLECTIBLE BY EXECUTION.
    Plaintiff as receiver recovered judgment directing defendant to pay to Mm a sum of money, being the value of property claimed to have been sold by him in violation of an injunction order. Held, that such judgment could not be enforced by proceedings for'contempt, as it was capable of being enforced by execution.
    Appeal from an order of the special term of Erie county, dated the 13th day of May, 1890, denying the plaintiff's motion to punish the defendant Jack for non-compliance with g judgment requiring him to pay over to the plaintiff the sum of $106.33.

      H. B. Cone, for app’lt; F. C. Peck, for resp’t.
   Macomber, J.

The application made to the special term was for an order requiring the defendant Jack to pay the plaintiff the sum. of $106.33, or, in default of such payment, punishing him for contempt in the manner provided by law. This motion was denied -by the court, and from the order entered upon such decision an appeal has been taken to this court

Upon the papers before the special term the decision of the •court could not well have been in favor of the application.

The special term and ourselves have been obliged to resort to conjecture for many of the proceedings in court antecedent to the motion, and upon which alone the motion could be based. The plaintiff is described as receiver of the property of Samuel Jack in the title of the case, but in what judicial proceeding, if any, he was appointed, and at whose instance, is not disclosed. Á copy of 'the judgment, as contained in the appeal papers, adjudicates that a transfer of the personal property mentioned in the complaint was fraudulent and void as against the plaintiff and the judgment creditor, George C. Gould, and that such transfer be cancelled and set aside. Upon what facts the judgment proceeded we are not advised.

The judgment further provides that title to the property mentioned in the complaint vested in the plaintiff by virtue of his appointment upon the 6th day of May, 1889, and that the sale of twenty-eight sheep by Samuel Jack was in violation of the injunction order dated that day appointing the plaintiff said receiver, though what the injunction order was, in fact, and under what circumstances the defendant sold the sheep, we are not advised. The following is the material part of the judgment: “ It is further ordered and adjudged that the defendant Samuel Jack account and pay to the plaintiff on demand the avails of said wool and sheep, viz.: the sum of $106.33.”

Treating the case as containing all the facts necessary to support the judgment as it is set forth," it is clear that the plaintiff has mistaken his remedy in endeavoring to enforce the judgment by proceedings to punish the defendant for contempt The plaintiff relies upon subd. 4 of § 1241 of the Code of Civil Procedure as warrant of authority for this proceeding. It is provided by this section, among other things, that: “ Where the judgment requires the payment of money into court, or to an officer of the court, except where the money is due upon a contract, express or implied, or as damages for a non-performance of a contract,” a party willfully neglecting to pay the judgment may be punished for contempt of the court. But this section will not support the contention of the appellant; for if the judgment be final, as this clearly is, and can be enforced by execution, then resort to contempt proceedings cannot be had by the terms of the statute.

By § 1240 a final judgment may be enforced by execution: (1). “ Where it is for a sum of money in favor of either party, or directs the payment of a sum of money.” This judgment directs the payment by the defendant to the plaintiff of a sum of money, being the value of property supposed to have been sold by the defendant Jack in violation of the injunction order.

In the Matter of Hess, 48 Hun, 586; 16 N. Y. State 255, it was held that an assignee could not be required by the proceedings for contempt to pay over a sum of money found to be due him from the receiver appointed in an action brought to vacate-the assignment, for the reason that the order in the case was-capable of being .enforced by execution, in pursuance of the statute above quoted.

In the case of the People ex rel. Borst v. Grant, 41 Hun, 351; 2 H. Y. State Rep., 592, it was held that a failure to pay money pursuant to a judgment cannot be treated as contempt, for the reason above stated.

Such, likewise, was the case of the People ex rel. Fries v. Riley, 25 Hun, 587.

In O’Gara v. Kearney, 77 N. Y., 423, it was decided that a direction for the restitution of moneys paid upon - a judgment which had been set aside upon a motion or reversed upon appeal was, in effect, a judgment for a sum of money under § 1240 of the Code, and enforceable by execution, and that, accordingly, an order punishing a party for contempt in not complying with such a direction was unauthorized.

The order appealed from should be affirmed, with ten dollars-costs and disbursements.

Dwight, P. J., and Corlett, J., concur.


text:
    James Doud, Resp’t, v. Peter J. Donnelly, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Appeai,—Questions beviewable.
    Where the appeal is taken only from the judgment, no motion for a new trial having been made, nothing is brought up for review except the-exceptions.
    S. Witness—Impeachment op.
    On cross-examination defendant’s witnesses were shown affidavits pre* viously made by them, which plaintiff claimed contained statements contradictory of or inconsistent with their testimony, and admitted the genuineness thereof. The affidavits were subsequently admitted in evidence, under objection to their being read, "except the part to which the attention of the witnesses had been called.” held, no error; that the statements being in writing they were admissible to impeach the witnesses without first calling their attention to the time and place where they were-made.
    Appeal from a judgment in favor of the plaintiff entered in Livingston county in ¡November, 1889.

      J. A. Vanderlip, for app’lt; C. J. Bissell, for resp’t.
   Corlett, J.

On the night of March 14th, 1888, the plaintiff after drinking to some extent went into the defendant’s saloon in Dansville where he found several men engaged in talking and drinking. A scuffle ensued between one of the men and himself. The defendant, thereupon, came from behind the bar, used considerable violence, and threw him into the street The plaintiff’s shoulder was broken and he claimed to have been otherwise injured.

This action was brought to recover damages for the alleged injuries. The answer put in issue the material allegations in the complaint, and also set up that the defendant was simply engaged in preserving order, using no unnecessary violence. The action was tried in November, 1889, before a justice and jury, which found a verdict in favor of the plaintiff for $275, upon which judgment was entered and the defendant appealed to this court No motion for a new trial was made.

The learned counsel for the appellent claims that the verdict was clearly against the weight of evidence, and that a new trial should be granted on that ground.

The plaintiff’s evidence tended to show that before the defendant seized him he was not ordered to leave the saloon, and did not have an opportunity to do so, and that a violent attack was made upon him by the defendant without any justifiable cause.

The defendant’s evidence strongly tended to show the reverse. The evidence as to whether the defendant forcibly ejected the plaintiff from the saloon without giving him an opportunity to escape was controverted by the defendant The whole evidence was so conflicting as to require its submission to the jury. The appeal being only from the judgment, no motion for a new trial having been made, nothing is brought up for review except the exceptions. Bostwick v. Barlow, 14 Hun, 177; Klapka v. Order Germania, 7 N. Y. W. Dig., 197; Bobertson v. Brink, 13 id., 109.

The question, therefore, as to whether the verdict was against evidence is not before this court

The defendant was examined as a witness in his own behalf. On his cross-examination he was asked: “ Did you sell whiskey without a license?” The defendant’s counsel objected to the question as immaterial. The objection was overruled and exception taken. The witness declined to answer. He was then asked: “ Have you been convicted for selling liquor without a license? ” This question was not objected to. He answered in the affirmative. The question objected to elicited no evidence. The other was not objected to. If it had been it would have been answered in favor of its admission by § 832 of the Code of Civ. Pro.

Edmund Hoffman was examined as a witness on behalf of the defendant. He testified to what he claimed occurred between the plaintiff and defendant at the time of the alleged injuries. On his cross-examination he was shown exhibit No. 1, which is an affidavit sworn to by the witness on the 17th day of May, 1888, purporting to be his statement of what occurred during the struggle between the plaintiff and defendant in the saloon. The witness admitted the signature to the affidavit and it was marked for identification.

Daniel H. Gilroy was also sworn as a witness for the defendant and gave his account of what occurred between the plaintiff and defendant during the struggle between them. On his cross-examination he was shown exhibit No. 2, which was an affidavit sworn to on the same day as exhibit 1, also purporting to be an account of what occurred between the parties during the struggle, and which was identified by the witness.

Afterwards the plaintiff offered those affidavits in evidence evidently for the purpose of contradicting the witnesses. The defendant’s counsel objected to those exhibits being read in evidence “ except the part to which the attention of the witnesses had been called.’’

It is the rule that witnesses may be impeached by showing that they made statements on material points in conflict with their evidence. But before this can be done it is necessary to direct the attention of the witness sought to be contradicted to the time and place those statements were made. Hart v. Hudson River Bridge Co., 84 N. Y., 56; Gorgen v. Balzhouser, 2 W. Dig., 529.

But the rule is otherwise where the witness makes a written statement

In Romertze v. Hast River Nat. Bk, 49 N. Y., 577, the rule is stated thus: “ Where a party proposes to impeach a witness by proving inconsistent written statements, it is sufficient to show the witness or read to him the paper, and if its genuineness is admitted, the party can introduce it when he has the case and the right to put it in evidence; and it is not the legal right of the other party or the witness to enter into any explanation of the contents of the paper until after it has been introduced in evidence.” To the same effect is People v. Taylor, 43 Hun, 419; 6 N. Y. State Rep., 760.

The learned counsel for the appellant claims that the paper in the Romertze case was admissible per se, as it contained the evidence of the witness sought to be contradicted taken de bene esse. ThiS’ position cannot be maintained.

Section 882 of the Code of Civil Procedure is as follows: “ But such a deposition, except that of a party taken at the instance of an adverse party, or a deposition taken in pursuance of a stipulation, as prescribed in this article, shall not be so read in evidence until it has been satisfactorily proved that the witness is dead, or is unable personally to attend by reason of his insanity, sickness, or other infirmity, or that he is confined in a prison or jail * *

Section 879 provides for a deposition by stipulation, which has no application to this case.

In the Romertze case, the witness was called by the defendant, and testified on the trial. The evidence taken out of court, therefore, was not admissible, and the decision was placed on no such ground.

It was always the rule that evidence taken de bene esse could not be read as original evidence if the witness was present or could by diligence be procured. Fry v. Bennett, 4 Duer, 247; aff’d 28 N. Y., 324; Donnell v. Walsh, 6 Bosw., 621-626; Roberts v. Carter, 28 Barb., 462; Plyer v. German American Ins. Co. of the City of New York, 121 N. Y., 689; 31 N. Y. State Rep., 836; Jackson v. Perkins, 2 Wend., 308; 2 Wait’s Practice, 668-670.

In the Romertze case the ground of the decision is clearly stated on page 581 as follows; “The proper time for explanation is after the paper has been read, and that, as we have seen, is when the party proposing to offer it can introduce evidence on his part, and the attention of the witness is sufficiently called to .it in the first instance by showing it to him and giving Mm an opportunity to know what it is, and his admitting or denying its authenticity.”

No suggestion was made in that case that there was or could be any distinction between a deposition and any other writing. The same is true of the Taylor case.

In the case at bar, the defendant assumed that the witnesses to whom the affidavits were shown, had full opportunity to examine them, and that they were genuine, for the objection is placed on the sole ground that no part could be read except that portion to which the attention of the witness'had been called. All other grounds of objection, under the familiar rule, were waived. But there were no others which could have availed the defendant if taken.

In the case at bar, each of the witnesses who had made affidavits was sworn and fully examined as to what occurred. On cross-examination each admitted the genuineness of his affidavit and that it was made by him. Both of the affidavits purported to cover the same questions upon which the witnesses had been fully examined on the trial. The plaintiff’s counsel claimed that those affidavits contradicted or were inconsistent with the testimony given on the trial. They were evidently offered in evidence for the-purpose of contradicting the witnesses. The defendant’s counsel understood this purpose of the offer, as the ground of his objection shows.

The cases above cited are decisive against the defendant on this question. The affidavits were properly admitted. The defendant had a full opportunity after they were read to show any facts or circumstances which would have proved or tended to prove that there was no conflict between them and the testimony of the witnesses on the trial. There was no error in the charge of the court

The judgment must be affirmed.

Macomber, J., concurs; Dwight, P. J., not sitting.


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    Joseph Povall, Resp’t, v. The Dansville Cigar Manufacturing Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Bills and notes—Non-presentation oe check by holder.
    In settlement of a loan made to defendant, its treasurer, one J., gave his check to plaintiff’s assignor, which she did not present for payment for ten days, at the end of which time the hank failed, J.’s account being good for the amount of the check during that time. The funds of defendant were kept in J.’s account at the bank, mingled with his moneys, and at the time of giving the check, J. procured the discount of a note for §500 in order to meet it, which note was subsequently set off against the liability of the bank by the receiver. In an action to recover on the check, Held, that the actual loss sustained by defendant by the failure to present the check could be recouped against plaintiff’s claim, and that in estimating such loss the entire fund at the bank must be treated as though procured for the express purpose of meeting checks drawn for defendant’s indebtedness, and could not be apportioned between J. and defendant.
    Appeal from a judgment entered in Livingston county on the report of a referee, April 7, 1890.

      Charles J. Bissell, for app’lt; F. C. Peck, for resp’t.
   Macomber, J.

This action is in form brought for moneys loaned and advanced to the defendant by one Mina Prusia, the indebtedness for which was assigned by the latter to the plaintiff.

The answer admits the loan, and alleges that the defendant’s promissory note, at three months, was given for it, and that after the note became due, and on the 13th day of August, 1887, one Nicholas Johantgen, who was the treasurer of the defendant, and authorized to pay its obligations, gave to the plaintiff’s assignor his check upon the First National Bank of Dansville, N. Y., for the amount of the note and interest, which the latter accepted, and cancelled and delivered up the note. This allegation in the answer was proved at the trial, and found by the referee. At the time the check was given, namely, on the 13th day of August, 1887, and continuously until the 25th day of that month, Johantgen s check, held by Prusia, was good at the bank upon which it was drawn, but the plaintiff’s assignor, through negligence, failed to present the same for payment.

The learned referee has found, in accordance with the evidence, that Mina Prusia on the 16th day of October, 1886, through her husband acting as her agent, loaned to the defendant the sum of $570, and received the note above mentioned. During all this time Johantgen was not only the treasurer of the defendant, but he had full charge of all its financial affairs, and undertook to, and did, provide means for paying its commercial obligations. The account which was kept by him in the bank was composed in part of the moneys belonging to the corporation, as between that body and himself, and in part to himself individually. The arrangement for doing the banking business in this manner was such that the corporation had no account in its own name, but all of its funds stood in the name of Johantgen. Johantgen, in turn, was charged and had agreed to keep the account of the defendant good against all liabilities.

On the 13th day of August, 1887, Johantgen, for the purpose of raising sufficient money with which to pay the promissory note above-mentioned, made his individually promissory note, to the order of one John J. Kennedy, in the sum of $500, at ten days from the date thereof, which, being endorsed hy Kennedy, was on that day discounted by the bank, and the proceeds thereof placed to the credit of Johantgen in the account kept for him and the defendant at the bank. ” This obligation was in reality that of the defendant, and the avails thereof became the money of the defendant. Applying this note to Johantgen’s credit, the amount thereof and the balance due on the account kept in his name was $667.07.

The referee has undertaken to separate, for the purposes of this action, the interest in this sum of $667.07, owned, respectively, by Johantgen and the defendant

On the 15th day of August, 1887, Johantgen gave Ms check upon the bank for $597.65, payable to the order of James C. Prusia, the husband and agent of Mrs. Prusia, and by the agent endorsed and delivered to the principal. On the receipt of this check, which is shown to have been good rtp to the time of the failure of the bank, the note above-mentioned was surrendered and cancelled. -

After the making and delivery of the check Johantgen continued to make deposits in this bank, and to draw checks thereon, up to the 24th day of August, 1887. The bank closed its doors August 2b, 1887, and suspended payment, being insolvent, and subsequently thereto a receiver of its assets was appointed, and the affairs of the bank are now in his hands, with no prospect of any appreciable dividends. At the time of the bank’s failure the amount to the credit of Johantgen was $914.84. Here again the referee has undertaken to separate and divide the respective interests of Johantgen and the defendant to this sum of $914.84, finding that $563.47 thereof belonged to the defendant and $351.37 to Johantgen.

The referee has found as a fact that the omission on the part of Mina Prusia to present the check for payment on or before the 22d day of August, 1887, was negligence on her part. In ascertaining the amount of damages to the defendant by reason of such negligence he has very properly decided that the actual loss only which the defendant sustained can be recouped against the claim of the plaintiff. First National Bank v. Fourth National Bank, 77 N. Y., 329, and cases there cited.

At the time of the failure of the bank there was in its possession the note of Johantgen for $500, which was subsequently by him presented to the receiver with a verified claim against the bank together with a demand that the note then amounting to $501.08 should be deemed paid by deducting that amount from the credit standing on the books in his favor of $914.84 and the balance only be regarded as the amount due him by the bank. This claim was allowed by the receiver and the $500 note was by him delivered up to Johantgen, the amount thereof being set off by the receiver against such balance of $914.84 and the sum of $413.76 credited by the receiver as the balance due Johantgen by the bank. The act of Johantgen in thus procuring a set off was done in pursuance of the general authority and power which he possessed of acting for the defendant and not through any special' instructions given him at this particular time.

The only question under the facts appearing in the case, which are substantially undisputed, relates to the amount the defendant lost by the failure of Mrs. Prusia to present the check for payment

After the application of Johantgen’s credit to the payment of the note by the receiver there remained of his credit $413.76 which was by the sum of $183.89 less than the amount of the check.'. If the defendant can recoup in this action the amount of Johantgen’s loss the last mentioned sum would have been the amount of plaintiff’s recovery as the learned referee concedes, but he has been unable to see any reason why the defendant can claim any more of Mrs. Prusia than defendant’s own liability was to Johantgen. It is here where the fallacy of the learned referee appears. Upon the findings which are sujiported by substantially undisputed evidence it is impossible to separate the account at the bank and apportion one part of it to Johantgen and the other part to the defendant.

The whole course of the dealings between the defendant and Johantgen shows, that for the purpose of meeting the commercial paper used in the business of the defendant, there had been provided a fund at the bank, partly that of Johantgen and partly that of the defendant; and that bank account, which had always stood in the name of Johantgen, was intended to meet any commercial paper which might be issued in behalf of the defendant. The rights between the defendant and Johantgen could not be settled in this action ; Johantgen is not a party. The entire fund at the bank must be treated as though it was procured for the express purpose of meeting the checks drawn upon that bank for the payment of the indebtedness of the defendant. The plaintiff cannot escape the consequences of negligence of his assignor by showing that this fund, so provided at the bank, did not belong exclusively to the defendant; it is sufficient for the determination of her rights and those of her transferee, to say that it was amenable to the checks drawn by Johantgen.

For the purpose of determining the amount of plaintiff’s damages the account at the bank is not separable between the defendant and Johantgen. Johantgen had a right to rely upon the fact that the check, which he had given the plaintiff's assignor,* had been collected and the account at the bank, provided by him' for this and other purposes of the defendant, had been, by so’ much, lessened.

By the failure of the plaintiff’s assignor to present the check,^ there was lost to the fund at the bank, provided by the defendant through its authorized agent, Johantgen, the sum of $413.76 in-' stead of the sum of $96.57 as found by the referee. This amount should be deducted from the sum claimed by the plaintiff. A simple computation shows the balance to be $183.89, with interest from the 25th day of August, 1887, instead of the sum of $501.08 and interest from that date, for which judgment was directed by the referea

It follows, therefore, that the judgment should be reversed, with costs to the appellant, and a new trial granted unless the plaintiff stipulates to reduce the judgment as above indicated, in which event the judgment, so reduced, is affirmed, without costs of this appeal to either party.

Dwight, P. J., and Corlett, J,, concur.


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    The People ex rel. Willis H. Coon v. Myron Wood et al., comprising the Board of Town Auditors of the Town of Wolcott.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Towns—Attorneys.
    Relator prosecuted certain cases in special sessions relying upon a resolution adopted by the town board, that such services performed by attorneys should be compensated, and was authorized by the justice to do so. No employment by the town board was alleged. Held, that no employment by competent authority was shown and relator was not entitled to an order to compel the town board to audit his account.

      A writ of certiorari, obtained by the relator to compel a town board to audit his account for legal services.

      Willis H. Cbon, in person, for relator; Anson & Wood, for def’ts.
   Corlett, J.

Willis H. Coon, a lawyer of Wolcott, Wayne county, hr. Y., prosecuted certain criminals before a court of special sessions of said town. His statement as to the nature of the services appear in the case, and are as follows:

“ Town of Wolcott to W. JET. Goon, Dr.

August, 1889.

To four days trial in case, People v. Fay Blauvelt, John

Blauvelt and Seymour Blauvelt, at $5.............. $20.00

To four days trial in same cases, in which the trial lasted until midnight or after, at $7..................... 28.00

.00

ss. State op Hew York, Wayne County.

Willis H. Coon, being duly sworn, says that the above is a just and true statement of his claim for services against the town of Wolcott ' That said services are reasonably worth the sums charged therefor and no part has been paid.

W. H. Coon.

Sworn to before me November 7, 1889.

Edwin J. Cornwell, Notary Ptiblic.

Endorsed : W. H. Coon, amount claimed, $48.00. Disallowed. Filed November 16, 1889.

C. H. BEACH, Town Cleric.

To the Honorable Town Board of Wolcott, N. Y.:

I hereby respectfully submit my bill against the town of Wolcott. The services were rendered in an action by the People against Fay Blauvelt, John Blauvelt and Seymour Blauvelt The case of Fay Blauvelt was a very intricate one, involving some very nice questions of law. The case was tried three times, on which the jury disagreed, but on which trial, I am credibly informed, I secured all the jury in favor of conviction except one in the first trial, two in the second, and two on the third. There was no doubt of the guilt of the defendant, and all manner of means were used during the trial and between the trials to manufacture public sentiment against the interest of the People, which was so far successful as to secure some on the jury to say “we will admit he is guilty, but we will not find him so.” The facts on the case justified a conviction, but it was impossible to do so on account of the effort as aforesaid. The other defendants, John Blauvelt and Seymour Blauvelt, were convicted and fined thirty dollars, which they paid. In my bill for services I have only charged for actual services, for which I am entitled to pay under a resolution of your honorable board. There were several adjournments during the progress of the trial, and there was considerable arduous and trying work, outside of the services incorporated in my bill, but for which I do not render a bill, such as preparing for trial, examining witnesses, searching the law, corresponding with state superintendent of public instruction, etc. For these services I rendered np bill, although morally and justly entitled to the same. The bill as here presented I shall insist on being allowed as presented, as no legal or just reason can be advanced for disallowing it, and a simple desire to appear as an economist in the public eye will not justify the repudiation of just and legal indebtedness. I present these facts for your consideration and in- explanation. I have rendered other valuable legal assistance in criminal matters for the town recently for which I do not render any bill. Hoping there will be no unjust and determined disposition to deprive me of my just dues, I am respectfully,

W. H.' Coon, Wolcott, N. Y.

The town board consisted of Myron Wood, supervisor; E. H. Kellogg, David D. Becker, Jesse Yan Alstyne, William Sayre, justices of the peace, and Charles H. Beach, town clerk.

The relator’s bill, as shown by the above endorsement of the town clerk, was disallowed on the 16th day of November, 1889. He thereupon presented a petition to this court, setting out in detail the grounds upon which he claimed relief, the substance of which were, in addition to the letter above quoted, “ That for years it had been the custom of said town, by their duly constituted board of auditors, to allow to the attorneys who have rendered professional services for the People upon criminal prosecutions in said town a reasonable compensation for such services as a contingent expense, necessary and for the benefit of said town, and upon the presentation of their accounts, duly verified, to the board’ of auditors duly constituted by law, viz.: the Thursday next preceding the annual town meeting of the board of supervisors of Wayne county in each year, any attorney having a bill for such services was allowed a reasonable compensation 'for his services as such prosecutor’s attorney in criminal actions in special sessions, in the town of Wolcott, said county.

The petition then alleges that at the annual meeting of the board of auditors in 1884, it was “ Resolved. That hereafter any attorney who shall prosecute a criminal action for the people of said town of Wolcott, shall receive from the town of Wolcott, for his said services, five dollars for each day spent on the trial of said action, and when the case shall occupy until after six o’clock in the evening, seven dollars for each day.

It then alleges that after the passage of this resolution the town board audited attorney’s fees at the rates mentioned in the resolution, until the petitioner rendered his bill. On the petition and the .other papers, a writ of certiorari was granted at a special term in Wayne county, in February, 1890, which appears in full in the 'case.

The question before this court is whether, upon the facts appearing. the relator’s services were a town charge, and should, therefore, have been audited. The offenses prosecuted by the relator were such as the court of special sessions had jurisdiction to try. He states his employment in the following language in the petition: “ That in the year 1889, your petitioner, as attorney for the People and by virtue of said resolution, and being authorized thereby, rendered the services, etc.” In his brief the relator states his employment in this way: In the year 1889, and in the month of August of that year, he was called upon by the People and authorized by the justice” to prosecute, etc.

It thus appears that the relator was induced to render his services by .the resolution and the suggestion of the court before whom the cases were tried and that there was no actual employment by the town board.

A town has the following corporate powers:

“1. To sue and to be sued in the manner prescribed by law. 2. To purchase and hold lands, etc. 3. To make contracts necessary to the exercise of its corporate and administrative powers. 4. To make orders,for use of corporate property, etc.”

A town has no corporate powers except those conferred. 1 E. 5. (7th ed.), 805-806; Wells v. Town of Salina, 119 n. Y., 280; 29 n. Y. State Rep., 732.

The statutes specify the following as town charges :

“ 1. Compensation of town officers of services rendered for their respective towns. 2. The contingent expenses necessarily incurred for the'use and benefit of the town. 3. The moneys authorized to be received by the vote of a town for any town purpose, and 4. Every sum directed by law to be raised for any town purpose.” 1 R. S. (7th ed.), 841-842.

It is a familiar rule that statutes conferring power upon municipal corporations to incur expenses cannot be extended by construction. People ex rel. Van Keuren v. Town Auditors, 74 N. Y., 310; Donnelly v. Town of Ossining, 18 Hun, 352; Board of Excise of Westchester v. Curley, 9 Abb. N. C., 103, note; People ex rel. Everett of Board Supervisors, 93 N. Y., 397; People ex rel. Loomis v. Board of Town Auditors, 75 id., 316.

Sections 56 to 59 of the Code of Criminal Procedure simply relate to the jurisdiction of courts of special sessions.

The resolution above quoted, to pay lawyers, would be ineffectual to bind the town in the absence of statutory authority.

In Cornell v. Town of Guilford, 1 Denio, 510, the electors by resolution assumed to confer certain powers upon commissioners of highways. The court held that inasmuch as there was no statute conferring such authority the resolution was void.

The supervisor, town clerk and justices of the peace of the several towns of the state shall constitute the board of town auditors for the purpose of auditing and allowing the accounts of all criminal charges and claims payable by their respective towns. 1 R. S. (7th ed.)) 835.

The contingent expenses necessarily incurred for the use and benefit of a town are town charges. 1 R. S. (7th ed.), 842, sub. 2, of §2. ■

The costs of criminal proceedings had before a single magistrate are chargeable upon the town where the ofíense was committed. 1 R. S. (7th ed.) 846, § 26; People v. Supervisors of Westchester County, 119 N. Y, 126; 28 N. Y. State Rep., 939.

It will be seen that the controversy in this case is narrowed down to the single question as to whether the relator was employed by competent authority. He does not allege or show that he was employed by the town board but states in substance that he was induced to act by the resolution. But the resolution did not employ the relator.

The learned relator cites no case in support of his claim. He does not allege that any statute exists conferring power upon the town board to create debts against the town or to regulate or determine their amount or that the board employed him. A town charge cannot be created by indirection or based upon ambiguous language. Fo precedent for such a proceeding has been cited.

In Castigan v. Mohawk & Hudson Railroad. Co., 2 Denio, 609, it was held that the novelty of a particular action or defense when the facts on which it is founded are of common occurrence is a strong argument that it cannot be upheld.

Criminal proceedings before courts of special sessions are very numerous and their jurisdiction includes a great variety of cases. But there is no adjudication in this state to which attention has been called showing that a board of town auditors has power to employ lawyers. But in this case no actual employment is shown. The fact that the town board of the town of Wolcott was in the habit of compensating lawyers for such services and passed a resolution fixing the amount cannot be construed to make the town legally liable or as an employment ‘ of the relator. A board of town auditors has no authority to create a debt against the town except as authorized by statute.

Even if the words “ the contingent expenses necessarily incurred for the use and benefit of the town ” include lawyers’ fees, still the right to recover in each case must depend upon actual employment; otherwise any lawyer could obtrude himself into a case and still recover.

The supervisor is the legal representative of the town within the scope of his authority. 1 R. S. (Banks’ 7th ed), 840, § 3; People v. Supervisors of Delaware County, 45 N. Y., 196.

Where the duty is imposed upon town officers to prosecute, implied authority is conferred to employ counsel to aid in performing their duties.

The papers strongly tend to show that the relator rendered valuable services; that he was successful in two cases, out of which the town received profit; and he claims he would have been in the third except for the pernicious activity of certain workers of iniquity, which in that case prevented a conviction.

Various technical objections are urged by the learned counsel for the defendants, based on the alleged insufficiency of the relator’s account and the imperfections of his affidavit. But the decision of the -board was based on no such grounds. It went the whole length of deciding that the town was not liable to pay for those services upon the facts appearing.

It need not be said that the trial court had any power to bind the town by employing lawyers. The learned relator does not so argue. The expression in the brief that he was employed by the plaintiff must be limited to the town board and the court before which the trials were had. Ho other facts were stated As the relator was not employed by the town board, or, so far as the papers disclose, by any competent authority to perform the services for which compensation is sought, it follows that this court cannot grant the relief asked.

Writ of certiorari dismissed.

Dwight, P. J., and Macomber, J., concur.


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    John W. Rushmore, Ex’r, Resp’t, v. Frank Rushmore et al., App’lts, and Mary Rushmore, Resp’t.

      (Supreme Court, General Term,, Fifth Department,

      Filed January 23, 1891.)

    1. Will—Conditions annexed to bequest.
    By the will of testator a certain sum was bequeathed to executors in trust, provided that if when the cestui que trust attained twenty-five years of age he possessed such character and business habits as to assure the executor that he would make a proper use of the money, it should be paid to him. Held, that this was simply a condition precedent to the vesting of the legacy, and was not unreasonable.
    3. Same—Construction of bequest.
    By the codicil a clause of the will was amended so that the children of a deceased niece should have an equal share with a nephew named in such clause, in which neither said children, or their mother, were named, to be equally divided between them, share and share alike. Held, that said children took as a class and not per capita.

    3. Same—Bequest to school district. ■
    Testator bequeathed a certain sum to the trustee and two of the taxpayers paying the largest tax in a school district, to be invested, and one-half the income used to purchase school books and clothing for indigent children of the district and the balance for teacher’s wages. Held, that the bequest was not void for uncertainty, and was sustainable under 2 R. S. (6th ed.), 53, § 15.
    Appeal by Frank Eushmore from so much of the judgment ■entered in Ontario county on the 12th day of February, 1890, on the decision of this court at special term, as limited the legacy given to him by the last will of Jeremiah Eushmore upon the condition that the legatee answer certain requirements made in the will in respect to his habits, character, etc.
    2. Appeal by the defendant E. Adelbert Adams, as trustee of school district Ho. 11 in the town of Farmington, from that part of the judgment by which a legacy to the school district was adjudged to be void for uncertainty both as to the trustee and beneficiaries.
    3. Also an appeal by the defendants G-eorge M. Adams and. Ida Harmon from the same judgment, declaring that they take a bequest per stirpes, and not per capita.

      S. B. McIntyre, for E. Adelbert Adams, trustee, and Frank Rushmore; John D. Lynn, for George M. Adams and Ida Harmon; Wm. H. Smith, for Mary Rushmore, deft aud resp’t; S. N. Sawyer, for pl’ff, resp’t
   Macomber, J.

This action is brought for the construction of the last will and testament of Jeremiah Rushmore.

In respect to the appeal of Frank Rushmore, it may be said, in brief, that the legacy of $3,000 to him mentioned in the 14th and 20th clauses of the will is plainly made payable not until he arrives at twenty-five years of age, and even then not until after the decease of the testator’s wife, Mary Rushmore; and provided, further, that he should possess such traits of character and business habits as to assure the executor, at the time of the payment of the money, that the legatee will make a prudent use of the gift. There is nothing ambiguous or uncertain in this part of the will. It requires no construction. It contains no unreasonable condition. It was but a condition precedent to the vesting of a legacy. Caw v. Robertson, 5 N. Y., 134.

An argument is addressed to us in behalf of the appellants, George M. Adams and Ida Harmon, by which it is claimed that these appellants take per capita and not per stirpes. The legacy to them is contained in item 22d of the will, which bears date the 25th day of February, 1886, and the 9th item of the codicil thereto which bears date the 7th day of March, 1888. They are not named in item 22d of the will, but the item of the codicil is as follows:

"9th. Item 22 of my said will is so changed, and I so direct, that the children of my niece, Helen Adams, have an equal share with my nephew, John W. Rushmore,- and others therein mentioned, to have and to hold the same, their heirs and assigns forever, to be divided equally between them, share and share alike.”'

Item 22 of the will is as follows:

“ All the rest and residue of my estate which shall remain after the decease of my wife, and the legacies hereinbefore mentioned are paid, I give and bequeath to my nephew John W. Rushmore, my niece Martha Briggs, my niece Eliza J. Briggs, Lucy Rogers, wife of Abram Rogers, Ella Sáwyer, wife of Henry H. Sawyer,, and my niece Catherine Packard, to be divided equally between them, share and share alike, to have and to hold the same, their heirs and assigns forever.”

The provisions in the will and codicil taken together show that the intention of the testator was to give to the children of his niece, Helen Adams, the same share of his estate which Helen Adams doubtless would have received had she been living at the time of the making of the codicil. As a class they were to receive an equal share with my nephew John W. Rushmore, * * * to be divided equally between them, share and share alike. ” In construing this part of the will the important considerations are that Helen Adams’ children were to receive an equal share with a certain nephew and that such share should be equally divided between such children, share and share alike. This language is determinate and unquestionable. These appellants together take only the same amount as John W. Rushmore.

The appeal taken by the trustee of school district Ho. 11 presents some difficulties. His claim in behalf of his district rests upon the nineteenth item of the will, which is as follows: I give and bequeath to the trustee and two of the taxpayers paying the largest school tax in district Ho. 11 in the town of Farmington, the sum of $2,000 to be safely invested by them, and one-half of the interest thereof to be annually used to purchase school books and clothing for the indigent children residing in said district, and one-half applied to pay for the wages of the teachers employed in .saifL district, but not to be used until the district has maintained school at least twenty-eight weeks in each year respectively.”

The learned justice at the trial has adjudged this provision of the will to be inoperative and void, because of its uncertainty, both in respect of the trustees charged with the duty of executing the trust, and of the beneficiaries therein named.

In regard to the trustee of school district Ho. 11, there can be no reasonable question made but that there was at the time of making the will, and at the time of bringing this action, a person, and but one person, answering that description. It does not appear in the printed record who the taxpayers paying the largest ■school district tax in this district are, but their names can be easily ascertained in any judicial inquiry that may be made. Even if this were otherwise, the statute, to which reference will presently be made, comes to the assistance of the testator and saves the legacy to the objects of his bounty.

In the revision and consolidation of the general acts relating to public instruction, passed May 2, 1864, and the various acts amending the same, there is a provision for the granting of certain bequests and devises for the benefit of common schools. VoL 2, p. 53, § 15 of the 6th ed. R S. By this statute “ real and personal estate may be granted, conveyed, devised, bequeathed and given in trust and in perpetuity or otherwise, to the state, to the superintendent of public instruction, for the support or benefit of common schools within the state, or within any part or portion of it, or of any particular common school or schools within it; and to any county, or the school commissioner or commissioners of any county, or to any city or any board or officers thereof, or to \ any school commissioner district or its commissioner, or to any town or supervisor of a town, or to any school district or its trustee or trustees, for the support and benefit of common schools within such county,' city, school commissioner district, or within any part or portion thereof respectively, or for the support and benefit of any particular common school or schools therein.”

Section 16. “Ho such grant, conveyance, devise or bequest ■shall be held void for the want of a named or competent trustee or donee, but where no trustee or donee or an incompetent one is named, the title and trust shall vest in the people of the state subject to its acceptance by the legislature; but such acceptance shall be presumed.”

Under this act the bequest that one-half of the interest of $2,000 shall be paid for the wages of the teachers employed in the district is divisible from the other portion of the bequest and is clearly valid under the statute already quoted. There is some-doubt, however, in respect to the provision for the payment of the other one-half of the interest for the purchase of school books and clothing for indigent children residing in the district But on the whole we are inclined to resolve the doubt in favor of the legality of the intention of the testator. If he had devoted one-half of the interest for the payment of school books for the use of indigent pupils in the district there would have been no question of its legality. But coupling the purchase of the necessary clothing for such children with the purchase of school books throws-some doubt upon the matter; for who shall tell how much may be devoted to the purchase of books and how much to clothing for the indigent scholars ? Among the powers of inhabitants of school districts assembling in any district meeting is “ to vote a tax not exceeding' twenty-five dollars in any one year for the purchase of maps, globes, blackboards and other school apparatus, for the purchase of text books and other school necessaries for the use of the poor scholars of the district.” Subd. 8 of § 16,' page 64, 2 B. S., 6th ed.

This shows that the subject matter of the expenditure for text books is cognizable by the school district;- and whatever the-school district by vote may lawfully raise by taxation ought to be deemed to be valid when contained in a last will. The statute shows that the purpose is worthy and legal. This bequest is not to the children of the school district, but it is to the school district, itself to enable it to defray such expenses as it might legitimately and lawfully incur and for which payment might be provided by' taxation upon a vote of the inhabitants of the district. ¡

We are not prepared to say that the expression “ other school necessaries for the use of poor scholars ” of the district, used in' the statute, which is a legitimate matter to provide, in addition to text books, for poor scholars, may not properly include the necessary clothing of indigent children, so as to enable them to avail themselves of the opportunities afíorded by the public schools. On the whole we are of the opinion that this provision of the will is not inimical to the objections made to it, and that it is capable of intelligent enforcement

We have examined the authorities cited by counsel in opposition to this view, viz.: In the Matter of the Will of O'Hara, 95 N. Y., 403; Bascom, v. Albertson, 34 id., 584; Levy v. Levy, 33 id., 97, and do not find in them any principle contrary to this conclusion, which we make rest almost entirely upon the language of the statute to which we have above called attention.

The judgment of the special term should in this respect be modified, with costs to the appellant, the trustee of the school district, payable out of the estate, and as so modified, affirmed.

Dwight, P. J., and Corlett, J., concur.


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    Reuben W. Gifford, Rec’r, App’lt, v. Aretas W. Rising, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Subrogation—Sureties on appeal.
    Where, pending an appeal, with the consent of the sureties on the bond given to stay execution, a portion of the property levied upon is lost, the sureties, nevertheless, on being compelled to pay the judgment, are entitled to be subrogated to the extent of the amount so paid, less the amount of the loss.
    Appeal from an order of the special term entered in Niagara county, subrogating Ely C. Eising and Lodema G. Eising, sureties on an appeal bond, to the extent of $584.

      Henry M. Davis, for app’lt; George D. Judson, for resp’t.
   Corlett, J.

On the 13th day of July, 1889, the appellant recovered judgment against the defendant for nearly $600, besides costs. The defendant appealed from the judgment to this court, and an undertaking was executed to stay execution upon appeal by Ely G. and Lodema 0. Eising, as sureties. • Before this undertaking was made, execution had been issued upon the judgment and personal property levied upon to the amount of nearly $600. The judgment was affirmed on appeal, and the whole judgment when finally entered was $1,092.33.

With the consent of the sureties, $400 of the personal property was lost, and the balance was applied on the judgment. Deducting the loss and the amount paid, there remained unpaid $584.00 with interest The sureties paid the judgment and applied to be subrogated The special term granted this application to the extent of the amount paid, less the loss. The plaintiff appealed to this court from the order as made.

Ordinarily, sureties, upon the payment of a judgment, are entitled to be subrogated Dundee National Bank v. Wood, 30 N. Y. State Rep., 607.

No reason is seen why the sureties in the present case should not be subrogated to the extent allowed by the special term.

The ord^r appealed from must be affirmed

Dwight, P. J., and Macomber, J., concur.


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    Joseph Z. Culver, Resp’t, v. Jane M. Pullman et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Usury—Evidence insuepicent to prove.
    In an action to foreclose a mortgage given to secure endorsements made and to be made for defendant, the answer set up usury as to a certain transaction. The only evidence as to the usury was given by defendant, who testified that she made no bargain with plaintiff ; that she went with her agent D._ to get the money he was getting for her ; that D. had a conversation with plaintiff and that she overheard the latter say “I am to have the $300,” and that D. replied in the affirmative. Held, insufficient to prove usury.

      2. Same—Damages.
    In such action it appeared that under a promised loan of $3,000 plaintiff advanced only §2.700 and has withheld the remaining $300. Reid, that his measure of damage could only he the amount which he> actually advanced.
    Appeal from a judgment entered in Monroe county on the 19th day of June, 1890, on the report of a referee, directing a foreclosure of a mortgage and a sale of the mortgaged premises.

      Myron T. Bly, for app’lts ; Hiram L. Barker, for resp’t.
   Macomber, J.

The mortgage in question was given by the defendant Jane M. Pullman to the plaintiff as security for the payment of any promissory notes which might be endorsed by the plaintiff for her, and to save the plaintiff harmless from loss on account of any liability upon such paper.

On the day of the date of the mortgage, namely, April 29,1889, the defendant Jane M. Pullman made her promissory note at four months in the sum of $3,000, with interest, payable to the order of the plaintiff, and the same was endorsed by the plaintiff, and the money, less the sum of $3,000, was received by the maker through the Traders’ National Bank.

It is claimed in behalf of the plaintiff that the Traders’ National Bank discounted the note at the request of Mrs. ■ Pullman. The referee has found in the second finding of fact that the note was discounted by this bank for her, and the entire proceeds thereof paid to her order by the bank. In the eighth finding, it is found that the check was paid by the bank, but that there is no proof as to the person to whom such payment was made. By the seventh finding it appears that, as a part of this transaction, the plaintiff prepared theoheck upon this bank to the order of “ self or bearer,” and the defendant Pullman signed the same. Mrs. Pullman never had other business transactions with this bank, and had no account there other than such as was placed to. her credit by the plaintiff; nor did she go to the bank, or see any of its officers in this transaction. It is apparent that the instrumentality of the bank was brought into requisition by the plaintiff in order to enable him, without incurring the loss of the principal, to charge more than the legal rate of interest for the money which he, and not the bank, was actually loaning upon the promissory note.

But this is wholly unavailing to the plaintiff, provided the fact exists that there was an usurious and corrupt agreement between him and the defendant, the one to pay and the other to receive the sum of $300 in addition to the legal rate of interest. The plaintiff must be treated as the real party in interest, both in respect to the mortgage and the note. Being such, the plea of usury is available to the defendant against him, and if he received, under a corrupt and usurious agreement, more than the lawful rate of interest for the loan, his security is invalid under the statute.

The question, therefore, is whether the evidence is sufficient to charge the plaintiff with having entered into an usurious and corrupt agreement with the defendant Pullman to take the sum of $300 over and above lawful interest for this loan. That the sum of $300 was actually withheld from the defendant by the plaintiff, and that the defendant received only $2,700 upon her promissory note stands conceded in the case. Though the evidence would appear to have been near at hand to show the real character of the-transaction, and to stamp it with a taint of usury, yet it was not brought forward.

The only evidence upon this subject was given by Mrs. Pullman herself, who, after saying all the business was carried on by her agent, Daveny, says: “ I made no bargain with Culver; I had nothing to do with Mr. Culver excepting that I went with Mr. Daveny down to Mr. Culver’s office to draw the money which Daveny was getting for me, Mr. Daveny and Mr. Culver had some conversation in which I took no park All of the conversation which I overheard between the plaintiff and Daveny was as follows: Culver looked up at Daveny, and said: ‘ I am to have the three hundred dollars ? ’ Daveny answered: ‘Yes.’ ”

This is the only competent evidence given in behalf of the defense on this subject. It clearly fails to show any usurious or corrupt agreement under the statute, and consequently such evidence was properly overruled by the referee. Daveny, though present at the trial, was not called as a witness.

Yet the defendant is not wholly remediless under the facts even as proven and as found. As has been stated, she received from the plaintiff only $2,700 upon her note of $3,000.

The evidence of the bank clerk shows that the sum of $3,000 was drawn upon the check, and though he does not know to whom it was paid, it is clear, from the circumstances of the case, that it all went into Mr. Culver’s hands. The sum of $300 still remains in his hands. The transaction, therefore, should be treated solely as one between the plaintiff and the defendant Pullman. From the whole case and findings it appears, therefore, that under a promised loan of $3,000 the plaintiff has advanced only $2,700, and has withheld the remaining $300. Were he to bring an action upon the note after taking it up, his measure of damages would be the amount which he paid, which would be $2,700. The amount for which this security may be foreclosed is the same, as between these parties.

The judgment, consequently, should be modified by deducting from the amount of the recovery the sum of $300, with interest from the date of the mortgage, and as so modified affirmed, without costs of this appeal to either party.

Dwight, P. J., and Corlett, J., concur.


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    Charles A. Nichols, by Guardian, App’lt, v. Will E. Tuttle et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    New trial—When will not be granted.
    Where two verdicts are the same in a case which must be submitted to a jury, the appellate court will not ordinarily grant a new trial, although, the verdict is seemingly contrary to the evidence.

      Appeal from a judgment entered in Niagara county, based upon the verdict of a jury, and from an order denying a motion for a new trial.

      F. M. & F. M. Ashley, for app’lt; John F. & Cuthbert W. Pound, for resp’t Tuttle; Hoyt, Beach & Hancock, for resp’ts Weed and Knickerbocker.
   Corlett, J.

On the 9th day of July, 1887, an article was published in the Syracuse Times, written by one Will E. Tuttle, a resident of the city of Lockport, which was construed to charge • the plaintiff with acts of immorality. The article was grossly libelous, and the plaintiff by his guardian brought an action against the editors of the newspaper and Tuttle to recover damages. It was first tried in May, 1888, at the Niagara circuit before Justice Lewis and a jury, and resulted in a verdict of no cause of action. The justice granted a new trial upon the ground that the verdict was against evidence, stating among other reasons for granting it, that the “ jury ignored the evidence and permitted prejudice or some other improper influence to guide them in their conclusion.” The order was affirmed by this court

The case was again tried in September, 1889, before Justice Daniels and a jury, which also found a verdict for the defendants ; a motion was made before him for a new trial.

The libelous article did not name the plaintiff as the person intended by the publication. It was necessary for the plaintiff to give evidence showing that the article related to him. But the whole evidence was of such a character as to strongly indicate that the publication related to the plaintiff. The question, however, was one of fact for the jury. '

The learned counsel on both sides agreed that the case could not be disposed of on questions of law, but must be passed upon by a jury. The court denied the motion for a new trial. Judgment was entered on the verdict, and the plaintiff appealed from the order and judgment to this court

It certainly seems remarkable that the jury on the evidence presented on the trial failed to find a verdict in favor of the plaintiff. So far as appeared the article was without foundation and its publication entirely unjustifiable. The evidence strongly tended to show that the publication was induced by malice and that it related to the plaintiff and that it was so intended by the writer and publishers and was so construed by those who read it.

It is a familiar rule that where a case is such as to require its submission to the jury, the court will not set aside the verdict except for controlling reasons. Morss v. Sherrill, 63 Barb., 21.

If this was not the second trial there would be strong reasons for granting a new one on the grounds assigned by the justice before whom it was first tried. But the rule seems to be firmly established that where two verdicts are the same in a case which must be submitted to a jury the second verdict will not ordinarily be disturbed. Haring v. N. Y. & E. R. R. Co., 13 Barb., 9-16; Fowler v. Ætna Fire Ins. Co., 7 Wend., 275; Talcot v. Commercial Ins. Co., 2 Johns., 467; Betsinger v. Chapman, 24 Hun, 15.

It is true that this rule is not inflexible, still in all cases two verdicts the same way strongly influence the result in a second application for a new trial. Hamilton v. Third Ave. R. R. Co, 40 Super. Ct. (J. & S.), 376.

The reason for this rule is apparent. Where a cause is of such a nature that it must be submitted to a jury, the granting of a second new trial, where verdicts have been the same way, would tend to breed confusion and produce delay.

Under the circumstances, the order appealed from must be affirmed.

Dwight, P. J., and Macomber, J., concur.


author: Per Curiam.

text:
    Rebecca Sutherland, Adm’rx, Resp’t, v. The Troy & Boston R. R. Co., App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Master and servant—Railroads—Contributory negligence.
    Plaintiff’s intestate, an engineer, left Troy, going east, on freight train No. 1, two hours late, and reached P. Junction at 8.30 a. m. At 6.55 J., defendant’s operator there, was wired by the train dispatcher “flag and hold train No. 1 for orders.” He put out a red flag. Train No. 2, moving west, was then east of the Junction; at 7.19 a. m. it arrived having been ordered to meet No. 1 there. An order then came from the dispatcher that No. 2 should meet No. 1 at Hoosick, and J. took in the red flag and allowed No 2 to pass. No. .1 met and passed it at Hoosick, passed the Junction without stopping, and two and one-half miles east collided with No. 6, which was on its regular schedule time, and intestate was killed. Held, that he was guilty of contributory negligence in violating defendant’s rule 15, which forbid running a freight train faster than fifteen miles an hour, and by violating rule 3, which would have required him to side-track at the Junction to avoid the passenger train.
    2. Same—Telegraph operator.
    The jury could not be permitted to infer that the company was negligent in employing a telegraph operator, from the mere fact that he was but seventeen years of age, where he had a year’s experience, and for three months had discharged his duties intelligently at that point and was a “ first-class operator.”
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff entered upon verdict of jury at circuit.

      John H. Peck, for app’lt; Chas. E. Patterson, for resp’t.

      Reversing 28 N. Y. State Rep., 201.

   Per Curiam.

The collision which occasioned the casualty was at a point about two and one-half miles east of Peters-burgh Junction. If the presence of the trains Ho. 1 and Ho. 6 at the place of collision was attributable in any degree either to the omission by the company to make suitable and adequate regulations for the running of its trains, or to the omission of the train dispatcher at Troy to exercise proper care to notify train Ho. 1 to await at Petersburgh Junction the arrival of train Ho. 6, a case was made out on the point of the defendant’s negligence. But this would not sustain the action provided the presence of train Ho. 1 at the place of collision was to any extent attributable to the negligence of Sutherland, the plaintiff’s intestate. It would then be the case of concurring negligence on the part of the company and the person injured.

We are inclined to the opinion that it was a question for the jury on the point of the defendant’s negligence. It is true that if Johnson, the telegraphic operator at Petersburgh Junction, had strictly followed rule 38, and obeyed the order to “flag and hold train No. 1,” the accident would not in all probability have happened. He, however, interpreted the order as designed to hold No. 1 for No. 2, and not generally, and when No. 2 had arrived, and he had procured permission from the train dispatcher at' Troy to permit No. 2 to pass on to Hoosick, then supposing the original order fulfilled, he did not replace the red flag, as he ought to have done. But the red flag signal was one of the means of notifying an approaching train to stop, but when special orders were given to control the running of trainSj upon the observance of which the lives of persons depend, the jury, we think, had a right to determine whether the company had discharged its whole duty by giving the order to the operator, without communicating it to the trainmen at some point before the train reached Peters-burgh Junction, which, so far as appears, might have been done after the order to hold the train had been made.

The jury, within the cases of Sheehan v. N. Y. C. & H. R. R. R. Co., 91 N. Y., 332, and Dana v. Same, 92 id., 639, were entitled to say whether the company performed the full measure of its duty, in view of all the circumstances, in taking no means to notify train No. 1 of the order, except by the order to Johnson, relying exclusively on his performance of his duty.

The contributory negligence of Sutherland is the difficult point in the case. If this question was not in the case we think the judgment would have to be reversed for error in submitting to the jury the question of the competency of Johnson. The only suggestion of his incompetency made by the plaintiff is founded upon the fact that he was but a little over seventeen years of age.' It was shown that he had had more -than a year’s experience as telegraph operator; that for more than three months prior to the accident he had been the operator of the defendant at this point and had discharged his duties intelligently, to the entire satisfaction of the company ; that the company employed him on the recommendation of the manager of the Western Union Telegraph Company at Eutland, and of the train dispatcher of the D. & H. C. Co., and that he was perfectly conversant with the rules, and was a “ first class operator,” and it also appeared that young men were generally better operators than older men. The plaintiff did not undertake to controvert the proof of the defendant on the subject.

We think under the circumstances the jury could not be permitted to infer that Johnson was incompetent in fact from his age only, or that the company was negligent in employing him, or to speculate whether if the operator had been a man of mature years or judgment he would have been less likely to have committed the mistake which Johnson did. _

_ But aside from this error it seems to us that the plaintiff did not meet the obligation resting upon her of presenting a case from which the jury could fairly find that her intestate was free from any negligence which contributed to his death. Of course the jury had a right to consider that the intestate was not here to explain the circumstances and to make the most favorable inferences which the evidence permitted, and such inferences also from obscure and doubtful circumstances, relating to his conduct which the jury might not be inclined to draw if fuller explanation was possible. But admitting this it remains as an incontrovertible fact, founded upon written evidence in connection with admitted circumstances, that the deceased was brought into the peril which caused his death in part by his disregard of the written rules of the company with which he was acquainted, and which if they had been observed by him would have resulted in his stopping his train at Petersburgh Junction and so have avoided the collision

Rule 15 is as follows: “ The speed of freight trains must not exceed fifteen miles per hour exclusive of all stops,” and Rule 3 provides, “ Freight trains must in all cases keep ten minutes out of the way of passenger trains.”

Sutherland left Hoosick Falls with his train going east towards Petersburgh Junction at 8:22 A. M. He passed Petersburgh Junction, which was 4.95 miles from Hoosick Falls at 8:30, making the distance in eight minutes, which required a speed of thirty-five miles an hour. The collision occurred about two and one-half miles east of the junction, at 8:34 or 8:35. Ho. 6, with which Ho. 1 collided, was on its regular schedule time or nearly so, and if Sutherland had had this in mind he would have known that unless Ho. 6 was delayed a collision was inevitable. Sutherland’s train was two hours behind time, and one explanation of his running his train at this speed may be that if he had been governed by the schedule time in going from Hoosick Falls to Petersburgh Junction he would have been compelled to stop there to let passenger train Ho. 33, which was behind, pass, under Rule 3, and he wanted.to reach the next station or some station further east before his train' would become subject to the ten minute rule. He probably forgot that by so doing he was likely to encounter Ho. 6. It is proved and is undisputed that the rule as to speed governs belated trains as well as trains on time.

Some question is made as to the true construction of rule 15. We agree with the construction insisted upon by defendant’s counsel, viz., that the speed, between stops, must not exceed fifteen miles an hour. The substantial meaning is that the speed of the train while in motion shall not exceed that rate. It was shown and it is evident that this exact rate could not be kept up at all times. In slowing up and starting the speed would necessarily be less than that prescribed, and the loss would have to be made up by going at a rate somewhat more than fifteen miles an hour at other times. But the rule could be substantially observed, and it appears that train Ho. 1 was scheduled for the whole distance between Troy and Vermont at a little less than fifteen miles an hour, although between stations in some cases the schedule rate was a little more. Between Hoosiclc Falls and Petersburgh Junction the schedule time was ábout twenty minutes, which would require a speed of a little more than fifteen miles an hour. There was a clear violation of rule 15 by Sutherland. If he had observed the rule two circumstances would have probably prevented the accident: First, he would have been required under rule 3 to take a side track at the Junction in order that No. 33, due there at 8.52, could pass him, and second, train No.. 6 would have 'met No. 33 and passed it at that point as usual, while No. 1 was at rest.

It seems to us impossible to say that the violation of the rule by Sutherland did not contribute to the accident The rules are made as well to promote the business of the road as for the safety of employes. A train dispatcher at a distant point must to a considerable extent rely upon the rules being observed by train men, and his actions are naturally influenced by this assumption, and so it was in the present case, although the jury might say that his full duty was not discharged. It cannot be supposed that Sutherland was ignorant of the importance of observing the rules. He unfortunately rushed on to his destruction because he saw no red flag at the junction, not bearing in mind that in running at such a rate of speed he was violating a rule, and bringing himself within, the peril which resulted in his death. It seems to us that upon the evidence the co-operating negligence of the deceased was an inference of law, and that the judgment should therefore be reversed and a new trial granted.

All concur.