text:
    Edward J. McKeever, Resp’t, v. Michael J. Dady, App’lt.

      (City Court of Brooklyn, General Term,

      Filed March 28, 1892.)

    1. Contract—Sale of stock.
    In an action for the purchase price on a sale of stock plaintiff’s evidence showed that defendant was to pay $10,000 in cash and the balance when he “ got all fixed up,” and that until then plaintiff was to retain 125 shares as security; that defendant obtained possession of all the stock and then stated that he could not get the new stock which he was to give in exchange therefor; that plaintiff afterwards obtained part of the stock and tendered the same to defendant, who refused to pay. Held, that defendant was not entitled to a direction on the evidence that plaintiff could not recover for the excess over the cash payment on the ground that it was not due, and that the meaning of the expression “fixed up ” was a question for the jury.
    3, Same—Variance.
    A mere technical variance which does not injure the defendant and to which he did not object on the trial, is not ground for reversal.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      J. A. Wernberg, for resp’t; Kellogg, Rose & Smith, for appl’t.
   Clement, Ch. J.

The plaintiff sets forth in the complaint in this •action that on or about October 25, 1889, he sold to the defendant 875 shares of stock of the Hudson River Broken Stone & Supply Co.,for the sum of $24,848.55, which sum the defendant promised to pay for the same; that, on January 7, 1890, the plaintiff delivered 125 shares of said stock, and thereafter, and before the action was brought, tendered to the defendant the remaining 250 shares. The plaintiff further alleges that no part of the claim has been paid, except the sum of $6,875. The defendant sets forth in his answer that, on or about the date stated in the complaint, he entered into an agreement with the plaintiff to purchase from him 375 shares in said company at the agreed price of $10,000 in cash, and, when received by the defendant, $7,500 in stock at par of a new company to be formed; that, in pursuance of said agreement, the defendant had paid plaintiff the $10,000 in cash, but that the plaintiff had only delivered 125 shares in the old company, and that by the non-delivery of the remaining 250 shares he, the defendant, had been unable to obtain the stock in the new organization.

The pleadings presented a square issue of fact. On the trial, however, the proofs offered by the plaintiff tended to show a contract technically different from that set forth in his complaint. Mr. McKeever testified that in September, 1889, he owned or controlled 375 shares in the old company, and that the defendant agreed to purchase the same, and to pay him therefor the amount-he (McKeever) had invested in the company, $18,000 and over, and the amount due the plaintiff for salary and for interest, making, in all, about $24,000; that defendant agreed to pay the plaintiff $10,000 in cash and the balance “ as soon as he got all fixed up,” and that, until the entire balance was paid, the plaintiff was to retain as security 125 shares of the stock. The plaintiff further testifies that on October 25, 1889, the defendant paid him $5,000 in cash and received from plaintiff a certificate for the 250 shares ; that the defendant promised to pay the balance due on the $10,000 in a few days ; that in January, 1890, (over two months afterwards) the defendant said to him (plaintiff) that it was necessary to turn in all the stock, and that, if plaintiff would give him the other certificate for 125 shares, he (defendant) would, on the issue of the new stock, return to plaintiff a certificate for 375 shares, which plaintiff could hold as security until he was paid the excess over, the $10,000 which was to be a cash payment Plaintiff further testified that he gave the defendant the certificate for the 125 shares; that he waited for about six weeks and could not get the new certificate, whereupon Dady told him that he could not get the new stock. Plaintiff then stated that he bad forged the name of his brother on the certificate for 250 shares. He explains that such statement was not true, but that he so stated in order to get back the certificate. There were several meetings between plaintiff and defendant up to August, when Dady promised to settle the whole matter and returned to plaintiff the certificate for 250 shares in- order to have a new. transfer prepared. The plaintiff was unable to obtain a settlement by defendant, and, in December, 1890, tendered him the certificate for 250 shares, and on the refusal of defendant to make a payment, brought this action. The plaintiff testified that he had only received on account of the payment of $10,000 the sum of $8,375. The jury awarded the plaintiff $9,673.14, and from the judgment entered upon such verdict this appeal is taken.

We have stated at length the general theory of the case as testifled to by the plaintiff, because the issues involved were purely of fact, and in order to review the exceptions taken. The counsel for the defendant, in his first point, contends that the court should have instructed the jury that the plaintiff could in no event, recover over the balance claimed to be due on the $10,000 cash payment, $1,625. He contends that the contract as testified to by the plaintiff and as adopted by the learned judge iu the charge to the-jury was that the balance was only to be paid when the defendant had “fixed up ” his matters with Paine audHusted, and when-the defendant had received moneys due to him on a contract at. Mount Vernon; that the burden was on the plaintiff to show that the contingency had happened, while it appeared affirmatively that the defendant had not “fixed up” such matters. We are unable to agree with the defendant that the case should have been dismissed as to the claim for the balance over $10,000. If it be conceded that the original contract is to be interpreted as claimed by the defendant, there was other testimony by the plaintiff tending to show that the contract was modified, and that the defendant did not keep his contract.

The plaintiff testified that he was to retain the certificate of 125 shares as security for the balance'; that he delivered up such certificate on the promise that he should receive a certificate in the new company for 375 shares, which he was to retain as collateral ; that he waited six months or more before the certificate for 250 shares was returned for correction, and after that, down to the commencement of the action, he could obtain no settlement with the .defendant. We think that, on the testimony, the counsel for the plaintiff could fairly argue to the jury that the defendant never intended to pay the balance of the $10,000, or to givebaclc to the plaintiff a new certificate for 375 shares as collateral. The plaintiff only conditionally agreed to wait for the payment over $10,000 until matters were “ fixed up ” by the defendant. He was to retain 125 shares in the old company as security, which agreement was changed in March, 1890, when the defendant agreed to give 375 shares in the new company. The court, in the charge, correctly stated the original contract as testified to by the plaintiff, and the counsel for the .defendant did not ask to have submitted to the jury any question in relation to the modifications of the agreement, and did not ask to have the jury pass upon the subsequent facts.

We are also of the opinion that the meaning of the expression “ fixed up,” as used in this case, was a question for the jury. The plaintiff gave two or three statements as to what was said by the parties. Counsel for the defendant was content to have only two questions submitted to the jury: First. Was the contract price as testified to by the plaintiff, or as testified to by the defendant ? and second, what amount had been paid on the contract ? We-have now considered simply the question whether or not the defendant was entitled, on all the evidence, to a direction by the court that the plaintiff could not recover for the excess over the cash payment of $10,000, on the ground that the money was not due.

It is further claimed by the defendant that the variance between the allegations in the complaint and the proof constituted a failure of proof. That there was a variance in some respects is clear, but we do not think the defendant was injured thereby, neither did he so consider on the trial, for no objection on that ground during the taking of the testimony was made.

The questions as to the tender, and of the right to recover thereon, were entirely of fact. On the whole case, wo are clear that it was properly submitted to the jury, and that their verdict is conclusive. It is evident that the plaintiff and the defendant are shrewd business men, who neglected to put their contract in writing. When business men engage in large transactions, and rely upon the honor of the parties with whom they deal, they should not complain after their verbal contracts are passed upon by a jury who see the parties and hear their testimony.

We think that plaintiff should bring' into court and deposit with the clerk the certificate for 250 shares now in his possession. No such point was made on the trial, but we require it for the protection of the defendant.

Judgment and order denying new trial reversed, unless, within twenty days, the plaintiff deposits with the clerk of this court the certificate for 250 shares, referred to in above opinion, in which case the judgment and order denying new trial will be affirmed, with costs.

Osborne, J., concurs.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    The People ex rel. Charles S. Taber et al. v. John P. Adams, Com’r of City Works.

      (City Court of Brooklyn, General Term,

      Filed March 28, 1892.)

    jVIunicipal corporations—Assessments—Corner lots.
    A corner lot faces or fronts on two streets, and has a frontage on both, although the house may have its principal door facing only one street, and it is benefited by a lateral sewer.
    Certiorari to review proceedings of defendant in levying an assessment for a sewer.

      Charles S. Taber, for relators ; Alrriet F. Jenlcs, for resp’t.
   Van Wyck, J.

This is a proceeding to review, on writ of certiorari, the determination of the respondent in levying on relator’s lot an assessment for a lateral sewer in Butler street between Albany and Kingston avenues. In their affidavit for the writ, they allege that they are the owners of a lot on the corner of Butler street and Albany avenue which faces eighty feet on Butler street and twenty-two feet and three inches on Albany avenue, and that this lot is part of lot 50 on block 117 on the assessment map of the Twenty-fourth ward-. Relators’ sole contention is that their lot does not front on Butler street and is not benefited by this lateral sewer, and therefore the assessment was'illegally levied upon it, because title 15, chapter 583, Laws 1888, § 29, provides that the cost of a lateral sewer must be assessed upon the owners of lots fronting on the street through which it runs “ in proportian to the benefit received by them respectively, not exceeding the actual benefit derived therefrom by them respectively.” A corner lot faces or fronts on two streets; it has a frontage on both streets, though the house built upon it may have its principal door for egress and ingress facing only one street. The lateral sewer benefits the owners of lots facing, on the street through which it runs, in two ways; it drains the street upon which the lots face, and the houses thereupon, which owners have the privilege and right of connecting with such sewer.

This disposes of the complaints of the relators, for they do not pretend to show the amount to be excessive, but rest upon the contention that this corner lot has no frontage on Butler street and is not at all benefited by such sewer. This view of the case relieves us from deciding whether or not, under the authority of People ex rel. Peck v. Fire Commissioners, 106 N. Y., 64; 8 St. Rep., 634, the denial of respondent that he has knowledge or information sufficient to form a belief as to whether relators owned the lot, or there was a house thereon, or that it was connected with a sewer in'Albany avenue, was such a denial as calls upon us to assume that they were not the owners and that there was no house thereon and no connection with that sewer. For the same reason, it is unnecessary to decide whether or not the determination of respondent made on June 19, 1891, more than four months before this writ was granted of which the relators complain, was final and binding upon them within the meaning of Code Civ. Pro., § 2125.

In our opinion, the relators are entitled to a final order confirming the determination of the respondent, with thirty dollars-costs.

Osborne, J., concurs.


author: Osborne, J.

text:
    William Stone, Resp’t, v. John Assip and Timothy J. Buckley, App’lts.

      (City Court of Brooklyn, General Term,

      Filed March 28, 1892.)

    1. Contract—Evidence.
    In an action on a building contract, where the answer sets up as a counterclaim that plaintiff, “in violation of the spirit and intent” of his contract, filed a mechanic’s lien, a question as to whether there was any arrangement with plaintiff as to his not filing a lien is incompetent because no such defense was pleaded and as calling for a conclusion.
    2. Same.
    Where the owner has refused to permit the contractor to complete, an inquiry as to whether the owner supervised the completion, how much' time it took and what was the value of the time, with a view of basing a counterclaim thereon, is immaterial.
    Appeal from judgment in favor of plaintiff.

      Murphy & Campbell, for resp’t; John J. Leary, for app’lts.
   Osborne, J.

Plaintiff sues to recover a balance alleged by him to be due from defendants on two certain contracts to do the carpenter work on houses which defendants were building on Braxton Place and on Sixteenth street, in this city, and also for certain other work, labor and services performed on defendants’ houses in Tenth street at their request.

The answer denies that plaintiff has fulfilled his contracts, alleges that he has left some of his work unfinished, which defendants were compelled to do, and that their time was occupied in supervising the work, for both of which items they claim damages ; and they also allege that plaintiff, “ in violation of the spirit and intent ” of his contracts, filed a mechanic’s lien against their property, to their damage $1,000.

Plaintiff had a verdict, and from the judgment entered thereon defendants appeal.

On this ajjpeal the learned counsel for the appellants calls our attention to four exceptions taken by him to the exclusion of certain evidence, which he claims call for a reversal of the judgment.

The first exception is to the sustaining of the objection to the following question, addressed to the defendant, Assip : Q. “Was there any arrangement between you and Mr. Stone, verbal or otherwise, about his not filing the lien ?”

We think the question was clearly incompetent. In the first place, no such defense was pleaded; the answer went no further than to allege that plaintiff filed a mechanic’s lien “ in violation of the spirit and intent ” of his contract. The question was further objectionable in form, in that it called for the conclusion of the witness as to whether or not an “ arrangement ” had been concluded with plaintiff, instead of calling for what was said, and leaving the jury to decide if an “ arrangement ” existed.

The other three exceptions are to the exclusion of questions put to the defendant Assip, as to whether he supervised the completion of the unfinished work, as to how much time he had to give to that supervision, and as to the value of that time.

These questions were clearly inadmissible. It had already appeared from Asfip’s own testimony that, after plaintiff filed his lien, he received a notice from defendants’ counsel to go on and complete his contract, that he went to the buildings with his workmen, in accordance with the notice, to finish up his work, and that Assip then told him “ as long as he had a lien on, he could not work there,” and so plaintiff was obliged to leave. After Assip bad refused to permit plaintiff to complete, the inquiry as to whether he, Assip, supervised the completion, how much time it took, and what was the value of the time, with a view of basing a counterclaim thereon, was clearly immaterial.

The judgment should be affirmed, with, costs.

Yak Wyck, J., concurs.


text:
    John E. Burke, an Infant, App’lt, v. The Thomson Meter Co., Resp’t.

      (City Court of Brooklyn, General Term,

      Filed March 31, 1892.)

    1. Master and servant—Negligence—Instructions.
    Plaintiff, who was employed by defendant, was set at work at a machine to cut rubber, consisting of a movable carriage with a vise to hold the rubber and a saw. When near the saw the rubber slipped from, the vise, and plaintiff endeavored to replace it without moving back the carriage, in doing which his fingers came in contact with the saw and were injured. It appeared that when he was set at work he was told to look out for his fingers, and his evidence showed that he appreciated the danger. Held, that under these circumstances defendant could not be held liable for failure to give him instructions as to the danger and that he took upon himself the risks which were patent to his employment.

      2. Same.
    Under such circumstances the fact that the vise had flat instead of concave jaws to hold the rubber is immaterial.
    Appeal from judgment in favor of defendant dismissing the •complaint.

      Coursen & Coursen, for app’lt; Chas, J. Palierson, for resp’t
   Osborne, J.

Plaintiff, a young man seventeen years of age, Brings this action to recover damages for injuries suffered by him through the alleged, negligence of the defendant. The negligence complained of was the failure to give the plaintiff adequate instructions and cautions in regard to operating an alleged dangerous and faultily constructed machine. The answer denied all negligence. On the trial, at the close of the plaintiff’s case, the complaint was dismissed on the ground that there was no proof •of negligence on the part of the defendant, and this appeal is taken from the judgment entered thereon.

It appears from the evidence that plaintiff had been employed in defendant's factory for about eleven months previous to receiving the injuries complained of; he first began at shop work, running errands, etc., and from time to time was put to work at various machines in defendant’s factory for longer or shorter periods, so that we think it cannot be denied that plaintiff had obtained some general knowledge of operating machinery, and he had also worked before the day of the accident in cutting discs on the machine by which he was injured.

The machine in question was known as a milling machine, and was used, among other purposes, for cutting vulcanized rubber; it consisted of a carriage holding a vise, which was moved up against a stationary circular saw by means of a lever at the end of the machine; in the vise was set a rod of hard rubber about three "feet in length, which was moved up to the saw by the lever, and a piece of rubber about an inch in length was cut from the protruding end, the carriage was then moved back by the lever about a foot away from the saw, when the vise was loosened, the rod of rubber readjusted, the vise was made tight again, and the carriage was again moved up to the saw by the lever for a fresh cutting. Plaintiff had been engaged in this work on the day of the accident for about seven or eight hours; the rod of rubber which he was •cutting at the time of the accident had been reduced in length to about two inches; he had fastened this piece in the vise, and had moved it up to within about an inch of the saw,- when the rubber slipped upward out of the jaws of the vise; he thereupon proceeded, without moving back the carriage, to readjust the piece of rubber in the vise, and after he had done so, and while withdrawing his hand, it came in contract wit the saw, and a portion of his thumb and index finger were cut off. It also appeared that it was not unusual for a short piece of rubber to slip from the vise.

The learned counsel for the appellant contends that plaintiff was not sufficiently instructed as to the dangers of the machine and the liability of a short piece of rubber to slip up from the vise, and also that the machine was unsafe in not having concave-jaws on the vise so as to more accurately hold a short piece of rubber.

We think that the testimony of the plaintiff himself effectually disposes of the claim of negligence on the part of the defendant, for the alleged failure to instruct him as to the character of the work. He testifies as follows : “ Mr. Lambert, the superintendent of defendant, put me to work at this work at which I was hurt He said, 1 tira down to John Harding and cut that rubber.’ John Harding set the machine, put the vise on it, cut off three or four pieces of the rubber, and says to me, 1 Go ahead and work on it, look out for your fingers.’ ” On his cross-examination, he-further testified: “ When the man told me to take care of my fingers, I certainly knew that he meant that I should keep them away from the saw. I knew if I got my fingers against the saw I would be injured. My fingers went up against the saw after I had moved them from the piece of rubber; I don’t know how they did it. * * * I don’t know what I done with my fingers after I took them off the rubber; I know they were cut. Certainly they couldn’t be cut unless I moved them against the saw myself. I knew the saw was going aro rtid very fast. * * * I knew if I got my hand against that saw i; ¡would hurt me. On that machine I knew it would cut my fingí ijs off, and that it was my business to keep my fingers away fi iim the saw. On the machine which cut the rubber I had kept i ;iv fingers away from the saw all day, and I could have kept they [ away then, only the-vise was so near the saw. I didn’t draw th ^ vise back because I didn’t realize at that moment how far the vi Be was to the saw. I thought it was further away from the saw, i hd that is the way I happened to move my hand against the sav1 that way. * * *" I didn’t realize that this rubber was so neailthe saw; if I had, I wouldn’t seek to readjust it, because certainly I knew it was-dangerous. ¡ I

“ Q. You could have seen the rubber and ti e saw, and seen how close the two were together, if you had lo, iked at it, couldn’t you? A. O, if I had looked, yes, sir, etc.” j,

We think from this evidence that it cá mot be denied that plaintiff was aware of and fully appreciated I the dangers to be apprehended from operating this machine. 11 Nothing that defendant or its superintendent could have adde t to the instruction already given would have enlarged his knowh Ige in that respect. ' Under those circumstances he took upon himg jlf the risks which were patent to his employment. Hickey v. Taaffe, 105 N. Y., 26; 6 St. Rep., 426.

The learned counsel for the appellant also claimed' that defendant was negligent in not having concave- jaws on the vise, so-as to hold a short piece of rubber more firmly, and he introduced the evidence of an expert in an effort to support that theory. This witness, however, while testifying that “ concave jaws were generally used for such work as this,” also admitted that “flat jaws may be used; they are in some instances,” and that he had used flat jaws himself. This was far from showing that deíendant was negligent in using a machine with flat jaws. But, even if that were the case, the plaintiff was not injured in consequence thereof, but because when the piece of rubber slipped he, with full knowledge of the proximity of the saw and the danger thereof, attempted to readjust the piece of rubber without first moving the carriage back from the saw to a point where he could have fixed the rubber with perfect safety to himself

None of the exceptions taken in the course, of the trial seem to us to have any merit, or to call for any discussion.

Judgment was entered herein dismissing the complaint “ upon. the merits.” This was not in accordance with the decision of the learned trial judge, who simply dismissed the complaint

We think that the judgment should be modified by striking -out therefrom the words “ upon the merits,” and, as modified, it is affirmed.

, Van Wyck, J., concurs.


author: Ehrlich, Ch. J.

text:
    Walter Scott et al., App’lts, v. Napoleon J. Haines, Resp’t.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Bar—Judgment—Independent accounts.
    Plaintiff had two independent claims against defendant, who made a payment which plaintiff applied on one account and sued upon the other. In that action it was claimed that the payment should have been credited on the claim there sued upon, and it was so determined and the credit applied thereon. This action was then brought on the other account. Held, that the judgment in the former action was not a bar.
    Appeal from judgment entered on dismissal of complaint by trial judge.

      A. G. iV Vermilyea, for app’lts; J. D. Quincy, for resp’t.
   Ehrlich, Ch. J.

The complaint was dismissed upon the pleadings, and upon the theory that the claim sued upon had been .adjudicated, in a former action, adversely to the plaintiffs.

But the record does not sustain this claim.

The plaintiffs, according to their theory, did work and extra work, and in the action first brought they credited as paid the amount claimed herein.

Upon that trial the defendant succeeded in convincing the court that the credit should have been applied to the contract work (the subject of the other suit), and it was so applied.

The court having judicially determined that the plaintiffs credited the seventy-five dollars on the wrong account, they cancelled such credit, and brought this action to recover the amount, and the reply alleges that the contract work (for which a recovery was had) was for labor- and material entirely distinct from the labor and material involved in this action.

Assuming, as we must, that this allegation is true, separate actions might have been brought and separate recoveries had Secor v. Sturgis, 16 N. Y., 548.

The recovery in the first action did not operate as a bar to-this. By analogy, Wilcox v. Lee, 1 Abb., N. S., 250.

In other words, if A has two, independent accounts of $100.' each against B. and B. pays $100, which A. credits on one, and sues on the other, B. proves that A. should have credited the sum paid on the account in suit and obtains a judgment accordingly, this certainly does not prevent A. from cancelling the erroneous, credit, and suing on the other account

Such an adjudication would not bar the second action.

There must be a new trial, upon which the proof may alter the result, but upon the pleadings as they stand it was error to-dismiss the complaint.

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

Fitzsimoms, J., concurs.


text:
    Thomas P. Galligan, Resp’t, v. Matilda August, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Depositions—Examination before trial.
    In an action for damages alleged to have been caused by the negligence of defendant as owner of certain realty, where the defendant admits ownership, but denies possession or control, an examination of defendant before trial is not necessary and should not be granted, as the fact can be easily ascertained in many other ways.
    Appeal from order denying motion to vacate order for examination.

      J. J. & A. Lyons, for app’lt; J J. Bode, for resp’t.
   Ehrlich, Ch. J.

An order for the examination of an adverse party before trial is not matter of strict rightj and should be sustained only where the evidence is material to the party seeking ' it and there is danger that the oral evidence of - the party cannot be had at the trial. Jenkins v. Putnam, 106 N. Y., 272; 8 St. Rep., 710.

At all events, it is for this court to determine whether a proper case for aú examination in advance of the trial has been established.

The action is to recover damages for injuries received-by the-negligence of the defendant, as owner of certain realty.

The defendant admits the ownership, but denies “possession and control”

Ordinarily, these things follow the legal title, and if any one else is in possession or control, the fact ought to be easily ascertained in many ways.

If the examination of the defendant becomes necessaiy (and it probably will not), it may be had at the trial.

At all events, we find no necessity for the examination in advance of the trial, and deem the attempt to obtain it experimental.

It follows that the order appealed from must be reversed, with costs,

Tan Wyck and Fitzsimons, JJ., concur.


text:
    Joseph Kanter, Resp’t, v. David Rubin, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    New trial—Newly discovered evidence.
    A new trial will not be granted on the ground of newly discovered evidence, where the new evidence is as to matters fully litigated on the trial, is controverted by affidavits read in opposition to the motion, and where it would not be likely to change the result.
    Appeal from an order denying a motion made by defendant for new trial upon the grounds of surprise and newly discovered evidence.

      Jacob Manheim, for resp’t; Morris Goodharl, for app’lt.
   Van Wyck, J.

This action was to recover damages for the breach of a contract of employment for the term of one year from June 10, 1889, on the ground of the unjustifiable discharge of plaintiff on the 2d of November following. The defenses were, that plaintiff voluntarily left the employment, and an effort to prove plaintiff’s subsequent earnings in diminution of his damages, and as to both of which the jury found against defendant, except as to $5.50, which plaintiff admitted he had earned for driving an express wagon for three days. On the trial plaintiff testified that he had not been employed but for the three days, and upon cross-examination he adhered to this statement, and was cross-examined as to whether he had been engaged in the express business other than as a driver for these three • days. And the defendant, his wife, his son Jacob, and his daughter Eáther, all testified that plaintiff was engaged in the express business after he left defendant’s employment And so it clearly appears that the questions as to who had terminated the employment, and as to what amount plaintiff had thereafter earned from the express business or otherwise, were within the issues litigated on the trial and determined adversely to defendant by the jury. The defendant, as all defeated parties are, was surprised at the verdict and moved on affidavits for a new trial on the ground of surprise and newly discovered evidence. Now, as to these affidavits: in one the affiant states that he was in partnership with plaintiff in the express business for several months, and that they made eight or ten dollars per week, although he admits that the license to conduct the business was taken out in his name. The plaintiff in his answering affidavit denies this copartnership and presents his denial in minute detail and with more weight than the alleged partner affirms to the contrary; in another, the inspector of the Second Avenue Railroad Company deposes that his company paid the plaintiff twenty dollars for damages caused to a wagon by one of his company’s cars, and as to this, plaintiff deposes that the wagon was damaged while in his charge, that the owner, his employer, said that he would hold him, plaintiff, responsible; that he went to the company, collected the amount of the damages, and turned it over to his employer; and in another, the affiant says that plaintiff told him that he was engaged in the express business, and also that he had worked in a sugar factory at ten dollars a week, all of which plaintiff in his answering affidavit denies, and deposes affirmatively that he never worked in a sugar factory or was engaged in the express business. As already stated, the question whether or not the plaintiff was engaged in the express business and had by earnings therefrom or otherwise diminished his damages was at issue and litigated on the trial, and moreover, reading the affidavits used on the motion in conjunction with the evidence given on the trial, the conviction must be reached that a new trial would lead to the same result. Applying to these affidavits the familiar rules applicable to new trials for newly discovered evidence, it is clear that the motion for a new trial was properly denied. These rules are, the evidence must be discovered since the trial; it must appear that it could not have been obtained on the trial by the exercise of reasonable diligence ; it must be material to the issues ; it is not sufficient if it merely tends to impeach witnesses; it must not be cumulative; .it must also be reasonably certain that a new trial will change the result.

Order appealed from affirmed, with costs.

Ehrlich, Oh. J., and Fitzsimons, J., concur.


text:
    John J. Levy, Resp’t, v. Stanley Cohen, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Corporations—Inspection op books—Pleading.
    In an action for a penalty for refusing to allow a stockholder an inspection of the corporation’s hooks, an allegation that plaintiff “by his duly authorized representative, requested defendant to exhibit to him the books of said company, but that the defendant wholly neglected and refused to exhibit the same or to allow the same to he inspected by plaintiff or his representative” is broad enough to permit proof that a demand was made to have the books exhibited to plaintiff in person.
    Appeal from an order overruling defendant’s demurrer to plaintiff’s complaint and from the interlocutory judgment entered thereon as well as from the final judgment entered herein.

      Freling H. Smith, for resp’t; William N. Cohen, for app’lt
   Van Wyck, J.

This is an action brought by a stockholder to recover a penalty from the general manager of a domestic corporation for refusing him an inspection of the company’s books, as required by § 29 of chapter 564, of the Laws of 1890. The main contention of appellant’s counsel is that the words “ and their personal representatives ” as used in that section to give the right of inspection of books to stockholders and creditors of the corporation and their personal representatives, should be construed as meaning their executors and administrators, and as not meaning agents, and cites as an authority in support of this contention the decision in People ex rel McDonald v. U. S. Mercantile Reporting Co., 20 Abb. N. C., 193, but the learned justice there writing merely ruled that a demand made by the attorney of record, in action by a stockholder, for an inspection by him, the attorney, in the absence of any specific authorization from such stockholder to make such demand or inspection, was not a sufficient demand upon which to base an application for a mandamus against the defendant company, whose officer had refused such inspection to the attorney upon his demand without any specific authority to make the same. The complaint to which defendant’s demurrer was interposed alleges “ that the plaintiff, by his duly authorized representative, requested the defendant to exhibit to him the books of said company, but that the defendant wholly neglected and refused to exhibit the same or to allow the same to be inspected by plaintiff or his representative.” Under this allegation we are not called upon to pass upon the meaning of the words “their representatives,” as used in § 29, for the pleading is broad enough to permit of proof that a demand was made to have the books exhibited to plaintiff in person, although the same may have been made through his representative or agent, and that the defendant refused to permit an inspection of the books by the plaintiff in person. If the plaintiff had written defendant to permit the bearer, his duly authorized representative, to inspect the books, but if for any reason he declined to permit such representative to inspect them, then that he demanded an inspection for himself in person, and requested the naming of a convenient time for the same, and to which the defendant replied by letter that he refused to allow either such representative or the plaintiff in person to inspect the books at any time or place whatever, who can doubt but that these letters could be given in evidence under the allegations of the complaint in order to prove that defendant had refused plaintiff an inspection of the company’s books.

Order and judgments appealed from affirmed, with costs.

Fitzsimons, J., concurs.


author: Pryor, J.

text:
    Frank W. Robbins et al., Resp’ts, v. Charles Downey, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Appeal—Case.
    A verdict without evidence involves error of law, and such error may he reviewed in the absence of a certificate that the case contains all the evidence.

      2. Account stated—Statement oe balance.
    Plaintiffs sold goods to defendant and accompanied the deliveries thereof with itemized statements, and also furnished monthly statements. They finally rendered a statement of the balance due, which defendant retained and promised to pay the amount as stated therein. Held, that these facts furnished ample proof of an account stated.
    3. Same.
    To sustain an action on an account stated it is not necessary that there be an unconditional promise to pay.
    4. Evidence—Admissions.
    No foundation is necessary to the competency of a party's own admissions.

      Appeal from judgment of general term of the city court affirming judgment on verdict.
    Action on account stated. Answer, general denial.

      Malcolm Campbell, for app’lt; Phillips & Avery, for resp’ts.

       Affirming 41 St. Rep., 95.

   Pryor, J.

The defense being simply a general denial, the only issue for trial was whether an account had been stated between the parties. Field v. Knapp, 108 N. Y., 87; 12 St. Rep., 790; Barker v. Hoff, 52 How., 382; Fuller v. Board, 2 Kans., 445. And, in fact, no other question was litigated or submitted to the jury. If there was sufficient proof by plaintiffs of an account stated, the verdict in their favor concludes the case in this court, no matter how strong the evidence to the contrary. “ But defendant’s contention is that it results as a necessary inference of law from undisputed evidence, that no account had been stated between the parties.

The respondents answer, that, since the case does not purport to contain all the evidence, the appellant is precluded to raise the point that the verdict is absolutely without support; but a verdict without evidence involves error of law, and such error we may review in the absence of a certificate that all the evidence is before us. Halpin v. Ins. Co., 118 N. Y., 165 ; 28 St. Rep., 788.

The proposition upon which appellant relies is, that a bare statement of a balance due, unaccompanied by any account, is incapable, though accepted, of constituting an account stated. But in' a book of the highest authority we read that, “ the rule is, that if a fixed and certain sum is admitted to be due to the plaintiff, for which an action would lie, that will be evidence to support a count upon an account stated.” 1 Saunders on PI. and Ev., 48 marginal. It suffices to prove some antecedent debt or demand between the parties, respecting which an account was stated and a balance struck. Knowles v. Michel, 13 East, 249.

The charges may be all on one side, and an account stated may consist of a single item. 2 Chitty on Contr. (11 ed.), 962. “ An account stated must be made with knowledge, or opportunity of knowledge, on the part of the debtor of all the circumstances.” Kinney v. Heatly, 7 Pac. Rep., 359. “ To prove an account stated it is not always necessary to show actual examination and assent.” Benites v. Hampton, 3 Pac. Rep., 206. A promissory note is evidence of an account stated in an action by the payee against the maker. Story v. Atkins, 2 Strange, 719. So is an I. O. U. Highmore v. Primrose, 5 M. & S., 65.

In the case before us, the evidence establishes that in 1889 and 1890 the plaintiffs sold goods to the defendant; that when the goods were delivered they rendered statements with items to the defendant; and also furnished him statements of account at the end of each month; that subsequently to the last delivery of goods and to the last payment on account, the plaintiffs presented the defendant with a statement of balance due to the amount of $297.10, to which balance defendant made no objection, but, on the contrary, repeatedly promised to pay it Nor did defendant challenge the correctness of the itemized bills or of the monthly statements. We are of opinion that the proof is ample of an account stated, Manchester Paper Co. v. Moore, 104 N. Y., 680; 5 St. Rep., 747; Wiley v. Brigham, 16 Hun, 106; and hence, the evidence conflicting, that the court did not err in declining to withdraw the issue from the jury.

The objection. to evidence of defendant’s declarations on the ground that he had not been examined respecting thenq is plainly untenable; for no foundation is necessary to the competency of a party’s own admissions.

Equally untenable is defendant’s contention that, “ to sustain an action on an account stated, there must be an unconditional promise to pay,” the familiar rule being that no express promise is necessary, but from the adjustment of the account the law implies a promise to pay.

Appellant urges that the promise proved against him was to pay when he got money from the Elevated Bailway. Assuming the fact, and still it was ineffectual to defeat the action. A consideration past and executed will support no other promise than such as would be implied by law, Roscorla v. Thomas, 3 Q. B., 234; and hence, where an account has been stated between parties, and a balance ascertained to be due from one of them to the other, the law implies a promise by the debtor to pay on request; so that any ex post facto promise by him differing in its nature therefrom, ex. gr., to pay on a particular day named, would be nudum pactum, unless made upon a new consideration.” Hopkins v. Logan, 5 M. & W., 241, 249; Broom’s Comm., 326.

But, if defendant’s promise to pay when he got the money were valid, he himself testifies that he had received the money.

Appellant predicates error of the proposition in the charge that “ any account presented by a creditor to a debtor, and accepted by him, no matter whether it is an itemized statement or for a balance due, is an account stated.” To apprehend the import of this language we must construe it with the context; and so reading it we observe that the learned trial justice charged explicitly, that in order to find a verdict for plaintiffs the jury must be satisfied that “ plaintiffs rendered to defendant an account for several articles of merchandise, and that he assented to the correctness of that account and promised to pay the same.” The total effect of the charge was to propound the law correctly.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


author: Bookstaver, J.

text:
    Isaac Boehm, Resp’t, v. Edward Miller, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Fraud.
    In dn action fqr false representations on tile sale of certain goods, a person who has no interest in the goods other than a bill of sale or chattel mortgage as security, and who cautioned plaintiff in regard to the matter, and advised a close examination before buying, cannot be held responsible for the false representations of the seller. »

      2. Same—Money had.
    A. recovery cannot be had for money had and received in an action founded on fraud.
    Appeal from a judgment entered in the district court of the city of New York for the eleventh judicial district.

      George W. MoAdam, for app’ít; William Arrowsmiih, for xesp’t.
   Bookstaver, J.

This action was brought by the plaintiff against the defendant Miller, impleaded with one John H. Lawrence, to recover money obtained by fraud and deceit It is elementary that in such an action, before there can be a recovery, there must be some proof of fraud; and in this case there must be proof of some fraudulent act or representation on the part of the defendant Miller. The respondent seeks to justify the judgment on the ground that Lawrence, who made the false representations in regard to the contents of a liquor store, and the amount of money to become due upon a ' patent register, was the agent of Miller, and as Miller profited by the representations, he should be compelled to refund the money received. But from an examination of the testimony we do not think that Lawrence was Miller’s agent. We think the bill of sale of the liquor store given by Lawrence to Miller was, under the circumstances, intended to be only a chattel mortgage to secure Miller's advances to Lawrence, and so regarded by the parties thereto, and as such was filed in the register’s office. They therefore stood in the relation of mortgagor and mortgagee to each other, and each was • responsible for his own representations only.

Plaintiff admits that Miller informed him that he was not the owner of the premises, that Lawrence was, and that he, Lawrence, paid all the debts, bought all the goods and kept the money, and that Milier bad no interest in it other than the bill of sale or chattel mortgage given to secure his note. After the first conversation between the parties agreeing to the purchase of the place by the plaintiff, Miller informed him that some of the representations made by Lawrence were untrue and that what he thought was whiskey was in reality nothing but water, and told plaintiff that before completing the purchase he had better examine all the stock and go down and examine the records. After this further negotiations took place between the parties, and a deduction of $125 from the purchase price was made on account of the representations made by Lawrence at the first interview; and thereupon the defendant Miller asked the plaintiff whether or not he was satisfied with the deduction, and he said he was, adding: “ You treated me like a' man right through and fair and square; you acted upright with me in all thingswhereupon Miller inquired of him whether he had been down to examine the records, and he said he had not, and added: “I will take it for granted that is, take the representations in regard to the register for granted. Under such a state of facts we think the court below erred in rendering a judgment in favor of the plaintiff under the pleadings in this action. As far as the record shows, there was no attempt made on the part of the plaintiff to change his cause of action from a tort to one for money had and received under a mutual mistake of the parties. We are not now called upon to determine whether such an amendment to the pleadings could be had or not under the wide latitude given to amendment in district court cases; but if pleadings are to be of any value whatever, they must apprise the party of the nature of the claim made against him, and a recovery cannot be had for money had and received in an action founded on fraud.

We, therefore, think this judgment should be reversed and a new trial ordered, with costs to the appellants.

Bischoff, J., concurs.


author: Per Curiam.

text:
    Edward E. Ward, Resp’t, v. Michael Edesheimer et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Appeal—Leave to go to.the court of appeals.
    Leave to go to the court of appeals will not be granted for the sole purpose of enabling counsel to attempt to obtain a modification of a decision of that court decisive of the matter which has been followed by the courts for many years.
    Motion for leave to go to the court of appeals.

      Benno Loewy, for the motion ; C. A. Marl, opposed.
   Per Curiam.

This motion is based on a novel ground. It is conceded that Gardner v. Keteltas, 3 Hill, 330, is decisive of the case, yet counsel desires to go to the court of appeals on the question hoping to get some modification of that decision. But we are referred to no authority as a foundation for such hope, nor has our attention been called to any principle of law which could be invoked as the basis for such an experiment. The case cited was argued by Hen eral Anthon and Mr. Charles O’Connor, and decided by the old supreme court of the state, Chief Justice Nelson writing the opinion, and the principle there announced has been followed ever since. See Ins. Co. v. Scott, 2 Hilt., 552; Meeks v. Bowerman, 1 Daly, 100; McKinney v. Holt, 8 Hun, 339; Crooked Lake Nav. Co. v. Keuka Co., 37 id., 14; Gilhooley v. Washington, 4 N. Y., 217; Johnson v. Oppenheim, 34 N. Y. Super., 416; affirmed, 55 N. Y., 280; Rotter v. Goerlitz, 34 St. Rep., 1001.

The motion must therefore be denied, with ten dollars costs.

Bookstayer, Bischoff and Pryor, JJ., concur.


text:
    Robert W. Drummond, Resp’t, v. Frank L. Fisher et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Summary proceedings—Pleading—Assignment of lease.
    An allegation in a petition in summary proceedings that certain persons “ as assignees or under-tenants ” hold over after the expiration of the tenant’s term, does not involve an admission of the fact of an assignment of the lease to such persons.

      3. Trial—Defects in proof.
    There is no rule which imposes upon a party the duty of suggesting to his adversary that he supply a defect in his proof by proper evidence, and that for his omission to do so the appellate court will, for the purpose of a reversal of a judgment in his favor, assume the existence of sufficient evidence to supply the defect.
    Appellants’ motion for reargnment of the appeal.

      Abel Crook and John Callahan, for resp’t; John M. Bowers, for app'lts.
   Per Curiam.

For the reasons stated in the opinion (see 48 St. Rep., 135), we do not accede to the contention of appellants’ counsel that the allegations contained in the landlord’s petition in the summary proceedings instituted to recover possession of the demised premises involved an admission of the fact of an assignment of the lease to Haskell and Radiker. Neither did the respondent’s attitude upon the trial necessarily assume the existence of such an assignment, but, on the contrary, all knowledge of it was distinctly disclaimed by the-respondent’s grantors. We cannot, therefore, assume that appellants were induced to withhold proof of the assignment of the lease to them by reason of any act or fault of the respondent, and without such proof appellants could not succeed in their defense, as has been already decided herein.

We are also unaware of any rule which imposes upon a party the duty of suggesting to his adversary that he supply a defect in the proof of his defense by proper evidence, and that for his omission to do .so the appellate court will, for the purposes of the reversal of a judgment in his favor, assume the existence of sufficient evidence to supply the defect. The cases cited by appellants’ counsel in this behalf do not support him. Schoonmaker v. Bonnie, 119 N. Y., 565; 30 St. Rep., 113, decides no more than that a joint exception for all defendants is unavailable to any of them separately, if the ruling was proper respecting the others. In Jackson v. Van Slyke, 52 N. Y., 645, the court held that where evidence of a defense was received upon the trial without objection, it is too late to object to its introduction for the first time on appeal; and in Thayer v. Marsh, 75 N. Y., 340, it was held that the court will not reverse a judgment for deficiency in the proof to support it, unless such deficiency was complained of in the trial court and the erroneous ruling respecting it reached by a proper exception.

It is error for appellants’ counsel to assert that the want of proof of an assignment of the lease was not among the points discussed upon the hearing of the appeal, and we refer him to the fifth, sixth, seventh and eighth points on respondent’s brief.

The grounds alleged upon this motion are, therefore, not among those which may be assigned for reargument of an appeal, pursuant to Rule 16 of the general term of this court.

'Motion for reargument denied, with ten dollars costs.

Bookstaver, Bischoff and Pryor, JJ., concur.


author: Daly, Ch. J.

text:
    Conrad Boehm, Resp’t, v. Levi H. Mace et al., Appl’ts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Negligence—Elevator—Proof of inapplicable statute.
    In an action for personal injuries, where the complaint alleges that they were caused by the absence of guard rails around the elevator on which plaintiff was riding at the time of the accident; that he was forced by the motion over the side of the elevator, and his foot crushed between it and a beam projecting from the side of the shaft, it is error to permit proof of the statute requiring the enclosure of elevator shafts, as a failure to comply with its provisions was not pleaded.
    3. Same—Laws 1886, chap. 409; Laws 1887, chap. 462. '
    It is only where the factory inspector has determined that the enclosure of an elevator shaft is necessary to protect the employees that the owner or employer is liable for a failure to provide such safeguard, and the latter is under no duty to invoke the exercise of the discretion of the inspector before continuing the use of the elevator.
    Appeal from a judgment of this court entered upon the verdict of a jury in favor of the plaintiff for $15,000, and from an order denying defendants’ motion for a new trial
    The action was brought to recover damages sustained by the plaintiff while riding in the elevator used' on the premises of defendants, by whom he was employed. •

      Cannon & Atwater, for app’lts; Q. R. Hawes, for resp’t.
   Daly, Ch. J.

The complaint alleged that the elevator on which plaintiff was riding was in an insecure, dangerous and unsafe condition, in that there were no guard rails around the same and the floor or platform of the car of said elevator was improperly secured, was loose and worn out; that by reason of such improper construction and unsafe condition a heavy truck, intended for the carrying of goods, which was on the ■ elevator at the time, was rolled by the motion of said elevator against and upon the plaintiff, thereby forcing him over the side of the elevator and catching and crushing his right foot and leg between the side of ■the elevator and a beam or moulding projecting from the side of the elevator shaft between the first and second floors. On the trial the plaintiff was allowed to read, against the objection and exception of defendants, the eighth section, chapter 462, of the Laws of 1887, amending chapter 409 of the Laws of 1886,’pro-viding that it should be the duty of the owner of any manufacturing establishment where hoisting shafts or well holes are used to cause the same to be properly and substantially enclosed or secured if in the opinion of the inspector it is necessary to protect the life or limbs of those employed in the establishment; and also to provide automatic doors at all elevator ways so as to form a ■substantial surface when closed, and so constructed as to open and close by action of the elevator in ascending or descending.

Objection to this statute was made on the ground that the complaint did not allege that the accident happened by the failure to comply with its provisions, and that it had already appeared in evidence that the accident happened from an entirely different cause. The first ground of objection was good. The negligence charged in the complaint was the absence of guard rails around the elevator, and not the absence of a substantial enclosure around the shaft or well-bole. It is apparent that where the complaint speaks of the elevator, the car of the elevator is intended, the allegation being that the plaintiff “ took one of said elevators,” also, “ that on said elevator there was a heavy truck; ” that the truck was rolled against the plaintiff “ by the motion of said elevator; ” that he was forced “ over the side of said elevator,” and that his foot was crushed “ between the side of said elevator and a beam or moulding projecting from the side of the elevator shaft; ” so-that the allegation that the elevator was insecure and dangerous in that there were no guard rails around the same, was an allegation respecting the elevator car and could not refer to the absence of an enclosure of the elevator shaft.

The objection that the neglect to comply with the statute was-not the negligence set out in the complaint was therefore sound and required the exclusion of the statute. The objection was made in time. The rule is strict that a recovery must be according to the pleading as well as proof.

But even if it might be argued that the accident did occur from a failure to enclose the elevator shaft as provided in the statute,, because the plaintiff’s foot was caught between the side of the car and the floor beam of the floor above; which could not have happened if the whole shaft had been boarded in, yet something more than such fact was needed to prove a case of negligence under the statute. It will be observed that the enactment requires the1 shaft or well-hole to be enclosed or secured, not absolutely, but only if in the opinion of the inspector it is necessary to protect the life or limbs of those employed in such establishmentand it was not shown that any such opinion" had been expressed or conveyed to the defendants, nor any notice to enclose the shaft or well-hole given to them prior to the happening of the accident, which occurred J uly 28, 1888.

It is argued by respondent that it was the duty of the defendants to enclose the elevator shaft without waiting for the notice from the inspector, quoting Willy v. Mulledy, 78 N. Y., 310, and McRickard v. Flint, 114 N. Y., 222; 23 St. Rep., 100, holding that where the owner of premises is required by statute to provide certain.safety appliances, to be such as shall be directed and approved by a public officer, or department, it is the duty of such owner to seek and obtain the necessary direction and approval, and that if he fail to do so and to provide the appliances required by the statute he is chargeable with negligence.

The statute invoked in this case differs from those referred to-in the cases cited. Laws 1873, chap. 863; Laws of 1874, chap. 547. There was an absolute duty imposed by these statutes ;- here there was no duty until the discretion of the inspector had been exercised in each particular case, and that discretion depended upon his judgment as to whether it was necessary for the protection of the employees in the particular establishment; there was, therefore, no general duty upon the proprietors of all establishments to provide such Safeguards, and hence no active duty was imposed upon the owners of all establishments in which elevators were in use to invoice the exercise of the discretion of the factory inspector before continuing such use.

It would seem, therefore, erroneous to admit proof of the statute in this case, and to submit, as was done, to the jury the question of negligence of the defendant, assumed to arise from a failure to comply with the statute, no case of negligence under the statute having been pleaded of proved.

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

Bischoff, J., concurs.


author: Daly, Oh. J.

text:
    Annie Kirsch, Resp’t, v. Hyman Kirsch, App’lt.

      (New York Common, Pleas, General Term,

      Filed April 4, 1892.)

      1. Divorce—Separation—Order for alimony and counsel fee.
    In an action for a separation on the ground of neglect and refusal of a husband to provide for his wife, an order for alimony and counsel fee is one to be made in the action, and not by a separate special proceeding to be necessarily instituted by petition.
    3. Same—When motion for alimony denied.
    In such case, where it is shown that the husband took and furnished rooms, and invited his wife to live with him there, which she refused to do, and it is not shown that it was unsafe or improper for her to live with him, Held, that an order allowing her counsel fee and alimony was improperly granted.
    Appeal from an order, in an action for a separation on the ■ground of neglect and refusal of a husband to provide for his wife, requiring defendant to pay $7.50 per week alimony and seventy-five dollars counsel fee pendente lite.

      Alex. S. Rosenthal (Charles H. Smith, of counsel), for app’lt; John ¿7. Brodsky, for resp’t.
   Daly, Oh. J.

The first objection made to the order is that it was granted upon a motion based upon an affidavit and order to show •cause, and not upon petition; that the order is therefore irregular; and that the judge had no power to make the order to show cause before the proceeding had been instituted by petition. Wo authority is cited for these propositions and it does not appear that the objection was taken upon the motion. Irregularity would be waived by failure to make objection in time. But the proceeding was not' irregular. Before the incorporation of the practice in divorce cases in the Code of Civil Procedure it was held that the applications for alimony and counsel fee must be instituted by petition (5 Wait’s Pr., f86) and since the Code of Civil Procedure that practice has continued, but there seems no good reason for holding that application cannot be made upon motion instituted by order to show cause like any other application in the action. The order for alimony and counsel fee is an order made in the action, and not a separate special proceeding to be necessarily instituted by petition.

But on the merits of the motion I think the defendant should have prevailed. The complaint alleges neglect and refusal to provide for his wife and abandonment. It is not contradicted that he took and furnished three rooms for her at 97 Orchard street in May, 1891, and invited her to live with him there which she refused to do. No reason is given by her for snch refusal. It is.

• not shown that it is unsafe or improper for her to live with him. It would seem that she prefers to reside with her son by a former marriage, who keeps a shop in Willett street. She left her former residence with defendant in Delaneey street to go and live with that son and while there the defendant contributed to her expenses, but he was summoned before the police justice at the Essex Market police court, on May 7, 1891, for non-support It was then decided by the justice that he should provide a home for her and pursuant to that order he hired the apartments in Orchard street, to which she has refused to go.

As to the alleged abandonment, the complaint gives the date as. June 13, 1890. No particulars of this act are stated in her affidavit ; on the contrary, it appears from the affidavit of their son that his parents lived together at Willett street for some period before June 11, 1891, at which date the plaintiff caused the defendant to be ejected from the house, which was done by the stepson. There is no denial of this fact.

The papers do not show a refusal to support the plaintiff nor abandonment by the defendant at the time of the commencement of this action.

Order reversed and motion denied, without costs.

Bischoff and Pbyob, JJ., concur.


author: Bischoff, J. Pryor, J.

text:
    The A. B. Cleveland Co., Limited, Resp’t, v. The A. C. Nellis Co., App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Salts—Counterclaim—Evidence.
    In an action to recover the purchase price of seed sold, the defendant admitted the sale, but set up a counterclaim for damages for breach of warranty in the sale of seeds other than those mentioned in the complaint. The only evidence to sustain the allegation of breach of warranty was that of defendant’s manager, who teslified that the seed at the time of the trial was worth only $260, though defendant had agreed to pay for it $1,777.50, hut the testimony failed to disclose that, if the seed delivered had been of the quality warranted, it would have been worth the sum agreed to be paid, or that defendant had paid the said sum. Plaintiif requested the court to direct a verdict in its favor for the amount conceded due, which was refused, whereupon defendant moved for the direction of a verdict in its favor for the amount of the counterclaim, less the amount conceded due plaintiif and the actual value of the seed; this motion was-denied. The court then charged the jury, submitting to them only the question whether or not the seed delivered was as warranted, and if not, that they find for defendant in the, amount asked by it. The jury found for plaintiff in the amount claimed in the complaint. Held, no error; that the evidence would not justify a finding in favor of the counterclaim, and that a verdict should have been directed for plaintiff as requested.
    Appeal from the judgment of the general term of the city court, affirming a judgment for plaintiff, entered upon the verdict of a jury, and an order denying defendant’s motion for a new trial.
    • Action to recover the purchase price of seed sold and delivered by plaintiff to the defendant, the answer admitting the sale and delivery of seed but denying the value thereof, and also seeking by way of counterclaim to recover damages for plaintiff’s alleged breach of warranty in the sale and delivery of seed other than that for the recovery of the purchase price of which this action was brought"

      Charles F. McLean, for resp’t; L. Laflin Kellogg (Abram J. Rose, of counsel), for app’lt
   Bischoff, J.

As it was conceded upon the trial that defendant was indebted to plaintiff on account of the first cause of action set forth in the complaint in the sum of $340.89, and the second cause of action was withdrawn, the contention of the parties to this action was limited to defendant’s right to recover upon the-counterclaim averred in the answer.

Defendant claimed that some time in or about the year 1887 or 1888 one John H. Flanders was plaintiff’s authorized agent for the sale of seed, and as'such sold and delivered to the defendant a quantity of seed peas, representing and warranting them to be first-class, of a certain name, kind and quality, as well as marketable; that defendant agreed to pay therefor $1,777.50; that the seed peas delivered were not of the kind and quality represented and warranted, but that they were of inferior quality and non-marketable, and that because of plaintiff’s breach of warranty defendant sustained a loss of $2,000. The agency of Flanders, as well as the sale and warranty by him as the agent of the plaintiff, was denied by the latter. On the trial, however, defendant adduced evidence tending to establish those facts, but the only evidence relied upon to sustain the allegation of a breach of the warranty, so far as it is apparent from the record before us, consisted of the testimony of Howland, defendant’s general manager, to the effect that the seed delivered was at the time of the trial worth no more than $260, though defendant, had agreed to pay therefor $1,777.50, and to support the claim of damage resulting from the breach of the alleged warranty by the plaintiff the evidence adduced for the defendant failed to disclose that the seed delivered, if it had been of the kind and quality as warranted, would have been worth any more than defendant had agreed to pay, or that defendant did pay the sum agreed. It is true that Flanders, a witness for defendant, did testify that defendant had paid him something on account of the purchase price, and that the amount paid him was remitted to plaintiff, but how much defendant had paid, and whether or not it was more or less than the actual value of the seed delivered to and retained by the defendant did not appear.

Upon this evidence plaintiff requested the court to direct a verdict in its favor for the amount conceded to be due on the first cause of action, which request was refused. Thereupon defendant moved for the direction of a verdict in its favor for $1,176.61, the sum agreed to be paid by it for the seed after deducting therefrom $260, the actual value of the seed delivered, and $340.89, the amount admitted to be due and owing from it to the plaintiff on the first cause of action. This motion was also denied, and the court thereupon proceeded to charge the jury, submitting to .them for determination only the question whether or not the seed peas delivered were as warranted, and directing them, if they believed the evidence adduced by defendant that they were not so, to find for the defendant in the sum of $1,176.61, that being the amount as above stated agreed to be paid by defendant for the seed, less the actual value of the seed delivered and retained ■and the admitted indebtedness to plaintiff on the first cause of action, the court thus assuming the facts of the sale and warranty of the seed to be established. No request was made on behalf of either party for the submission of any other question, and no exception was taken to the charge. The jury disregarded defendant’s counterclaim, and found a verdict for the plaintiff in the sum of $340.89. Defendant thereupon moved for a new trial upon the several grounds allowed by § 999 of the Code of Civil Procedure, which motion was denied. To the refusals of the court to direct a verdict for defendant, and to grant a new trial, defendant duly excepted.

We think that the evidence did not authorize a finding for the •defendant upon the counterclaim, and that a verdict should have been directed for the plaintiff as requested. Assuming it to be as claimed upon the trial that the seed alleged to have been sold and delivered by plaintiff to defendant was not worth as much as •defendant had agreed to pay therefor, it did not follow that the seed was not of the kind and quality warranted. That it was not so was the essential fact upon which defendant’s right to recover was dependent and it was incumbent upon defendant to establish the existence of that fact by sufficient evidence.

Again, there was no proof of any damage resulting to defendant from a breach of the alleged warranty. This action was not brought to enforce payment of the purchase price agreed to be paid by defendant and it nowhere appeared that defendant had paid on account of such purchase price anything beyond the admitted value of the seed delivered to and retained by it, and in the absence of proof that the value of the seed, as warranted, ex-needed the price agreed to be paid no damage could have resulted to defendant from a breach of the warranty.

But assuming that defendant has paid the whole purchase price agreed to be paid by it and that the testimony of Howland, defendant’s general manager, was sufficient to have sustained a finding that the seed delivered was not as warranted, and was wholly uncontradicted in this respect, the testimony was subject to discredit as that of an interested witness, as the facts that he purchased the seed and contracted the indebtedness for it in the course of his management of defendant’s affairs sufficiently identified him with defendant’s interest in the subject matter of the counterclaim to bring his testimony within the rule that the testimony of an interested witness may be rejected though not disputed. Elwood v. W. U. Tel. Co., 45 N. Y., 549; Honegger v. Weilstein, 94 id., 252; Canajaharie Nat. Bank v. Diefendorf, 123 id., 191; 33 St, Rep., 389. Defendant’s motions were therefore properly denied.

On the trial defendant’s counsel offered in evidence a number of letters, besides testimony, all of which had reference to transactions between plaintiff and persons other than defendant, and were in no manner connected with the subject matter of the counterclaim. These letters and the testimony offered were properly excluded as irrelevant and the exceptions to such exclusion are without merit.

One other exception is urged upon defendant’s brief, that having reference to the exclusion of testimony to an alleged conversation of defendant’s witness Flanders with Steams, plaintiff’s treasurer. To have entitled defendant to the introduction of testimony respecting this conversation it was incumbent upon counsel first to have disclosed its materiality. Such was omitted and the testimony was therefore properly excluded. Trustees, etc., First Baptist Church v. Brooklyn Fire Ins. Co., 23 How. Pr., 448. The judgment and order appealed from should be affirmed, with costs.

Pryor, J.

I am of opinion that the sum for which the peas, were sold ($1,777.50) being the mutual admission of the parties, was evidence of the value of the peas as warranted. The actual value of the peas.being shown to be $260, defendant’s damages would be the difference between that amount and $1,777.50. But, by the contract defendant owed the plaintiff $1,777.50, the purchase°price, less the amount of damages from breach of the warranty, namely $1,517.50. Deducting from this sum $340.89, the amount defendant admits to be due plaintiff on another contract, there remains an apparent indebtedness to defendant of $1,176.61. But, then, defendant owes plaintiff for the purchase price of the seed, namely, $1,777.50, leaving a net balance due to plaintiff of $600.89.

When a vendee claims damages for breach of warranty, he proceeds on the contract;_ and if the unpaid purchase price is exactly equivalent to the amount of his damage, evidently he can recover nothing; and, if more, that the vendor may recover.

Here, the case being submitted to the court by both parties, as upon uncontroverted, evidence, on defendant’s own proof, a verdict should have been directed for the plaintiff in the sum of $600.89.

But, as the plaintiff does not appeal, the judgment, though inadequate, must be affirmed.


author: Dalt, Ch. J.

text:
    George H. Engelage et al., Resp’ts, v. Warren Raymond, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Arrest—Affidavit for order of—Sufficiency.
    In an affidavit upon 'which an order of arrest was based, it appeared, that the defendant bought of plaintiff goods to the amount of $184.05, representing the purchase to be for one P.; that the goods were really for defendant; that P., formerly proprietress of the store to which the goods were sent, had become his wife before the purchase of the goods, and that he conducted the business in her name after the marriage; that he failed to pay for the goods, and within forty-eight hours before the order of arrest was applied for had sold all the stock in said store, and refused to pay plaintiffs, saying to their salesman who'called upon him, “ How much do you get ? ” and upon the salesman answering $184.05, saying, “ Let’s see you get it.” Held, that the order of arrest was properly granted.

      '% Same—Objections—When to be raised.
    An objection that the affidavit upon which an order of arrest was granted, and the complaint in the action, are inconsistent, must be made on the motion to vacate the order, and cannot be raised for the first time on appeal.
    Appeal from an order of the general term of the city court, affirming an order of the special term denying defendant’s motion to vacate an order of arrest.

      Edward L. Frost, for resp’ts; Sweeney & Oromwell, for app’lt.
   Dalt, Ch. J.

Several grounds for vacating the order of arrest are suggested by the appellant in his brief, but we are confined to the consideration of those irregularities enumerated in his notice of motion, and thus brought to the attention of the court below. Rule 37, and cases cited in Hun’s Notes. Aside from the unsubstantial objection that all the papers on which the order of arrest was granted are not specified in the order, which is not pressed in the appellant’s brief, the grounds presented' for vacating the order are: (1) that no cause of action" in favor of the plaintiff against the defendant is shown by the complaint or other papers on which the.order of arrest was granted. (2) That no.sufficient grounds of arrest are stated in said complaint or other papers on which said order of arrest was granted.

This specification includes the consideration of the objection that the cause of action stated in the complaint is inconsistent with the cause of action stated in the affidavit for arrest, held to be a fatal objection to the order, Buchanan F. O. Co. v. Woodman, 1 Hun, 639; Wickes v. Harmon, 12 Abb. Pr., 476, or the objection that the ground of arrest stated in the affidavit or the complaint is different from that recited in the order, which might be equally fatal, Rule 13; Code, § 568, or the objection that the complaint fails to state a sufficient cause of action, as required “by § 549 of the Code. Code, § 558.

Upon this appeal from the city court we ihust hold the defendant confined to his own enumeration of irregularities, and if we find that the complaint or other papers on which the order of arrest was granted discloses any cause of action in favor of the plaintiffs against the defendant, or any ground of arrest, hold that the motion to vacate the order was properly denied.

Talcing the affidavit for arrest alone, it appears that the defendant bought goods to the amount of $184.05 from the plaintiffs, representing the purchase to be for one M. Pitt; that these goods were really for defendant; that M. Pitt, formerly the proprietress of the store, 2257 Amsterdam avenue, 'to wíiich the goods were sent, had become his wife before the purchase of the goods, and that he conducted the business in her name after the marriage; that he failed to pay for the goods and within forty-eight hours before the order of arrest was applied for had sold all the stock in trade at 2257 Amsterdam avenue and refused to pay the plaintiffs, saying to the plaintiffs’ salesman who called upon him: “ How much do you get ? ” and upon deponent’s answering $184.-05, saying: “Let’s see you get it! ”

A purchase by defendant for himself though ostensibly for another, unquestionably makes him liable for the debt, and so a good cause of action upon contract is set forth against him; and the sale of his entire stock, and his refusal to pay in the manner described, leads inevitably to the conclusion that his disposal of his property was with intent to cheat his creditors out of their just demands. An order of arrest may be issued for that cause, dode, § 550, subd. 2 ; and although it is not the ground of arrest stated in the order, which purports to have been granted for defendant's fraud in incurring the debt, Code, § 549, subd. 4, the defendant has not made that objection to the order; the irregularity he complains of being that the papers show no ground of arrest whatever.

The complaint does not set forth the facts as to the cause of action in the same way that they appear in the affidavit; but rather leaves it doubtful whether the plaintiffs do not intend to pursue ■defendant for inducing a sale to M. Pitt by false representations, but it may be said that the allegations in the complaint are consistent with a claim against the defendant upon an implied contract. Assumpsit lies for the value of goods which a defendant by fraud induced the plaintiffs to sell to an insolvent person, and obtained subsequently for his own benefit. 1 Am. and Eng. Eticy. Law, 884, note 1. But, as we have said, the objection of inconsistency between the complaint and the affidavit was not taken by the motion. The defendant would hold the plaintiffs ■strictly to all the requirements of practice, and must be held to the same strictness himself.

Upon the merits of the case, as presented by the affidavits upon the motion to vacate the order of arrest, it is enough to say that a question of fact was presented to the city court which it was ■called upon to decide, and its decision thereon is not open to review here, there being evidence of facts legitimately tending to establish the conclusion at which the city court arrived. Morris v. Talcott, 96 N. Y., 100; Stringfield v. Fields, 13 Daly, 171. It appears from the affidavits that although defendant denied having purchased the goods from the plaintiffs, or having conducted the business ostensibly carried on by his wife, or having sold it out, he was contradicted by the purchaser who bought it from him two days' before the order of arrest was issued, and to whom he admitted that he had owned it for many months previous.

The order should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Minnie Paul Powell, Resp’t, v. Victor S. Flechter, Appl’t.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Fraud—Action' fob—Representations as to value by vendor.
    In an action for deceit, it appeared that the defendant was a dealer in musical instruments, and made a specialty of “rare old violins;” that plaintiff had no special knowledge of musical instruments; that defendant sold her a violin falsely and knowingly representing that it was made by a famous maker and worth at least $1,000. Held, that such representations constituted actionable fraud.
    3. Same—Measure of damages—Error in charge—When not ground-fob reversal.
    In such case the court charged the measure of damages to be the difference between the price paid and the actual value of the violin; whereas the true rule of damages, in actions for deceit, is the difference between the real and the represented value; but the error was in favor of the defendant. Held, on appeal from judgment for plaintiff, that as the error was not prejudicial to appellant, it presents no ground for reversal.
    Action for deceit; and appeal from judgment and order denying motion for a new trial.
    The facts sufficiently appear in the opinion.

      Stimson & Williams (Á. P. Johnson, of counsel), for resp’t Benno Loewy, for app’lt.
   Pryor, J.

After all the elaborate discussion expended on this appeal, the questions involved are extremely simple and of easy solution.

The complaint alleges that, on the sale of a violin to the plaintiff, the defendant represented to her that it “ was made by one Gaspard di Duiffoprugcar and was worth the sum of at least a thousand dollars ; ” that the representation was false to the knowledge of the defendant, and was made with the intent of deceiving the plaintiff; that it did deceive her, to her damage. In support of the cause of action so stated the plaintiff produced sufficient proof; and, upon conflicting evidence, the jury gave her a verdict

In response to appellant’s contention that the verdict is against the weight of evidence, it suffices to say that, at all events, no such preponderance in his favor appears as authorizes the court to interfere with the decision of the jury. It is impossible to infer that here has been a miscarriage of justice.

But, the judgment is impeached for error of law. In the first place, appellant insists that actionable fraud is not predicable merely of an opinion as to value. This, undoubtedly, is the rule in its absolute expression; subject, however, to modification by qualifying circumstances. If a vendor, himself acquainted with the value of a commodity, and conscious that the vendee reposes confidence in his opinion as that of an expert, and aware that the vendee is incompetent to estimate the value of the article, willfully exaggerates the value with the intent and effect of defrauding the vendee, to his damage; if upon this predicament of fact an action for deceit may not be maintained, then is our law of a lower morality and less perfect efficiency than we had fondly imagined it to be.

But, happily, the law of New York, at least, is obnoxious to no such reproach. Chrysler v. Canaday, 90 N. Y., 272, 279. An intentionally false statement as to value is actionable “ where one in purchasing goods, the value of which can only be known to experts, relies upon the vendor, who is a dealer in such goods, to give him accurate information concerning them.” Cooley on Torts, 484. And although an expression of opinion as to value be not actionable, it is otherwise of representations as to the facts on which the valuation is based. Schwenk v. Naylor, 102 N. Y., 683; 2 St. Rep., 477; Miller v. Barber, 66 N. Y., 558, 567; Ellis v. Andrews, 56 id., 83, 86; Hickey v. Morrell, 102 id., 454; 2 St. Rep., 408; Manning v. Albee, 11 Allen (Mass.), 520; State v. Hefner, 84 N. C., 751; State v. Tomlin, 29 N. J., 13; Bradley v. Luce, 99 Ill, 234; McAleer v. Horsey, 35 Md., 439.

Here the facts of the case bring it clearly and exactly within the operation of the rule as thus qualified. The plaintiff-vendee was a woman utterly ignorant of violins and their value; the defendant-vendor was to her knowledge a. dealer and expert in violins, and so familiar with their value; he assured her that the violin for which she was negotiating was worth a thousand dollars; he represented that it was the make of Graspard di Duiffoprugcar, celebrated in the sixteenth century for his skill in the construction of such instrument, and that violins of his make were very rare; these assurances and representations were false and fraudulent; she bought in reliance upon them, and in consequence sustained the damage for which she recovered. It is impossible to doubt that the plaintiff completely established a cause of action.

But it is said the plaintiff attached no importance to the representation that the violin was the make of that particular artist, and such seems to be the fact. Nevertheless, she purchased in reliance on the representation as to the value of the instrument; and it is enough that the actionable statement was one, though not the sole, inducement to her contract. Kley v. Healy, 127 N. Y., 555; 40 St. Rep., 215; Hubbard v. Briggs, 31 N. Y., 518.

Again, appellant alleges error of law in the measure of damage propounded to the jury. The court charged the measure of damages to be the difference between the price paid and the actual value of the violin, whereas the true rule of damages in actions for deceit is the difference between the real - and the represented value. But, obviously, the error was in favor of the defendant; for the represented value may have been greater than the price paid. . Still, the defendant argues that the error was material and hurtful, because no evidence was given of the represented value, i. e., what the violin would have been worth if the make of the particular artist; and that being the case, no damage beyond nominal was shown. To this contention a two-fold answer is apparent; first, that the represented value was a thousand dollars; and secondly, on the hypothesis that no proof was adduced of the value of a Duiffoprugcar violin, that the defendant affirmed it to be worth a thousand dollars ; and again, that the price paid ($500) was evidence of its value if it were the violin represented. Miller v. Barber, 66 N. Y., 559, 568; Hoffman v. Conner, 76 id., 121, 124.

„The error not being of prejudice to the appellant presents no ground for reversal.

Finally, the appellant urges that the case was submitted to the jury so as to authorize a recovery for other frauds than those alleged; but the record contradicts the contention, and exhibits that the court, in response to a request from counsel, distinctly instructed the jury that the plaintiff could only claim for the representations laid in the complaint.

We have examined in detail the almost countless exceptions in the case; but we observe none affecting the validity of the judgment.

Judgment and order affirmed, with costs.

Bischoff and Giegerich, JJ., concur.


text:
    Melanie Effray, Resp’t, v. Marie E. Masson, Administratrix, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Evidence—Collateral matter.
    In an action for the hoard and lodging of defendant’s intestate, who was the mother of both parties, a third sister was a witness for the plaintiff, and on cross-examination was asked: “ Will you swear that you did not tell this party here that you had instructed the plaintiff to bring this suit even if it was necessary to swallow up the whole estate in litigation ? ” to which question she replied that she would so swear; the defense offered to show that such answer was false, but the evidence was excluded on the ground that it was collateral matter, drawn out by defendant’s counsel on cross-examination. Held, error; that the evidence was competent to show the partiality of the sister and impeach her particular credit.
    Action for board and lodging; and appeal from judgment of the general term of the city court affirming judgment for plaintiff, and from order affirming an order denying motion to disallow costs.
    The opinion gives the facts essential to the decision.

      Hdmond Huerslel (D. Clark Briggs, of counsel), for resp’t; M. F.' Finnegan (Nathan Lewis, of counsel), for app’lt
   Pryor, J.

In limine the respondent urges a point which, if well taken, disposes of the case adversely to the appellant The contention is that the answer presents no defense to the action; and that, therefore, the exceptions to evidence relied on for reversal are ineffectual to the purpose.

It seems, indeed, that no material allegation of the complaint is controverted; but then at the trial respondent made no motion for judgment on the pleadings ; treated the answer as sufficient; recognized the necessity of proving her case; gave in her evidence ; and, without objection, allowed appellant to enter on her defense. In this situation we are bound to consider the defense as disclosed by the evidence. Knapp v. Simon, 96 N. Y., 284.

The action is by one sister against another as administratrix, to recover for board of their mother; and a third sister was the sole witness to the cause of action. The presumption of law is, that in providing shelter and food for her aged mother, the plaintiff was prompted, not by a mercenary motive, but by an impulse of affection and a dictate of filial duty; and that, consequently, the service was rendered as a gratuity. The presumption, however, was overcome, if the witness sister was to be believed; for she swore to a promise by the deceased mother to pay the plaintiff sister fifteen dollars a month. But, was her testimony credible ? That was for determination by the tribunal below; and we should not disturb its decision but for an error bearing essentially on the question in controversy.

Being the solitary witness for the plaintiff, and giving testimony which became, by the decease of the mother, incapable of contradiction, Mrs. Francois challenged the severest scrutiny as to the credibility of her evidence. Accordingly, on cross-examinatian, she was asked: “Did you have any conversation with your sister (the plaintiff) in regard to bringing this suit?” to which she answered, “ Mo, sir.” She was then asked, “ Will you swear that you did not tell this party here that you had instructed the plaintiff to bring this suit even if it was necessary to swallow up the whole estate in litigation?" to which question she replied, “ I swear I never had such a conversation.” To a witness for the defense counsel propounded the inquiry: “ Do you remember having a conversation with Mrs. Francois ?” The answer being “Yes,” counsel then asked, “ State what the conversation was ?” On objection by the plaintiff, the question was excluded. Counsel then inquired: “Did you hear the testimony of Mrs. Francois a few minutes ago, in which she stated that she never had instructed the plaintiff to bring this suit ?” The witness answered, “Yes, sir.” Counsel then asked: “Is that true?” Plaintiff objecting on the ground that “ it is collateral matter, drawn out by defendant’s counsel,” the evidence was excluded; and defendant excepted.

The rule is familiar, that an answer to cross-examination touching collateral matter, is conclusive on the party eliciting it Carpenter v. Ward, 30 N. Y., 243. But, was the evidence drawn from plaintiff’s witness by the defendant collateral in the sense that it admitted of no contradiction ?

In the decision of the point, we must observe the distinction between evidence affecting the general credit of a witness, and evidence affecting his particular credit in the action. Evidence impeaching the general credit of a witness consists exclusively of testimony to his character or reputation; and if, upon cross-examination, he be questioned as to a particular fact, however damaging to that character and reputation but not bearing upon his conduct in the action or his relation to the cause or the parties, the adversary is concluded by his answer. Otherwise, however, as to evidence touching the'particular credit in the cause of a witness. For impeaching that credit he may be questioned on cross-examination as to any fact that tends to convict him of partiality between the litigants or interest in the litigation; and if he deny the fact it may be proved against his contradiction. Thus, in Rex v. Yerwin, 2 Campb., 638, a witness for the prosecution denied, on cross-examination, that he had been accused of robbing the defendant, and had said that he would be revenged on him and would even fix him in jail. Evidence to contradict him as to the charge of robbing was excluded, because going to his general credit only; but evidence as to his threat was admitted, because affecting his particular credit in the action. So, in Starks v. The People, 5 Denio, 106, proof was allowed of a declaration by a witness for the prosecution, that a particular locality was a good place to kill the defendant, although he had denied the statement on cross-examination. In Morgan v. Frees, 15 Barb., 352, a witness for the plaintiff denied on cross-examination that he had attempted to suborn testimony for the defendant; but nevertheless the fact was admitted as evidence impeaching his particular credit.

In Bemis v. Kyle, 5 Abb., N. S., 232, plaintiff’s witness swore, on cross-examination, to a promise by plaintiff to remand him, and it was held error to exclude evidence to contradict the testimony. In Newton v. Harris, 6 N. Y., 345, it was ruled that “facts which bear directly on the credibility of witnesses are material to the issue; ’’ and that “ when on cross-examination, a witness denies statements indicative of hostility to a party, they may be proved by other witnesses.” See Prescott v. Tousey, 50 Supr. Ct., 12; Teets v. The Village of Middletown, 106 N. Y., 651; 8 St. Rep., 214; Cowen and Hill Notes, 581, 586.

The rejected evidence went to show such an intensity of feeling and interest in the action on the part of the witness, that she urged its prosecution although it should swallow up the estate of which she was an heir; and hence was clearly competent in impeachment of her particular credit in the cause. The witness-being the sole support of plaintiff’s case, obviously of questionable merit, the error in the exclusion of the evidence is of such manifest prejudice as to be fatal to the judgment. Teets v. The Village of Middletown, 106 N. Y., 651; 8 St. Rep., 214.

The reversal of the judgment necessarily involves a reversal of the order.

Judgment and order reversed, and new trial granted, costs to abide event.

Daly, Ch. J., and Bischoff, J., concur.