text:
    Ebenezer Holmes, App'lt, v. Gilbert E. Jones, Treas'r of the New York Times, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Libel—Damages.
    This action was brought for libel in publishing in the New York Times of and concerning the plaintiff, who is an undertaker, that he was intoxicated while engaged in preparing for the funeral of General Grant. The answer admitted the publication, alleged the truth thereof, and set up matters in mitigation. Held, that under all the circumstances of the case a verdict for $3,500 was not excessive.
    Appeal from order setting aside verdict unless plaintiff stipulates to reduce the same.

      C. S. & C. C. Lester (Matthew Hale, of counsel), for app'lt; Townsend, Dyett & Einstein (Henry Yonge, of counsel), for resp't.
   Mayham, P. J.

This is an appeal from an order setting aside a verdict of a jury, rendered at the Saratoga circuit, for $3,500, and granting a new trial on the ground of excessive damages, unless the plaintiff stipulate to reduce the verdict and recovery to the sum of $2,000.

The action was for an alleged libel published in the New York Times, charging the plaintiff as an undertaker with being intoxicated while engaged in the business of preparing for and conducting the funeral services of the late General Ulysses S. Grant at Mount McGregor, in Saratoga county.

The complaint sets out some portion of the alleged libelous charge as printed in the Times, and claimed damages in the sum of $25,000.

The answer set out at great length circumstances and facts alleged to have occurred at and before the alleged funeral services; admits the publication of the following words: “It has been stated that Mr. Holmes was not in a fit condition to perform his professional duties for a part of the time during which he claims he was rendering services. The night that I arrived at Mount McGregor, Holmes was under the influence of liquor at the hotel. His conduct was patent to all who saw him.”

“ That the defendant alleges that the words last quoted are true. That on the night of July 23, 1885, the plaintiff was constantly drinking spirituous liquors, mixing bis drinks, drinking at one time lager beer, at another rye whiskey, then brandy, and so on until he became very drunk. He became abusive and foulmouthed ; he was staggering and hiccoughing; when he sat down he would spread all over the seat and let his head droop upon his arms placed to support it; he would mutter incoherently to himself ; one Dr. McEwan, a friend of the plaintiff, tried to coax him to go to bed, but he would not go, and the said Dr. McEwan and others, who were with him, finally went to bed and left the plaintiff on the hotel piazza. In the morning following the plaintiff came from his room in the hotel displaying evidence of having slept with his clothes on during the night; his clothes were dirty and rumpled, his necktie had worked up under his ear, and his shoes were open.”

Other admissions of the charges contained in the complaint, are set out in the answer, as are also alleged correspondence between the plaintiff and a member of General Grant’s family, and also correspondence between the plaintiff and the New York Sun.

In the sixteenth paragraph of the defendant’s answer the defendant admits that the New York limes on the 22nd of November, 1886, contained the following words: “ He was there at six

in the evening, and Holmes had nothing to do with it. Mr. Holmes was drunk at the hotel and “ was going to and coming from the bar all the time. This was before the body was placed in the casket Anxiety was felt lest he should insist upon going to the cottage and create an unseemly scandal there by his condition and appearance.”

That this defendant denies that these words are false, scandalous or defamatory, or that they were published maliciously of or concerning the plaintiff. That this defendant denies that the said association, the New York Times, meant, or was understood to mean, that the plaintiff was, on the evening of July 23, 1885, while he claimed to be taking care of, embalming and preparing for burial the remains of the late General Ulysses S. Grant, in fact at the hotel at Mount McGregor, and drunk, and drinking all the time, and so drunk that anxiety was felt lest he should go to the cottage where the body of General Grant was lying and create scandal by his intoxicated condition and drunken appearance.

That the defendant alleges that the words quoted as last aforesaid are true. That the plaintiff was, at the time when he claimed to be taking care of, embalming and preparing for burial the remains of the late General Ulysses S. Grant, drunk at the hotel at Mount McGregor from drinking spirituous liquors. That there were many visitors at the cottage, where the body of the late General Grant was lying, and in the hotel at Mount McGregor, and great anxiety was felt by those who had charge of the said body that the plaintiff would go to said cottage, as he threatened to' do, and by his drunken condition, appearance and conduct would produce and create an unseemly scandal.

The 29th paragraph of the defendant’s answer contains the following language: “That on the night of July 23, 1885, the plaintiff was drunk from drinking spirituous liquors; that during the evening he was continuously going to and coming from the bar of the bar-room of the hotel at Mount McGregor, engaged in taking drinks of spirituous liquors, and he was continually mixing his drinks, drinking at one time lager beer, and at another whiskey, then brandy, and so on until he became very drunk; that he became abusive and foul-mouthed from his drunken condition, staggered and hiccoughed; when, he sat down he would spread himself all oyer the seat, and let his head droop on his arms placed to support it, and would mutter incoherently to himself. That one Dr. McEwan, a friend of the plaintiff, tried to coax him to go to bed, but he would not go,, and the said Dr. McEwan, and others who were with him, finally went to bed and left him on the hotel piazza. That on the following morning he came from his room in the hotel, displaying evidence of having slept with all his clothes on during the night. That his clothes were dirty and rumpled and that his necktie had worked itself up under his ear, and his shoes were open. That from his being so intoxicated, and for other reasons, he was not, on the night of July 23, 1885, and for some time subsequently, in a fit condition to perform professional or any other duties. That at a time when the plaintiff claimed to be taking care of and embalming and preparing for burial the body of the late General Grant, he was drunk at the hotel - at Mount McGregor from spirituous liquors. That there were many visitors at the cottage where the body of the late General Grant was lying and in the hotel at Mount McGregor, and great anxiety was felt by those who had charge of the body that the plaintiff would go to said cottage, as he threatened to do, and by his drunken condition, appearance and conduct, would produce and create an unseemly scandal.”

On the trial the plaintiff read in evidence from a copy of the New York Times, of November 22, 1886, the following portions of the article set up in the complaint:

“It has been stated that Mr. Holmes was not in a fit condition to perform professional duties for a part of the time during which he claims he was rendering service. The night that I arrived at Mount McGregor Mr. Holmes was under the influence of liquor at the hotel; his condition was patent to all who saw him. He was there at six in the evening, and Mr. Holmes had nothing to do with it. While he was there, Mr. Holmes was drunk at the hotel that evening, and was going to and from the bar all the time. This was before the body was placed in the casket. Anxiety was felt lest he should insist upon going to the cottage and create an unseemly scandal thereby by his condition and appearance.”

The plaintiff also offered evidence on the trial that tended to disprove the charge of drunkenness set out in the alleged libel, and substantially reiterated in the defendant’s answer.

The defendant also introduced evidence tending to prove the truth of the alleged libel. The jury rendered a verdict in favor of the plaintiff for $3,500, which the defendant moved to set aside as excessive, and from the order granting that motion, unless the plaintiff would stipulate to reduce the recovery to $2,000, the plaintiff appeals.

The only ground upon which this verdict was set aside is that of excessive damages.

The trial court, by allowing the verdict to stand at a reduced, sum, disposes of the issues raised by the pleadings in favor of the plaintiff, and leaves no chance on this motion for any speculation as to the actionable character of the alleged libelous publication. The complaint charges that the defendant falsely, wickedly and maliciously published in such newspaper, of and concerning the plaintiff, the false, scandalous and malicious libel set out in the complaint, and the jury have, by their verdict, sustained the allegations of the complaint, and the court, at special term, •has, by allowing the verdict to stand, if reduced in amount, acquiesced in the conclusion reached by the jury as to the publication of the libel.

An action for damages for a tort is, therefore, clearly maintained, and stands conceded upon the record, and the alleged wrongdoer is before the court, asking that the damages which the jury have assessed against it for the perpetration of the wrong be reduced. <•

, This court has recently considered the question of the propriety Of the court interfering with the verdict of a jury in actions of tort. In Stephens v. Hudson Valley Knitting Co., 48 St. Rep., 815, Herrick, J., in discussing this question, says: “In actions for damages for tort it is well established law in this state that verdicts of jurors will not be set aside for excessiveness unless the amount is so great as to manifestly show that the jury must have been actuated by passion, partiality, prejudice or corruption.”

The judge cited, in support of his conclusion, a series of decisions in this state from Coleman v. Southwick, 9 Johns., 45, to Porter v. Dunn, 131 N. Y., 314; 43 St. Rep., 193.

Within these decisions the only question open for our examination and decision is, whether the verdict in this case was so great in amount as to show that the jury must have been actuated by passion, partiality, prejudice or corruption.

In the examination of that question we may consider that the jury, in disposing of the case, might properly take into consideration the business and situation of the plaintiff, the character of the libelous publication, and the extent to which it was circulated, the motive which the jury from the evidence might find for its publication, and the character of the answer which the defendant interposed as defense or in mitigation of damages.

The evidence discloses that this libel was published at the great metropolis of the nation, hundreds of miles, from the place where the events chronicled are alleged to have occurred, in a newspaper of almost world wide circulation.

That they concerned the conduct of the plaintiff, while engaged in a laudable professional or mechanical pursuit involving great delicacy and circumspection, and connected with the funeral obsequies of a man of world wide fame, whose death had produced a profound sensation throughout the entire country, and the incidents of whose funeral were read and discussed all through the state and nation with lively interest.

The charge was of a serious, damaging character, not only as it related to the business of the plaintiff, but also as it reflected upon him personally, and well calculated to affect him in a business point of view, and also socially as a man, and to bring him into disgrace and disrepute by all who read and believed the article. It could only be completely justified by alleging and proving its truth. This the defendant undertook to do, but in the estimation of the jury failed in that attempt. The defendant, also, assumed to allege facts and circumstances in support of the charge in mitigation of damages. That is, also, allowable by way of mitigation, or reduction of damages. But in setting up these defenses the defendant took the "responsibility of establishing their truth, and also of satisfying the jury that these defenses were interposed in good faith, and not for the purpose of reiterating, in a more offensive manner, the same libelous accusations, and if the proof of justification failed, and the jury had reason to believe that the matters set up in mitigation were not proved, and were interposed with the design of repeating the libel, they could in such case regard such reiteration as evidence of malice, and take such fact into consideration in aggravation of damage. Under such circumstances, statements and allegations in the-answer were proper subjects for comment of counsel for the plaintiff on the trial, and cannot be withheld from the consideration of the jury. In Holmes v. Jones, 121 N. Y., 466; 31 St. Rep., 379, Earl, J., in discussing the use and effect of pleadings on the trial,, says: “ There is no rule of law which requires a party in an action to put his adversary’s pleadings in evidence before his counsel can be allowed to comment upon them in his address to the jury.. Statements, admissions, and allegations in pleadings are always in evidence for all purposes of the trial of the action. They are-made for the purpose of the trial, and are before the court and jury, and may be used for any legitimate purpose.”

If the jury in this case reached the conclusion that this alleged libel was not justified, as they must have done before finding a verdict for the plaintiff, then they were at liberty to look into the proof and all the facts and circumstances proved or set out in the pleadings of the defendant, to determine whether the libel published and proved or the allegations in the answer were malicious and in bad faith, and taking all into account, determine whether to allow compensatory or punitive damages.

In Holmes v. Jones, supra, the court sajú “So far as the libel was not justified it was for the jury to determine the amount of damages to be awarded therefor.

“ If they came to the conclusion from the circumstances and nature of the charge made, that the publication was malicious, in bad faith, or recklessly, carelessly or wantonly made, they could go beyond compensation and award punitive damages.”

But it is urged that on a former trial of this case, which resulted in a verdict of $5,000 in favor of the plaintiff, the general term of this court reduced the verdict to $2,000 and ordered that unless the plaintiff stipulated to take judgment for that amount the verdict should be set asidq and a new trial granted.

We have not that record before us, but cannot assume that the general term intended by that order authoritatively to declare that $2,000 was the maximum amount for which a verdict could be rendered in this case.

In that case the suggestion of the general term was not accepted by the defendant, and we do not see how it can now be urged by the defendant as binding upon the court or parties in this trial. No such rule seems to have obtained in this court. In Peck v. H. R. R. R. Co., 4 Hun, 236, the plaintiff, on the first trial, recovered a verdict of $5,000, which was set aside as excessive. The case was tried again and the plaintiff recovered $4,000, The defendant insisted on appeal to the general term that this verdict was excessive, but the court said, Judge Boches writing the opinion, in which Judge Learned and Judge Board-man concurred:

“ The former verdict was $5,000. This sum was deemed quite extravagant and palpably unjust, in view of the case made on the evidence. The verdict on the re-trial was $4,000. The case is quite similar bn the proof to that before considered by the court, and the reduction in the sum now awarded by the jury seems much less than it should have been, in view of the remarks then made by the court. But even suppose the amount now awarded is deemed by the court large, is it within the province and duty of the court to grant another new trial on this ground ? A second jury has considered the case under admonition from the court, and has made some deduction from the sum before awarded.

“ The subject of damages is for the jury and must be at all times in their discretion and judgment. The court can only interfere on this point when it is apparent that the jury were improperly influenced, or must have acted from passion, partiality or corruption. The authority to grant new trials on the ground of excessive damages is undoubted, but its exercise by the courts has been about equally capricious, as has been the verdicts of juries. * * * It must be admitted, I think, that the verdict of $4,000 in this case is large, in view of the injury here proved; but this sum having been awarded by a second jury, the case having been sent back for reconsideration on that point, and nothing appearing except the amount on which to predicate partiality, corruption or improper influence, I think the court must accept it as final and conclusive.” 8 Hun, 288-289.

In the case at bar we see no reason for reducing the verdict rendered by the jury.

While every privilege which is consistent with the due protection of private character should be accorded the public newspaper press, to the end that the freedom of the press guaranteed by the Constitution should not be abridged, still no invidious discrimination should be allowed in its favor, calculated to license its use to sensational and scandalous assaults upon the citizen. The interests of the public and the press are best subserved when the publishers of newspapers are held to truthful utterances, especially when the character of a citizen, public or private, is under discussion.

Under all the circumstance's of this case disclosed by the evidence, we see no element of passion, prejudice or corruption evinced by the amount of this verdict; nor do we regard it, in view of all the facts, excessive.

The order of the special term should be reversed.

Order reversed, with, costs and printing disbursements.

Herrick, J., concurs; Putnam, J., not acting.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Maria Ten Eyck et al., App'lts, v. Catharine A. Witbeck et al., Resp'ts.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Ejectment—Charge .
    In an action of ejectment, it appeared that T., in 1871, deeded the farm in question to 0. who on the same day deeded it to E., T’swife. Neither deed was recorded until 1883, when E. deeded the farm to plaintiffs. Defendant claimed that the title to the premises was in defendant W. under a deed from T. in 1877, and recorded in 1879. Testimony was given by both sides as to whether W. was a purchaser in good faith for a valuable consideration, and as to the delivery of the deed to C.; no testimony was given tending to show mental incapacity on the part of T. or undue influence or fraud in obtaining the deeds to C. or to plaintiffs. Held, error for the court to refuse to withdraw from the jury the questions of mental capacity and fraud or undue influence.
    Appeal from judgment iu favor of defendants, entered upon Verdict, and from order denying motion for a new trial.

      W. C. McHarg (J. H. Clute, of counsel), for app'lts; C. M. Barlow (Matthew Hale, of counsel), for resp’ts.
   Putnam, J.

The complaint states a cause of action in ejectment. A denial of its material allegations was contained in the answer, and the issues thus formed were brought to trial at the Albany circuit in 1889.

One Peter W. Ten Eyck was the original owner of the farm which is the subject of the action. On the 21st day of September, 1871, for the purpose of transferring it to his wife Elizabeth, he executed a deed thereof to one John M. Carroll for a nominal consideration, the latter on the same day transferring said premises to said Elizabeth Ten Eyck. Said Elizabeth on January 9, 1888, conveyed said real estate to plaintiffs. Neither of said deeds were recorded until 1888.

The defendants claim that the title to said premises is in the defendant Catharine A. Witbeck under a deed from said Peter W. Ten Eyck dated July 7, 1877, and1 recorded December 5, 1879.

The jury found for the defendants, and upon the verdict a judgment was entered against the plaintiffs for costs. The plaintiffs appealed, and the general term affirmed the judgment. Defendants on the trial and on said appeal claimed that the deeds under which plaintiffs claim, not being recorded, were invalid as against the defendant Catharine, a purchaser in good faith and for value; also that the evidence established the fact that the deeds from Peter Ten Eyck to Carroll, and from the latter to Elizabeth Ten Eyck, were not in fact delivered, and that said transfers from Peter W. Ten Eyck to his wife, and from the latter to plaintiffs, were obtained by fraud and undue influence.

The case came before this general term in 1891; the questions raised by said claim of defendants being before the court for decision. The general term held that the evidence on the trial was insufficient to show that the deeds transferring the premises in question from Peter to his wife were not delivered, or to show fraud or undue influence in the conveyances under which plaintiffs claim title, but decided as matter of law that said conveyances were invalid as against defendants únder the recording act. In the opinion delivered the following language occurs:

“We have examined all this evidence, and although the learned judge submitted the questions of fact thereby suggested to the jury, and the jury thereupon found in favor of the defendants, we are constrained to say that in our opinion the evidence is utterly insufficient in that respect to sustain the verdict. It may be there is a scintilla of evidence in support of the surmise that Peter W. Ten Eyck was of unsound mind ; that he was unduly influenced by his wife; that he never delivered the deed to her, and also that Elizabeth never delivered the deed to the plaintiffs, but of evidence • substantially tending to establish either of those propositions we find practically none.”

The judgment, which was directed by the justice sitting at said term, contains the following clause :

“It is hereby stated as part of said judgment of affirmance that but for the recording acts the said judgment so appealed from would have been reversed."

The court of appeals, however, held that defendant, Catharine A. Witbeck, was not shown to be a purchaser for a valuable consideration, so as to avoid the effect of plaintiffs’ prior conveyance under the recording act, and thereupon sent the case back for a review on the facts.

As will be seen by the foregoing statement, the questions now submitted to us were properly before a former general term, and were there passed upon and decided. This court having, after a deliberate and careful examination of the evidence on the same case now before it, determined in favor of appellants the questions now again submitted, although its members have changed, could hardly be expected to reach a different conclusion at this time. If we are not concluded by the former determination, yet the opinion of the learned and experienced members of the former general term may be deemed an authority, and entitled to be respected as such by us.

Under the circumstances, I do not think that we are called upon to again discuss this case. I have, however, read and considered the evidence and the briefs of counsel, and I am unable to discover in the case any testimony whatever showing, or tending to show, mental incapacity on the part of Peter W. Ten Eyck, or undue influence or fraud in obtaining the deeds in question. Plaintiff Slingerland is not proved to have taken any part in obtaining the transfer of the land from Peter W. Ten Eyck to his wife. For all that appears in the case, such transfer was the uninfluenced act of the grantor in the carrying out of his previous intention, which he had communicated to the witness Callanan. It was not shown that Slingerland even knew of the transfer, and there is no proof, direct or indirect, that any person exercised any influence over the grantor in the matter.

Nor is there any satisfactory evidence indicating fraud or undue influence on the part of Slingerland, or any one else, in obtaining the deed from Elizabeth Ten Eyck to the plaintiffs. The declarations of Slingerland that he intended to or should have a deed of the land in question do not indicate that he intended to obtain one by fraud or undue influence. It appears that he did not receive such a deed as he desired. If there was any fraud or undue influence, it was for the defendants to show it. I think they failed to do so.

The question whether there was sufficient testimony on the trial tending to rebut the presumptive evidence produced of the delivery of the deeds which transferred the title from Peter W. Ten Eyck to his wife to justify a submission of the question of delivery to the jury is more doubttul. There was evidence that after the alleged transfer the grantor, Peter W, Ten Eyck, with the knowledge and assent of Elizabeth, his wife, leased the premises in suit in his own name ; there was also testimony of declarations of Mrs. Ten Eyck inconsistent with the fact of her ownership of the property.

But conceding that the trial judste might properly have submitted to the jury the question of the delivery of the said deeds, there not being, as above suggested, any competent evidence tending to show mental incapacity on the part of Peter W. Ten Eyck, or fraud and undue influence in obcaining such deeds, the judge should have withdrawn those matters from the jury. He was requested to charge that there is not sufficient evidence to justify the jury in finding that the deeds in question were executed by. through or under fraud or undue influence. Also, that the evh dence is not sufficient to justify the jury in finding that the said Peter W. Ten Eyck was not, at the time of executing said deeds, of sound mind, and did not fully understand what he was doing and its effect He declined to so charge, and exceptions were duly taken.

I think plaintiffs were entitled to have the jury instructed as requested, and on account of the refusal of the judge to so charge, a new trial is necessary.

It follows that the judgment should be reversed and a new trial granted, costs to abide the event.

Herrick, J., concurs.


author: Herrick J.

text:
    Henry Mott, Pl'ff, v. The Citizens' Insurance Company of New York, Def't.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1893.)

    Insurance (fire)—Policy on different classes of property—Effect OF FALSE STATEMENT AS TO ONE.
    A policy of fire insurance, so much on a building and so much on its contents, read, “ that the entire policy shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.” Upon the trial of an action to recover on the policy it appeared that the insured held the land upon which the building stood, at best, under a contract of sale, but that he was the unconditional owner of the contents. Held, that the insured could not recover as to the building, but could as to its contents.
    Appeal by both parties from judgment in action upon a policy of fire insurance.
    The facts appear in the opinion of the court below, as follows:
    Putnam, J.—The policy provides that it shall be void “ if the .interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee-simple.” It is conceded that plaintiff had no legal title or deed to the lot on which the building insured stood, but plaintiff claims that he had equitable title by parol contract, under which he had been in occupation for ten years prior to the fire. Under some policies of insurance "it has been held that the equitable owner of land, who had no deed, might recover under the policy of insurance as the owner.
    Such was the case of Pellón v. Westchester Fire Insurance Co., 13 Hun, 23 ; 77 N. Y., 605. And there have been other cases holding the same doctrine as the Pellón case. But under the contract of the parties in this case, under the policy set out in the complaint, it is difficult to see how plaintiff can recover as to the buildings insured. The parties contracted and agreed that the policy should be void if the interest of the plaintiff in the land on which the building insured stood should be other than unconditional ownership, or if the plaintiff was not the owner in fee-simple. It cannot be justly claimed that plaintiff, at the time of the fire, had an unconditional title to the lot in question in fee-simple, hence under the policy, even if plaintiff had a valid equitable title under his verbal contract, I think he would be unable to recover the loss on his building.
    Under the contract contained in the policy, the plaintiff should have stated his interest in the land, and should have had a special clause written or inserted in the policy. Such a contract as was made in this case, between the defendant and plaintiff, has been held valid and binding on the parties, See Lasher case, 86 N. Y., 423: Messelback case, 46 Hun, 414; 11 St. Rep., 823; Dowd case, 41 Hun, 139. 3 St. Rep., 793; Allen case, 123 N. Y., 6; 33 St. Rep., 216, but in my judgment plaintiff failed to show that he had any valid, equitable title to the lots on which the barn stood. His own testimony fails to establish his title.
    His evidence shows that he agreed with Hungerford, the agent of the railroad company, that he should have a deed of the lot for $200. Assuming that Hungerford, under the circumstances, had authority to bind the railroad, yet the plaintiff does not show that Hungerford gave him any title, or made, or assumed to make, any contract with him; but merely that Hungerford said that “Lawrence, the real estate agent of the railroad company, would transact the business and give him a title, and that he, Hunger-ford, would notify the plaintiff when to meet Lawrence at Rouses Point.”
    He does not allege that Hungerford assumed to make a contract with him, or authorized him to take possession of the lot, or that he was in possession under any contract. He merely claims that Hungerford said that Lawrence would contract with him and give him a title. He and Lawrence never did meet; he never paid or offered to pay any consideration, and from all that is shown in the case the plaintiff was in possession of the lot in question as a mere squatter, without title of any kind, and not under any contract. As far as the case shows, plaintiff was not authorized to take possession in advance of a deed which was expected to be soon executed, but which, in fact, never was executed.
    I, therefore, conclude that under the policy the plaintiff cannot recover as to the buildings. Is the policy also void as to the $500 insurance on the personal property ?
    Or, under the contract, is the part as to personal property severable from that relating to the buildings ? With some hesitation, I reached the conclusion that the contract as to the hay and press is severable. The policy says that the entire policy shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.
    As to the hay and press, plaintiff was the unconditional owner.
    The policy, I think, should be construed as void in all its parts when the entire property covered by it, and every part thereof, is not owned unconditionally. This policy does not say that if any of the insured property is not owned by the insured unconditionally the whole policy shall be void, as in the case of Smith v. A. Ins. Co., 118 N. Y, 526; 29 St. Rep., 810. In that case the language of the policy was as follows: “ It is expressly stipulated in this policy that, if either the real or personal property, or any part of it, be encumbered, it must be so reported to the company in the application, otherwise the entire policy, and all and every part of it shall be void.” An examination of the above case, and those below cited, will show the distinction between cases where policies of insurance, as to real and personal property, are severable or otherwise. See Schuster v. Dutchess County Insurance Co., 102 N. Y, 260; 1 St. Rep., 415 ; Merrill v. A. Ins. Co., 73 N. Y., 452; Dacey v. A. Ins. Co., 21 Hun, 84; Holmes v. Drew, 16 id., 491.
    Plaintiff then should recover for the hay and press, and interest on the sum insured, from the time the loss was payable by the terms of the policy..

      Wilmer H. Dunn, for pl'ff; Beckwith & Wheeler (S. L. Wheeler, of counsel), for def't.
   Herrick J.

This case should be affirmed the of the court below. Both parties having appealed, the case is affirmed without costs to either.

Mayham, P. J., concurs.


author: Herrick, J.

text:
    Rachel A. Woolsey, Resp't, v. The Trustees of the Village of Ellenville, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Negligence—Evidence—Variance.
    On the trial of an action against a village for personal injuries caused, as alleged in the complaint, by falling on ice formed in a dangerous hole in the sidewalk, the plaintiff was allowed to show, without amendment to the complaint, that the proximate cause of the accident was the faulty construction of a ditch along the sidewalk, and the court submitted to the jury the question of the defendant’s liability because of such alleged faulty construction of the ditch. Held, that it was error to allow proof of the faulty construction of the ditch, or to submit such question to the jury.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      G. G. & J. B. Keeler (A. T. Clearwater, of counsel), for app’lts; J. E. & J. G. Van Etten (John E. Van Etten, of counsel), for resp't
   Herrick, J.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and against the, defendants, in an action for personal injuries alleged to have been caused through the negligence of the defendants.

The plaintiff in her complaint alleges, “ that on or about the 11th day of December, 1886, and for a long time prior thereto, a dangerous hole or depression existed in the sidewalk of said Canal street, along its westerly side, nearly opposite a place called the ‘ Tannery,’ into which hole or depression in said sidewalk water and snow were allowed to accumulate, and form into ice, rendering travel there unsafe and dangerous.”

The plaintiff testified that on the night of the 11th day of December, 1886, she fell upon ice at the place described in the complaint ; that she visited the spot next morning and found a glare of water ice, through which she could see the sidewalk; she claimed that there was a cracked or broken stone where she fell in which the water had accumulated; there was snow upon the ground at the time, and the evidence is that for several days prior to the accident the weather had been such as to cause alternate thawing and freezing. There is a conflict of testimony as to this alleged hole or depression in the sidewalk, the plaintiff claiming that there was a piece of stone broken out, leaving a Y shaped hole. The defendants contended, and produced evidence to support them, that it was merely a crack across the flagstone, and a slight depression of the edges of the crack which would hold but a few teaspoonfuls of water.

Canal street is a village street, and at the place in question the sidewalk was flagged, and the sod and earth upon each side of the flag appears to have been slightly higher than the stone of the sidewalk.

The evidence tended to show that west of Canal street there is a natural elevation of land descending slightly toward the sidewalk, from which, in case of storm or thaws when snow is upon the ground, the water would run over and upon the sidewalk of said street.

At a distance of about twenty or more feet from where plaintiff fell, Canal street is crossed at nearly right angles by Cross street; on each side of Cross street there is a ditch to carry off surface water, which ditch is bridged over by the flag or crosswalk stone at the intersection of Cross and Canal streets.

Under the objections of the defendants, the plaintiff, upon the trial, introduced evidence tending to show that the ditch on the southerly side of Cross street was insufficient in size; that the hole under the crosswalk stone was also insufficient in size and improperly located to allow the water to pass through from the ditch; that the ditch itself had been permitted to become obstructed, and the hole under the crosswalk stone to become choked up, and in consequence the water which should have been conducted away by the ditch was caused to flow over the sidewalk of Canal street, and the plaintiff claimed that it was such water remaining upon the sidewalk, in the depression that she claimed existed, which froze, forming ice upon which she fell.

In charging the jury, the court laid great stress upon the alleged defect in, and obstructions of, the ditch on Cross street; the court charged that “ It is alleged, as I said to you, and it is upon that theory that an action must be maintained if at all, that there was a defect in the construction of that ditch on the southerly side of- Cross street at or about the point of its intersection with the westerly side of Canal street, so that the water by reason of this defect was discharged not through the sewer or ditch on the westerly side of Canal street, but especially at the time of a heavy rain or melting of snow, a volume of water was discharged over Canal street and allowed to congeal. Or further, it is alleged that there was an obstruction or defect in that outlet; that it was permitted to be filled by an accumulation of ice and other matter, so that the aperture, or that cavity there designed for the water of Cross street, or from the southerly half of Cross street, to discharge from, could not go into that cavity or aperture by reason of this obstruction, but on the contrary was discharged upon Canal street. It is upon that theory that the plaintiff must succeed in this action, for. if the ice existed there on Canal street, if you find that ice did exist there at the time of this accident, and that was formed by reason of water-melted snow running easterly from the slope of the land, the natural slope of the land lying to the west of Canal street, that that was the natural result or effect of water flowing from the westerly side, from the slope which has been described to you, if you find a slope of that kind existed, then it was a condition of things for which this defendant could not legally be liable. And so, I think, this action depends upon the question of the construction of the ditch on Canal street on the westerly side, the construction of the ditch of Cross street, on the southerly side, or of the obstruction of the outlet at the intersection of the two."

Then, after charging the jury upon the question as to whether there was or was not a dangerous hole in the sidewalk on Canal street, and as to whether, as a matter of fact, there was ice on the sidewalk on the 11th day of December, 1886, and also upon the principle that where there are two causes which may have produced the injury, for one of which causes the defendants are responsible, and the other for which they are not, that it is incumbent upon the plaintiff to show that the accident happened as the result of that cause for which the defendants are responsible.'

The court proceeded to charge as follows : “ So you come back to the question: Was this injury the result and consequence, a legitimate consequence, of the condition of the cavity or aperture at the junction of those two sewers, or rather at the place where the Gross street sewer was designed to empty into the Canal street sewer ? Was it the result of the imperfect construction of those in the first instance, or of the obstruction ? That is the serious question for your consideration. It is claimed upon the part of the plaintiff, as I have said to you, that it was improperly constructed, and that obstructions to the natural flow of the water from Cross street sewer into Canal street were permittéd to exist, and were permitted to exist for such a length of time that negligence upon the part of the defendants can be imputed.”

It will thus be seen that the case was principally tried and presented to the jury upon the question as to whether the defendants had been derelict in their duty in the constructing and properly maintaining the ditch on Cross street; and that the question -was presented to the jury as to whether the defect and obstructions in such ditch were the proximate causes of the plaintiff’s injury. This was a departure from the plaintiff’s complaint; it was a different cause from that set forth in the complaint; it was a different and distinct charge of negligence from that alleged in the complaint

The complaint set forth one claim of negligence, and a different one was presented to the jury. The view which the trial court took of the case seems to me to be made perfectly clear in that portion of the charge in which the court stated that if the ice upon which plaintiff fell “ was formed by reason of water-melted snow running easterly from the slope of the land, the natural slope of the land lying to the west of Canal street, that that was the natural result or effect of water flowing from the westerly side, from the slope which has been described to you, if you find that a slope of that kind existed, then it was a condition of things for which this defendant could not legally be liable.” Thus holding the defendants liable, not for the hole in the sidewalk, but for faulty construction and obstruction of the ditch.

If the hollow or dangerous hole existed in the sidewalk as alleged in the complaint, and water formed in it causing the accident, it would be of no consequence where the water came from. Ho matter whether it came there by reason of negligence of the defendants or not, if the dangerous hole existed by reason of the defendants’ negligence, that would fix their liability, not the source from which came the water that filled the hole and subsequently froze. The error in this case it seems to me consists in this, that the proximate cause of the accident alleged in the complaint is different from the proximate cause attempted to be proved upon the trial, and presented to the jury by the court. The reception of the evidence in relation to the faulty construction of the ditch, and its obstructions, was objected and excepted to upon the trial, and, also, the charge of the court in which it submitted to the jury the question of the defendants’ liability because of the alleged faulty construction and obstructions of the ditch or gutter.

The complaint was not amended or sought to be amended upon the trial so as to set forth the different cause of action sought to be established. In an action for negligence, I do not think it proper for the plaintiff to allege in his complaint one thing as the proximate cause of his injuries, and upon the trial prove another as the proximate cause. It is a fundamental law of pleading and of evidence that the proof must follow the allegations of' the pleadings ; and the plaintiff can only recover upon the cause of action stated in his complaint. Reed v. McConnell, 133 N. Y., 425; 45 St. Rep., 227; Day v. Town of New Lots, 107 N. Y., 148; 11 St. Rep., 361; Truesdell v. Sarles, 104 N. Y., 164; 5 St. Rep., 565; Wright v. Delafield, 25 N. Y., 266.

Judgment should be reversed, and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.


text:
    James Spears, Resp't, v. Eben Willis, App'lt

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Partnership—Accounting—Patents.
    In 1879 W., being the owner of a patent for an improved sap spout, entered into an oral agreement with S. that he would sell him an undivided half interest in the patent for $500, and that they, as copartners, should engage in the business of manufacturing and selling spouts made under the patent; thereafter, under the firm name of W. & S., they entered into a contract with M. & Son to give them the exclusive sale of the spouts during the life of the patent. W. & S. resided in .the same town, each doing his share of the business, up to 1887, when S. moved away, and W. gave him notice that he must buy out the business or sell; he said lie would sell, but no further negotiations took place. W. informed M. & Son that he was carrying onthe business alone and tore the firm name from the contract. _ The spouts manufactured by the copartnership varied from the specifications of the patent, and those furnished by W. after 1887 were still different. Held, that the referee properly directed an assignment to S. of an undivided half interest in the patent, a sale of the partnership, assets, and that W. account for all spouts sold since 1887.
    (Herrick, J., dissents.)
    Appeal from judgment *in favor of plaintiff, entered upon report of referee, dissolving the partnership between plaintiff and defendant and directing a sale of the partnership effects and an accounting.

      Swift & Sanford (Theodore H. Swift, of counsel), for app'lt; L. P. Hale, for resp't.
   Putnam, J.

In the autumn of 1879, defendant being the owner of letters patent Ho. 189,330, for an improvement in “ sap-spouts,” the parties entered into an oral agreement that defendant should sell to plaintiff an undivided half interest in said patent for $500, and that plaintiff and defendant, as co-partners, should enter into the business of manufacturing and selling .sap-spouts made under said letters patent. Thereafter they entered into said partnership and carried on said business under the name of Willis & Spears until 1887. The referee finds, and the evidence seems to sustain his findings, as follows, viz.:

“5th. That on or about the 19th day of January, 1887, Willis & Spears entered into a contract with Charles Millar & Son, of which the following is a copy:
“ Utica, N. Y., Jan. 19, 1887.
“ Charles Millar & Son :
Gentlemen: We do hereby give you the exclusive sale of the Willis Sap-spout for the United States, during the lifetime of the patent, about eight years, in consideration of your buying outright the spouts we now have on hand, paying for them $14 per M for the large size or No. 1, $10 per M for the small size or No. 2, and additional spouts required for this year are to be paid for at the same rate, and also in consideration of your buying not less than one hundred M spouts each year after this. The price of spouts to be advanced or reduced in case of an increase or diminished cost of manufacturing them, and you are to fix the price to jobbers and the retail dealers yourselves in proportion. Terms of payment, half March 15th, and half May 15th, of each year.
(Signed) “ Willis & Spears.”
“ Utica, N. Y., Jan. 19, 1887.
“Messrs. Willis & Spears:
Gentlemen: We hereby accept your proposition of this date, giving us the exclusive sale in the United States of the Willis Sap-spout for the terms mentioned.
“ Yours truly,
(Signed) “Chas. Millar & Son.”
“8th. The sap-spouts manufactured by the said copartners were not made in strict conformity to the specifications of the patent No. 189,330, but at the commencement of said copartnership the spouts were made after patterns furnished by said defendant, and which patterns were embraced in said sale and were used as a part of the partnership property, and from time to time different alterations and .improvements have been made in the spout which was manufactured by said copartnership, and there is now being manufactured and furnished to said Millar & Son a spout substantially in the form and in the pattern which was in use by and being manufactured by said firm of Willis & Spears immediately prior to and at the time of the making of said contract with said Millar & Son. And the spouts which have been manufactured and sold by said copartnership, and which have been furnished to said Millar & Son are each marked Pat. 1887.”
“ 10th. In the fall of 1887, the plaintiff removed from Colton to Canton, where he has since resided, and since that time he has taken no active part in the partnership business, and has given no time or attention to said business. Prior to such removal both the said copartners had resided at Colton, and the partnership business had been carried on from that place, and each party had contributed about equally of his time and attention to said businesss.”
11th. Soon after the removal of said plaintiff from Colton the defendant stated to him that he should not continue the business of making sap-spouts and divide with him, and that there was not enough of the business to divide, that he must buy out the business or sell; to which the plaintiff replied that he would sell his interest in the business and would name a low figure, but no further negotiation was had and no proposition or agreement .made, and thereafter the defendant notified said Millar & Son that he was carrying on said business in his own name and requested them to change the account to his name, and he tore the name of Willis & Spears from said contract, and from that time the correspondence and remittances from Millar & Son were to the defendant personally.”

The defendant claims that from the period that he so tore the name of Willis & Spears from said contract the plaintiff has had no interest in the said business and he refuses to account with him or to convey to him a one-half interest in the said patent. Plaintiff has never paid the purchase price for said patent nor has the defendant ever demanded such payment. The defendant continued to furnish sap-spouts to Millar & Son up to the time of the trial of the action.

The answer admits the sale of an undivided one-half of the patent right in question by defendant to plaintiff and the formation of the partnership, as alleged in the complaint, and hence no issue in-these regards being raised in the pleadings the conclusions of the referee founded on such admissions cannot be deemed erroneous. Were there not such admissions, however, by the verbal agreement between the parties under which they had as co partners carried on the business for eight years, treating said patent right during that period as partnership property, and under all the circumstances of the case, the plaintiff acquired an equitable title or interest in said invention which equity will protect. The evidence disclosed an equity in favor of plaintiff rendering a judgment for specific performance proper. Burr v. De La Vergne, 102 N. Y., 416-422; 2 St. Rep., 414; Somerby v. Buntin, 118 Mass., 279; Hapgood v. Rosenstock, 23 Fed. Rep., 87; Adams v. Messinger, 147 Mass., 189; Binney v. Annan, 107 id., 94; 18 Amer. & Eng. Encyl. of Law, 139.

We, therefore, conclude that the referee did not err in holding that the equitable title to said patent vested in the firm of Willis & Spears, and in directing an assignment thereof by defendant to plaintiff pursuant to the oral contract and a sale of the partnership assets including said patent right

The defendant claims that the plaintiff was not entitled under the complaint to compel an accounting or to recover in this action, because, as alleged, the partnership was formed to manufacture spouts under the patent, No. 189,830, while in fact no spouts were ever made under that patent. That all the spouts manufactured by the copartnership were made under another patent owned by defendant. The referee finds that the spouts "that were manui'ac-' tured by said copartnership were not made in strict conformity with the specifications of said patent right No. 189,330, but were made after patterns furnished by defendant and which patterns were embraced in the sale and used as part of the partnership property and from time to time alterations and improvements were made.

The fact that the copartners, who under the partnership agreement were to manufacture spouts under the above mentioned patent, in fact made and sold spouts varying from the specifications thereof does not interfere with the plaintiff’s right to recover his share of the partnership profits. It is not material under what patent they made their spouts. Whatever spouts were made were manufactured by them as copartners and each member was entitled to his share of the profits and to call the other to account. We, therefore, conclude that the referee properly directed an accounting to be had of the partnership transactions between the parties. If there was any variance between the allegation in the complaint and the proof in the regard above mentioned such variance was not material. Civil Code, §§ 539-540.

We, also, think that the judgment properly provided that defendant account for all sales of sap-spouts to the day of the entry of judgment. The copartners on January 18, 1887, made a written contract with Chas. Millar & Son for the sale to the latter of all spouts which the firm should thereafter manufacture.during the life of the patent, about eight years. This contract was owned by the firm and was valuable. The defendant afterwards, without the knowledge or consent of plaintiff, assumed to destroy said contract and make a new one in his own name and for his own benefit, thereafter to sell spouts under said new contract made under an improvement of said patent, No. 189,330, invented by said defendant.

When the contract with Charles Millar & Son was made plaintiff'and defendant were co-partners and the owners of all benefits and advantages and profits to be derived under said contract. If plaintiff in any way failed to perform his duty as a copartner, either by moving from Colton to Canton, or in neglecting the partnership business, or in any other way, defendant could have procured a dissolution of the co-partnership, but until he did so the partnership continued. - The evidence failed to show a legal abandonment of the partnership enterprise by plaintiff. The relation between the parties was one of trust and confidence. Each was bound to act in entire good faith to the other. Nor could a clandestine stipulation or contract be made by either for a private advantage to himself. The defendant had no right to destroy the valuable contract which the firm owned with Charles Millar & Son or to take a new contract in his own name. Such an act was a fraud, on the firm. It was somewhat like one member of a co-partnership taking a renewal lease of premises occupied by the firm, as in Mitchell v. Reed, 61 N. Y., 123, and Struthers v. Pearce, 51 id., 357. The fraud here, however, is much more flagrant than in the cases cited, because the defendant,before making a new contract, was compelled to cancel a valid and valuable contract owned by the firm without any authority whatever to do so.

Under the circumstances the new contract made by defendant with Charles Millar & Son and his receipts thereunder should enure to the benefit of the co-partnership. The contract made by the firm would not expire until 1895. Defendant having unlawfully assumed to destroy that contract and take a new one for his own benefit, should be deemed to hold it for the benefit of the firm he has attempted to defraud. This is so, notwithstanding the sap-spouts furnished since the defendant attempted the destruction of said firm’s contract with Charles Millar & Son, although in substance in the form and pattern as used immediately prior to the making of the said contract, as the referee finds, are not exactly the same. See 17th Amer. & Éng. Encyl. of Law, 1058-9-60 ; Story on Part., § 174; 3 Kent’s Com., 51.

It is probably true, as defendant claims, that plaintiff has no interest in the new patent invented by defendant. Burr v. DeLa Vergne, 102 N. Y., 415; 2 St. Rep., 414. But the referee does not provide for the assignment of such patent or a sale thereof as a part of the partnership assets. He directs an assignment of an undivided one-half interest in said letters patent No. 189,330, and a sale of said patent right

It follows that the judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., dissents.


author: Per Curiam.

text:
    In the Matter of the Judicial Settlement of the Accounts of Executors, etc., of Frederick D. Hodgman, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Legacy—Interest.
    Where a legatee voluntarily receives the amount of her legacy and receipts for the same in full as “the amount of the legacy left me by the will of said H.,” she cannot be allowed on the accounting for the interest on such legacy.
    2. Executors and administrators—Fees.
    Where it appeared on the final settlement of surviving executors’ accounts, that fifteen years previous the executois, all being alive, intended to settle their accounts between themselves, and pursuant to the arrangement Y. gave a receipt for her fees as executrix, and the estate was distributed, held, that the surrogate properly refused to allow Y. fees other than had already been paid her.
    3. Same—Accounting.
    If residuary legatees, made parties to a proceeding for the settlement of executors’ accounts, make no complaint of the surrogate’s rulings or decree, the executors cannot, so far as they affect the legatees’ rights.
    Appeal by the widow and executrix of the decedent from a decree of the surrogate of Washington county judicially settling the accounts of the executor and executrix of decedent and of the executors of deceased executors of the decedent, except so much thereof as judicially settles the accounts of the executors of Janies Cheeseman, deceased, executor of the decedent.

      Charles H. Foote, for app’lts; Edgar Hull and Young & Kellogg (Charles S. Sturges, of counsel), for resp’ts.
   Per Curiam.

It does not require an argument or citation of authorities to show that the legacy of $50,000 bequeathed to the appellant in the will of Frederick D. ilodgman, deceased, was not specific, and hence that she was not entitled to the dividends which accrued on the bank stock or bonds mentioned in the will.

Nor do we think appellant entitled to be allowed on the accounting for interest on said legacy: 1st. The receipts show that she received the $50,000 in full. This paper is an admission that said sum without interest was what she was entitled to. It shows that she and her co-partners settled on that amount as due her. After having so voluntarily received $50,000 as “ the amount of the legacy left me by the will of said Hodgman,” she cannot recover interest. 2d. On the evidence and facts of the case the surrogate was authorized to find that the legacy of $50,000 to appellant being given in 'lieu of dower and thirds, was paid to her as soon as she elected to receive it. Until such election it would not draw interest.

We are also of the opinion that the surrogate did not err in not allowing the appellant fees other than had already been paid her. Her receipt was as follows: “Also received from the same $353, my fee as executrix of said estate. ” The parties, as the surrogate finds, seem to have intended to settle their accounts as executors between themselves, and pursuant to the arrangement appellant gave the receipt for $353, her fee as executrix. This voluntary settlement of the amount of appellant’s fees, made about fifteen years before the accounting, and during the lifetime of Hitchcock, we think, should not be disturbed. The parties having acted upon it, and distributed the estate, the surrogate was right in refusing to reopen the matter.

The two lapsed legacies clearly went to the residuary legatees. Riker v. Cornwell, 113 N. Y., 115; 22 St. Rep., 151; Matter of Crossman, 113 N. Y., 509, 510; 23 St. Rep., 259; Matter of Bonnet, 113 N. Y., 524; 23 St. Rep., 268. Therefore, the appellant was not entitled- to any interest therein as widow, and was not injured personally by the direction in the decree in reference thereto.

We conclude that the surrogate in his' decree has not erred in any way affecting the interests of appellant. If any error has been committed in the conclusions and rulings of the surrogate other than -above considered, they are such only as affect the residuary legatees under the will in question, who were parties to the proceedings, with the right of appeal, but who have not taken any exception to the rulings of the surrogate, or any appeal from his decree. We think the executrix and appellant, having brought the residuary legatees before the surrogate and made them parties to the accounting, on the entry of the decree of the surrogate has no interest in the decree as far as it settles, determines or affects the rights of the legatees who were parties to the proceeding, and who might except or appeal. If they made no complaint of the rulings of the surrogate, or of his decree, it is not for the executrix to do so. Bates v. Ryberg, 40 Cal., 463; Estate of Stephen A. Wright, 49 id., 550; Reid v. Vanderheyden, 5 Cow., 719;. Salmon, Trustee of Boon, v. Pierson, 8 Md., 297; Stewart, as Trustee, v. Codd, 58 id., 86; Hyatt v. Dusenbury, 106 N. Y., 663; 8 St. Rep., 713; Bryant v. Thompson, 128 N. Y., 426; 40 St. Rep., 439.

The appellant, on the accounting before the surrogate, did not represent the legatees. After she had brought them into court their interests and hers conflicted, as in case of a plaintiff and defendants. Nor does she represent .them on the appeal.

We do not, therefore, feel ¿ailed upon to examine and discuss the very many other rulings of the surrogate to which exceptions are taken by the appellant, because such rulings only affect the residuary legatees, and are, therefore, of no concern to the appel-. lant, and the residuary legatees make no objection. The executrix is not aggrieved by such ruling. Civil Code, § 2568.

The decree provides that $2,932.26 in the hands of Alfred C. Hodgman and $500 in the hands of appellant be paid to respondent Wing. As neither Alfred C. Hodgman or either of the residuary legatees complain of this direction as to the said $2,932.26, appellant has no cause to complain. The $500 in the hands of appellant being the lapsed legacy, which, as we have seen, should go to the residuary legatees, and which appellant holds for them as trustee, said legatees not objecting to the direction of the surrogate requiring said sum to be paid to respondent, appellant has no cause to complain of such order and disposition of the fund.

Under all the circumstances of the case we have doubts as to the correctness of the conclusion of the surrogate that there was a balance due Wing, as executor, from the estate of Frederick D. Hodgman, deceased, of the sum of $13,456.40, and were there any appeal in behalf of the legatees we would consider this matter ; but as .the only persons affected by the error of the surrogate, if any was committed, acquiesce in his conclusions, we are not called upon to discuss this question.

We are of opinion that the surrogate should have allowed the appellant the amount paid by her to her attorney for services on the accounting. The bill seems reasonable ; she was compelled to employ counsel, and she has in her hands, as we have seen, $500 of the assets of the estate. The decree should be modified by allowing appellant the amount paid her attorney, $350, and providing that the balance in her hands, $150, be paid to the respondent instead of $500, and as so modified affirmed, without costs to either party.

Mayham, P. J., and Herrick, J., concur.


author: Dykman, J.

text:
    Augustus Knox, App'lt, v. The New York, Lake Erie & Western Railroad Co., Resp't.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Negligence—Will not be presumed.
    Presumptions of negligence cannot lie indulged in to impose liability; it must be established by competent evidence produced by the plaintiff.
    2. Same—Railroads.
    A freight train contained two cars of lumber, the long timbers running from one to the other, resting on bolsters to allow for play on rounding curves. The cars had stakes on the sides with stay boards over all the lumber. It rode safely for over one hundred miles, and was inspected by the conductor at Port Jervis and found all right, but afterwards, on rounding a curve, one of the bolsters worked loose and crashed into the caboose of a train which-was passing, in which plaintiff, a brakeman, was riding, and injured him. There was no proof of any defect in the cars or of a failure to provide a proper system of inspection. Held, that the injury to plaintiff was the result of an accident which could not have been anticipated, and that a dismissal of the complaint was proper.
    Appeal from judgment dismissing the complaint.

      O. P. Howell, for app’lt; Lewis E. Carr, for resp’t.
   Dykman, J.

This is an appeal from a judgment dismissing the complaint of the plaintiff at the close of the testimony on his part upon the trial.

The action is for the recovery of damages for personal injuries. The plaintiff was in the service of the defendant as a brakeman and oilman. On the day of the accident he was upon a freight train going west in his regular service. He was in the caboose at the rear of the train, and between Otisville and Howells his train met a freight train eastward bound, and on the left of his train. These trains met on a curve to the right going west and to the left going east.

The cars in the train going east were loaded, and among them were two cars loaded with lumber and timber of different lengths.

The short lumber was loaded on each car, and on the top were long timbers longer than either car, and they extended from one car to the other, resting partly upon both. Upon the top of the short timber on each car a piece of timber called a bolster was laid crosswise of the car. The office of the bolsters was to enable the long timbers to yield to the motion of the two cars without disarranging the timber below as they rounded the curves of the railroad. Upon each side of the two cars there were three or four stakes set in pockets, extending above the top of the lumber, and across each car above the lumber there were two or more stay boards nailed to the stakes on each side.

These lumber cars were loaded at Lanesboro, and came west over the Delaware division of the railroad over a hundred miles. They were examined at Port Jervis by the conductor, and found to be in good order, and the lumber and timber continued in its place until the trains met, when about ten cars length from the caboose in which the plaintiff was riding the bolster on the forward car of the two worked out, struck the caboose, broke three of the stakes on the forward, car, and broke the stay boards from their fastenings and was forced into the caboose, struck the plaintiff, and inflicted the injuries for which he sues.

It is to be observed at the outset that there is no proof of defects, imperfection or insufficiency in these lumber cars or any of their appendages, or of a failure on the part of the company to provide a proper system and competent men for the inspec-. tion of the cars after they were loaded, and there is no point made by the appellant on this appeal respecting the absence of such system or such men.

It does appear, however, that these lumber cars were inspected at Port Jervis.

There was proof that the cars were properly loaded and in the usual manner, although one witness said he thought there were too many cross pieces, and that they were too long for the cars and liable to work out.

Such an opinion was insufficient to sustain a verdict for the plaintiff.

The case, therefore, stands thus: The cars were safe and free from defects and imperfections. There was no proof of failure to provide a suitable system of inspection and competent agents to make the same. Presumptions of negligence cannot be indulged to impose liability. It must be established by competent evidence, produced by the plaintiff, in all actions of this character.

The failure to detect the error in loading the cars, if there was any, and the failure to rectify the mistake, was the negligence of a fellow servant, and not the fault of the defendant.

Our examination has failed to detect any negligence on the part of anyone. The cars were in good order, the timber was properly loaded, and rode more than one hundred miles in safety. It was inspected at Port Jervis and found to be secure and unmoved, and remained so until within a few rods of the accident, when one of the bolsters worked loose while the train was rounding a curve.

The device of a bolster to afford play room for the long timbers as the cars went round the curves on the road was evidently a practical idea, and all the witnesses say it was usual and proper.

The injury to the plaintiff was, therefore, the result of an accident which could not have been anticipated, and cannot be charged to negligence.

The judgment should, therefore, be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    The People, Resp'ts, v. Clara M. Underhill and William J. Underhill, App'lts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Highways—Acceptance—Dedication.
    Certain land owned by the state was mapped ont and sold in 1859, the map designating certain streets, of which the street in question was one. The trustees put up the map name at the corner of the street, worked it for part of its distance and put water and lights upon it so far as houses were "built, and included it among its public highways on a map for a system of sewers. The street was not worked its entire length, but travel by pedestrians was frequent and constant. Held, that these facts were sufficient to show a dedication and acceptance of the land as a street.
    Appeal from judgment of the Westchester court of sessions, Convicting defendants on indictment for a nuisance in obstructing R highway known as Lafayette avenue in the village of Sing Sing by erecting and suffering to remain therein a building and shed.

      Calvin Frost, for app’lts; W. Popham Platt dist. atty., for resp’ts.
   Barnard, P. J.

In 1859 the of the state of New York Owneds land adjacent to the Sing Sing prison. By chapter 470 of "the laws of that year the legislature authorized a sale of a portion of this lands and to make a map of the portion to be sold. The authorities of the state made a map of the lands, divided them into lots and designated streets thereon.' The map was filed and the lands sold with reference to this map. Houses have been built upon the street, but it has never been made a good street for public travel. As between the persons who have purchased the lots on the street and those who have bought with reference to the map, the street should, and must legally, remain an open street for its map width of fifty feet. The defendants, who are bound by the plan, have shut up one-half of the street so far as it adjoins their lot on the avenue which crosses the termination of Lafayette avenue, the street in question. The proof of dedication of Lafayette avenue is complete. The state so called it on the map by which they sold. The authorities had power to open the street so far as to bind all purchasers. A highway must be accepted, and this is the debatable question in the case. There is no formal resolution by the village of Sing Sing; but an acceptance may be inferred from other proof. The trustees put up the map name of Lafayette avenue at the corner of the street. The trustees worked the street for some three hundred and fifty feet and put water and lights upon it so far as the houses were built upon it. The trustees made a map for a system of sewers and this Lafayette avenue was included among the public highways of the village.

This evidence uncontradicted is sufficient to uphold the verdict of the jury that the street was accepted. There is no proof to show a revocation of the dedication. The village did not proceed very fast in improving the whole street; but the travel over it by pedestrians was frequent and constant.

The defendant bought in 1889 and his grantor in 1886. The road was used when they bought and has never ceased to be used in its whole width so far as needed, until the defendants fenced in half of it

The conviction and judgment should he affirmed.

Dykman and Pratt, JJ., concur.


text:
    Henry E. Brundage, Resp't, v. Ruth M. McCormick, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893).

    Brokers—Commissions.
    Plaintiff was employed by defendant to find a purchaser for her property, or one who would exchange, the terms to be settled by the parties themselves. He introduced one G. to her, but G. asked too much for his property, and the negotiation then fell through, but was afterward renewed through one Grant, who had an office with plaintiff, and who acted for G., and the exchange was effected. Held, that plaintiff’s employment was only to procure a purchaser ; that his duty was performed and he was entitled to his commissions.
    Appeal from judgment of the Kings county court, affirming judgment of justice’s court in favor of plaintiff.
    Action for commissions under an employment to procure a purchaser for defendant’s property, the terms of sale to be agreed on by the parties themselves.

      Daniel Nemirs, for app'lt; J. R. McDivitt and Francis S. McDivitt, for resp't.
   Barnard, P. J.

The complaint in this case avers that the plaintiff was employed by the defendant to find a purchaser for a lot of land she owned in the city of Brooklyn, and that he was the procuring cause of a sale under the employment. The answer avers a termination of the agency before sale and contains a denial that the plaintiff was the procuring cause of the sale. The employment was only to produce a purchaser, and the proof shows that the plaintiff introduced one Gibson to the defendant, to whom she subsequently sold the property. The defendant gave ■evidence tending to show that the first effort to sell to Gibson failed, and that he subsequently reduced the value of his property which was to be exchanged for defendant’s property and took the deed. The plaintiff and one Grant occupy the same offices, and there is proof that Grant, subsequently to the failure to make a ■sale, conducted the negotiations for Gibson. All the parties were fully examined before the jury and they found for the plaintiff. The question is one of fact. There is proof enough to sustain the finding if it be credited. The plaintiff was employed to find a purchaser. He introduced Gibson to the defendant. Gibson asked too much for his property. Grant subsequently conducted the negotiations for the plaintiff, which finally resulted in an exchange. The buyer and seller were brought to an agreement through plaintiff and Grant acting for him, and his title to the commission was made out. Lloyd v. Matthews, 51 N. Y., 124.

The exceptions are not sufficient to reverse the judgment.

The question excluded at folios 64 and 65, as to the agreement between plaintiff and Grant as to the commission, was admitted at folios 113, 114.

The question put to the witness Grant, at folio 120, was needless. The negotiations was renewed by Grant upon plaintiff’s promise to compensate him, and because Mr. Nemirs declined to negotiate with plaintiff. The facts were proven.

The question rejected was but an inference from them.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ,, concur.


author: Pratt, J. Barnard, P. J. (dissenting).

text:
    Albert G. Howe, Resp't, v. Edward M. Oldham, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Assault—Highways—Charge.
    In an action for assault, alleged to have been committed upon plaintiff, a commissioner of, highways, while he was removing a wagon from a stream, where it had been placed to obstruct him in building a bridge, the defense was that the road was a private one, owned by one H., and that defendant, the servant of II., under his directions, placed the wagon there, and that in defense of his master’s properly he struck plaintiff, using no more force than was necessary. There was a conflict in the testimony as to whether this road was a public or private one. The court charged that there was no defense in any view, and that the only question was the amount of damages. Held, error.
    (Barnard, P. J., dissents.)
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      William D. Guthrie, Grant B. Taylor and George C. Austin, for app'lt; William D. Dickey, for resp't.
   Pratt, J.

This is an action for an assault and battery. The plaintiff obtained a verdict for $500, and entered judgment thereon. The defense was that defendant was the servant of one Harriman, who owned and was in possession of certain lands in Waterbury, Orange county, through which a private road ran, and that plaintiff wrongfully entered on this private road and attempted to build a bridge over a brook which crossed it That defendant occupied the brook at the road crossing with a wagon under directions of his master, and plaintiff attempted to remove the wagon as an obstruction; whereupon defendant, in defense of his master’s property, struck plaintiff, using no more force than necessary to defend the property. The plaintiff was the commissioner of highways, and claimed that the road was a public highway of the town.

If this road was the private property of Harriman, he had the right to prevent plaintiff and his men from entering upon it; because the undisputed evidence shows that Harriman was in possession through defendant, who was his agent and servant for that purpose, with authority to prevent trespass; and defendant, in the discharge of his duty, had the right to use reasonable and sufficient force to prevent this trespass. See Penal Code, § 223; People v. Kane, 131 N. Y., 111; 42 St. Rep., 722.

If, on the other hand, the road was a public highway, the plaintiff had the right, and, under the circumstances disclosed by the evidence, it was his duty to remove this wagon and proceed with the work of building the bridge.

This question of fact, whether this was a public or private road, was, therefore, an important one, because there was conflict of testimony as to the force used by defendant, and the circumstances under which it was used. There was conflict of testimony on the question, the character of this road, whether public or private.

The learned trial judge held and charged the jury, among other things, that, upon the evidence, there was no defense in any view, and that the only question for the jury was upon the amount of damages. Defendant excepted. We think the exception well taken. If, as already stated, this was Harriman’s property, the defendant being his servant and in possession with authority to prevent the trespass, and if he used no more force than was reasonable, his justification was complete. The court was requested to put this view of the case to the jury, but refused, and defendant excepted. We think this exception well taken.

Judgment reversed and new trial ordered, with costs of this appeal to the defendant to abide the event of the action.

Dykman, J., concurs.

Barnard, P. J. (dissenting).

The complaint was for an assault and battery. The answer denied the assault, and averred that the assault, if any, was committed in defense of the defendant’s employer. Upon the trial evidence was given tending to show that plaintiff was a commissioner of highways. That while building an abutment to a bridge over one of the highways of the town, the defendant, to obstruct the work, had put a wagon in the brook. That when plaintiff attempted to remove the wagon, the defendant struck him and threw him into the brook. The plaintiff then caused the defendant’s arrest for the assault, to which the defendant pleaded guilty. There was proof given by plaintiff tending to show that the road where the bridge was being repaired was a public highway. There was no record proof that the highway had been laid out, but proof extending over a great many years that it had been used for the general public travel. The record proof that the road had been put on the district in which it was situated for labor upon it was properly received. The plaintiff was shown to be about the public business.

The defendant produced evidence tending to show that the road was a private road only and had never, until recently, been districted as a public road. The defendant, also, gave evidence tending to show that the plaintiff was guilty of an assault, and that thereby he fell into the stream. Under this condition of the evidence, the case went to the jury. The charge of the judge stated to the jury that their verdict would settle nothing as to the fact whether the road was a public or a private one. That there was no dispute but that the plaintiff struck the defendant without any legal provocation. That the jury must determine whether or not the place of the assault was within a public highway or within a private road, the property of defendant’s employer, and fix the damages accordingly. The defendant’s evidence tending to show an assault by plaintiff was true, but he had pleaded guilty of the assault, and was proven to have testified that he “knocked him (plaintiff) in the ditch,” on another proceeding. All the other eye witnesses of the transaction supported plaintiff substantially. The judge treated the case as one where the technical assault was proven. Neither of the attorneys made any exceptions. The case was thus rendered as one of law to either a nominal sum or to substantial damages, as the jury should determine the question of public or private roads. The defendant’s counsel asked no statement of the law as to how far the defendant could go in defense of his master’s right to put a wagon in a stream to prevent the' commissioners from repairing a bridge over it. He should not be treated bn appeal as if he had done so and the judge had refused the instruction. Upon the merits the case is strongly in favor of the plaintiff. There is proof of the use of the road as a highway for a great many years. That as long ago as 1845, the road was under the control of the commissioners of highways. That it was publicly and commonly used for over fifty years. That the assault was arbitrary and wanton. The jury were told that they were not necessarily limited in giving damage to the actual injury; that they could give damages for the outrage and indignity and punitive damages, if they found that the road was a public highway, and that the assault was made on the plaintiff performing his duty as a highway commissioner. In other words, if the defendant intentionally assaulted the plaintiff while in the exercise of his duty, exemplary damages might be given. Such damages could be given for any intentional assault. Hamilton v. Third Ave. R. R. Co., 53 N. Y., 25; Sedgwick on Damages, 5th ed., 517-534.

The judgment should be affirmed, with costs.

Judgment reversed, and new trial granted, with costs to defendant to abide event


text:
    Halcyon Skinner, Resp't, v. Harriet S. White, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Pleading—Counterclaim.
    The complaint alleged the execution and delivery of a bond by defendant; that it was wholly unpaid, and demanded judgment for the entire amount. It was amended so as to omit the allegation that no payments had been made. The answer denied the bond; averred payment by the amount of bills receipted by defendant’s husband, and set up a counterclaim for the same sum. It appeared that the bond was given for a debt of the husband, and did not charge defendant's separate estate. It also appeared that defendant had sold goods to plaintiff, and that her husband had receipted the bills, without receiving any money or other consideration except a credit on his old debt, which was not shown to be authorized by defendant. There was no direct proof of application on the debt. Held, that defendant had a right to set up as many defenses as she had, and that the plea of payment did not call for a refusal to give a judgment for the proven counterclaim.
    Appeal from so much of a judgment dismissing the complaint as denied to defendant a judgment on her counterclaim.

      James M. Hunt, for app’lt; Ralph E. Prime, for resp’t.
   Barnard, P. J.

This action is brought to recover upon a bond executed by the defendant for $1,500, given on the 14th of February, 1877. The evidence showed upon the trial that the bond was given for a debt of her husband, and did not charge the separate estate of the obligor, and that, therefore, the bond was not binding on the defendant, and the complaint was dismissed. The plaintiff does not appeal. It was proven on the trial that about the 1st of May, 1880, the defendant did enter into a separate business of her own, and that her husband was made by her a general agent and manager of the business. While the defendant was conducting her business, she sold and delivered to the plaintiff goods to a large amount. Her husband receipted the bill, and received no money or other consideration therefor other than a credit on his old debt to the plaintiff. The referee refused to give her judgment against the plaintiff therefor, and the question presented on this appeal is whether this was erroneous. There was no direct proof that the goods sold plaintiff were applied on the old debt by the defendant’s assent, or even with her knowledge. The parties derive such assent from the pleadings. The plaintiff complains that the bond is wholly unpaid, principal and interest The complaint is amended so as to leave out the clause that no payments have been made on the bond, and demands payment of the entire amount.

The answer denies the bond, avers payment on it by the exact amount of the bills receipted by her husband, and sets up a counterclaim for the same sum and asks an affirmative judgment. These pleadings, in the absence of proof on the trial, leave the parties to their rights as they shall appear on such trial. It appeared that the bond was invalid. It did not appear that the defendant authorized her husband to apply her property to the payment of his debts. It did appear that the plaintiff had her property and that it was not paid for. The plaintiff’s original pleading under oath denied any payment. The amended pleading implies that no payment was made. The defendant denied bond and asserted payment and counterclaim. The defendant had the right to plead as many defenses as she had, and if she pleaded payment and counterclaim, and the proof showed counterclaim, there is no reason because of the plea of payment which calls for a refusal to give a judgment for a proven counterclaim.

The judgment, so far as appealed from, should be reversed, and the case sent to the circuit for trial The proof shows that there is no long account involved, and the sole question is whether the goods sold were applied on the bond by the defendant’s assent. Costs to abide event.

Barnard and Pratt, JJ., concur.


author: Pratt, J.

text:
    Halcyon Skinner, Resp't, v. Harriet S. White, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Costs—Amount paid as a condition op amendment cannot be again TAXED BY EITHEB PARTY.
    An order requiring the payment of all the taxable costs of the action, as a condition of permitting the defendant to amend, is an adjudication that the costs to the time of amendment belong to the plaintiff, and if the same are paid they cannot be again taxed by either party.

      Appeal from order directing retaxation of costs, and disallowing certain items allowed by the cleric to defendant on taxation.

      James M. Hunt, for app’lt; Ralph E. Prime, for resp’t.
   Pratt, J.

This action to a trial before a referee. Plaintiff rested, and the defendant put in some testimony. Defendant then moved for leave to amend her answer by setting up a new and additional defense. The court, at special term, granted the motion, and made an order whereby the defendant was permitted to amend her answer nunc pro tunc upon condition that she pay to plaintiff all the taxable costs of the action. In case the costs were not paid and the defendant failed to accept said condition, the motion was denied, with ten dollars costs. Defendant thereupon paid to plaintiff the costs up to that time, i. e., $66.84, talcing back a receipt “ in full of costs directed to be paid by order allowing amendment to answer of defendant," and also paid the referee’s fees, $30, and the stenographer’s charge, $28.75, which had accrued up to the time of the amendment. The trial then proceeded before the referee, who dismissed plaintiff’s complaint and allowed costs to the defendant. The clerk thereupon taxed defendant’s costs at the sum-of $207.27, which included the costs paid by defendant to plaintiff at the time of the amendment. Plaintiff thereupon moved at special term for a retaxation, and an order was made directing the clerk to retax said costs and reduce the same by striking out the different items which were included in the costs paid by defendant at the time of the amendment. From that order the defendant appeals. We see no error in the disposition of the matter made by the court below. The defendant applied to the court for leave to amend her answer by setting up an additional defense, and the court, in its discretion, granted the favor sought, but on condition that the defendant pay the costs up to that time. Had the court intended by its order that the defendant should pay a sum equal to the costs, it would have used apt words to express such intention. So, too, if the defendant had considered the conditions too severe, she had her remedy, but she accepted the favor and with it the condition, and paid the costs, taking back a receipt “ in full of costs directed to be paid."

We look on that order as an adjudication that the costs to the time of the amendment belong to plaintiff. They were paid and could not again be taxed by either party. The cases cited by the respondent in his brief we think fully sustain this principle. Of those cited by the appellant, Bowen v. Sweeney, 49 St. Rep., 603, does not seem to us in point. In that case the plaintiff was allowed to amend his complaint, after having recovered a judgment at special term, which was revez’sed at general teirn, with costs to the defendant to abide the event. The order of amendment was on condition that the plaintiff pay to each of the defendants a full bill of costs to be taxed by the clerk. The clerk disallowed the general term costs. The court, at special term, denied the motion for a retaxation, and the general term on appeal reversed the order, holding that the costs at general term were included in the order of amendment, and should have been -taxed. This, as we understand the case, was the only question before the court on that appeal. Havemeyer v. Havemeyer, 48 N. Y. Superior Court, 104, undoubtedly sustains the view taken by the appellant, but we are not inclined to follow it in face of the decisions of our own and other departments of this court.

The order appealed from should be affirmed.

Order affirmed, with costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Allen P. Becker, Resp't, v. The National Prohibition Park Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8,1893.)

    Contract—Building—Extra work.
    A contract for building certain sheds required the contractor to furnish all the material except the stone for the piers, which defendant was to furnish, and defendant was also to do the grading. In an action to recover for extra work, the contractor claimed that defendant did not give a good grade; that the piers were of irregular height, and made higher in some cases by a greater excavation than was necessary, and that he was compelled to carry up the piers higher than the contract called for, and to use small stones furnished in place of single ones. This was contradicted. Held, that the question was one of fact, and that if defendant violated his contract upon which the plaintiffs rested, plaintiff was entitled to recover for his extra expenditure in completing the work.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial.
    Action to recover a balance upon a building contract and for extra work.

      Alexander S. Bacon, for app’lt; W. J. Powers, for resp’t.
   Barnard, P. J.

The defendant employed the plaintiff to furnish the materials except stone, and to do the work for the erection of some 400 feet of sheds in Richmond county. It was admitted that the last instalment, $565, was unpaid. The plaintiff seeks to recover this sum and $22.50 in addition for extra work. The answer avers that the materials were not good, and also that the work was not skillfully done, to the defendant’s damage of $250. The answer also avers a tender of the last instalment of $565, which the plaintiff refuses to take. Upon the trial, the principal issue was as to the extra work. The agreement bound the plaintiff to lay up the stone piers under the shed, and the defendant was to furnish the stone. The defendant was to do the grading. The plaintiff gave evidence tending to show that the defendant did not make an even grade, or a good grade; that the piers were of irregular height, and made higher in some cases by reason of a greater excavation than was needed at particular points, and that the plaintiff was compelled to do the rest of the work to carry up these piers higher than the contract and specifications called for; that the defendant’s superintendent told the plaintiff to do the work, and that he must use small stones of the defendant instead of one stone, as was designed, and not of Uniform height

The defendant gave evidence tending to contradict plaintiff’s theory, and the case went to the jury under a charge from the court that if the $22.50 was made necessary by the improper grading of defendant, plaintiff was entitled to recover therefor. It was a pure question of fact and the finding of the jury should settle it. The fact being settled, the principle of law is sufficient to support the plaintiff’s claim. The defendant violated an independent contract upon which the plaintiff’s contract rested. It was plaintiff’s duty to mitigate the damages therefrom as much as he could, and to that end he furnished the work to availability. He was thus entitled to recover for his extra expenditure. Kidd v. McCormick, 83 N. Y., 391.

Judgment affirmed, witli costs.

Dykman and Pratt, JJ., concur.