text:
    The People, Resp’t, v. James Owens, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Excise—Sale—Sunday.
    The testimony, in this case, was held to be insufficient to prove a charge that defendant sold, or exposed for sale, or gave away, spirituous liquors on Sunday.

      % Same.
    The fact that bottles bearing labels indicating that they contain spirituous liquors are stationed in their usual places upon a back bar, is not of itself sufficient to support a conviction for a violation of the statute.

      Appeal from a judgment, convicting defendant of violating the excise law.
    Emanuel M. Friend, for app’lt;
    John D. Lindsay, for People.
   PER CURIAM.

By the judgment before the court, the defendant was convicted of a violation of that provision of the excise law which declares it to be a misdemeanor for “any person who, whether having a license or not, shall sell or offer or expose for sale, or give 'away any strong or spirituous liquors, wines, ale or beer: (1) On Sunday.” The evidence upon which conviction was based was furnished by a police officer, who testified that on June 30,1895, he visited a liquor store, in which the defendant was at the time, with his sleeves-rolled up, and an apron on. When the officer reached the premises, the door was closed and fastened, but he obtained entrance through a window, and found within three men besides the defendant; the latter being behind the front bar, back of which was the back bar, which contained glasses and labeled bottles, such as are usually found in such •places. Upon the front bar there were two glasses. To the question, “What was in them?” he answered, “They were removed before I could get to the bai\” To the further question, “Something in them?” he replied, “Yes, sir; a small quantity of' liquor.” It is evident from the testimony which preceded the last answer, as well as that which followed it, that this was a mere guess oh the part of the officer. He saw nothing poured into the-glasses; they were removed before he reached the bar; and he did not examine them afterwards for the, purpose of ascertain-' ing whether they contained liquor. The fact that bottles bearing labels indicating that they contained spirituous liquors are stationed in their usual places upon a back bar is not of itself sufficient to support a conviction for a violation of the statute; for-such a fact, standing alone, will not support a finding that the owner or person in charge was selling or offering or exposing for sale any part of the contents of such bottles. A person charged with violating the excise law, like all other alleged offenders against the law, is presumed to be innocent until proof of his guilt is furnished; and this is not accomplished by showing that the bottles were standing unused behind the bar. As there is no proof that any of the contents of the bottles were either sold or given" away, it was necessary to prove other facts and circunn stances to support a finding that their exposure was for the purpose of sale. There were three persons in the store, the doors of which were fastened; but whether they were customers of the store or friends of the defendant does not appear, nor were they seen to drink anything whatever. It does not appear that the two glasses on the bar were put there for their use, or had been used by either of them, nor whether they had contained spirituous liquor of any character. The evidence, therefore, was insufficient to justify- a finding by the court- that the defendant had violated the statute as charged in the complaint, and he should have been discharged.

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


source: Caselaw Access Project

author: FOLLETT, J.

license: Public Domain

text:
    Reynolds Card Manufacturing Company, Resp’t, v. New York Bank Note Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Pleading—Proof—Variance.
    Where it is alleged in the complaint that the contract sued upon was entered into about, the first day of September, 1887, and the evidence shows that it was entered into in the following February, it is not a fatal variance, in case the defendant is not misled thereby.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Charles A. B. Pratt, for app’lt;
    Lorenz Zeller, for resp’t.
   FOLLETT, J.

This action was begun December 14, 1892, to recover the price of paper sold, and the damages for the breach of an executory contract to purchase paper. As a first cause of action, it is alleged that between April 4 and July 19, 1892, the plaintiff sold and delivered to the defendant paper of the value, and at the agreed price, of $415.29. As a second cause of action, it is alleged that by an executory contract, made September 1, 1887, the plaintiff agreed to sell and deliver, and the defendant to purchase, 1,000 tons of paper, to be delivered at the rate of twenty tons per month, for which the defendant agreed to pay $85 per ton, which was to be manufactured by the defendant into tickets for the elevated railroads. It is further alleged that the defendant agreed to return to the plaintiff the used tickets manufactured from such paper, for which the plaintiff agreed to pay $15 per ton. As a breach of this contract, it is alleged that, after receiving 226 tons of paper, the defendant refused to receive the remainder, 774 tons. It is also alleged that the plaintiff’s damage is the difference between the contract price, $85 per ton, and the market value, $55 per ton, or $30 per ton on 774 tons, which equals $23,220, and also the difference between the contract price of used tickets, at $15 per ton, and the actual value of used tickets, at $21 per ton, being $6 per ton on 774 tons, which equals $4,644; making the alleged total damages sustained $27,864. In the complaint it is alleged that 224 tons were delivered, and in the bill of particulars that 226 tons were delivered. °We assume that the number of tons stated in the bill of particulars is correct, as it corresponds with the amount of damages claimed. The defendant admits in its answer that it purchased paper of the quantity, value, and agreed price, as alleged in the first cause of action, and that it had not paid therefor. The defendant, in its answer, denied that it contracted to purchase 1,000 tons of paper, but admitted that it received from the plaintiff 226 tons of paper, but not pursuant to the contract agreed in the complaint. By way of counterclaim, it is alleged that the plaintiff purchased and received used tickets of the value of $470.61, but it had refused to receive and pay for a large amount of canceled tickets, to the defendant’s damage of $1,000, which, added-to thé $470.61, makes $1,470.61 damages, set up as a counterclaim, and for which an affirmative judgment is demanded. The plaintiff, in its reply, admitted that it had received used tickets, as alleged in the answer, but denied that it had contracted to purchase any used tickets except those manufactured from paper furnished by the plaintiff, and that, defendant having refused to receive pltintiff’s paper, it was under no obligation to purchase and pay for cam celed tickets manufactured from other paper. The issues thus joined were tried before a jury, which rendered a verdict for $27,000. From this judgment the defendant appealed.

When the plaintiff rested, and again at the close of the case, the defendant moved that the complaint be dismissed as to the second cause of action, on the ground that sufficient facts had not been proved to constitute a cause action, and also upon nineteen other grounds, which it does not seem necessary here to repeat. At the close of the evidence, the defendant also asked the court to render a verdict in its favor, which was denied, and' an exception taken.

I The defendant procured and read in evidence' the' follow-in, among other, correspondence which passed between the litigants:

“Feb. 8, 1888.
■ “N. Y. Bank Note Co.—Gentlemen: We will malee you 1,000 tons of paper, same as Elevated paper, at same price, to be delivered over a period of' five years from date. This proposition is made on the express condition that you will take from us twenty-five tons at any time on sixty days’ notice, which we will carry in stock for you, which is the Emit of your liability.
“Beynolds Card Mfg. Go.,
“Geo. B. Schinzel, Pres.” “February 8th, 1888.
“George P. Schinzel, President-AMy dear sir: We hereby order of you 1,000 tons of Manhattan Elevated ticket paper, subject to the following conditions: Paper to be web, width as required, color and quality subject to my approval, weight 80 pounds to 500 sheets of 22x28 inches, price four and one-quarter cents a pound, cash 10 days,, deliveries for five years, 20 tons a month, or less, as the Bank-Note Oo. may require; thereafter what they may require, unless Manhattan contract renewed, in which event same as before end of five years. You to buy all Manhattan waste at 15.00 per ton, and to carry always in stock 80 days’ supply of paper, namely, 25 to 40 tons, which .you can deliver any time on 60 days’ notice, and cancel balance of this order; and we can, as limit of our liability, take your stock on hand on 60 days’ notice. It is understood that Manhattan requires less than 10 tons a month. This letter is given you to copy out into formal shape, of even date herewith, and in accordance with your written acceptance of to-day.
“Tours, truly,
“The New York Bank-Rote Co.,
“George H. Kendall, Treasurer.”

The plaintiff testified that, pursuant to the last clause of the letter signed by the defendant, a written contract was prepared, and signed by both parties, by which the defendant agreed to purchase 1,000 tons of paper, at $85 per ton, and agreed to sell to the plaintiff the cancelled tickets manufactured from such paper for $15 per ton. It is conceded that in 1888 the defendant issued a portfolio for circulation among its customers, on the cover of which the following was printed:

The defendant insists that this is not evidence of a contract, because, at the time, the plaintiff’s president signed the following statement:

“The filling in of the above signature is authorized by me, and in accordance with my request to have this letter used as an advertisement, and said letter is of that significance only. There is no contract.
“(Signed) Geo. P. Schinzel, Pres.”

The plaintiff’s president denies that he ever signed such a paper, and characterizes it as a forgery. It seems rather unnatural that at this time, when the president of the plaintiff and the officers of the defendant were friends, and having large transactions, a statement in writing of this kind should have been taken. It was testified in behalf of the plaintiff that the written contract alleged to have been signed was returned to the defendant for the purpose of having added thereto a clause providing that the plaintiff should not sell the same kind of paper to others, and that the contract was never returned.' The plaintiff’s officers swore that there was such' a contract, and the defendant’s officers swore there was never such a contract; and, in support of the testimony given in behalf of the defendant, an unexecuted draft óf a contract was produced. In opposition to this, very many written orders, signed by the defendant, and addressed to the plaintiff, extending through the years 1888 to 1892, inclusive,, calling for the delivery of paper, were introduced in evidence, and in not one of them is there any reference to the price at which the paper was to be delivered. Many letters signed by the defendant, and addressed to the plaintiff, complaining of tardiness-in delivery, and about the quality of the paper, were read in evidence. We think it is quite significant that these orders contained no reference to price, and that so many letters complaining of tardiness in deliveries and of poor quality should have been written unless there was a contract.

This question of fact was fairly submitted to the jury by the learned trial judge, was determined in favor of the plaintiff, and we think rightly, as the voluminous correspondence between the litigants and their transactions, extending over four years, tend to support the evidence given in behalf of the plaintiff. There is little dispute in the case about the willingness and ability of the plaintiff to perform the contract. The plaintiff testified that August 1, 1892, he tendered to the defendant 774 tons of-paper, and that Mr. Kendall, tlie*defendant’s treasurer, accepted his offer, provided he would deliver it all on that day. The plaintiff’s president replied that he was willing to deliver it in accordance with the contract, and that it was unreasonable to require a delivery of that amount in a single day. It is now urged that the plaintiff, having refused to deliver the paper under this offer, failed to perform its contract, and the court was requested so to charge. There is no foundation for this contention. The testimony of the plaintiff’s president was to the effect that he offered to deliver the 774 tons of paper in accordance with the terms of the contract,—twenty tons per month,—and plaintiff could not be put in default by the defendant’s offer to receive all of it in a single day. This is the only exception to the charge that is argued, and no exceptions to the rulings upon the admission or exclusion of evidence are urged as a ground for a reversal of the judgment. The case turns upon questions of fact, all of which were sharply litigated on the trial, were found in favor of the plaintiff, and the verdict cannot be set aside as contrary to the weight of evidence.

It is urged that there is a fatal variance between the complaint and the evidence. It is alleged in the complaint that the contract was entered into about the 1st of September, 1887. The evidence shows that 'it was entered into in the following February. ■ The only variance between the allegations in the complaint and the evidence is in respect to the time when the contract was made. The date of the contract was not a material question. The material issue was whether there was a contract for the sale and purchase of 1,000 tons of paper. The defendant was in no wise misled by the variance, and, under the circumstances of this case, it was not a fatal one.

There was no conflict in the testimony over the amount of damages sustained by the plaintiff. Evidence was given showing that the difference between the contract price and the cost of the paper was $30 per ton, and that the difference between the contract price for cancelled tickets and their actual value was $6 per ton. This was not disputed, and the court instructed the jury that, if they found for the plaintiff, it was entitled to recover these differences, together with the sum conceded to be due for paper delivered.

The verdict returned shows how they reached their result:

First cause of action............................ $ 415

Second cause of action........................... 27,160

$27,575

Due defendant for cancelled tickets................ 575

Verdict rendered for....................... $27,000

In the complaint the plaintiff demanded a judgment for $25,-415.29, with interest from July 19, 1892. It is now insisted that the verdict rendered is in excess of the amount claimed in the complaint, and that the judgment should be reversed or reduced. The verdict was rendered ¡November 20, 1894, and the jury were instructed that they might, in their discretion, allow interest on the damages awarded. The damages claimed in the complaint, with interest thereon to the date of the verdict, exceed the sum awarded by the jury, and it cannot successfully contended that the damages rendered exceed the amount demanded. The damages awarded seem large, but the contract was a large one, and the defendant did not contest the amount of the damages. After a careful reading of this record, we are unable to find that any error was committed which requires or would justify the reversal of the judgment.

The judgment and order should be affirmed, with costs.

All concur.


author: PUTNAM, J.

text:
    The People, App’lt, v. Thomas N. Madill et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1895.)

    1. Statutes—Repeal—Implications.
    Where a statute is amended “so as to read as follows,” the portions omiited or altered are abrogated and cease to form a part of the statute from the time the new act takes effect.
    2. Same.
    Chapter 731 of 1895, which amends section 41 of the Penal Code by adding the words, “ punishable by imprisonment for not more than one year," repealed said section of the Code, in so far as it permitted a fine.
    3. Same—Retroactive.
    . Such amendment did not affect the punishment for bribery committed before it took effect, though the indictment was found after that time.
    Appeal from an order sustaining a demurrer to the indictment.
    Ledyard P. Hale, for People;
    C. A. Kellogg, for resp’ts.
   PUTNAM, J.

Section 41 of the Penal Code, in force prior to September 1, 1895, provided that “any person who, * * * (2) by bribery, menace, or other corrupt means, directly or indirectly attempts to influence the vote of any person entitled to vote at such caucus or convention, * * * is guilty of a misdemeanor.” By chapter 721, Laws 1895, which took effect September 1st, it was enacted that “section 41 of title 5 of the Penal Code is hereby amended so as to read as' follows.” The amendment was by adding after the words “is guilty of a misdemeanor”. the words “punishable by imprisonment for not more than one year.”

Defendants were indicted on October 8, 1895, under the provisions of section 41, supra, for the alleged offense of bribery committed on the 21st day of August, 1895. Under the law in force when the offense was committed, he was punishable, under the provisions of section 15 of the Penal Code, by fine or imprisonment. Under the amendment of 1895, in force when the indictment was found, the punishment for the offense was imprisonment only. It has been held that where a statute has been amended, as in this case, the portions omitted or altered are abrogated, and cease to form a part of the statute, from the time the new act takes effect. Moore v. Mausert, 49 N. Y. 332; In re Prime, 136 N. Y. 347; 49 St. Rep. 658. The court below held that, as the statute in force when the indictment was found prescribed a different punishment from that fixed by the law at the time the offense was committed, the principle established in Hartung v. People, 22 N. Y. 95, applied; that the defendant could not be punished under the repealed statute in force when the crime was alleged to have been committed, nor under the new law existing when the indictment was found. The case of Mongeon v. People, 55 N. Y. 613, cited by appellant’s counsel, cannot be held to sustain his contention. The effect of that decision was not to change the rule established in Hartung v. People, but rather to reaffirm the same doctrine. In the Mongeon Case, the repealed statute referred to was by its terms applicable only to those who should thereafter commit the prohibited offense. In his opinion, Allen, J., states that if the repealing act had been general in its terms, and had not been restricted to offenses thereafter committed, it might have operated as a repeal of the old law as applicable to offenses committed prior to the repealing act; and he notices the distinction between a repeal by an amendment to a prior law, as in the Hartung Case, and also in this case, and a repeal effected by a new statute, applicable by its terms to future offenses.

We are called upon to determine whether, in this case, the repealing act in question had the effect of abrogating section 41 of the Penal Code so far as applicable to offenses committed before such act took effect, or whether the amended section should be deemed to relate only to future offenses, leaving section 41, as before the amendment, to apply to acts done before the repealing law took effect. The question is as to the intent of the legislature in enacting the amendment in question. Smith v. People, 47 N. Y. 330-338. Chapter 721 of the Laws of 1895, which amended section 41 of the Penal Code, was enacted by the legislature May 23, 1895, and, as we have seen, went into effect on September 1st, thereafter. It is difficult to believe that the legislature, in fact, intended to relieve, by the act, all persons from punishment doing acts in violation of the provisions of section 41 as then in force, both before and after the passage of the amendatory act, unless indicted and tried before September 1, 1895. It is proper to bear in mind that the amendment effected by chapter 721, supra, was of a section of a Code which provided that “nothing contained in any provision of this Code applies to an offense committed or other act done at any time before this Code takes effect. Such an offense must be punished according to and such act must be governed by the provisions of law existing when it is done or committed in the same manner as if this Code had not been passed.” Pen. Code, §§ 2-17, 19. It is held in Smith v. People, 47 N. Y. 339, that on the question of the intent of the legislature in enacting a statute, acts in pari materia passed before or after the contemporaneous legislation, although not precisely in pari materia, may be considered. So, I think, in this case the fact that the repeal in question was effected by an amendment of the Code containing the above provision may be properly considered. Chapter 721, supra, had the effect of repealing to a certain extent section 41, supra. The amended section created by the new statute of 1895 was incorporated into a Code which provided that “nothing contained in any provision of this Code applies to offenses, committed * * * before this Code takes effect.” Can the legislature, in 1895, be deemed to have intended to apply this provision to the new section incorporated into and made a part of the Code by chapter 721, supra?

Our attention is called to the provisions of chapter 677, Laws 1892, known as the “Statutory Construction Act.”

Section 1 is as follows:

“This chapter shall be known as the statutory construction law, and is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.”

Section 31 of the same act provides:

. “The repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture, or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, en-' forced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been affected.”

The legislature, therefore, by the act of 1892, laid down a rule of statutory construction applicable to all future statutes. The act did not attempt to interfere in any manner with future legislation, but simply prescribed a rule of construction applicable when not inconsistent with the general object of the subsequent statute, or the language construed or other provision of the repealing law indicating a different intent. I think the áct of 1892 may be properly considered on the question of the intent of the legislature of 1895 in amending section 41 of the Penal pode. The predecessor of that legislature had in 1892 enacted that the repeal of a statute shall not affect the liability to punishment for a crime committed before the repealing act takes effect, but that such crimes may be punished as if the repeal had not been affected. The act of 1892'was not binding upon the legislature of' 1895. That legislature could give any repealing act such force and effect as it desired. But, in the absence of anything in the statute indicating a contrary intent, I think the legislature, in the amendatory act of 1895, should be' deemed to have intended that statute to have the force and effect as provided in the rule adopted by it in 1892.

It was held in Re Howe, 48 Hun, 235; 16 St. Rep. 555; and 112 N. Y. 100; 20 St. Rep. 477, that the act of 1830 (which provided that a law passed by the legislature, unless a different time is prescribed therein, shall take effect on, and not before, twenty days after its final passage, as certified by the secretary of state) controlled future legislation. In that case the act considered provided: “After the passage of this act all property shall pass by will,” etc. The act was passed June 10, 1895. It was held that it did not take effect until June 30th. Had it not been for the statute of 1§30, the act considered in the case cited would have taken effect on the date of its passage. 1 Kent, Comm. 454-457: The question in the case cited was as to the intent of the legislature, in 1885, in enacting the law under consideration. It is held that the court would not presume an intent to change a rule adopted by the legislature in 1830, unless the legislative intent to do so is expressed in unambiguous language. The above authority shows that a legislature may adopt a rule that will affect future legislation. So I see no reason to doubt that it may provide as to when a repealing statute shall take effect, when such statute does not indicate a contrary intent. The legislature, in 1892, adopted a rule of construction, yet in force. In 1895 it passed a repealing statute. The question is as to the legislative intent. I think the legislature must be deemed to have intended the act of 1895 to be subject to the rule of construction it had enacted in 1892.

The learned counsel for the respondents calls our attention to the remarks of Allen, J., in Mongeon v. People, supra, that the legislature could not declare in advance the intent of subsequent legislatures, or the effect of subsequent legislation upon existing statutes. The remark quoted was entirely obiter. The court held in that case that the act of December 10, 1828, related solely, to the acts repealed by it, and the effect of the Revised Statutes then adopted upon the punishment and proceeding under the statute so repealed; in other words, that the language of the act of 1828 did not apply to the statute under consideration in that case. So it was held in Wiles Laundering Co. v. Hahlo, 105 N. Y. 234-243; 7 St. Rep. 1, that the provisions of the act of 1828 related only to the acts repealed by that statute, and have no effect on subs'equent legislation. Hence, as the act of 1828 did not relate to the statute construed in the Mongeon Case, the remarks of the distinguished judge who delivered the opinion of the court above quoted merely expressed his opinion. An examination of the act of 1828 will show the distinction between that statute and the one under consideration. The act of 1892, by its terms, is made applicable to all future statutes. It will be seen from the opinion of Andrews, J., in Lazarus v. Met. E. Railway Co., 145 N. Y. 581; 65 St. Rep. 523, that while holding that the general rule prescribed in the statutory construction act was not applicable to a law changing the practice in an action, he assumed that such rule, in a proper case, would operate upon retrospective legislation^

I conclude, therefore, although with some doubt, that the legislature, in enacting chapter 721, Laws 1895, acted with reference to the act of 1892, in which it.had laid down a rule for the construction of statutes, and cannot be deemed to have intended that the amendments of section 41 of the Penal Code should apply to offenses committed when the act took effect.

The judgment should be reversed, and demurrer overruled.

MAYHAM P. J., concurs in result; HERRICK, J., concurs.


author: MAYHAM, P. J.

text:
    The People ex rel. John William McClelland, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Civil service act—Appointments under.
    Section 9, article 5 of the Constitution of 1895 so far modifies section 8, article 5 of Constitution of 1876, as to bring the appointments by the superintendent of public works under the operation of the civil service laws.
    Appeal from an order denying an application for a writ of mandamus to compel the comptroller of the state of Mew York to draw his warrant for the payment of relator’s salary as clerk in the office of collector of canal statistics.
    Myer Nussbaum, for app’lt;
    Hale, Bulkeley & Tennant (Matthew Hale, of counsel), for resp’t.
   MAYHAM, P. J.

On the 26th day of April, 1895, Georger W. Aldridge, superintendent of public works, delivered to the relator an appointment in writing, appointing him a clerk to the collector of canal statistics at Albany, at a salary of $65 per month.. The case discloses that the relator duly qualified and entered upon the discharge of the duties as clerk, under this appointment, on the first day of May, 1895, and continued in the discharge of the duties of such clerk for more than one month, and until the time of his application to the defendant for the payment of a month’s-salary, and that on. the 15th day of June he demanded of the comptroller the payment of $65, as salary for the month of May, and that the defendant as comptroller, refused to audit and pay the same, and that he still continues to refuse to audit and allow such claim. On such proof, and other affidavits, and the certificate of his appointment, the relator applied to the court for an order to show cause why a peremptory mandamus should not be issued, compelling the comptroller to audit and allow the relator’s, claim for the salary claimed to be due him, as such clerk, for the month of May. Gn the return of such order to show cánse, it appeared that the relator had not submitted himself to an examination before the civil service commissioners, and that his name did' not appear upon the eligible list for appointments, under laws, rules, and regulations which had been adopted fixing the qualications of clerks and employes in the civil service of this state. Upon such hearing the learned judge at the special term denied relator’s application for a peremptory writ of mandamus, and from the order denying such application the relator appeals to this court.

The principal point upon which the decision and determination of the learned judge at special term turned seems to be as to the-effect that must be given to section 9 of article 5 of the constitution of 1895, as qualifying or modifying the effect of section 3 of that article, under the provisions of which the last-mentioned section (which existed in the constitution of 1876) had been held in People ex rel Killeen v. Angle, 109 N. Y. 564; 16 St. Rep. 647, not to apply to appointees of the department of public works, and that such appointees were not subject to civil service examination. The learned judge at special term holds that the provisions of section 3 of article 5, as it existed in the constitution of 1876, which is re-enacted in the constitution of 1895, was so far modified by the provisions of section 9 of article 5 of the last-mentioned constitution as to bring the department of public works under the operation of the civil service laws. This conclusion of the learned judge at special term is fortified by such cogent and, as appears to us, unanswerable reasons, that it commends his conclusions as the true interpretations of section 3 of-article 5, as qualified by section 9 of the same article in the constitution of 1895. As the whole subject was elaborately discussed by. the learned judge at special term, we think the order should be affirmed on his opinion. Order affirmed, with costs and printing disbursGments.

PUTNAM, J., concurs; HERRICK, J., not acting.


text:
    The People ex rel. Helen L. Sprague, Resp’t, v. Board of Excise of Town of Moriah, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Excise—Application—Allegations.
    Under sections 18 and 20, chapter 401 of 1892. as amended by chapter 480 of 1893, an application which fails to show the applicant’s age, citizenship and residence is properly refused.
    2. Same.
    In such case, it is too late for the relator to cure such defect by first alleging such facts in the petition upon which the certiorari is allowed.
    3. Same—Heaving.
    ' Under section 24, chapter 401 of 1892, as amended by chapter 481 of 1893, the court cannot, on final hearing, consider affidavits of individual members of the board, not used on petition for the writ nor embraced in the return.
    Certiorari to review the determination of the board of excise of the town of Moriah in refusing to grant relator an hotel liquor license.
    A. W. Boynton, for app’lt;
    Foote, Stokes & Owen, for resp’t.
   MAYHAM, P. J.

The case on this appeal discloses that on the 27th day of May, 1895, the relator presented her petition to the special term of this court praying that a writ of certiorari be granted to review the action- of the board of commissioners of excise in refusing to grant the application of the petitioner for a license. The special term thereupon made an order that the writ as prayed for, be issued directed to the board of commissioners of excise of the town of Moriah, and that it be made returnable at the chambers of the justice who held the special term on the 11th day of June, 1895. Pursuant to that order a writ of certiorari was issued, and made returnable as therein directed. The petition upon which that writ was granted, among other things alleged that the relator was 'over twenty-one years of age, and resided at the village of Port Henry, in the town of Moriah, and was the sole owner of an hotel known, as the “Lee House” in that town; that on the 13th day of May, 1895, she made application to the board of commissioners of excise of such town for a license to sell liquors as an hotel keeper at the Lee House. The petition also alleged that the application was made in conformance to the law, “and was accompanied with a bond conditioned in accordance with the statute in such cases made and provided.” The. petition also alleged that the Lee House was the leading hotel in the village of Port Henry, and stated the population of said village and town, and the capacity of the hotel for the accommodation of guests; and alleged that the refusal of the commissioners to grant the relator a license injured the popularity of petitioner’s hotel, and lessened her opportunity to earn a livelihood, and to provide for the comforts, conveniences, and the necessities of the patrons of the hotel; and that license had theretofore been issued to her, and that no license granted to her had been annuled or revoked. The petition also alleged that the commissioners did not consider her application on its merits, but arbitrarily, and without good or valid reason therefor, denied the application of the petitioner and all other applications for license in that town. Accompanying the petition was an affidavit of one of the attorneys of the petitioner, confirming in some respects the allegation of the petition which was read by the special term on the application for the order allowing the issuance of the writ. To this writ the board of commissioners of excise made and filed their return on the 11th day of June, 1895, the day on which the writ was made returnable, which return was duly signed by all of the commissioners, and verified by the oath of two of their number, attached to which, and made a part of the return, were the application of the relator for a license, signed and verified by her, which was endorsed by the commissioners, “Application denied, May 20th, 1895. Reasons to be filed;” also, the relator’s bond, on her application for license; also the written statement of reasons filed by the commissioners for refusing the license; also an affidavit of two of commissioners of excise, denying that any vote was ever taken by the board of commissioners fixing by vote or resolution the rate at which hotel licenses should be granted. The affidavit also al-. leges that the affiants were voted for and elected excise'commissioners as against the granting of licenses, and stating, in substance, that the .r interpretation of the vote hy which they were elected was as a vote against the granting of license in that town. The affidavit a so stated that the members of the board understood that it appeare 1 from the records of the court of sessions of Essex ■county that the applicant for license had pleaded guilty to a violation of her previous hotel license. The case shows that on the filing of this return the further hearing was adjourned until the 25th day of June, 1895. On that day corrected or amended affidavits of the commissioners were received, and the court thereupon made an order directing the commissioners composing the board of excise, and each of them, to grant the application of the above-named relator, and to issue to her a license upon the payment by her of the fees established by the board therefor. The order also charged the commissioners' with the payment to the relator of $50 costs. Erom this order the commissioners appeal to this court.

The appellants insist that the application for the license in this case was insufficient upon its face, and that the commissioners were for that reason justified in refusing the petitioner a license. Section 18 of chapter 401 of the Laws of 1892, as amended by chapter 480 of the Laws of 1893, provides as follows:

“A board of excise shall not grant any license to any person, or persons, unless each of the persons is over twenty-one years of age, is a citizen of the United States, a resident of this state, and of good moral character, approved by the board.”

And subdivision 1 of section 20 of chapter 401 of the Laws of 1892, as amended by chapter 480 of the Laws of 1893, provide» that:

“A board of excise shall not grant a license until the applicant or applicants shall have presented to, and filed with such board: 1st. A written or printed application, sworn to by the applicant or applicants; "x" * * and a full statement showing that such applicant or applicants may lawfully be licensed to carry on the business sought to be licensed upon said premises.”

The application for a license filed by the relator with the commissioners, and upon which she claims the commisssioners were bound to grant her a license in this case, is as follows:

“To the Board of Commmissioners of Excise in and for the Town of Moriah, County of Essex: The undersigned applicant for license respectfully represents that she desires to sell and dispose of strong and spirituous liquors, wines,, ale, and beer, at her hotel, known as the Lee House, in the town of Moriah, coxmty of Essex; that she proposes to keep an inn, tavern, or hotel thereat; that she is the only person interested in the business to authorize which the license shall be used.
“Dated May 6th, 1895.
“(Signed)
H. L. Sprague.”

This application was duly verified by the petitioner. Testing this application by the requirements of sections 18 and 20 of the statutes above quoted, it will be seen that it does not contain a statement of the facts which seem to be required by those sections to authorize, or at least to require, the commissioners to grant an hotel license. It fails to show the age, citizenship, or place of residence of the applicant, and is not within the language of the statute “a full statement showing that such applicant may lawfully be licensed to carry on the business.” I £ the allegations of the facts required by statute to be contained in the application to the commissioners for a license were omitted in that application, upon which alone the commissioners must grant or refuse a license, it would seem to be too late for the relator to cure that defect by first alleging such fact in the petition upon which the certiorari is allowed. It is true that most, if not all, of the requisite facts which were omitted in the application for a license are stated in the petition for the writ of certiorari. But it is not the province of that writ to review and reverse the acts of a subordinate tribunal, which has not acted erroneously upon the facts before it, but whose acts might be questioned if tested by a different state of facts, first presented in the petition for such writ. The real question to be determined on this branch of the case is whether the commissioners erred in refusing the license upon the facts set out in the application for it. We fail to see that they did, and think that they were right in their first reason filed by them for refusing the license, which they say was “because the application does not conform to the requirements of sections 18- and 20 of chapter 401 of the Laws of 1892, and the amendments thereof, and does not contain a full statement, showing that the applicant is a person that may lawfully be licensed.” On the day on which the hearing on this writ was had, the relator presented affidavits not used upon the application for the writ nor-embraced in the return; and while it does not appear from the-record that the respondents made any specific objection to their, use, or to the consideration of them on the hearing by the court, it is insisted on this appeal that such affidavits constituted no part of the return, and that their consideration by the court was error. Section 2138 of the Code of Oivil Procedure provides that: “Except as prescribed in the next section it (the certiorari) must be heard upon the writ and return, and papers upon which the writ was granted.” The next section referred to provides a method of supplying a return when the person whose duty it is to make a return has died, absconded, or removed from the state after the writ is issued, and before making a return, or after making an insufficient return, and it appears that there is no other person or officer from whom a return could be required. The court may permit affidavits or other written proof relating to the matter not sufficiently' returned, to be produced, and may hear the case accordingly. It also provides that the court, in its discretion, may permit either party to produce affidavits or other written proof relating to any alleged error of fact, or any other question of fact, which is essential to the jurisdiction of the body or officer to make the determination to be reviewed when the facts in relation thereto are not sufficiently stated in the return, and the court is satisfied that they cannot be made to appear by means of an order of a further return. There is nothing in this case to bring it within the exceptions contained in section 2139 of the Code, above referred to. But it is insisted by the relator that, as this certiorari is authorized by chapter 481 of the Laws of 1893, and not by the Code, the return is not conclusive, and the provision of the Code is not conclusive, and the provision of the Code is not applicable. That chapter amends section 24 of chapter 401 of the Laws of 1892, and, among other things, extends the proceeding by certiorari to cases where, town boards of excise commissioners refuse to grant licenses on a proper application; authorizes the writ to be made returnable before various inferior courts and the supreme court or a judge thereof, and provides:

“If the writ shall be granted, the board of excise to which it is directed, shall in its return thereto include copies of all papers on which it was refused and a statement of its reasons for refusing to grant such application.’5

It seems that this provision was strictly complied with by the commissioners in their return in this case. If, however, the return was defective, there was no death, insanity, or absence of the commissioners, or either of them, which would allow a resort to the methods prescribed in section 2139 of the Code to supply such defect, and the board of commissioners of excise should have been called upon to make an amended return, instead of filing individually corrected affidavits, as appears to have done in this case. It would lead to great uncertainty and confusion if the members of a board of public officers could, by individual affidavits falsify or impair the validity and effect of a return made by the board of its official character in cases where boards of public officers are required, as such, to make return to a certiorari. Section 19 of chapter 677 of the Laws of 1892 provides the manner in which public officers consisting of three or more members shall perform their public duties, and any attempt by any of its members to perform such duty in any other manner will be ineffectual. • W® are therefore of the opinion that it was error for the learned judge at special term to receive and consider the affidavits of the individual members of the excise commissioners on the final hearing and determination of this certiorari.

In People v. Fire Com'rs of City of New York, 73 N. Y. 437, it was held that the return to a writ of certiorari must be taken as conclusive, and acted upon as true; and, if false in fact, the remedy is by action for a false return; if insufficient in form, by eompellling a further and more specific return. And in People ex rel. Peck v. Commissioners Dep’t Fire & Buildings. 106 N Y. 67; 8 St. Rep. 634, the court says:

“But by section 2138 of the present Code it is now required that the hearing upon the "writ of certiorari must be had upon the writ and return, and the papers upon which the writ was granted.” ¡

In the case at bar it is clear that, standing upon the papers upon which the writ was granted, the writ, the return, and the papers made a part of the same, the commissioners were authorized to deny the petitioner’s application for a license.

By section 24 of chapter 401 of the Laws of 1892, as amended by chapter 481 of the Laws of 1893, it is provided that:

“If the writ shall be granted the board of excise to which it is directed shall in its return thereto, include copies of all papers on which it is based, and a statement of the reasons for refusing to grant such application. If the court shall, upon the hearing,.determine that such application for license has been by such board arbitrarily denied, or denied without good and valid reason therefor, such court may make an order commanding such board of excise to grant such application, and to issue a license to such applicant upon the payment of the proper license fee.”

j Taking the return as true, and considering, as we must, the reasons of the board of commissioners for refusing the same as a part of the return, we cannot agree with the learned trial court that the board arbitrarily denied the application without good and valid reason.

The order of the special term must,be reversed, with costs.

PUTNAM and HERRICK, JJ., concur in result.


text:
    Charles Winne, App’lt, v. Russell A. Hills, as Administrator, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Evidence—Documentary—Book entries.
    On the trial of a claim against an estate for boarding decedent, entries in book account made by claimant’s wife at bis request, but not purport-' ing to be original entries, nor made in the presence of decedent, are incompetent.
    2. Appeal—Harmless error.
    Though where the decision is adverse to the appellant, an objection and exception to the admission of incompetent evidence are not available to the adverse party, yet, such evidence cannot be used as a fact to establish the appellant’s right of recovery for the purpose of setting aside the judgment rendered upon the decision adverse to him.
    S. Executors, etc.—Disputed claims.
    Claims against the estate of deceased persons, in order to have them upheld, must be clearly proved by competent evidence, free from any just and well grounded suspicion of their validity.

      4. Same—Costs.
    In a proceeding to determine a disputed claim against the estate of a decedent, referred by agreement under the statute, an executor or administrator, if successful in resisting the demand, is entitled to costs.
    Appeal from a judgment dismissing the claim.
    Nathaniel Niles (H. A. Peckham, of counsel), for app’lt;
    John A. Delehanty, for resp’t.
   MAYHAM, P. J.

Charles A. Winne, claimant, was a brother-in-law of the deceased, Charles A. Hills, and presented a claim against the estate of Charles A. Hills for $2,300 to his administrator, claiming it to be a balance due from the deceased for boarding deceased and his wife from July 1, 1884, to May 1,1890, for which claim he charged at the rate of $20 per week. That claim was disputed by the administrator by a notice in writing, in which the administrator offered to refer the disputed claim, under the statute; and thereupon a stipulation in writing was entered into, signed by the attorneys of the respective parties, agreeing to refer the same to J ames A. Lawson, as referee, to hear and determine, which reference was approved by the surrogate, and an order duly entered in this court referring the same, pursuant to such stipulation. The case was heard upon the proofs before the referee, who made and filed bis report, in and by which he held and decided that defendant, Russell A. Hills, as administrator, was entitled to judgment against the claimant, dismissing the claim, with costs. TJpon this report judgment was entered in the supreme court in favor of the administrator, and against the claim of Charles Winne, for $178.09, costs and disbursements, from which this appeal is taken.

The case, in brief, discloses that the complainant, Charles Winne, and his wife," occupied premises owned by his wife, situate in the city of Albany, and that Charles A. Hills and his wife lived in the house, occupying rooms therein; that the two families were apparently living together as a family from July, 1884, to May, 1890; that the wife of the claimant and that of the decedent were sisters. Ho claim for board, as appears from the evidence, was ever made by the claimant against the decedent during his lifetime, and the claim appears to have been first presented on the 20th of October, 1894. The wife of the deceased died prior to the death of the wife of the plaintiff, who appears to have died April 25, 1893. So that at the time of the presentation of this claim none of the parties to the original transaction were living, except the claimant. Ho agreement between the claimant and the decedent or his wife was proved, either for the occupancy of the premises, occupied by them or for their board. There was evidence on the part of claimant tending to prove the time that the deceased and his wife lived in the family with the claimant, and that the title to the house was in claimant’s wife, and that claimant contributed and paid for provisions used in the family, and also tending to prove the price of board and accommodation, such as deceased and his wife had during the time, or a portion of the time, they resided with the claimant.

During the progress of the trial, claimant presented and offered in evidence an exhibit of accounts proved to have been made by claimant’s wife at the request of claimant, which consisted of dates and amounts set opposite, and which was claimed to represent, payments made by deceased either to claimant or his wife, from September, 1884, to February, 1890. This was objected to by the defendant, on the ground that it was not evidence against the defendant, and it did not purport to be original entries made by the wife, and was not made in the presence of deceased. This objection was overruled, and the document received, to which an exception was taken. This was clearly incompetent evidence; but it is insisted by the claimant that, as the report was adverse to him, the objection and exception were-not available to the defendant, and that, the evidence having been received by the referee, it was for the purpose of this action, on appeal, competent to prove the existence of an account between the plaintiff and deceased. If it was used for any purpose in this action, it was incompetent, and the proof which it furnished cannot now be relied upon for the purpose of reversing this judgment.

We think the question presented here differs from the question raised in Flora v. Carbean, 38 N. Y. 111; and while the defendant, of course, succeeding in the action, can have no benefit from his exception taken from the receipt of this, it cannot be used as a fact to establish the plaintiff’s right of recovery for the purpose of setting aside the judgment rendered upon the report adverse to him.

The case also discloses that, during the time the plaintiff and deceased resided togather in the manner indicated, the deceased paid and advanced in all $6,523.65 in taxes, between July, 1884, and Hay, 1890, on the premises owned by the plaintiff’s wife and occupied by the parties as indicated in this case; being an average annual payment of about $1,182, and largely in excess of any amount which the claimant would be entitled to, if allowed for the whole time at the rate of $20 per week, for the board of deceased and his wife.

On the whole case, it would seem that no just claim was established by the evidence against the estate of the decedent, and there were, at least, suspicious circumstances attending the presentation of this claim so long after its alleged accruing; and the referee, under the circumstances, we think, was justified in holding that- there was nothing due from the estate of the deceased to the claimant at the time the claim was presented to the administrator, or at the time of the trial of this action.

It seems to be well settled that claims against the estate of deceased persons, in order to have them upheld, must be clearly proved by competent evidence, free from any just or well-grounded suspicion of their validity.

In Re Van Slooten v. Wheeler, 140 N. Y. 163; 55 St. Rep. 554, the court says:

. “Public policy requires that claims against the estate of the dead should be established by very satisfactory evidence, and that courts should see to'it that such estates are clearly and properly protected against unfounded and rapacious raids.”

And to the same effect are Ulrich v. Ulrich, 42 St. Rep. 216; Kearney v. MeKeon, 85 N. Y. 139, 140; Ellis v. Filon, 33 N. Y. Supp. 140.

We think the report of the referee in this case was clearly right, and that the judgment must be affirmed.

The remaining question is as to the allowance of costs. While doubt has existed as to the propriety of allowing coste beyond the actual disbursements against executors and administrators who have unsuecessfuly resisted claims referred under the statute, it seems now to be well settled, upon authority, under section 2718 of the Code of Civil Procedure, that the proceeding ,is to be treated after reference as an action in the supreme court, which would clearly imply that the successful party is entitled to costs the same as in an action in that court.

In Adams v. Olin, 78 Hun, 309; 60 St. Rep. 695, it was held that, after reference, all subsequent proceedings should be treated as an action; and the defendant executor, if successful in resisting the claim made against the estate, is entitled, as matter of right, to costs; and Van Brunt, J,, in delivering the opinion in this case, uses this language:

“Such being the case, the defendants were entitled, as matter of right, to costs, upon their successful defense of the chain presented against the estate which they represent. We think that it was the intention of the legislature, in reference to these proceedings, to make them parallel to those which take place in an action after a reference has been ordered.”

The judge further holds that the only discretion vested in a referee in proceedings of this character is as to allowing costs against an executor or administrator who has been unsuccessful in a defense.

The costs and disbursements which appear in this record as the cost tax have been taxed in conformity with the rule in this case last cited.

Judgment must be affirmed, with costs.

All concur.


text:
    Esther La Flamme, Resp’t, v. City of Albany, App’lt. (Two cases).

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Municipal corporations—Sidewalks—Presentation oe claim.
    The provisions of a city charter that a verified claim for damages shall he presented to the common council, does not require such claim to be proved before the law. committee of said council.
    'Appeal from a judgment in favor of plaintiff in each case.
    William P. Rudd, for app’lt;
    Parker & Fiero (J. Newton Fiero, of counsel), for resp’ts.
   MAYHAM, P. J.

In the first above entitled action plaintiff prosecuted the defendant for alleged negligence in suffering its sidewalk in one of its streets to become, and remain, out of repair, by reason of which the plaintiff, while passing over the same, caught her foot in the open grating which formed a part of the walk, and fell, breaking one of her legs. The second entitled action is prosecuted by the husband of the plaintiff in the first action for the injury which he claims to have suffered in the loss of services of his wife, resulting from the same injury for which her action is prosecuted. Both actions were tried before the same referee, who in each made a report in favor of the plaintiffs therein respectively, on which judgments were entered, from each of which the defendant appeals. The trials seem to have proceeded before the referee, so far as the receipt of evidence was concerned, as one action, and was, at the conclusion of the evidence, applied by the-referee to each of the actions, so far as the same was applicable to them respectively, and they are presented in the same manner on this appeal.

This method of proceeding was fixed on the trial by the stipulation of the parties. It is urged on this appeal that these actions could not be maintained, for the reason that the plaintiffs never appeared before the law department and made.proof of their claims, as required by the charter of the city of Albany. We do not fhfnk that that position is well taken, or sustained by the facts. The case shows, and the referee finds, that verified claims were presented to the common council within three months after the alleged injury, and that more than three months elapsed after the presentation of the same to the common council before the actions were commenced. These facts show a.compliance with the charter by the plaintiffs, and the referee finds as matter of fact the performance of the acts by the plaintiffs, which amount to a compliance with the charter of the defendant in reference to the claims for damages against the defendant. There is nothing in the charter of the defendant which requires the plaintiff in this class of actions to prove his claim before the law committee of the common council. All that seems to he required is a presentation of a verified claim, specifying the particulars, etc. The claim in this case is not set out in the record, but the evidence shows that a verified claim was presented to the common council, and the referee finds that plaintiffs claim for damages was “presented to the common council of-the defendant in manner and form and verified as required by the charter of the defendant, setting, forth the time, place, cause, and extent of the injury.” There is nothing before ns showing that this finding is not correct, and we must therefore assume that it was supported by the evidence.

Upon the merits of these actions, the' condition of the sidewalk, and the knowledge of the defendant, imputable to it by the lapse of time, that the grating was out of repair, were questions of fact for the referee, and we cannot, on these appeals, say that his eonslusions were entirely unsupported by the evidence.

The judgment must he affirmed, with costs.

PUTNAM, J., concurs; HERRICK, J., not acting.


text:
    Margaret Grogan, Resp’t, v. United States Industrial Insurance Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Insurance—Life—Assignment—Policy.
    A written request to an insurance company to pay the life insurance to a person named is such an assignment of a life policy payable to the executors or administrators of the -insured as will enable such person to sue thereon in his own name.
    2. Same—Revocation.
    Though such request might have been revoked by the insured in bis lifetime, on the ground of infancy, upon arriving at his majority, had such an event happened, yet the company, in an action upon the policy, cannot avail itself of that fact as a defense against a person who was clearly authorized by the insured by the above instrument to receive the money and give ample and complete release and discharge of the same.
    8. Evidence—Secondary.
    Where the attesting witness of an instrument is not within the state, the instrument may be proved by secondary evidence.
    4. Insurance—Proof of loss—Waiver.
    By the retention of the proofs of loss from the time that they were received until they were deliveled on notice to produce on the trial, the company cannot be heard to say that they were insufficient.
    6. Trial—Direction of verdict.
    Where neither party asks to go to the jury, the court is authorized to decide the question of fact and direct a verdict.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    Hun & Johnston (Russell M. Johnston, of counsel), for app’lt;
    John Scanlan (Mark Cohn, of counsel), for resp’t.
   MAYHAM, P. J.

This action was prosecuted by the plaintiff, as alleged assignee of a life policy of insurance issued on the life of one Peter Grogan, for $214. The policy was made payable to the executors or administrators of the assured, and the first point made by appellant, on this appeal, is that there was no valid assignment of the policy by the assured.to the plaintiff. The instrument under which this transfer is claimed to have been made reads as follows:

“The United States Industrial Insurance Co.
“Home Office, Newark, N. J., March 4th, 1891.
“I, the undersigned, the person making application for and insured under policy No. 175,792 in the above-named company, hereby request and authorize the said company, in the event of my death prior to the death of the person hereinafter named, to pay the benefit specified in said policy to Margaret Grogan, and the receipt signed by said person shall be conclusive evidence that such sum has been paid to the person entitled thereto, and that all claims under this policy have been fully satisfied; blit it is mutually agreed and understood that nothing herein is to vary in any manner any of the provisions of said policy, and that company may, at its option, pay said benefit according to the agreement in said second condition mentioned, anything herein to the contrary notwithstanding.
“(Signed) Peter Grogan.
, “Witness: O. F. Applegate..”
Indorsed: “Albany County, N. Y., Clerk’s Office. Filed
March 13th, 1895.”

It is contended by the appellant that this does not constitute a valid assignment of this policy to the plaintiff, so as to authorize a recovery in her name. This instrument seems to have been drawn and witnessed by the agent of the company acting as superintendent or manager of the same, and, while it is not in the technical form of an assignment, we think it clearly assigned to the plaintiff the right to this money, in case the company was liable to pay the same, and gave her such an interest in it and such authority over it as would, as against the defendant, authorize her to maintain this action; and we see nothing in the case of Sulz v. Mut. R. F. L. Association, 145 N. Y. 563; 65 St. Rep. 513, to which we are referred by the learned counsel for the appellant, which supports the contrary contention.

While the instrument, as is contended by the learned counsel, might have been revoked by Peter Grogan in his lifetime, on the ground of infancy, on arriving at his majority, had such an event happened, yet I fail to see how the defendant in this action can avail itself of that fact as a defense against the person who was clearly authorized by the assured by this instrument to receive the money and .give ample and competent release and discharge for the same. It may be assumed, as is doubtless true, that Margaret Grogan, this plaintiff, had no insurable interest in the life of Peter Grogan, and that a policy on his life issued directly to Margaret would have been void, as a wager policy, yet there was nothing in her condition or relation that would prevent her from taking an assignment of the policy from the person in whose name and for the benefit of whose estate it was issued. And there is nothing in this case tending to establish the fact that this policy was taken out in the name of the assured for the benefit of the plaintiff to avoid the legal condemnation that exist against wager policies.

It is also insisted by the appellant that, assuming that the instrument above quoted was an assignment to the plaintiff, yet it was not proved, so as to make it admissible as evidence. There is some evidence tending to show that O. F. Applegate, who witnessed this assignment, was not at the time of this trial in the jurisdiction of this state; and we think it was competent for the trial judge to receive secondary proof of the execution (People v. Rowland, 5 Barb. 449-451; Jackson v. Cody, 9 Cow. 149), and that it was therefore proper to allow the proof either of his signature or of the original signing of the party, and that the execution of this alleged assignment was insufficiently proved.

It is also contended by the appellant that there was not sufficient proofs of death in this case to authorize a recovery. There would be much force in that contention, had not the defendant estopped itself from raising that question by the retention of the proofs of death which were furnished by the plaintiff. It is true, as contended by the learned counsel, that some of the proofs relied upon were not sufficiently authenticated to allow them, as an original proposition, to be itroduced in evidence; but they were relied upon by the plaintiff, served upon the defendant, and manifestly received by it, because, on the trial, they were produced upon notice by the defendant’s attorney; and we think, within the adjudged cases, that by their retention from the time they were received until they'were delivered, on notice to produce them on the trial, the defendant cannot now be heard to say théy were insufficient. In Jones v. Howard Insurance Co., 117 N. Y. 103; 26 St. Rep. 844, the plaintiff served proofs of loss, which were retained for the insurance company without objection for forty-five days. It was held that objection to their sufficiency and form was -waived'by delay. See, also, McNally v. Phoenix Insurance Co., 137 N. Y. 389; 50 St. Rep. 680; Trippe v. Provident F. Society, 140 N. Y. 23; 58 St. Rep. 380.

On the trial of this case the learned judge directed a verdict fo>, the plaintiff for the amount of $204. Neither party seemed to have asked to go to the jury, and the court was therefore authorized to decide the question of fact in the case; and if there was' any evidence to sustain his direction, it will not be disturbed on appeal. Fogarty v. Hook, 84 Hun, 165; 65 St. Rep. 684. We think, there was sufficient evidence to justify the conclusion reacted by the learned judge, and that the judgment must be affirmed.

Judgment affirmed, with costs.

All concur.


author: BRADLEY, J.

text:
    George F. Ditmars et al., as Executors, etc., Resp’ts, v. Frederick B. Sackett et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Usury—Taking bonus.
    The reservation from, the amount loaned of a part of the principal in excess of the interest is usury.
    2. Same—Agent.
    The taking of a bonus by the agent or attorney of a lender, without the knowledge or acquiescence of the latter, does not charge him, and the burden of proof of such fact is with the party charging usury.
    3. Same—Evidence.
    In replevin by the executor of a mortgagee to recover the mortgaged ' chattels, where the defense was usury in the mortgage, ■ evidence that the brother of defendant complained of the usury to plaintiff's testator, who said that defendant had agreed to it, is sufficient to present for the consideration of the jury the question of fact whether.or not the loan was made by plaintiff's testator pursuant to a corrupt agreement, in violation of the statute relating to usury.
    4. Witness—Section 829 of the Code.
    The,personal transactions or communications between a witness, having an interest in the result, and a decedent, to which the inhibition applies, includes a transaction or communication of the decedent with another in the presence of the witness, on the subject to which his interest relates, although the latter takes no actual part in it.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    William S. Moore, for pl’ffs;
    Frank C. Cushing, for def’ts.
   BRADLEY, J.

The action is replevin to recover the possession of certain personal property, mentioned in and transferred by a chattel mortgage of date ¡November 16, 1891, made by the defendant Frederick B. Sackett to the plaintiff’s testator, to secure the payment of a promissory note of the same date, made by the defendants Frederick B. Sackett and W. Gilmore Sackett, for $150, payable to the testator three months after its date, with interest. The defense alleged is usury. The trial court refused to submit any question to the jury, and directed a verdict for the plaintiffs. , Exceptions were taken by the defendants.

The purpose of the note and mortgage was to secure the payment of a loan of money by the plaintiffs’ testator to the defendant W. Gilmore Sackett. The amount received by him was $140. The alleged usury was in the reservation by the lender of $10 in excess of the legal rate of interest. And the evidence on the part of the.defendant was to the effect that after the testator had promised to make the loan on such security, and on the day of the date of the note and mortgage, W. Gilmore Sackett met the plaintiffs’ testator and George F. Ditmars at the office of the latter, and that such attorney handed to that defendant $140, and no more, as the loan upon the security so given. The negotiation for the loan of $150, shortly prior to the time of the transaction last above mentioned, was had by Garry V. Sackett, a brother of W. Gilmore Sackett, with the plaintiffs’ testator. He was not present at the time the loan was made. His evidence is: That a few 'days thereafter he met the testator, and said to him: “You took ten dollars on that loan the other day. I came over here to-day to settle that matter up with you, and it must be settled.” That the testator answered, “Well, your brother agreed to pay the ten dollars.” That the witness added: “It don’t make any difference whether he did or not; they can’t afford to pay usury; and they won’t submit to it. You must straighten it up.” That the testator then said: “Then I won’t have any more to do with it. Go and see George.” It does not necessarily appear that the testator was present when the money was handed to Sackett by the attorney George F. Ditmars, but the inference that he was present is permitted by the evidence before referred to, that W. Gilmore Sackett met him in the office of the attorney on that day, and saw something take place between them. The evidence of the witness offered to prove what did take place there between the testator and George F. Ditmars was excluded, as within the inhibition of section 829 of the Code. The facts which the evidence tended to prove were substantially that, pursuant to an understanding that the testator should loan to Sackett $150 upon such security, the note and mortgage were received by him and the loan made through his attorney, who advanced only $140; and, when the attention of the testator was afterwards called to the fact, he said the borrower “agreed to pay the ten dollars.” This not only tends to prove that he was cognizant that $10 of the amount of the note was withheld from Sackett, but the inference is permitted that the plaintiff’s testator was a party to an agreement with the borrower that $10 in excess of the legal rate of interest should be, as it was, reserved and taken from the loan. The view taken of the evidence is such that it presented for the consideration of tin jury the question of fact whether or not the loan was made by the plaintiffs’ testator pursuant to a corrupt agreement, in violation of the statute relating to usury. Catlin v. Gunter, 11 N. Y. 368.

It is true, as urged by the learned counsel for the plaintiffs, that the takii g of a bonus by the agent or attorney of a lender, without the knowledge or acquiescence of the latter, does not charge him, and that the burden of proof of such fact is with the party charging isury. Condit v. Baldwin, 21 N. Y. 219; Philips v. Mackellar, 92 id. 34. And it is essential to the support of the defense that Tie principal is chargeable with such knowledge or acquiescence as to the time the loan is made. Stillman v. Northrup, 109 N. Y. 473; 16 St. Rep. 417; Baldwin v. Doying, 114 N. Y. 452; 23 St. Rep. 759. It could with much force have been urged on the part of the plaintiffs that the proof would have been insufficient to warrant that imputation against the plaintiffs’ testator in the absence of the evidence of the subsequent interview with him, at which he stated in reference to the loan that the borrower agreed to pay the $10. The only reasonable import of this statement is that such agreement was made before the loan was perfected. The statement, as testified to by the witness, does not purport to have been founded on information or otherwise than upon personal knowledge of the plaintiffs’ testator.

When this case was here on a former review, the new trial was granted for reasons not prejudicial to the defendants upon this review. Ditmars v. Sackett, 81 Hun, 317; 62 St. Rep. 683. The view taken renders it unnecessary, for the purposes of the result, to consider the questions arising upon exceptions to the exclusion of evidence offered by the defendants. Those rulings were mainly to the effect that the witness, being one of the defendants, was incompetent, by force of section 829 of the Code, to testify to the facts sought to be proved by him. It is now quite well settled that the personal transactions or communications between a witness having an interest in the result and a decedent, to which the inhibition applies, include a transaction or communication of the decedent with another in the presence of the witness, on the subject to which his interest relates, although the latter takes no actual part in it. In re Bernsee’s Will, 141 N. Y. 389; 57 St. Rep. 601.' The question whether any of the evidence offered and excluded on that ground was admissible is not considered.

The motion for a new trial should be granted; costs to abide the event.

All concur.


author: HARDIN, P. J.

text:
    American Central Insurance Company, Resp’t, v. John B. Hagerty et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Insurance—Policy—Cancellation.
    Whether an insurance company acquiesced in its agent’s failure to cancel a policy as directed so as to exempt the agent from the liability therefor, was held, in this case, to be a question for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.
    Plaintiff is a foreign corporation, having its principal place of business in the state of Missouri, and duly authorized to transact business in this state as a fire insurance company. Defendants were its. local agents at the village of Plattsburg, and, while act* ing as such agents for the plaintiff, they issued to Phillips & Casey, of Bouse’s Point, a policy of fire insurance, known as “Ho. 450,825,” on certain personal property mentioned in the policy, by means of which the plaintiff became an insurer to the said Phillips & Casey for the sum of $1,000 against loss or damage by fire for the term of one year, in consideration of .a premium of $16.50. It is alleged in the complaint that on July 19, 1891, by virtue of the terms and conditions of the policy, the plaintiff directed the defendants to cancel and discontinue the said policy, and that the defendants failed to carry out the directions thus given, by continuing, or permitting to be continued, the policy, and that on March 4, 1892, the property mentioned in the policy was destroyed by fire, and the plaintiff became liable to and did pay to Phillips & Casey the sum of $977.15; and it is alleged that the defendants, by reason of the failure to obey the said orders and directions, have caused an injury to the plaintiff to the extent of the sum so paid, less the amount of the premium. The answer contains several denials, and also avers: “Plaintiff afterwards, and prior to the fire and loss of the insured property, withdrew and waived such direction or request, and continued, and authorized defendants to continue, the policy inoquestion in force, and accepted the premium paid by the insured, and also settled, adjusted, and paid the loss under the policy.” At the close of the plaintiff’s case the defendants moved for a nonsuit, which was denied, and an exception taken; and at the close of the proof in the case the motion was renewed and denied, and an exception taken. The defendants asked “to go to the jury upon the question whether the receipt of the premium, and the ratifi* cation, and the other facts of the case, the correspondence and general course of business between the parties; do not show, or would not show, and whether the jury should not find, a ratification of the failure to cancel, if such order was given, and a waiver of it or withdrawal of it. Upon all the facts of the case, we ask to go to the jury. Also that the making of the proof of loss itself, which perfected the claim against the defendants, or had that effect, would estop the plaintiff from claiming damages in this suit.” Thereupon the motion for a nonsuit was denied, and the defendants excepted. Whereupon the court directed the jury to find a verdict for the plaintiff, and the defendants excepted.
    Weeds, Smith & Conway, for app’lts;
    Eugene Clinton, for resp’t.
   HARDIN, P. J.

While considering the refusal of the court, to submit any question of fact to the jury, we must give the appellants the benefit of any evidence which would have justified the jury in finding favorably to the defendants, and, in that connection, to anv and all inferences that might legitimately be drawn from the evidence produced. McNally v. Phoenix Insurance Co., 137 N. Y. 389; 50 St. Rep. 680. Appellants were local agents of the plaintiff at Plattsburg, acting under a written commission, and as such they issued the plaintiff’s policy to the insured, which contained a provision, viz., “This policy shall be cancelled at any time at the request of the insured, or by the company, by giving five days’ notice of such cancellation.” It seems, the premium for the policy was paid to the agents, and by them paid over to the plaintiff. On July 9, 1891, plaintiff’s general agents, Van Valkenburg & Hall, wrote to the defendants, asking to be relieved of the risk, because of certain reports of the financial standing of the insured. To that communication, on the 13th of July, 1891, the defendants replied, recommending that the policy be allowed to stand, on the ground that they thought the risk a good one, but adding that, if it was insisted on, the pqlicy would be cancelled. To that letter the general agents replied on the 16 th of July, stating that they preferred not to carry the risk, and asking the return of the policy, assigning that its rule was not to carry mortgaged property, as one of the reasons; and a somewhat similar letter was written again, on July 31st, asking for a return of the policy “to the files of the agents.” The defendants did not answer the last two letters. It seems by the evidence that on August 26, 1891, the general agents of the plaintiff drew upon the defendants for balances, and that in the draft was included the premium on the policy in question. It appears from the evidence that no further demand or claim was made on the part of the general agents, upon the defendants, for a return of the policy to be entered in the files of the plaintiff’s general agents; and there was quietude and acquiescence on the part of the general agents in respect to the policy in question, which continued for a period of time between July 31st and the date of the fire, which was in March following. The reports for the months of August, September, October, November, and December, 1891, and for January and February, 1892, were made, and on the face of the reports there was a recital of what policies were cancelled; the report for June showing no policy can-called, and the report for July showing policy No. 450,683 canceled. The report of August shows no policy canceled. The report for September shows policy No. 450,693 canceled. The report for October shows no policy canceled. The -report for November shows policy No. 450,698 canceled. The report for December shows two policies canceled,:—Nos.. 450,709 and 450,711. The report for January, 1892, shows two policies canceled, viz. Nos. 450,724 and 450,725. The report for February, 1892, shows two policies canceled, viz. Nos. 450,731 and 450,732. The report for March shows three policies canceled,—Nos. 450,-735, 450,741, and 450,742. It is to be observed that each of these reports show that the particular policy in question, to wit, the one issued to Phillips and Casey, was not canceled, and that the reports were all sent to the general agents to whom the monthly reports were made, and to whom remittances were sent, and who had power to cancel policies, including the specific policy mentioned. Some evidence was given tending to show that in the course of the business, if instructions were given to cancel policies, unless the same were immediately obeyed, the company’s habit was to renew its call or “dun” from time to time for the return of what they called a “canceled policy,” until such time as they “actually got it,” and then the unearned part of the premium was included in the account current. There was some conflict in respect to the custom or habit of the parties in respect to transactions relating to canceled policies. It is apparent from the reports that we have already alluded to that the premium in this ■ease was never charged back to the plaintiff, and that the policy was never actually canceled. The general agent admits that, “when a policy of insurance was canceled pursuant to one of my instructions or directions, it was the custom to return it to the office, when the daily report went to New York to be put on file.” It seems the agents went out of business in April, 1892, and were succeeded by Platt, and the plaintiff about that time wrote for a full settlement, specifying the amounts due it, and that amount was ascertained and paid, but in the general settlement and at no other time were the defendants allowed or credited with the premium on the Phillips & Casey policy. This settlement was after the loss occurred under the policy, and that occurred March 4, 1892. On the 8th of March, 1892, the plaintiff, having received notice of the loss under the policy, admitted the same, and stated that “General Agent Van Valkenburg will be advised and requested to adjust.” On the 18th of March, 1892, Van Valkenburg wrote to the defendants in reference to it, and among other things he stated:

“I inclose a blank proof of loss, and would thank you to return it to me, when properly executed, for the loss of Phillips-.& Casey, at Eouse’s Point. By the way, there is a talk about this having been a ‘queer’ loss, and some Field men are crowing over their smartness in getting off shortly before the fire. What do you lmow in this direction? Thanking you in advance for attending to this matter, and with strongest assurances that you can count on me at all times to do anything possible to promote our mutual interests, I remain,” etc.

Subsequently the general agent acknowledged the proofs of loss, and on May 9th the general agent, Van Valkenburg, stated that he "had asked the general office to send a draft in payment of the loss. ' It seems that the claim was made in behalf of the defendants that the defendants were in no way liable in the premises until June, 1892. It also appeared in the evidence, affirmatively, by the testimony of Platt, that subsequent to July 31st he received requests to return other canceled policies, and nothing more was said about the Phillips & Casey policy. It appeared

from the evidence that there were instances in which policies were directed to be canceled, with suggestions as to moral hazard, and that subsequently they were withdrawn, at the suggestion of the defendants. Upon all the evidence, we are inclined to the opinion that a fair question of fact was presented for the consideration of a jury, as to whether the plaintiff, by reason of the circumstances disclosed, waived the request to have the policy canceled. We are inclined to think that such waiver might have been found by the jury upon the evidence given at the trial, and that it was not necessary, in order to support such a waiver, that it should be based upon any new agreement or an estoppel. Titus v. Insurance Co., 81 N. Y. 419; McNally v. Phoenix Insurance Co., 137 id. 402; 50 St. Rep. 680; Cairnes v. Bleecker, 12 Johns. 300; Jervis v. Hoyt, 2 Hun, 637. Prom the course of business disclosed by .the evidence, it is quite apparent that Van Valkenburg had notice of the noncancellation and nonreturn of the policy to the files of his office, and that notice to him of that fact was notice to the principal. Cox v. Pearce, 112 N. Y. 641; 21 St. Rep. 808. The nonaction, therefore, of Van Valkenburg, in the premises; his acquiescence, as well 'as the acquiescence of the plaintiff, in the noncancellation and nonproduction of the policy,—were pertinent facts for the consideration of a jury in determining the question whether the plaintiff had acquiesced in the existence of the policy, and the omission of the defendants to procure, a cancellation of the same by the return of unearned premiums, and a delivery of the policy to the defendants, to the end that it might be returned to the files of tbe plaintiff, whether kept by the general agent, Van Valkenburg, or kept by the plaintiff itself. While it may be said the circumstances are slight, we are inclined, as already intimated, to hold that question of fact was presented, which should have been submitted to the jury, and that the exception to the refusal to submit the question of fact to the jury presents an error which should lead to a new trial.

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

, All concur.


text:
    Charles H. Baker et al., Resp’ts, v. Sanford E. Loring, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Tsiai,—Nonsuit.
    The evidence, in this case, introduced in- support of plaintiff’s claim, was held sufficient to justify a deniál of a motion for a nonsuit.
    Appealfrom a judgment rendered for plaintiffs.
    Miller, Gridley & Pratt, for app’lt;
    Homer Weston, for resp’ts.
   HARDIN, P. J.

Under the pleadings as they were framed, we think the defendant, in order to give proof of payment of the indebtedness stated in the complaint, was called upon to aver in his answer a defense of payment. McKyring v. Bull, 16 N. Y. 297; Lent v. N. Y. & Mass, Railroad Co., 130 id. 504; 42 St. Rep. 592. Plaintiffs withdrew the objection, however, to defendant’s claim to prove that Baldwin had paid the sum of $900 and $1,000, other than the $1,550. 27otwithstanding this withdrawal, no proof was given in support of the offer made. The witness Miller testified: That he remembered putting up lumber for the defendant, and there was a large amount of it. It was delivered some time in the winter of 1893. Defendant gave his orders, and the lumber was loaded, and started off for Walton street. It was for Eager and Phelps. It was all taken out of the yard. _ And the witness added:

“Kept my measurements of loads by the piece. The thick lumber was in pieces, and the boards were in feet. Kept memorandum of these loads in a book, and charged them up every night. I took them to Mr. Bannon. He was the bookkeeper. I called them off to him. I have not the book. It was in the office, and it was burned up. *, * My business was salesman, and I was located in the yard. I took most of the defendant’s orders directly from him. He might have telephoned some of the orders. I don’t think he left half of the orders in the office. Wouldn’t swear he did not. I think he gave the bulle of them direct to me, and I recorded them upon my book, and no one had charge of that book but myself. * * * The fire was in 1894. I called off the record I made in my book to the bookkeeper, Mr. Bannon, every day. I crossed off my book. The price I called, I read from my book. I was watching him write, —standing beside him,—and after he had recorder, or undertaken to record, what I had given him.”

Baker, one of the plaintiffs, testified that the defendant was at his office in regard to the lumber question. He added:

“I made an arrangement with him in regard to it some time in the month of January, 1893. I think the arrangement was, he was to have hemlock delivered on the premises for $11.75 per thousand. I saw some of the lumber after it had been delivered. It was delivered in large quantities. I saw some of it on the ground. Was there occasionally while it was being delivered, and know some of it was delivered. I know that we presented bills as we wanted money. He raised no objections to the lumber. I only know the number of feet delivered from the books. Oiir employes made entries in the books.”

This witness also testified:

“While he was getting lumber for the Phelps building, he got some for the Eager building. I think I personally presented no bills to the defendant. I could not say. I talked with him about his indebtedness to us. That business was left to the bookkeeper part of the time, and part of the time I presented them. I know they were presented. * * * One time 'Hr. Loring came to the office, and a bill was handed to him. I know I would sometimes take bills and present them. I think I did personally to Hr. Loring. I think I presented bills personally to Hr. Loring. I saw Hr. Loring several times in regard to the payment of this bill.”

The witness also testified:

“It is my-recollection that the bills were itemized.”

And he says:

“The itemized delivery books spoken of by Hr. Hiller were burned. The one Hiller kept was burned. Hy ledgers were saved from the fire. In them the transactions are carried down but not itemized.”

The plaintiffs called the witness Bannon, who testified that he had charge of the books, and that he had the ledger present in court, and he added:

“I am acquainted' with Hr. Hiller, who has testified. Late in the afternoon he would come into the office and read off his-charges, and I would write them down. They were put on the daybook, and that book was burned. I posted from the daybook into the ledger, giving the aggregate amount only in dollars and cents. The computations were made by myself. I made them correctly, and carried them out on the ledger as I made them. There are about seventy-five separate charges. Nine-tenths of the lumber was two-inch planks. They used the timber, and then laid the brick. I am not able to state the aggregate amount of those items without reference to the books. By referring to-the books, I can state the amount. I know the prices charged; hemlock, $11.75, large percentage. There might have been two or three thousand feet that was not hemlock. ' I prepared and presented or mailed to Hr. Loring itemized bills, or handed them to Hr. Baker. I know there were itemized bills of this entire lumber sent by mail or given to Hr. Loring.”

Subsequently the witness Baker was recalled, and he testified:

“The prices that were charged were agreed upon between Hr. Loring and myself. I am not positive whether there was a special understanding in regard to those different items. The salesman and bookkeeper knew the prices. I fixed the prices, and my workmen worked under them. Hr. Bannon knew the prices.”

The witness Bannon was then recalled, and he testified:

“I made the charges for this lumber at the market price, except the hemlock. The lumber was charged at the marke’t price.”

After this evidence was given the witness testified that the bill of items was in his handwriting, and that it was an exact copy of the ledger, and that the footings were the same as those in the ledger. Thereupon the defendant’s counsel conceded that the bill oí items is a copy of the two columns of figures of the ledger. The witness added, “The aggregate amount charged is $2,551.73,” and that the amount deducted for payment was $1,550, leaving a balance of $1,071.73. In the course of his cross-examination he said:

“I made out the itemized statements of this account against Mr. Loring on two or three different occasions, before and after the Phelps job was finished. I presented one to him. He said 'nothing about it. He came into the office two or three times, and talked about payment.” .

After this proof was given, we think the learned referree committed no error in refusing defendant’s motion for a nonsuit. The defendant was sworn as a witness in his own behalf, and, in the course of his testimony, said:

“I have itemized statements of the lumber delivered for the Phelps and Eager buildings. I don’t remember they were presented personally by Mr. Baker.”

And he added:

“I have had many talks with Mr. Baker since the lumber was sold for the Phelps building. The question of the quantity of lumber did not arise. I have never made any objection to him that the quantity of lumber was not delivered. I was generally at the building twice a day. I knew Mr. Baker was delivering lumber. Mr. Baker has talked with me about paying these bills. The amount of the bill has been presented to me. I understood the amount.”

The witness further testified:

“When the bills came to me, I turned them over to Mr. Coon. He has made no detailed report.”

The witness Coon, who was called by the defendant, testified, viz.:

“During the erection of the Phelps building, defendant gave me bills he had received from plaintiffs. The bills he gave was one of those large foolscap bills,—two or three pages. * * * I received the lumber. I did not measure it. * * * The long bill was presented by Mr. Loring to me during the summer, after the work was finished. There was a large quantity of lumber used.”

It appears by the testimony given by the plaintiffs that all the lumber charged to the defendant was “what was delivered on the Eager and Phelps jobs.” We think the conclusion of fact stated by the referee, to the effect that the defendant is indebted to the plaintiffs, for balance due, in the sum of $998.23, with interest thereon from June 13, 1894, is sustained by the evidence, and that the conclusion of law—that by reason thereof the plaintiffs are entitled to recover—should be sustained.

Judgment affirmed, with costs.

, All concur.


author: PER CURIAM.

text:
    Emma Gutman, Resp’t, v. New York Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Evidence—Elevated railroads.
    _ A judgment for plaintiff, ip an action for injuries caused by the operation of an elevated railroad, will be reversed where the evidence was admitted as to damages which plaintiff was not entitled to recover.
    Appeal from a judgment in favor of plaintiff.
    Sidney Smith, for app’lts; W. G. Peckham, for resp’t.
   PER CURIAM.

It seems to be conceded by the respondent that evidence, and, upon an examination of the record, a considerable amount thereof, was admitted in this action for the purpose of proving damage, of a character which was condemned by the court of appeals in the case of Jamieson v. Railway Co. (recently decided), 41 N. E. 693. It is impossible for us to say that such evidence did not influence the referee, or that he would have come to the same conclusion had it not been presented before him for consideration. It may be true that the evidence in question was of a character such as has been presented in various of these cases which have been affirmed by the court of appeals. But that court seems in the case last decided to have finally come to the conclusion that it is necessary to enforce the rules of evidence which commonly obtain, even in an elevated railroad case, in this city; and we see no reason for dissenting from this conclusion.

The case at bar as ,already stated, is clearly within the rule laid down in the Jamieson Case; and the judgment must therefore be reversed, and a new trial ordered before another referee, to be appointed by this court, with costs to the appellants to abide the event.