text:
    THOMAS W. LADD, Plaintiff and Respondent, v. JAMES ARKELL et al., Defendants and Appellants.
    1. FACTOR, ACTION BY.
    1. Set-off or counter-claim, against.

      a. Where a factor (L.) entrusts goods of his principal (W.) to an agent (A.) for sale, such agent knowing that L. was the factor of W., A. can not, in an action against him by L. to recover the proceeds of the goods which had been sold by him, set off or counter-claim an individual indebtedness due from L. to him.
    H. MEASURE OF DAMAGES.
    1. When current rate of exchange can not be allowed.

      a. When one consigns goods to a house here, to be sold in England through their house there, and the house there sells the goods at a certain price in the currency of England, but the house here refuses to pay over the proceeds in an"action brought here by the consignor against the house here, current rate of exchange can not be allowed.
    :2. Reducing the value of a pound sterling into the currency of the United States.

      a. The premium of gold at some fixed period, must be ascertained.
    1. What period should be fixed,

      a. In actions on contract the time when the debt or demand became due and payable should be taken.
    .3. Interest is allowable, almost as matter of right, from THE TIME THE DEBT OR DEMAND BECOMES DUE; €. ff., FROM THE TIME OF THE RENDITION OF ACCOUNT OF SALE.
    -4. Application of above principles.

      a. Plaintiff in the case at bar was entitled to have the sterling pound turned into gold at the time of the rendition of the account of sales at the rate of $4.44 to the pound, then to have the currency value of gold at that time determined, and to recover the amount of such currency value, with interest thereon from that time.

      Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    The action was to recover the value or proceeds of a quantity of beef.
    The complaint alleges that the plaintiff was a provision broker and commission merchant, and as such delivered to the defendants the beef in question, the property of one Wood, then in the hands of the plaintiff, for sale, and upon such delivery the plaintiff received from the defendants thirty-eight hundred dollars for the account of said Wood ; and thereupon directed the defendants to sell the beef, and to account to the plaintiff for the proceeds. That the defendants so received the beef from the plaintiff, and although they admit that they have sold it, have refused to account to the plaintiff therefor, or to pay over the proceeds to him, and “ have wrongfully converted said property, .or the proceeds of the sales thereof, to their own use, to the damage of the plaintiff of one thousand dollars.”
    The defendants by their answer allege, that the defendants being commission merchants “received from the plaintiff as his property, and to be sold by the defendants, for and on his account and benefit, and not otherwise,” the beef in question.
    The defendants further allege, that previously the plaintiff was a partner in the firm of Mitchell, Ladd & Co.; that said firm failed, owing the defendants a large sum of money ; that upon a compromise thereof, said firm gave their promissory notes for a portion thereof, which are due and remain unpaid, and which the defendants claim to set-off against the demand of the plaintiff.
    The action was tried by the court and a jury.
    The plaintiff testified, that he was a provision broker, and the defendants commission merchants and shippers; that he told the defendants that he was-holding a lot of beef belonging to Wood, which he wished plaintiff to dispose of ; that he wished to consign'it. for sale to the defendants’ house, on the other side (i. e., in England), and they agreed to make an advance on it of about half the value. They made the advance on it, and it was consigned to and shipped by the defendants.
    Upon his cross-examination the defendants offered to show that the plaintiff was, at the time of the consignment, indebted to the defendants in the sum of fifteen hundred dollars. This was objected to and excluded. The defendants excepted.
    An account of sales in England was rendered by the defendants, showing a balance unpaid on the shipment of one hundred and twenty-three pounds twelve shillings and ten pence sterling.
    The rule adopted by the court for estimating the value, in the currency of the United States, of the-English money, was to take the value of the English pound, in gold, at one hundred and nine—which included the current rate of exchange, nine per cent.—and the premium on gold, at the time the account was rendered, and then interest from that time.
    The defendants objected to the rule. The court overruled the objection, and the defendants excepted.
    No evidence in chief was offered by the defendants.
    The defendants moved to dismiss the complaint on the ground, that the plaintiff had not shown that he sustained such a relation to the action as authorized a verdict in his favor in trover, or for conversion.
    Plaintiff’s counsel said that the plaintiff did not claim to recover in trover or conversion, but on contract.
    Def ndants’ counsel also moved for a dismissal of the complaint, on the ground that the complaint was in trover, or for conversion, and not on contract or for balance of account, and that there was an entire failure of proof of the cause of action alleged in the complaint; also on the ground that the plaintiff had no cause of action in himself, and no right to sustain the action.
    • That he had shown the right of action to be in Wood, and not in himself.
    He had not shown that he had ever been in possession of the property; on the contrary, it had been proved to have been in Amelung’s possession, with the warehouse receipt for it in possession of the Indemnity Company.
    The motion was denied as to each ground severally.
    The defendants’ counsel excepted severally as to each ground taken by him on his motion to dismiss the complaint.
    The court directed a verdict for the plaintiff.
    Defendants’ counsel excepted to the direction so given.
    The defendants moved for a new trial, upon the minutes of the court, which was denied, and judgment was thereupon entered upon the verdict.
    The defendants appealed from the order and judgment.

      R. H. Huntley, attorney and of counsel for appellants, submitted points on the question as to whether the plaintiff could sue in bis own name, which point was decided on a former appeal (37 N. Y. Superior Court Rep., p. 35). On the present appeal, he cited the following authorities on this point: White v. Chouteau, 10 Barb. 202 ; Buckbee v. Brown, 21 Wend. 110 ; Grunell v. Smith, 10 Sandf. 706 ; 1 Barb. Ch. Pr. p. 39 (2d Ed.); Rowland v. Phalen, 1 Bosw. 43; Brown v. Chary, 56 Barb. 635. He further urged:—
    I. The court erred in the rule of damages, both as to the exchange between America and Europe, and in ruling that the rule of damages was the difference between the values of currency and gold at the time of the transaction, rather than at the time of the trial. By such a rule, the plaintiff is largely over-paid. He was only entitled to gold, or its equivalent, at the time of trial (Kellogg v. Sweeney, 46 N. Y. 291; Phillips v. Dugan, 21 Ohio St. R. 466 ; S. C., 8 American Reports, 66 ; Trebilcock v. Wilson, 12 Wall. 687; Butler v. Herwitz, 7 Id. 258 ; Dewing v. Sears, 11 Id. 379).
    II. The court erred in excluding evidence offered by the defendants. It was proper to show that the plaintiff was indebted to the defendants. Ho ground of objection to the evidence is stated ; and unless there is no view in which it could be admitted, the judgment should be reversed for that ground (Wall v. Ellis, 54 N. Y. 684).
    The defendants insist on the objection heretofore made, that this is an action in tort, not contract, and that the plaintiff can not recover on the proofs. As this point was before ruled upon, it is not now argued.

      James W. Culver, attorney and of counsel for respondent.
   By the Court.—Monell, Ch. J.

The principal questions in this case were determined by the court upon the former appeal (37 Sup’r Ct. R. 35). It was there held, that a factor can sue in his own name. That the form of the complaint, containing allegations that were appropriate in an action for the conversion of the property, was immaterial, as a recovery in tort or on contract, according as to which was supported by the proof, could be had.

Those questions are, therefore, not open for review. Upon the second trial, the defendants attempted to prove their set-off against the plaintiff, and the court, very correctly, as we think, refused to admit the proof.

The evidence was uncontradicted, that the plaintiff was the mere factor of Wood, the owner of the property ; and that the defendants were so informed by the plaintiff before and at the time the consignment was made. Such proof effectually shut off all right of set-off against the plaintiff.

The same evidence sufficiently established,'under the decision upon the former appeal, that the plaintiff could recover, without regard to the allegations in his complaint.

Such allegations were held to be sufficient, either upon contract or for conversion; and it was for the court to determine upon the trial whether a cause of action, without regard to its form, had been made out.

-There can not be a doubt,. therefore, that upon the" uncontradicted evidence, the plaintiff was entitled to a verdict for the balance of sales remaining unpaid.

The motion to dismiss the complaint was, therefore, properly denied.

The objection to the mode of ascertaining the damages presents a question upon which there is some conflict of decision.

The witnesses who estimated the value in the currency of the United States, added the current rate of exchange on London.

In Martin v. Franklyn (4 J. R. 124), and Scofield v. Day (20 Id. 102), the supreme court held, that thspar and not the rate of exchange was recoverable. In the first case the action was to recover a debt contracted in England and payable in sterling, and in the other case it was upon a promissory note, made in Canada and payable in England.

• These decisions have not been reversed in this state, but have several times been cited, and, as I think, sufficiently approved, to make them binding upon this court (see Wilson v. Morgau, 4 Robt. 73 ; Schermerhorn v. Am. Life Ins. Co., 14 Barb. 156; Curtis v. Leavitt, 15 N. Y. 88; Rice v. Ontario Steamb’t Co., 56 Barb. 388).

In Oliver Lee & Co. Bk. v. Walbridge (19 N. Y. 136), the action was upon a promissory note discounted by the plaintiff’s bank. The defense was usury ; and it was alleged that in addition to deducting the interest, the bank had also' deducted the current rate of exchange on Hew York.

Judge Comstock, after alluding to the rule that the holder of a foreign bill is entitled, upon its dishonor, to recover the amount of exchange according to the prevailing rate, and that this is a general principle of commercial law in reference to foreign bills, as well as a regulation by the statutes of many of the states, says: 66It can scarcely be said, however, that these doctrines form a part of the law merchant in regard to promissory notes and commercial balances of account, although due and payable in a state or country different from that where the debtor resides, and where the obligation is sought to be enforced. On the contrary, in this state, and in Massachusetts, it has been distinctly held that such debts are to be paid according to the par of exchange, and that' the creditor is not entitled to any compensation for the difference of exchange between the country where the suit is brought, and the country where the debt was payable.” And he refers to Martin v. Franklyn, and Schofield v. Day (supra), and to Adams v. Cordis (8 Pick. 360). But he says, “ The opposite doctrine was, however, held in the federal circuit courts, by Justices Story and Washington”, (Smith v. Shaw, 3 Wash. C. Ct. 168 ; Grant v. Healey, 3 Sumn. 533).

Swanson v. Cooke (45 Barb. 574) was an action upon a judgment recovered in a British province, and the rule of the par of exchange was adopted. Ingraham, J., says: “ If the debt is for so many pounds sterling, the; recovery can only be for that sum converted into dollars, at the rate which the pound sterling bears to a dollar, ■without any regard to the rate of exchange between the two countries. ”

In Schermerhorn v. Am. Life Ins. Co. (supra), the defendant had issued certificates payable in London in pounds sterling, and the court say (p. 157) : “A pound sterling could be paid here, unless due on a dishonored bill of exchange, by $4.44, in our currency,” „ . and that the cases of Martin v. Franklyn, and Schofield v. Day, were direct authorities to show, that in this state the holders would recover no -more than the value of the certificates at the rate of $4.44 to the pound sterling, and .the interest thereon. And he says the decisions were quoted with approbation, and adopted by the supreme court of Massachusetts (8 Pick. 267).

In the last case (Schermerhorn v. Am. Life Ins. Co.) a distinction, justified, perhaps, by the cases in the Federal courts, may be said to have been drawn between debts payable here, and such as by the terms of the contract are payable in a foreign country, although in that case the certificates were payable in London.

This distinction is clearly indicated in the two cases in the Federal courts, already cited, where Judge WASHiTfG-TOH, in one of them, says: “I take the general doctrine to be clear, that whenever a debt is made payable in one country, and it is afterwards sued for in another country, the creditor is entitled to receive the full sum necessary to replace the money in the country where it ought to have been paid.” And the ■same distinction is recognized by Mr. Justice Story, in his Conflict of Laws, §§ 308, 309, 310, 311, &c.

In this case, the goods were delivered to the defendants in the city of New York, and by them forwarded to their branch house in England, for sale. An account of sales, in sterling money, was rendered to the defendants here, and it forms the basis of the damages which the plaintiff is entitled to recover.

The contract was made, and the debt was incurred, in this city. It was not incurred in England, and is not in any event payable there. And the debt or the judgment upon it, when paid, will not be, or have to be, transmitted to London, but will be retained here always. It is not, therefore, a case where, as was said in Grant v. Healy (supra), the creditor is entitled ,to receive the full sum necessary to replace the money in the country where it ought to have been paid. And the error of the witnesses, doubtless, was in the theory that the money was not in New York, but in London,, and had to be collected through or by a bill of exchange, or when collected here, had to be transmitted to London ; neither is the case. The money remains-here, paying a debt-due upon a contract made here and not elsewhere.

The only decision in this state adverse to the rule as stated in the two early cases of Martin v. Franklyn and Schofield v. Day (supra), is Ginteman v. Davis (3 Daly, 120), where the common pleas of this city held the rate of exchange was recoverable upon a British bill drawn on the defendant and accepted here. But I think that decision should not be followed, for the-reasons already stated. The two cases referred to, have not only not been reversed, but have, as has been seen, repeatedly been recognized in this state as laying down the law correctly. Besides, the supreme court, of this district, in a case between the same parties, cited in a note to Swanson v. Cooke (supra), decided the other way, and held that upon a bill drawn abroad and made payable here, the holder could only recover the amount named in the bill, without exchange. ,

In reducing the value in coin of a sterling pound.. into the currency of the United States, the premium for gold at some fixed period must be ascertained, and to fix such period in this case is not without difficulty, and it is important owing to the large fluctuations in the premium, at different times.

At the trial the period was fixed at the time the account of sales was rendered and when the debt became due and payable.

In the cases arising under the legal-tender act of congress, when the contracts were payable in gold coin, the judgments were for the amount in coin (Kellogg v. Sweeny, 46 N. Y. R. 291; Philips v. Dugan, 21 Ohio, 466; Butler v. Herwitz, 7 Wallace, 258), which judgments could, of course, be satisfied, by gold coin, purchased at the rate of premium existing at the time of payment, thus making a loss to the creditor of any larger premium, which might have existed at the time the contract matured.

But in this case the judgment could not be in coin, but must be in the lawful money of the United States, and whatever the decisions may be in respect to con-. tracts payable in coin, a judgment for a certain number of dollars, can be satisfied by payment in the legal tender notes of the country (Wilson v. Morgan, 4 Robt. 58).

If the action could be maintained as an action for the conversion of the property, then it would have been proper, probably, to have allowed, the highest value of' gold, at any time after the conversion, to form the basis of converting the gold into currency as the damages (Baker v. Drake, 53 N. Y. R. 211). But this is an action upon contract, upon which the plaintiff almost, it may be said, as an absolute right, is entitled to recover interest as damages, from the time the debt became due, which in this case was at least on June 2, 1866, when the defendants rendered their account of sales.

In Baker v. Drake, supra, the court states the rule of damages thus broadly: “ The rule of damages should not depend upon the form of action. In civil actions the law awards to the party injured a just indemnity for the wrong which has been done Kim, and no more, wKetKer the action be in contract or tort. Except in those special cases where punitory damages are allowed, the inquiry must always be, what is an adequate indemnity to the party injured ; and the answer to that inquiry can not be affected by the form of the action in which he seeks his remedy.”

The plaintiff was entitled to payment on the day the debt was due. Had it been paid on that day, the amount or value of the sterling pound would have been ascertained at the then current rate of gold, and I can see no reason why the plaintiff may not claim that it shall be so estimated now. In no other way would he be adequately indemnified.

In sales of personal property a vendee who sues for a non-delivery, may recover the increased value which may have taken place at any time intermediate the purchase and bringing the action (2 Pars. on Con. 480). This, of coarse, includes the value of the property at the time of sale.

So, in a written promise to pay in specified goods the rule of damages, it seems, is the price at the time of the breach (2 Pars. on Con. 490).

In analogy to these cases, and upon the same principle, the plaintiff in this case was entitled to have the sterling pound turned into gold at the time the debt became due; and the currency value of gold at that time, and interest thereon, is the correct measure of damages.

As the only error was in adding the exchange, that can be deducted from the recovery without sending the case bank for a new trial, as there is enough in the evidence to enable us to correctly state the amount.

The damages for which judgment should have been entered are twelve hundred and six dollars and thirteen cents.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff elects to deduct from the judgment the sum of one hundred and two dollars and ninety-one cents, when the judgment as reduced should-be affirmed, with costs.

Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court.—Monell, Ch. J.

license: Public Domain

text:
    HENRY WEHLE, Plaintiff and Appellant, v. THE BOWERY SAVINGS BANK, Defendant and Respondent.
    I. JUDGMENT, VACATING.
    1. Discretionary.

      a. So far as that an order of vacatur will not be reversed unless there was an unmistakable abuse of discretion.

    1. What does not show such abuse.
    H. SUBSTITUTION OP PARTY DEFENDANT.
    1. Costs.

      a. When the order of substitution gives the defendant the costs of action, he is entitled to such costs as the Code prescribes.
    1. The question as to whether the order should have given costs can be raised only on appeal from the order itself.

    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.

      Appeal from an order vacating a judgment, and from an order affirming a taxation of costs.
    Thé defendant on March 12, 1875, made a motion for the substitution in its place as defendant of one Peter Weis. The motion was decided on the 15th, and was granted. On the 17th plaintiff obtained an order requiring the defendant to show cause,, on the 18th, why the motion should not be re-argued. On the-19th the motion for a re-argument was denied with ten dollars costs of motion, and an order to that effect was entered on that day. On March 20th both defendant and plaintiff handed up orders proposed by them respectively to be entered on the decision of the motion for substitution. On the 22nd the judge settled the order, and the same was entered on that day. The order as thus settled, bore date in its caption as of March 12th (the date of the argument of the motion), and ordered that the said Peter Weis be substituted as defendant in this action in place of the Bowery Savings Bank, and that the said The Bowery Savings Bank deposit the amount claimed in the summons herein, less its costs herein to be taxed by the clerk of this court, in United States Trust Company, and that the said The Bowery Savings Bank be and it hereby is discharged from all liability to either party; and that the said Peter Weis have twenty days after the service of the order within which to plead, and that the prevailing party recover the above costs.
    This- order was not served on plaintiff’s attorney until April 2, 1875. On the 23rd of March, after the entry of said order, dated March 12th, but before its service on the plaintiff’s attorney, plaintiff’s attorney entered judgment by default against defendant. The j udgment roll contained, so far as the appeal book shows, no proof of the service of the summons and complaint on the defendant, and the only proof contained therein of the defendant’s time to answer having expired, and of no answer having been served, was this:
    “City and County of New York. in the above action, being duly sworn, says that no answer or demurrer has been received or served in pursuance of the requirement of the summons in said action.
    CHAS. HOLDZIEB.
    Sworn to before me, this 23d day of March, 1875.
    Henry Fuehrer,

      Notary Public,

    Kings County.”
    On April 5th, 1875, the deposit required by said order dated March 12th, was made.
    On April 5,1875, defendant taxed its costs under said order dated March 12th, and the order denying the motion for re-argument. The costs as taxed were, twenty-five dollars for costs before notice of trial, and ten dollars costs given by the order denying the motion for a re-argument.
    Plaintiff moved for a re-taxation, which was denied, and from the order entered on such denial he appeals.
    On April 8th defendant noticed a motion to set aside the judgment entered March 23d, specifying in the notice various grounds of irregularity. The motion was granted, and from the order entered thereon the plaintiff appeals.

      Simon Sultan, attorney, and Henry Wehle of counsel for appellant.

      Norwood & Coggeshall, attorneys and of counsel for respondent.
   By the Court.—Monell, Ch. J.

Apart from the irregularities in the entry of judgment in this case, of which there are several, the power of the court to -vacate a judgment is so far discretionary, that it must be a case of unmistakable abuse of such, discretion that will lead the appellate court to reverse an order setting the judgment aside.

Ño such abuse of the power appears in this case.

The order should be affirmed, with costs.

In respect to the appeal from the taxation of the defendant’s costs upon the order substituting Weis as defendant, the only question is as to the items taxed. The order does not appear to have been appealed from, and as it gives to the Bowery Savings Bank its costs in the action, to be taxed, we are, as the court below was, concluded by it, and can not inquire whether they should have had costs or otherwise.

The item of twenty-five dollars before notice of trial, is the fee prescribed by the Code, and the ten dollars costs of opposing motion for a re-argument, was given by the order denying the motion.

The decision below was correct, and the order should be affirmed, with costs.

Sedgwick, J., concurred.


text:
    JAMES V. SCHENCK, Survivor, &c., Plaintiff and Respondent, v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Defendant and Appellant.
    I. MUNICIPAL CORPORATIONS.
    1. SUPEBVISOBS OF THE COUNTY OF NEW YoBK.

      a. County Jails, power as to furnishing.

    1. Has power to provide suitable furniture, such as bedsteads, mattresses, and bedding.
    1. Ludlow Street Jail is the county jail of the county of New York.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    The action was to recover for merchandise sold and delivered. The action was tried by a referee, who .found the following facts :
    That between September 21, 1869, and December 9, 1871, the firm of Schenck & Ryan sold to the then existing Board of Supervisors of the county of New York, and that said Board of Supervisors purchased of said firm, certain goods, wares, and merchandise, consisting of bedsteads, mattresses, and bedding. That said goods, wares, and merchandise were, by the directions of said Board of Supervisors, delivered by said firm at the county jail of said county of New York. That said goods, wares, and merchandise were reasonably worth the sum of two thousand eight hundred and ninety-eight dollars. That no part of said sum of two thousand eight hundred and ninety-eight dollars has been paid to said firm, nor to anyone for or on their behalf.
    The referee gave judgment for the plaintiff, and the defendant appealed.

      Wm. C. Whitney, counsel to the corporation, and James Q. darter, of counsel for appellant, submitted a full and exhaustive brief, claiming, among other things, that the Ludlow street jail was not a county jail, and that the county was not bound to support or provide beds and bedding for the prisoners there confined.

      A. C. & H. Ellis, attorneys, and Adam C. Ellis, of counsel for respondents, submitted- an elaborate brief.
   By the Court.—Monell, Ch. J.

The liability of the city of New York in this action, depends solely upon the liability of the county prior to the passage of the consolidation act (chapter 304, of Laws of 1874), and the question is, Had the supervisors of the county authority to make the purchase %

By statute, the jails of counties generally are put into the custody of the sheriffs (1 R. S. 380, § 75), and especially the jail in the city of New York, used for the confinement of persons committed on civil process' only, is confided to the sheriff of that county (Ibid.). And by another statute, the building used as such jail is designated as the jail of the city and county of New York, for the confinement of such persons (2 R. S. 446, § 12). It is made the duty of the supervisors of counties, other than New York, to cause court-houses and jails, poor-houses, clerks’ and surrogates’ offices, and other public buildings of their respective counties, to be erected (Laws of 1849, ch. 194), yet there is no provision or express authority to do more than to cause the erection of such buildings, except in respect to court-houses, where provision' is made for furnishing fuel, lights, &c. (Code, § 28).

There is no express provision, that I am aware of, from which the supervisors of a county can derive an authority to do more, in respect to a county jail or other county buildings, with the exception referred to, than to cause their erection. Their authority, therefore, to furnish and maintain such buildings must be derived, if found at all, from the incidental powers given to them.

Among the general powers given to boards of supervisors (1 R. S. 364, § 1), is (sub. 4) to make such •orders for the disposition, regulation or use of the corporate property of the county, as may be deemed conducive to the interests of its inhabitants; and while confining such powers to such as are enumerated, they are given all such other and further powers “ as shall be necessary to the exercise of those so enumerated ” (Id. § 2). And further (Id. 367, § 4, sub. 1), to make such orders concerning the corporate property of the county, as they may deem expedient.

The supervisors of the county of New York— whether consisting of the mayor, recorder and aider-men, or of a separate body, is immaterial—have vested in them all the powers and duties which attach to the office by the laws of the state (1 R. S. 368, § 17).

The statutes referred to, confer, it appears to me, all requisite authority, as included in and incidental to the general power, to supply all public buildings with all things required for their comfortable and convenient use.

Thus desks and chairs in a court room—not enumerated in the statute (Code, § 28)—doors, locks, and fuel, in a jail; the necessary furniture for a county poor-house and the like, come within the powers necessary to the exercise of those which are enumerated.

A like power, is, I think, incidental to the supervisors, who have power to make such orders concerning the property of the county, as they may deem expedient.

It is not suggested in this case that the articles furnished to the county jail, were purchased at an unreasonable price. The defense on the part of the city, is upon the ground, chiefly, that the debt incurred was not a county charge, which included the objection that the articles were not necessary, and, therefore, that the supervisors were not bound to furnish them.

If I have shown, as I think I have, that the purchase was within the general powers of the supervisors, or within powers incidental to such general powers, I think I need not occupy much time in disposing of the other question. To claim that beds and bedsteads and bedding are not suitable and proper, if not, indeed, necessary, for persons confined in a debtors' jail, who have committed no crime, and especially of witnesses detained to give testimony, is inconsistent with the humanitarianism of the present time, if not a return to the rigor of the old law, when a poor defendant was dealt with more as a criminal than as an unfortunate debtor.

I think the judgment should be affirmed.

Sedgwick, J., concurred.


text:
    EDWIN L. BUTTERFIELD, Plaintiff, v. WILLIAM RADDE, Defendant. SELCHOW, Plaintiff, v. RADDE, Defendant.
    I. RE-ARGUMENT.
    1. What not sufficient ground fob.

      a. That after the affirmance by the general term of a judgment in favor of plaintiff, the court of appeals, without writing any opinion, or assigning any reason therefor, has reversed a judgment in favor of a different plaintiff in another action against the same defendant, involving the same facts and dependent on the same law as the action in which the re-argument is sought, involves and depends on, does not furnish sufficient ground to call for a re-argument on defendant’s application.
    3. Stipulation as to several pending causes.

      a. Effect of.

    A stipulation that the verdict to be rendered in a cause on trial shall control and be conclusive in certain other causes, and that judgment be entered in such other causes accordingly, and that the same evidence, ruling, exceptions, and charges, shall be considered as inserted in such other cases as are in the cause on trial, and shall be as of record in all the causes, in terms applies to the trial only, and its force and effect is spent with the verdict.
    Therefore the fact that the judgment entered on a verdict for plaintiff in one of the causes mentioned in the stipulation has been reversed in the court of appeals, does not of itself entitle the defendants in the other actions to a reversal of the judgments, and consequently not to a re-argument.

    But
    the spirit and intent of the stipulation, was substantially that the untried actions should abide the event of the one which was tried, and therefore under it the defendants in those actions are fairly entitled to obtain the benefit of the decision of the higher court in the case which has been decided there, and as on a re-argument they may satisfy the court that its former decision has been reversed, or is incorrect, and thus get the benefit of the decision of the higher court, a re-argument should he granted.

      Before Morell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    Motions for a re-argument of an appeal.
    There were three cases pending against the same defendant, involving precisely the same questions of law and fact. All the cases being at issue and ready for trial, the attorneys made the following stipulation :
    “Edwin L. Butterfield against William Radde.” It is hereby stipulated and agreed by the respective attorneys, that the verdict to be rendered in this cause now on trial . . shall control and be conclusive in the two following cases . . involving the same questions, to wit: “Mallory t>. The same defendant, and Selchow ®. The same defendant; and that judgment be entered accordingly; and that the same evidence, rulings, exceptions, and charges shall be considered as inserted in the same two cases as are in the above entitled cause, and shall be as of the record in all three of these causes against Radde.”
    The trial of the Butterfield suit resulted in a verdict for the plaintiff; whereupon, under the stipulation, judgments w7ere entered in the three suits respectively, for the plaintiffs therein. Appeals were separately taken from the judgments to the general term of this court, where all the judgments were affirmed. An appeal was thereupon taken in the Mallory case, to the court of appeals—the other two judgments being under five hundred dollars, permission to appeal was refused—and in that court the judgments of the general and special term of this court were reversed. In the meanwhile, the two judgments not appealed from, were collected by the plaintiffs therein. .

      No opinion was written in the court of appeals, nor is it known upon what ground or grounds the judgments were reversed. The attorney opposing this motion, however, stated in his affidavit, that the clerk of the court of appeals informed him “that there was a dissenting opinion concurred in by three judges, and no prevailing opinion, but finally it was announced that there would be no opinion at all.” This is not denied.

      D. C. Calvin, for the motion.

      C. M. Earle, opposed.
   By the Court.—Monell, Ch. J.

The stipulation made by the attorneys, in terms, applied to the trial of the actions only. After verdict separate judgments were to be entered, and thereafter separate proceedings were to be had. Accordingly, separate appeals were taken to the general term, where separate judgments of affirmance were entered.

There is nothing, therefore, in the expressed terms of the stipulation—the office and effect of which was spent with the verdict—which can add force to the plaintiff’s motion.

These motions are addressed to the sound discretion of the court. They can not be claimed as a right.

One of the grounds upon which the motion is sometimes granted is, that since the decision, the court of appeals has decided adversely to this court, the precise question involved. In such a case the court, in the exercise of its discretion, will save the party the labor and expense of going to the higher court to correct what we must in that case assume to have been an error of this court.

Thus in Hayner v. American Popular Life Insurance Co. (36 Superior Ct. R. 211), having followed and relied on a case which was reversed by the court of appeals, this court granted a re-argument, on the ground that that decision should be regarded as stare decisis. In that case, however, no judgment or order had been entered in this court, the decision having been merely announced; and besides the decision of the court of appeals had actually been made, although not known, at the time of the argument of the appeal in this court.

In the Hayner case, the court had before it the opinion of the court of appeals in the other case, and was able to see the grounds of the decision; and they found them to cover all the questions in the case in this court.

In the case before us we have not been furnished with any opinion of the appellate court. Indeed, it is stated that no opinion was filed or written. Hor are we apprised of the ground or grounds upon which, that court has placed its decision. It may have been upon a purely technical ground, not disturbing the general law of the case, as determined by this court, and not affecting the real merits of the controversy, or it may even have been a reversal by the default of the party.

We have merely the fact, that one of three cases, involving the same facts, and of course dependent upon the same law, has been reversed by the court of appeals. But we are not bound to assume that the mere reversal of a judgment of this court necessarily reverses all the law of another case, as announced in the opinion of this court. It is doubtless the law of the case decided in the court of appeals; but so are the decisions in the other cases by this court the law of such cases, until they, or the principles involved in them and decided, are reversed in the same or some other case by the higher court.

What will occur upon a re-argument \ This court will be asked to reverse its former decision, for the mere reason that the appellate court had in one of the cases reversed the judgment of this court, and as the three cases are identical in facts and law, the two remaining •cases should suffer the fate of the one. But I think this court will require something more than a bare reversal of its judgments without the assignment of any reason therefor, to feel bound to recede from its own'views of the law. If reasons had been assigned by the higher court, and they showed that the law of this •court has been disturbed and reversed, we must and would regard the decision as authoritatively binding upon us. But if no reasons are given, this court would •have a perfect right to adhere to its own opinions of the law, and the mere reversal by the appellate court, would and could have no influence upon it.

In the re-trial of the case reversed, what guide will the trial judge have ? The grounds of the reversal are not known, and the supposed or conjectured errors of the former trial are not pointed out. I see no other .guide, then, than the decision of this court, where the law of the case remains.

It is something, perhaps, of a hardship that the law •of 1874, .disallowing appeals when the judgment is less than five hundred dollars, has prevented the defendant from obtaining a reversal of the two other judgments. But that law was enacted for a proper purpose, and its effect upon the defendant in those cases, is the common effect it was intended to have upon all similar cases. The defendant is no exception, and this court to which he applied-for permission to appeal, evidently thought he had no substantial grounds therefor.

But we think the spirit and intent of the stipulation was, substantially, that the untried actions should abide the event of the one which was tried, and that the court, so far as it can properly do so, should, assist the defendants in those actions in obtaining the benefit of the decision of the higher court, in the case which has been there decided.

We think, therefore, that they should be permitted to re argue their respective appeals, and if upon such re-argument they can satisfy the court, either by furnishing the reasons for. the court of appeals decision, or in any other manner, that its former decision has been reversed, or was incorrect, they will get the benefit, which we think, under their stipulation, they are fairly entitled to.

This will leave the question where it should be, with the court upon a re-argument of the appeals, when possibly more light may be furnished, than is given us on this motion.

Motions granted, but without costs.

Sedgwick, J., concurred.


text:
    WILLIAM G. HALPIN, Plaintiff and Respondent, v. THE THIRD AVENUE RAILROAD COMPANY, Defendant and appellant.
    i. motion for a new trial on the minutes and appeal FROM AN ORDER ENTERED THEREON.
    1. What may be considered on.

      (a) Where there is no conflict iri the evidence the question whether it is sufficient to support the verdict is one of law, and may be-considered, on such motion, and, if found insufficient, a new trial should be granted.
    1. This although the point was not raised on the trial, either by a motion to dismiss or by motion for a direction of a verdict.

      Semble. All questions that can be raised on a motion for a new trial made on a case at special term, and on an appeal from an order entered thereon, may be-raised on a motion for a new trial made on the-minutes and on appeal from the order entered thereon ; and nothing further is requisite to raise the questions in the latter mode, than is required in the former-

    H. NEGLIGENCE, CONTRIBUTORY.
    1. When question or law.
    (a) Where there is no conflict in the evidence hearing on this issue,, the question is one of law and not of fact.

      IH. STREET OARS, GETTING ON.
    1. CoNTRIBUTIVE NEGLIGENCE.

      (a) Crossing tracks.
    Plaintiff hailed a car going up when it was about seventy-five feet below the upper street crossing; at this time a car, then about one hundred feet off (which he saw), was rapidly approaching on the down-track; he crossed the down-track, and when he reached the space intervening between the two tracks (which was barely, if at all, sufficient to allow of standing there in any safety), he stood there waiting for the up-car to stop, which it did about seventy-five feet above the said upper crossing ; its platform was crowded, which he knew; while in the act of getting on its platform the horses of the down-car having been pulled by the driver into this space, knocked him down,
    Heed,

      As matter of law contributory negligence.

    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    Appeal from a judgment and order.
    The action was to recover for personal injuries to the plaintiff, caused by the alleged negligence of the defendants.
    The plaintiff testified that himself and another person left Sweeny’s Hotel about six o’clock of the afternoon of June 3d, and hailed a Third avenue car that was going up-town; the car stopped, and we passed across the street to get on the rear platform. The other gentleman in front of me was partially upon the step, and I was as close to him as I could stand, when the car coming down-town came up even with the one we were getting on, and the horse which was running between the two tracks struck me on the left shoulder, and knocked me under his feet in on the track, and walked over me; the platform of the car coming down town struck me on the right shoulder; my head was badly cut, and my ribs were bruised from the hip up to the shoulder, and the shoulder bone was broken. I was taken out from between the horses’ feet and the platform of the car, and carried into Sweeny’s Hotel. There was a space between the tracks (the up and down-town of four or five feet actual measurement to be four feet six inches to five feet, varying at different points). The horses that struck me must have stepped almost the whole distance-between the tracks and eastward of the east line of the-down-track. I was as close up to the gentleman on the step of the other car as possible. The gentleman-who was with me was just before me, and he was-partially up on the step, and I was as close to him as I could stand, in order to let the other car pass, and I noticed there was ample room for me to stand there. I was very careful to get as close to the other car as possible. When I hailed the car, it was a little south’ of the north crossing. I saw horses attached to the car-coming down, but I paid no special attention to them. I am sure I attempted to get on the rear platform.
    A witness for the plaintiff testified, they (plaintiff and the person with him) hailed a car directly opposite the door (of Sweeny’s Hotel). The car stopped, and when the horses of the car going down came opposite to those of the up-town car, the driver pulled the reins, and threw the horses out into the space between the two tracks, and before the plaintiff could get his foot upon the platform the horses knocked him. One of the gentlemen was on the rear platform absolutely. It was somewhat crowded, and the plaintiff had hold of the iron railing getting on the platform. He was as close to the car as a man could be not to step on the car. There was nothing to obstruct the view between the plaintiff and the driver of the down car.
    On his cross-examination he testified that the car going up had got about seventy-five feet beyond the corner or upper crossing. “I had been detaining the plaintiff, and was asking him some questions, and that detained him a moment or so after the car was hailed.”
    Another witness for the plaintiff testified that by measurement, the space between the inner rails of the two tracks is from four feet six inches to five feet; it varies occasionally ; the cars are seven feet wide, and overhang the rails on each side almost one foot three inches, leaving the actual space between two passing cars of only thirty inches. There was no difficulty in the way of free passage of the cars without striking me, when I stood between the two passing cars.
    There was evidence on the part of the defendants that the plaintiff came rushing across the track to get in the up-town car, and was trying to get on the front platform.
    The plaintiff further testified : “I went straight across the street to the rear platform. I did not catch hold of the railing, and had one foot on the step. Captain Moriarty, who was in front of me, got hold of the railing. I stepped as close to him as possible, until I was knocked down by the horses.”
    Defendant made no motion to dismiss the complaint, and no motion that the jury be directed to render a verdict in its favor.
    The court charged the jury, that if the negligence -of the plaintiff in,any way contributed to the accident -or to the injury sustained by him, he could not recover.
    The jury gave the plaintiff a verdict.
    A motion was made on the judge’s minutes for a new trial, on the ground of insufficient evidence to support the verdict, which was denied, and an order to that effect entered. Judgment was entered in conformity with the verdict. Defendant appealed from the judgment and the order.
    Brown, Hall, & Vanderpoel, attorneys, and A. J. Vanderpoel and Mr. Greene, of counsel for appellant, urged, among other things :
    The verdict is clearly against the weight of the "evidence. It can only be sustained on the ground that the accident was occasioned solely by the neglect of the defendants (Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248). The'evidence on the part of both the plaintiff and defendants clearly showed that the accident was not occasioned solely by the negligence of the defendant’s servants.

      P. O'Beirne, attorney, Wm. H. O'Dwyer, and Algernon S. Sullivan, of counsel for respondent, among other things, urged:
    I. The exception taken to the judge’s refusal to charge as requested by the defendant’s counsel, is not well taken. The court may refuse to charge the jury as requested by a party, for the reason that he embraced within his charge already made, all the subjects contained in the request (Osborn v. Gantz, 38 Sup'r Ct. 148). The court in the general charge, clearly and distinctly included the propositions here made, as far as it was proper to be done. The refusal to charge, in the form requested, was correct; the subject-matter was one upon which there was conflicting testimony, and it was for the jury to determine the fact from the evidence before them. The question of negligence should be submitted to the jury, if there be conflicting evidence, or if the proofs leave the matter in doubt (4 Abb. Dig. 179). There is no error in refusal by the court to specify a fact alleged to be evidence of negligence, and to direct the jury to And a verdict on that fact for defendant. It is proper to leave it to the jury, with general charge (Baxter v. Second Ave. R. R. Co., 30 How. 222).

    II. There is sufficient evidence. There is a conflict of evidence. In cases where there is a conflict of evidence, “ the well-grounded rule that upon such evidence the verdict of a jury is conclusive, is applicable, and leads to an affirming of the order denying the motion for a new trial” (Knapp v. Roche, 37 Sup’r Ct. R. 395 ; The Fisk Pavemdnt and Flagging Co. v. Evans, Id. 482 ; Murphy v. Boker, 3 Robt. 1; 4 Abb. Dig. 141 ; Lewis v. Blake, 10 Bosw. 198 ; Cothran v. Collins, 29 How. 155 ; 6 Abb. Dig. 404, §§ 51, 52, 53).

       This overrules so much of the cases of Rowe v. Stevens (34 N. Y. Sup’r Ct. R. 436), and Carnes v. Platt (36 Id. 361), as holds to the contrary.

       In Morrison v. Erie Railway Co. (56 N. Y. 302), the learned judge in delivering the opinion of the court, on p. 307, says: “In this case, there are certain facts as to which there is and can be no dispute; and they are of such character and weight, that it is for the. court to say, whether there is room for doubt and query, but that there was a complete absence of that care and.prudence without which in the direction of conduct, there is negligence.” And further on the”question is asked, “Can it be said that a person of ordinary prudence would,”&c. And the query is answered, “I think not. And I am of opinion that it is so clear that the law and the court should have given the answer without calling in the aid of a jury.”

        . It would seem from this that the question as to whether there was “room for doubt or query,” was one of law and not of fact; for if of fact, then it was for the jury to determine, and they having determined that there was no room for doubt or query, it is difficult to see how the court of appeals could reverse such determination.
      The question then being one of law, it results that the court determined that the given state of facts appearing in that case established as matter of law contributory negligence; and necessarily held that the question, whether a given state of facts established contributory negligence was a question of law.
      The correlative proposition, viz., that the question whether á given state of facts establishes absence of contributory negligence is- a question of law, was not necessarily involved; and there are some expressions in the opinion which may indicate that there is some dif- . rence between the two propositions. It would seem, however, to naturally flow from the proposition which was decided. For, if in a given state of facts it is a question of law as to whether there is ‘‘.oom for doubts or query, but that there was a complete absence of that oare and prudence, without which in the direction of conduct, there is negligence;” it would seem to follow that on a given state of facts it is equally a question of law as to where there is room for doubt or query, but that there was a complete presence of that care and prudence, which in the direction of conduct relieves a party from the charge of contributory negligence.
      The observation on page 306, “that it is not sound to select one prominent and important fact which may occur in several cases, and to say that being present, there must as matter of law have been contributory negligence, ” does not militate against the views above expressed. If a case should arise quatuor pedis with Morrison v. Erie Railway, the court would certainly be obliged to follow that case, and hvld the plaintiff as matter of law charged with contributory negligence. So, if there were some differences between the details of «the two cases, it would seem that the determination as to whether the differences were substantial or immaterial would be a matter of law for the court to determine.

   By the Court.—Monell, Ch. J.

The appeal from the order denying the motion for a new trial authorizes an examination of the evidence to determine its sufficiency'to sustain the verdict.

The jury have found there was no contributive negligence of the plaintiff. The question was submitted to them as one of the facts which they must find favorably to the plaintiff, to authorize a recovery ; and having so found, their verdict should not be disturbed if there is any evidence to support it, or if the evidence on that subject was at all conflicting.

If, however, there is no conflict in the evidence, then its sufficiency is no longer- a question of fact, but becomes a question of law, to be determined by the court, and needs not the intervention of a jury.

Had a motion been made at the trial to dismiss the complaint, on the ground that the plaintiff had not shown himself to have been so free from fault as the law requires, it would have been competent for the court, and its duty, to have examined the evidence and determined the question.

So, if the court had been satisfied that the plaintiff had failed in his evidence in respect to this affirmative issue, it would have been proper to have directed a verdict for the defendants.

But it is not too late to move, either at special term on a case, or upon the minutes of the court, to set the verdict aside, whenever any affirmative issue has been found upon insufficient evidence, or against the clear weight of evidence (Allgro v. Duncan, 24 How. Pr. R. 210). And if the motion is denied, an appeal lies from the order to the general term (Code, § 349, sub. 2), where the sufficiency of the evidence becomes a question for the court, and its decision is final (Vermilyea v. Palmer, 52 N. Y. 471).

The court in thus reviewing the evidence determines as matter of law whether it is sufficient, and so far it becomes a question of law. Bor does its submission, as a question of fact to the jury, deprive the court of its revisory power; but in any stage and in any of the forms prescribed by law, it may examine and 'weigh the evidence and determine its sufficiency. And where the evidence is undisputed its sufficiency may be made wholly a question of law.

In Morrison v. Erie Railway Co. (56 N. Y. R. 302), the court says (p. 307) “in this case there are certain facts, as to which there is and can be no dispute ; and they are of such a character and a weight, that it is for the court to say whether there is room for doubt or query, but that there was a complete absence of that care and prudence, without which in the direction of conduct, there is negligence.” And in Reynolds v. N. Y. Cen. & H. R. R. R. Co. (58 N. Y. R. 248), it is said (p. 250), “that either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find affirmatively that the person injured was free from fault which contributed to the accident, or the action can not be maintained. If this element is wanting in the case, the court may non-suit or set aside a verdict for the plaintiff”-

The affirmative of the issue of contributive negli.gence is upon the plaintiff, and when the evidence is closed and given to the jury, it must be sufficient'to support an affirmative finding (Squire v. Cen. Pk. N. & E. R. R. R. Co., 36 Sup'r Ct. R. 436, where at page 447, the cases are collated).

Courts can not and will not measure the degree of negligence. It is impossible to say whether the greater negligence of one party has contributed more than the lesser negligence of the other to the injury received. Hence the rule so long and securely established, holds the injured person to an absolute freedom from fault. If in any, the smallest degree, he by his act or conduct, or by omitting to exercise his faculties, or to .adopt the precautions which the occasion demands, brings upon himself the injury, the law affords him no remedy, however negligent may be the other party.

There is also another rule equally fixed, namely, that it does not require direct and positive proof that "the injured person, was without fault. It may be established by circumstances, and even sometimes inferred from the disposition of men to keep out of difficulty (Johnson v. Hudson R. R. R. Co., 20 N. Y. R. 71 ; Warner v. N. Y. Cen. R. R. Co., 44 Id. 465, 481).

And a further rule is that the facts and circumstances must be relatively considered as they vary infinitely and always affect and more or less control each other. Each must be duly weighed and relatively considered before the weight to be given to it is known '(Morrison o. Erie Railway Co., supra).

In reviewing the evidence in this casein the light of the principles of law which I have stated, it seems to me impossible to say, that the plaintiff did not in some degree—small it may be, yet enough to defeat a recovery—contribute, by his own negligence, to the injury for which he seeks redress.

This must be established by undisputed evidence.

We will take the plaintiff’s statement, and the other evidence he furnished.

The hour was six of a June afternoon, and consequently light. The plaintiff came out of Sweeny’s Hotel^which is on the north side of the street—in company with another. He was detained in conversation •after hailing an up-going car. To reach the car from the side of the hotel, he had to cross the down-track of the defendant’s road, upon which a car was approaching, and then some two hundred feet away, and which he saw. He attempted to get upon the car from between the tracks, standing there, while the down-coming car was passing over a space of two hundred feet.

The space between the tracks was only five feet, and between the sides of passing cars, only thirty inches, a space barely sufficient, if, indeed, it was sufficient, to allow of standing there in any safety. The plaintiff hailed the car when it was seventy-five feet below the upper crossing, and it stopped about seventy-five feet above the upper crossing. While passing over this one hundred and fifty feet, the plaintiff was either approaching the car across the down track, or standing between the tracks. The rear platform was somewhat crowded. The person accompanying the plaintiff had gotten upon the platform, ahd the plaintiff had one foot upon it when he was struck. Both were endeavoring to get upon the platform from between the tracks ; the car had stopped ; Moriarty had succeeded, and put himself out of danger ; the plaintiff failed to reach a place of safety.

The question is, Does not this undisputed evidence establish most clearly that the plaintiff, in attempting to get upon the up-going car, from the side of the street, in the manner and under the circumstances, did not exercise that common care and prudence which an ordinarily careful and prudent man would have exercised ?

It seems to me, it does not admit of doubt. He approached the car from the dangerous side of the street. He had to pass over the down-track, upon which a car was rapidly approaching. Instead of crossing the up-track to the opposite side of the street, where he could safely have awaited and entered the up-going car, he stopped between the tracks, with an intervening space of only thirty inches between the car he designed to enter and the car upon the other track. He saw the platform was crowded. He was behind his companion, and yet with the impending danger from the approaching car, he remained in this situation of peril until the horses struck him.

There was no evidence that Chatham street, at the place of the accident, is a very crowded thoroughfare ; and I suppose we can not take judicial cognizance of a fact so well-known to us all. But, as a matter of every-day observation, it is not safe or prudent, in any of our business streets or avenues, to get upon a streetcar from between the tracks, or from the opposite side of the street. Common prudence, and a proper regard for personal safety, should dictate that cars, in such crowded places at least, should be taken from the side of the street the least liable to expose the passenger.

It has long been a rule applied to cases of injury by steam railways, that a person approaching the railway, must use all his faculties, as well as every reasonable precaution, to discover the approach of a train. He must listen and look up and down the track, and approach the crossing with caution. The rule applies measurably to street railroads. A person can not recklessly run into danger, and hold the railroad responsible if he is injured. He must use his faculties, and if he sees a car approaching, he will not be held faultless, if he is injured in attempting to cross in front of it, unless there be sufficient time to do so safely.

The plaintiff attempted to do this. He saw the approaching car, and crossed in front of it. He could have gone quite across the street. That was his prudent course, and there entered the up-car. But he stopped between the tracks, and there waited for the up-car to pass far enough to bring the rear platform opposite to where he was standing, and all the time the down-car was rapidly approaching, and about to pass within a few inches of his person.

Looking at all this evidence, I can not persuade myself that there was not, not only a small or slight degree of-negligence on the plaintiff’s part, but such a large and unmistakable want of proper care and prudence on,his part, as should defeat a recovery.

The plaintiff is a man of intelligence, and at the time of the injury in the use of his limbs and faculties, and capable of understanding and appreciating the dangers of the situation.

There was time for prudent choice and correct apprehension of all the circumstances.

I am of opinion, therefore, that the evidence clearly - established the contributive negligence of the plaintiff, and upon that issue the verdict of the jury ought to have been for the defendants.

The order appealed from should be reversed, but as it is reversed upon the facts, it must be on payment of the costs of the trial.

In that event a new trial is ordered.

Judgment and order reversed, as above.

Sedgwick, J., concurred.


author: By the Court.—Monell, Ch. J. Sedgwick, J. (concurring).

text:
    MANNING F. LAWSON, Plaintiff and Respondent, v. STEPHEN R. PINCKNEY, Defendant and Appellant.
    1 NOTES, ETC. PAYABLE IN ANOTHER STATE, EVIDENCE OF PROTEST, ETC., OF.
    1. Certificate of a notary public of such other state AS TO PROTEST, ETC.

      (a) Competency of.

    ■ 1. A certificate authorized and required by the laws of another state is competent evidence as to the matters in respect whereof it is so authorized and required.
    (5) limitation of. '

    1. Not limited by the laws of this state to cases where the defendant fails to annex to his answer an affidavit that no notice of protest or presentment was ever given to him.
    (c) Sufficiency of.

    1. If the statutes of another state prescribe the form of the notarial certificate, or that it shall contain certain matters, and then that a certificate in such form or containing such matters shall be proof of presentment, refusal to pay, and notice to endorsers such a certificate will be proof of such matters in this state.
    2. If there are no such statutes, the notarial certificate must set forth the facts, showing the manner in which the note was presented and payment demanded, and notice thereof given, specifying the acts done by the notary; , and if the facts thus specified show either a presentment or demand, or giving of notice in any mode other than . as recognized by the common law, or the statutes of this state, then either the certificate must in some way show that the mode adopted was according to the laws of such other state, or the law of such state authorizing the mode adopted must be proved as a fact on the trial.
    3. “ Of all which I duly notified the endorsers, ” a certificate containing these words is not sufficient under the common law or the statutes of this state.

      H. APPEAL.
    1. Insufficiency in evidence below ; as to supplying on APPEAL.

      (a) Written and unwritten laws of another state.

    1. Must be proved iu the court below. c
    2. Neither the statutes, nor the reports of decisions of the courts, of such other state (when not proved on the trial) can he considered on appeal for the purpose of determining the law of such other state.
    Per Sedgwick J., Monell, Oh. J., concurring.
    2. Modifying judgment on.

      (a) Affirming as to part, and reversing and ordering a new trial as to pan't.

    1. When the complaint contains several causes of action, and on the trial the plaintiff obtains a verdict as to all, and judgment is entered accordingly, the General Term on appeal may affirm as to those ccmses of action as to which no error was committed, and reverse and order a new trial as to those in respect to which error was committed, when a separation of the judgment may be made by mere calculation.
    1. Costs of appeal. ' In such case no costs of appeal should be awarded to either party.
    III. PEO OP AND EVIDENCE, DISTINCTION BETWEEN.
    Per Sedgwick, J.
    IV. APPLICATION OP ABOVE PBINOIPLES.
    1. Pennsylvania Pbotest.

      (d) In an action in this state against the endorsers of a promissory note, payable in Pennsylvania, the plaintiff, to prove presentment, refusal to pay, and notice to the endorsers, read in evidence (under objection) a notarial certificate made by a notary public of the city of Philadelphia, certifying that he had made due presentment of the note, and that payment was refused, whereupon he did protest, etc., “of all which I duly notified the endorsers.” He also read in evidence a statute.of the state of Pennsylvania, passed Pec. 14, 1854, printed in the laws of that state for 1855, at p. 724 ; that statute did not prescribe the mode of serving nptice, nor did it make a certificate of the form of the one in question, proof or evidence of the service of notice; there was no proof at the trial, either by the reading in evidence of the statutes, or the reports of cases decided, by the courts of that state, or otherwise, either that a certificate like the one in question was by the law of that state proof or evidence of the service of notice, or as to what mode was prescribed by the law of that state for the service of notice. The complaint contained five causes of action, three on promissory notes payable inPhiladelphia, as to which the aforesaid notarial certificate was read in evidence, and two on checks drawn on a bank in the city of New York, as to which said certificate had no effect. Plaintiff had a general verdict on all the causes of action for four thousand eight hundred and fifty-seven dollars and seventy cents ; but by computation it was easily ascertained how much of this was on the causes of action on the checks, and how much on the causes of action on the notes.
    Held,
    upon a review of the acts of this state (ch. 309, Laws of 1865; ch. 141, Laws 1835; and ch. 271, Laws, 1833) and of the Pennsylvania act read in evidence, that the certificate was not evidence or proof of service of notice; and therefore its reception was error.
    Held further,
    that by reason of this error the judgment so far as it proceeded, on the causes of action upon the notes should be reversed and a new trial ordered.
    But,
    as the error did not affect the recovery on the causes of action on the checks, the judgment, so far as it proceeded on them, should be affirmed.
    Held further,
    that neither party should have costs of appeal.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    Appeal from judgment and order.
    The action was against the defendant as the endorser of three promissory notes, drawn and dated at Philadelphia and payable there, and as the maker of two checks drawn on a bank in the city of New York. The complaint contained five causes of action—three on the notes, and two on the checks.
    The defendant, by his answer averred that no notice ■of protest or presentment of the notes was ever given to him, and he. annexed to his answer an affidavit specially alleging the same.

      The plaintiff, on the trial, produced and read in, evidence, the certificate of a notary public of the city of Philadelphia, in which he certified that he had made due presentment of the notes, and that payment was refused. Whereupon he did protest, &c., “ of all which I duly notified the endorsers.''

    The plaintiff also offered and read in evidence tile-following section of the statute of the State of Pennsylvania :
    11 Section 2. That the official acts, protests and attestations of all notaries public, certified according to law-under their respective hands and seals of office, respect to the dishonor of all bills and promissory notes, and of notice to the drawers, acceptors, and endorsers thereof, may be received and read in evidence-as proof of the facts therein stated, in all suits now pending or hereafter to be brought. Provided, that any party may be permitted to contradict by other-evidence any such certificate.-’’
    The defendant objected to the certificate as insufficient proof of the service of notice of protest, and at the close of the plaintiff’s evidence, moved to dismiss the complaint on the grounds. First. That there was no evidence of due notice of protest. Second. That the-certificates were inadmissible to show the service of notice of protest, an affidavit denying notice having been, served with the answer. And Third. That the certificate did not show due or sufficient service of notice.
    The objection to the certificate was overruled, and the motion to dismiss denied. The defendant excepted.. At the time of the trial the principal and interest on the notes amounted to three thousand and fifty-one dollars and fifty cents, and on the checks to one thousand eight hundred and six dollars and twenty-two cents..
    The plaintiff had a verdict for four thousand eight hundred and fifty-seven dollars and seventy-two cents..
    The defendant appealed.

      Pinckney & Spink, attorneys, and of counsel for appellant, as to the points decided by the court, urged :
    I. The court erred in admitting the certificates. The affidavit annexed to the answer, as provided by statute, of non-receipt of notice, in all cases makes, common-law evidence of notice necessary (Seneca Co. Bank v. Neass, 3 N. Y. 445).
    II. The presumption arising from any notarial certificate ceases when the defendant serves, with his answer, an affidavit that he has received no notice of presentment or protest. The statute of 1833 may not affect the certificate of the notary, as to his common-law powers and duties, but in all other respects it is submitted that it is in operation (N. Y. Sess. Laws of 1833, ch. 271, § 8, 395; Seneca Co. Bank v. Neass, 3 N. Y. 442).
    III. The court erred in refusing the motion for non-suit. The only evidence of notice to the endorser was the notarial certificates.

      IV. If the notarial certificates were admissible for any purpose, they were incompetent as evidence of notice. It is no part of the common-law duty of a notary to serve notices of protest (Brooke, Office of Notary, 79 and 139; Bank of Rochester v. Gray, 2 Hill, 227 ; Ross v. Bedell, 5 Duer, 462).
    V. The laws of Pennsylvania nowhere define or enlarge the duties of notaries public ih respect to bills of exchange or promissory notes, but leave them as fixed and settled under the common law (Purdons Digest of Laws of Penn., title Notaries Public).
    VI. The Act of Dec. 14, 1854 (Penn. Laws of 1855, 724), does not enlarge the duties of notaries at all, nor does it alter the effect of the certificates of notaries of that commonwealth. It repeats the rule as it had long existed, and extends it to notaries of other states (Act of Assembly, January 2, 1815, 6 Sm. 238 ; Starr v. Sanford, 9 Wright. 45 Pa., 195).

      VII. If the law of this state (Session Laws of 1865, ch. 309, 516), taken with the Penn. Act of Dec. 14, 1854 (Penn. Laws, 1855, 724), shall be held to make a notarial certificate proof of service of notice ; still these certificates are incompetent for that purpose. The Pennsylvania Act makes them evidence of the facts therein stated. The facts in respect to presentment, demand, and protest are stated, but no fact in respect to notice is given.
    VIII. A fact is a circumstance, act, or event—and facts in the meaning of the law are physical facts, capable of being established by oral or documentary proof—not propositions which are true in law (Lawrence v. Wright, 2 Duer, 673 ; Drake v. Cockrort, 4 E. D. Smith, 34).
    IX. The notarial certificate should contain such facts as would be competent testimony, if orally given (Rogers v. Jackson, 19 Wend. 383 ; Taylor v. Stringer, 1 Hill, 377 ; Parsons on Notes and Bills, vol. 2, 495; Stewart w. Allison, 6 Sergeant da Rawle, 324, dissenting opinion of Gibson, J., 329).
    X. The danger and injustice of any other rule is well illustrated by Woods v. Neeld (44 Penn. 86).

      North, Ward & Wagstaff, attorneys, and Thomas M. North, of counsel for respondent, as to the points decided by the court, urged :
    I. As to the protest and notice of protest. The notes were foreign notes, and the protest was a foreign protest. The notes were dated and payable in Philadelphia, and protested there. This court in Ross v. Bedell (5 Duer, 462) intimated that proof sufficient to maintain an action in The courts of the state where the note is payable, would maintain it here. The statute of 1858 (Sess. Laws, 516) declared such to be the law of this state. The law of Pennsylvania, applicable to this case, appears by its statute, duly proved and printed in the case, and by the reported decisions of its courts below noted. It is the law of that state, that the protest of promissory-notes, and the giving notice thereof to. the endorsers, are official duties of a notary, and that his certificate, of the performance thereof, is prima facie evidence, not only that he performed them, but that the protest was made, and the notice given in all respects according to law (Statute Case, fol. 83; Stewart v. Allison, 6 Serg. & R. 324 ; Browne v. Phil. Bank, Id. 484 ; Fitler v. Morris, 6 Whart. 415; Jenks v. Doyleston Bk., 4 Watts & S., 505; Kase v. Getchell, 21 Pa. St. Rep. 503). It is also the law of Pennsylvania, that the notary’s certificate, under seal, proves itself (Browne v. Phila. Bank, ubi supra; Lloyd v. McGarr, 3 Barr, 474). Such is also the law of this state, and of most others as to foreign protests. Ghitty says (Bills, 361, 362), “ There is no necessity to prove the signature of the notary, or his seal; to it all courts give credit.” So held in Ross v. Bedell, ubi supra, and in cases there cited at p. 466. It is also the law of Pennsylvania, that it is sufficient if the notary certifies that he gave notice of protest to the endorsers, though he does not state how he gave it (see cases above cited ; also Lloyd v. McGarr, 3 Barr, 474; Woods v. Neals, 44 Penn. Rep. 86).
    II. The idea that the act of 1865 does not apply when an affidavit denying notice is filed by defendant, seems to have grown out of the act of 1833, ch. 271, § 8 (3 R. S., 5th Ed., 474), which provides that “this section shall not apply to any casein which the defendant shall annex to his plea an affidavit, &c.” The proviso only operates to preclude a certificate where the certificate derives its efficiency from that act. The act was expressly held not to apply .to foreign protests by this court, in Kirtland v. Wanzen (2 Duer, 278) ; and by the supreme court, in Bank of Rochester v. Gray (2 Hill, 227). It was held in McKnight v. Lewis (5 Bard. 681) not to limit the provision of the previous act (2 R. S., 283), and of course it can not limit a subsequent act.
    III. It was not necessary that the certificate should state how or in what manner he notified the endorsers, nor where, nor anything further than of all which I duly notified the endorsers.” The courts of Pennsylvania, if this action had been on trial there, must necessarily, under their decisions above cited," have-held these certificates to be “prima facie evidence that personal notice was given,” and would have presumed that defendant was in Philadelphia to receive it, or would have presumed service by mail, or in someway “ according to law.” Proof authorized and required by the laws of Pennsylvania to maintain the-action, having been made, unless it was rebutted, the notes by our statute, “ shall be held and deemed to have; been duly and sufficiently protested, and notice of all thereof duly given.”
   By the Court.—Monell, Ch. J.

The admissibility of the notarial certificate as evidence, depends upon the construction of the act of 1865 (Laws of 1865, ch. 309), concerning proof of the protest of notes, which are payable out of this state.

That act provides that presentment pf such notes, and notice of protest may be made, “ according to the laws of such other state, &c. And in any action in any of the courts of this state . . . such proof of such presentment . . . and notice thereof, may be made, as is authorized and required by such laws. And on such proof being made, the . . . note shall be deemed to have been duly and sufficiently presented and protested, and notice of all thereof duly given.”

The construction and application of this statute would be very plain, if there were no other statutes to be considered.

By an act passed in 1833 (Laws of 1833, ch. 271, ;§ 8), the certificate of a notary of this state is made -presumptive evidence of the service of notice of protest, but the act has no application where the defendant •annexes to his answer (plea) an affidavit, denying the fact of having received notice, as was done in this case. -Under the act referred to, the certificate of the notary must specify the mode of giving the notice, and the reputed place of residence of the party to whom it was given, and the post office nearest thereto. This was .slightly modified by the act of 1835, Laws of 1835 152, ch. 141.) As to the acts required to be done by .the notary, the certificate is made presumptive evidence.

In respect to the specification of the facts or acts of the notary, the statute of Pennsylvania differs from ours. Their statute provides that the official acts, protests, and attestations of notaries public, certified .according to law under their hands and seals, may be received and read in evidence as proof of the facts therein stated. There is nothing in that statute, which, like ours, prescribes the manner of serving notice; nor was any other statute, fixing the mode, proved on the trial; and it is understood there is no such statute.

That, however, does not affect the question of the application of the act of 1865, • which, apparently, makes any certificate under the hand and seal of a notary, evidence of the facts certified.

There is no repealing clause of the previous statute, but there is enough in the act of 1865, I think, to work a repeal by implication of so much of such previous statute as limits the certificate as presumptive evidence, to cases where the defendant fails to annex an affidavit to his answer. The policy of a rule of proving notice of the protest of foreign bills and notes, different from that which is required in respect to domestic paper, is a matter for the legislature, and not for the courts.

The act is certainly broad enough to admit as evidence a notarial certificate, notwithstanding the defendant has put himself on the record, so as to have made the certificate inadmissible if the note had been protested in this state.

Thecompetency of this kind of evidence was decided in the supreme court of this department, in Fassin v. Hubbard (61 Barb. 548), but it does not appear in that case, that the defendant had annexed an affidavit to his answer, and no question, therefore, was presented of the effect of the acts of 1833 and T835, upon the act of 1865.

But the latter act contains no exception. The certificate of a foreign notary is made evidence in all cases, and it is not, by anything contained in the act, limited to cases where the defendant has omitted to make the affidavit.

I am, therefore, of the opinion that the certificate was competent evidence, and the objection to its admission was properly overruled.

But the objection to its sufficiency remains.

The act of 1865 provides, that notes made payable in any state other than this state, may be presented for payment, and protested for refusal to pay, and notice of such presentment, and refusal may be made according to the laws of such other state. And in an action in the courts of this state upon such note, such proof of presentment, &c., may be made as is authorized and re quired by such laws.

The statute of Pennsylvania makes the official certificate of a notary public evidence, and meets or covers that part of the act of 1865, in respect to the proof authorized and required by such laws,” but does not provide, nor was any other statute or law given in evidence, which provides or shows that the presentment, refusal to pay, and notice thereof was made “ according to the laws ” of that state.

The certificate is made evidence ‘ ‘ of the facts therein stated,” and of nothing more. And as it does not show that the presentment and notice was made and given in accordance with the laws of the state of Pennsylvania, it can not be made available, as evidence of giving notice to the endorser.

To make the certificate evidence at all, under our act it is incumbent on the plaintiff to show that the presentment and notice of protest was made in accordance with the law of the State where the presentment is made and notice given.

In that respect there was a failure of proof. The certificate was deficient in not stating the facts, showing that the protest and notice was made in the manner provided by law, and the plaintiff offered no other evidence that it was so done.

In the case of Fassin v. Hubbard (supra), it was proved that notaries public in Louisiana were required, by statute, to keep a record of the protests made by,them, together with mention of the notices given by them, and the manner in which they were served.

It can not be successñilly contended, I think, that after reciting the presentment of the notes, and the refusal to pay, it is enough for the notary to certify, “of all which I duly notified the endorsers unless it is shown that by the law of Pennsylvania, the certificate is not required to state anything more or further. If there is any manner of giving such notices prescribed by statute in Pennsylvania, as there is in this State, then such mode must be followed, and it must be specially stated in the certificate. To certify that it was duly done is not sufficient.

Independently of any statute, the law provides the various modes of giving notice according to the exigencies of every case. Thus it may be either personal, or at the domicil or place of business of the party; or ■by the post, or by a special messenger, &c. But if by the post, it seems indispensable that • it should be in writing, and be sent to the appropriate post-office.

In meeting the denial of notice by the endorser, enough must be shown to answer the law. It must ¡appear that notice was given in one or other of the prescribed modes ; and if by the post, that it was addressed to the proper post-office. It is no part of the duty of a notary public to notify the parties entitled to notice, of the non-payment of a bill or note unless required to do so by statute (Bank of Rochester v. Gray, 2 Hill, 227). And when his certificate, for ■convenience or economy, or otherwise, is allowed to be substituted in some cases for oral proof of the protest and notice, it must contain as much, at least, as would be required in his oral testimony. It was not •intended, I think, that it might contain less facts than would be required in the oral proof; and the statement •of the notary on the stand, that he had “ duly notified Ihe endorsers,” would not be regarded as sufficiently •describing the manner of notifying. He would be asked, and required to answer, how, and in what form ¡and particular manner he had given or served the notice.

The presumption which arises in favor of the per-' formalice of official duty is confined to the act itself. "Thus where an officer is required to do a certain thing, -'it will be presumed that he has done it, and his certifying he has done it, will be taken as true. But when the officer certifies to the doing of the act, he must certify to having done all that the law requires him to •do; and there is no presumption that will supply .any omission in that particular.

Where proof by certificate is substituted for common-law evidence, all the forms directed by the statute, whether preliminary or substantial, must be strictly -complied with (Rogers v. Jackson, 19 Wend. 383). And the rule applies as well to duties required by or performed under the common law. In the case cited, the certificate omitted to specify the post-office nearest to the reputed place of residence of the party notified, and the certificate was held to be insufficient.

The language of the act of 1865, is to me very plain. It does not absolutely render a foreign notarial certificate sufficient, unless the notary certifies to enough. If there is a statute prescribing the manner of notifying endorsers, the certificate must state the mode of service. If there is no statute, then the common-law mode must be followed, and the certificate must state the facts.

The act allows presentment and notice to be made and given, according to the laws of such other state, and proof thereof to be made as is authorized and required by such laws. On such proof, i. e., that the presentment and notice was according to the laws of such state, being made, it shall be held to have been duly done, and such a certificate would be enough.

So far the lex loci will control. If the protest and notice is in accordance with the laws of the state where the note is payable, it will conclude the courts here. But the proof and its sufficiency is governed by the lex fori, unless it is shown that the proof is of all the facts required by tjhe laws of such foreign state, or by the common law. And the burden of showing that rests upon the holder of the dishonored paper.

If these views are correct, then the notarial certificate should have been excluded from the jury, as not containing or being any evidence whatever of the service of notice upon the defendant; and the learned justice erred in refusing so tó charge.

Therefore, the submission of the question of notice to the jury as a fact to be found upon somewhat conflicting evidence, does not cure or remove the objection to their finding it upon improper evidence.

As no objection to a recovery upon the checks was raised before ns on the appeal, and as it was in substance conceded by the appellant’s counsel that the only error was in the admission of the notarial certificates, which relate solely to the notes in suit, there is no reason for disturbing so much of the judgment as is covered by the checks.

The judgment will be modified by deducting therefrom the sum of three thousand and fifty-one dollars and fifty cents, being the amount of the notes and interest, and as modified, affirmed, without costs of the appeal.

And as to the notes mentioned and described in the complaint, the judgment must be reversed, and a new-trial granted, upon the pleadings applicable thereto, without costs of the appeal to either party.

Sedgwick, J. (concurring).

Our statute of 1865 called for proof upon the trial of what was notice of presentment and non-payment, according to the laws of Pennsylvania, and what proof of such notice was authorized and required by such laws. This was a matter of fact to be governed by the common-law rales of evidence, and our statutes. The evidence must be given upon the trial (§ 486 of 1 Or. Bn. and note of editor referring to a new section, § 688a, added by him to his edition of Story’s Cortf. of Laws). | 426 of the Code of Procedure enacts that printed copies of statutes of any state, &c., purporting to be published by authority, shall be admitted on all occasions as presumptive evidence of the laws of such state, and the unwritten or common law of any other states &c., may be proved as facts by parol evidence, and the book of reports of cases adjudged in these courts, may also be admitted as presumptive evidence of such laws.

In Cutter n. Wright (22 N. Y. 472), one of the judges considered that on the question of usury raised at the trial in regard to a contract governed by the laws of Florida, the Code cited above made it legal to examine the statutes of Florida for the first time in the court of appeals. But in Hunt v. Johnson (44 N. Y. 27), one of the judges said, and it seems to me more fairly, that the statute must be proved on the trial, or otherwise not considered on appeal. It was but evidence of a fact, and only presumptive evidence, as to which the opposing party had a right to give further evidence. Such a proceeding could take place only on the trial, and was itself subject to review upon appeal.

In the present case the Pennsylvania statute, on which the plaintiff relies, was duly proven at the trial, and under this the notary’s certificate was admitted.

There was no proof, however, of what notice of presentation and non-payment of a promissory note, the laws of Pennsylvania required to make an endorser liable. On this point, for the reasons stated in respect of statutes, the books of reports of cases adjudged in the court of Pennsylvania, were not evidence when cited in the case for the first time on this appeal, nor were they evidence to show that the language of the certificate, “ of all which I duly notified the endorsers,” were by the laws of that state, prima, facie evidence of the existence of the fact of sufficient notice. By the common law, to which we are left in construing the certificate, the phrase quoted does not state facts, but a declaration that some unstated facts were sufficient in the notary’s opinion to constitute the notice to be by law given to the endorser to make him liable.” It is therefore not proper to examine if the present certificate' has the effect claimed by plaintiff, under the reported cases cited from the Pennsylvania Reports.

We are not, then, called upon to give a more particular construction of the statute of 1865, of this state. There is a question as to the meaning of fhe provision, “ proof, &c., of such notice thereof, may be made as is authorized and required by such law.”

“ The word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. This term, and the word proof,\ are often used indifferently, as synonymous with each other, but the latter is applied by the most accurate logicians to the effect of evidence, and not to the medium by which truth is established (1 Gr. Ev. § 1). If the word “proof,” in the statute designates the means of establishing the facts, the effect of the evidence would be left entirely to our courts, to be applied to the law of Pennsylvania, as to what notice was necessary to be given to an endorser. This construction would agree with the general, useful, and easily-applied rule, that the weight and sufficiency of testimony is controlled by the lex fori."

On the other hand, if the word implies the means of proof, and its sufficiency to establish the existence of the fact under investigation, the broader rule would be recognized as the object of the statute, that the obligations of parties to a contract made and to be performed in another state, are governed by the laws of such state. And if it appeared, in a case like the present, that the obligations of the defendant were such as were created by the laws of Pennsylvania and that there an endorser would be liable, prima facie, so far as notice was concerned by the production of a notary’s certificate like the one here, the statute of our state would provide for such a case. I am inclined to the latter construction, because the statute ends with the words, “And on such proof being made, the said bill of exchange or promissory note or bank check, shall be held to be, and deemed to have been duly presented, &c., and notice of all thereof duly given.” This can not mean that if the same kind of evidence is used here that is authorized in another state, notice shall be deemed to be given, irrespective of the contents of the evidence.

But for the reasons stated in the learned Chief Justice’s opinion, as well as here, I concur in the conclusion arrived at by him.

Monell, Ch. J., concurred in this opinion.