author: Hardin, P. J.: Merwin, J.: Martin, J.:

text:
    The People of the State of New York, Respondent, v. Anthony Girard, Appellant.

      The “ Vinega/r Act,” chapter 515 of 1889 —pi-oof of its violation— constitutionality of the prohibition of any coloring matter — action for penalty, against one of several joint offenders.

    By force of the provisions of section 8 of the “act to prevent deception in sales of vinegar” (Laws of 1889, chap. 515), it is not necessary for the plaintiff, in an action brought by the State Dairy Commissioner in the name of the People to recover the penalty provided by section 7 for a violation of preceding sections of the act, to elect under which section a recovery shall be had, but it is sufficient to sustain a recovery, both on the trial and on appeal, if the case made at the trial presents a violation of any of the provisions found in sections 1, 3, 3, 4 or 5 of the act.
    The provision of section 4 of said act, that “no person shall manufacture, produce, sell, keep for sale, or offer for sale, any vinegar which shall contain * * * any artificial coloring matter,” is valid as an exercise of the police power of the Legislature to protect the public health, and is not in contravention of the provision of the Constitution of the State of New York, that no person shall be deprived of life, liberty or property without due process of law.
    Where the act has been violated by co-partners in business a several action for penalties may be maintained against one of the offenders, without joining his partners with him. (So held in an action where no defense of defect of parties was stated in the answer.)
    The Legislature has power, under the Constitution, to pass a law forbidding the sale of vinegar which contains any artificial coloring matter,' although such coloring matter may neither render the vinegar unwholesome nor tend to deceive a purchaser.
    Appeal by the defendant, Anthony Girard, from a judgment of the Supreme Court, entered in the office of the clerk of Oneida county on the 16th day of February, 1893, upon a verdict in favor of the plaintiff directed by the court at the Oneida Circuit for one penalty mentioned in the complaint.
    Plaintiff’s complaint states that the Dairy Commissioner prosecutes this action in the name of the People to recover a penalty in pursuance of the provisions of chapter 515 of the Laws of 1889, entitled “An act to prevent deception in sales of vinegar,” and charging the New York State Dairy Commissioner with its enforcement, passed June 15, 1889. The complaint alleges “That the defendant, on or about the lJth day of March, 1892, at his store or place of business in the city of ITtica, * * * did, in violation of sections one, two, three, four and five of the act before referred to, and in contravention of the letter and spirit thereof, at the time and place aforesaid, sell and deliver, keep for sale and delivery, as and for cider vinegar, a compound or mixture which was not cider vinegar, nor was the same made from pure apple juice, which did not have or contain an acidity equivalent to the presence therein of at least four and one-half per centum, by weight, of absolute acetic acid, and said compound and mixture so sold as and for cider vinegar as aforesaid, did have and contain less than four and one-half per centum, by weight, of acidity, and did contain less than two per centum, by weight, of cider vinegar solids upon full evaporation, over boiling water, and the mixture and compound so sold and delivered, offered for sale and kept for sale by the defendant at the time and place aforesaid, as and for cider vinegar, was made and produced in imitation or resemblance of cider vinegar, but said compound or mixture was not cider vinegar, nor was the same made from pure apple juice; and said mixture and compound so sold and delivered, offered for sale and kept on sale by the defendant at the time and place aforesaid contained a preparation of sulphuric acid and other deleterious substances injurious to health, with artificial coloring matter to color the same in imitation and resemblance of pure eider vinegar; and on the barrel from which the same was drawn, sold and delivered, and in which the compound was kept, stored ready for sale, was branded with the name of £Williams Bros. & Charbenneau,’ doing business at£ Detroit, Michigan,’ with the words ‘Amber Colored Vinegar, 46 gal.,’ in contravention of the statute in such case made and provided, and the compound aforesaid was not cider vinegar, nor was the same made from pure aj>ple juice.”
    The answer of the defendant contained simply a denial of “ each and every allegation in said complaint contained.” When plaintiff rested the defendant moved for a nonsuit “ on the ground that no cause of action has been made out by the evidence.” The motion was denied and the defendant excepted. At the close of the evidence plaintiff asked for a direction of a verdict “ for one penalty under section two and the last clause of section four of the Vinegar Act.” Defendant moved to dismiss the complaint “ On the ground that the facts proved do not establish a cause of action against this defendant, in that the cause of action, if any, appears to be against the defendant and John Gerónimo jointly, as partners, and cannot be enforced against this defendant individxmlly, until the partnership assets are exhausted.” To that motion the court replied, “ There is no allegation in the answer of defect of parties. I deny the motion to dismiss the complaint; ” to that the defendant took an exception. Thereupon the court stated its views of the case, and intimated an intention to order a verdict for the People of one penalty for $200. The defendant thereupon took an exception. Then the defendant asked “to go to the jury on the evidence under section two of the act, as to whether or not the defendants sold or offered for sale vinegar in imitation or semblance of cider vinegar, which is not cider vinegar; ” the request was refused and the defendant took an exception. The defendant then asked the court “ to instruct the jury that that part of section four relied upon for the direction of a verdict, to wit, the prohibition of an artificial coloring matter in that section, is unconstitutional; ” the court refused and the defendant took an exception. Thereupon the defendant asked “ to go to the jury upon all of the evidence in the case as to the liability of the defendant; ” it was refused and an exception taken.

      Miller, Finelce & Brcmdegee, for the appellant.

      Risley Bohinson and Henry M. Love, for the respondent.
   Hardin, P. J.:

Manifestly the Legislature of 1889, in the passage of chapter 515 of the laws of that year, assumed to exercise its police power. The title of the act is as follows : An act to prevent deception in sales of vinegar, and charging the New York State Dairy Commissioner with its enforcement.” An evil practice was existing in the State at the time of the adoption of the act, and deleterious substances were being used in -the manufacture of vinegar, substances which were detrimental to the health of the people consuming the impure and deleterious article being manufactured and sold and used to the detriment of the health of the citizens of the State. Evidently the intention of the Legislature was, through its police power, to protect the citizens of the State. The act, after containing certain prohibitions and restrictions, in its 6th section contained the following-provision : “ Whoever, by himself or another, violates any of the provisions of any of the foregoing sections shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars.” Then follows the Ith section, which provides as follows: Section 7. If any person, by himself or another, shall violate any of the provisions of sections one, two, three, four or five of this act, he shall, in addition to the fines and penalties herein prescribed for each offense, forfeit and pay a fixed penalty of two hundred dollars for each offense. Such penalties shall be recovered, with costs, in any court' of this State having jurisdiction thereof, in an action to be prosecuted by the New York State Dairy Commissioner or any of his assistants in the name of the People of the State of New York.” Then follows an important provision’ relating to the proceedings in the prosecution or in a suit for penalty found in section 8 of the act, which is as follows : The prosecution shall not be compelled to elect, in any trial for the misdemeanors or suit for the penalties for the violation of sections one, two, three, four or five, where the indictment, information or complaint charges a violation of any two or more of such sections, between the charges or counts under such different sections.” Applying this rule given by the statute, it was not necessary that the plaintiff should elect under which section a recovery of the penalty sought should be had; it was sufficient for the trial, and it is sufficient here, if .the case made at the trial presents a violation of any of the provisions found in sections 1, 2, 3, 4 and 5 of the enactment. The learned trial judge rested his conclusion upon the evidence, which, in his opinion, established a violation of section 4 of the act. That section provides that “No person shall manufacture, produce, sell, keep for sale, or offer for sale any vinegar which shall contain any preparation of lead, copper, sulphuric acid, or other ingredients injurious to health, or any artificial coloring matter.” The evidence produced at the trial quite satisfactorily established the fact that the defendant kept for sale, offered for sale, and sold vinegar, so called, containing “ artificial coloring matter.” "We think there was no conflict in the evidence upon that subject. Indeed, in the argument of the learned counsel for the appellant it is assumed that the evidence established that fact; and he also assumes that the prohibition “is absolute, and without regard to whether it causes the product to resemble cider vinegar, or unmistakably distinguishes it from such vinegar.” "We think the provision was inserted for the purpose of preventing “ deception in sales of vinegar,” and to protect the public health, and that the provision is valid, and is within the police power of the Legislature.

In People v. West (106 N. Y. 296) Andrews, «L, said: “ It is the province of the Legislature to determine, in the interest of the public, what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality.” The general scope of the act was “ to prevent deception in sales of vinegar,” as appears by the title of the act. We think the provision of section 4, which is relied upon by the People to sustain the recovery, is valid, and that its terms are supported by the principles laid down in People v. West (supra) and in People v. Arensberg (105 N. Y. 123).

In People v. Gillson (109 N. Y. 389) it was held, viz.: “ While it is for the Legislature generally to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, and the exercise of its discretion in this respect is not the subject of judicial review, yet a statute, to be upheld as an exercise of the police power, must have some relation to those ends.” "We think the statute before us very clearly has “some relation to those ends,” and that the statute before us is quite distinguishable from the one under consideration in People v. Gillson (supra). It was for the Legislature to say whether the insertion of any “ coloring matter ” in vinegar was calculated to “ baffle ordinary inspection or whether it involves such danger to the public health as to require, for the protection of the People,” its entire prohibition, and it was for the Legislature to say whether public policy required from it the exercise of its police power. The Legislature having determined those questions and inserted the prohibition found in the last part of section 4 in the exercise of such power, we are inclined to the opinion that the clause of the act under discussion is constitutional and valid. (Powell v. Pennsylvania, 127 U. S. 678.)

(2) We think the defendant cannot escape liability for the penalty given by the statute for the reason that the suit was brought against him alone and not against him and his supposed partner. There was no defense of defect of parties stated in the answer. First. Section 7 provides: “ If any person, by himself or another, shall violate any of the provisions of sections one, two, three, four or five of this act, he shall * * * forfeit and pay a fixed penalty of two hundred dollars for each offense.”

In Palmer v. Conly (4 Den. 378) it is said: “ The rule at common law is universal that every crime, as far as respects the guilt and punishment of, the parties engaged in the preparation of it, is several; and that if two or more persons concur in the commission of an offense, each offender is liable to a several punishment. This principle extends to statute offenses as well as to those which are punishable by the common law; and in general there is no distinction in the application of it between the higher kinds of punishment and fines or mere pecuniary penalties.” The foregoing views, if adopted, lead to an affirmance.

Judgment affirmed, with costs.

Merwin, J.:

I concur in affirmance.

Martin, J.:

As I understand this case there is but a single question involved, which is the constitutionality of that part of section 4 of chapter 515 of the Laws of 1889 which provides that “No person shall manufacture, produce, sell, keep for sale or offer for sale any vinegar which shall contain * * * any artificial coloring matter.”

The action was to recover a penalty for selling vinegar in violation of what is known as the “ Yinegar Act ” (Laws 1889, chap. 515). The court directed a verdict for the plaintiff for $200, and expressly refused to submit to the jury the question whether the vinegar sold was in imitation or semblance of cider vinegar, although it said that under the evidence that was a question of fact for the jury. The effect of this ruling was to hold, as a matter of law, that although the vinegar sold was neither unwholesome nor calculated to deceive a purchaser thereof as being in imitation or semblance of any other article of the kind, still, the mere fact that it contained artificial coloring rendered the defendant guilty of a crime, and liable to a penalty of $200.

If the portion of the section above quoted is not in contravention •of the provision of the Constitution which provides that no person shall be deprived of life, liberty or property without due process of law, it is practically admitted that the judgment is proper and should be affirmed. Thus we are required to determine whether the Legislature had power, under the Constitution, to pass a law forbidding the sale of vinegar which contained any artificial coloring matter which neither rendered it unwholesome nor tended to deceive a purchaser. "While, generally, it is for the Legislature to determine what laws are required to protect and secure pirblic health, comfort, safety and the welfare of society, yet, under the guise of police regulations it cannot arbitrarily infringe upon personal or property rights, and its determination as to what is a proper exercise of the power is not final or conclusive, but is subject to the scrutiny of the courts. The Legislature cannot properly pass an act which is ostensibly to protect the public health, but which does not relate to or is inappropriate for that purpose, and thereby destroy the property or interfere with the rights of an individual. The right of liberty secured by the Constitution includes the right of an individual to adopt- and follow such pursuits not injurious to the community as he sees fit, and a legislative enactment which prohibits such an industry, when not injurious to the community or fraudulently conducted, is not constitutional. (Matter of Jacobs, 98 N. Y. 98 ; The People v. Marx, 99 id. 377; The People v. Arensberg, 103 id. 388; S. C., 105 id. 123 ; People v. Gillson, 109 id. 389.)

In the Jacobs case Judge Earl said: “ Generally, it is for the Legislature to determine wliat laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the Legislature is not final or conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the Legislature may in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law.”

In the Mcurx case it was held that the provision of the act of 188i prohibiting the manufacture or sale as an article of food of any substitute for butter or cheese not produced from pure, unadulterated milk or cream, is unconstitxitional inasmuch as the prohibition is not limited to unwholesome or simulated substances, but absolutely prohibits the manufacture or sale of any compound designed to be used as a substitute for butter or cheese, however -wholesome, valuable or cheap it may be, and however openly and fairly the character of the substitute may be avowed and published.

In the Arensberg Case (103 N. Y. 388) the court held that in order to sustain an indictment under the provision of the act of 1885 prohibiting the manufacture or sale of any article “ not produced from unadulterated milk or cream from the same,” which is “ in imitation or semblance of or designed to take the place of butter,” it must be made to appear that the article manufactured was, by the use of ingredients, not necessary or essential to the article itself, made in imitation or semblance of butter, and that the manufacture of an article simply “designed to take the place of butter,” is not an offense, and so much of the provision is unconstitutional.

In the same case (105 N. Y. 123) it was held that the provision of the act of 1885 “ to prevent deception in the sale of dairy products,” ■which prohibits the manufacture or sale of any product not made from unadulterated milk or cream, but made “ in imitation or semblance ” of dairy butter, is constitutional; that the producers of butter from animal fats or oils, although the product may be wholesome, nutritious and suitable for food, and so the manufacture and sale thereof may not be prohibited, have no constitutional right to resort to devices for the purpose of making their product resemble dairy butter, and the Legislature has power to enact such laws as it may deem necessary to prevent the simulated article being put upon the market in such form and manner as to be calculated to deceive ; that the statutory prohibition is aimed at a designed and intentional imitation of dairy butter in manufacturing the new product and not a resemblance in qualities inherent in the articles themselves and common to both, and that the sale of an article known to the vendor to be oleomargarine to which a coloring matter, not injurious to health, had been added, which was not essential to the manufacture of the article, but resorted to solely for the purpose of making it resemble the most valuable kind of dairy butter, was a violation of the act and justified a conviction on an indictment under it; and this although the defendant offered it for sale and sold it as oleomargarine. It was also intimated hi that case that the Legislature has power to prohibit the coloring of winter dairy butter for the purpose of enhancing its price by making it resemble summer dairy butter.

In the Gillson case it was held that the provision of the Penal Code prohibiting the sale or disposal of any article of food, or any offer or attempt to do so upon any representation or inducement that anything else will be delivered as a gift, prize, premium or reward to the purchaser, is unconstitutional and voidthat it is violative of the provision of the State Constitution securing to every person liberty and property unless he is deprived thereof by due process of law,, and not valid as a proper exercise of the police power of the State* or as a health law or regulation of trade in food, to prevent the! adulteration thereof.

In applying the doctrine of these cases to the question under consideration, it must be borne in mind that whether the jury would or would not have been justified in finding the defendant guilty of selling vinegar in imitation or semblance of cider vinegar, is not before us. As the court held, that question was clearly for the jury. Under the evidence there is no doubt but that the vinegar sold was perfectly wholesome, and the substance used in coloring was inoxious and harmless. Plence, as we have already seen, the only question is whether, where an article of food in general use is wholesome and healthful, is not made or sold in semblance of any other article, so that a purchaser is neither deceived nor furnished with that which is unwholesome, the Legislature can pass beyond that limit and prevent the selling of it, solely because it contains artificial coloring matter.

The principle of the authorities cited tends to sustain the contention of the appellant, that the Legislature, so far as it attempted to make the mere act in selling vinegar in which there was an artificial coloring matter a crime, has exceeded its constitutional power. And yet, upon examining the dissenting opinion in the case of People v. Cipperly (37 Hun, 324), which was adopted by the Court of Appeals (101 N. Y. 634), wherein it was held that the Legislature had power to pass an act declaring all milk to be adulterated which did not contain a certain per centum of milk solids and fat, even though it was in fact unadulterated, and also considering the fact that coloring matter was not a necessary or essential ingredient of the vinegar sold in this case, I am led to doubt the correctness of the appellant’s contention. As every presumption is in favor of the constitutionality of legislative acts, and a case should be practically free from doubt before an act of the Legislature should be declared unconstitutional, I am disposed to concur in the conclusion that the judgment should be affirmed.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    Lewis W. Hudson, as Administrator, etc., of Harry L. Hudson, Deceased, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.

      Mailroads — death of a fireman, caused by the collapse of a boiler crown sheet — negligence as to the condition of the arenen sheet — inspection — evidence.
    However improbable may appear tbe testimony of a witness who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force and effect of such testimony is for the jury.
    In an action brought against a railroad company to recover damages resulting from the death of a locomotive fireman in its'employ, caused by the collapsing of the crown sheet of the boiler of a locomotive while taking in water, the main questions litigated in relation to the defendant’s negligence were as to whether or not the crown sheet had been burned prior to the entrance of the deceased upon the locomotive for the trip on which the accident occurred, and as to whether or not the locomotive was properly inspected at the round house before it was sent out. These questions were submitted to the jury and a verdict was rendered for the plaintiff.-

      Held, that the question of the defendant’s negligence was properly submitted, in accordance with the rule, that where the question of negligence is presented on conflicting evidence and different inferences may be drawn by the jury from such evidence, the trial court must submit the question to the jury ;
    And that the verdict was supported by the evidence.
    Appeal by tbe defendant, tbe Rome, Watertown and Ogdensburg Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the' office of tbe clerk of Jefferson county on tbe 27th day of May, 1893, upon a verdict rendered at tbe Jefferson Circuit, and from an order denying tbe defendant’s motion for a new trial made upon tbe minutes.
    The action was brought to recover tbe damages resulting from tbe déath of tbe plaintiff’s intestate, Harry L. Hudson, alleged to have been caused by tbe negligence of tbe defendant.
    Harry L. Hudson was a fireman in tbe employ of tbe defendant on tbe 8th day of October, 1890, and was killed at Mexico by the collapse of the crown sheet of the boiler of a locomotive engine, known as No. 103. One George H. Grower was the engineer, and they were ordered on tbe eighth of October about one-forty-five p. m., to take the engine No. 103 from the round bouse in tbe city of Watertown for tbe purpose of drawing an extra freight train to the city of Oswego on the defendant’s road. Grower had not run the engine before that time. When they took possession of the engine there was fire in her, and she had on a pressure of from 140 to 150 pounds of steam. She was a large engine with four driving wheels on each side. They took water at the water column in Watertown and left there with the tank full. They again took water at Pierrepont Manor, and at Richland. When they reached Mexico the engine stopped at the water column, and Hudson, the deceased, commenced to take water in the tank. Grower testifies: “ She was then getting-a third gauge of water; she had then two full gauges and; the injector was working at the time; I left the injector going ; I then got down out of the cab and went into the depot to get orders; as soon as I went into the depot I heard this explosion, although there was not much of it to hear; I ran out of the door and when I came out I saw a cloud of steam, and I went down to the engine; I saw Hudson, he was back about one car length from the engine; * -x- -x- pe was badly burned; I picked him up and carried him to the station ; he was taken from there to the hospital in Oswego; I saw him the next morning; he was still alive, and I saw his remains at the undertaker’s rooms at Oswego; that was the next day, Oct. 9, * * * when I last saw Hudson -before the accident he was taking water from the tank; I examined the engine after the explosion ; I found the crown sheet reversed; originally it was oval; there was not a break in the crown sheet; it was just reversed; the crown sheet dropped into the fire box, and the stay bolts pulled out j during the time I had charge of the engine on October 8th, 1890, the water did not get so low in the boiler at any time that it did not cover the crown sheet. From the time I left the Watertown yard until the explosion I had water enough in the boiler to cover the crown sheet all the time. We reached Mexico about 6.45 n. m. ; when I left the engine to go to the depot at Mexico there was a brakeman on the engine with Hudson; but I don’t remember his name; it was the duty of the fireman to take water into the tank.”
    The engine was left in Watertown at the round house where she was coaled and had her fire dumped. TIow long she was there is not made very clear by the evidence. While she was there she was under the control of Batchelder, who is the engine dispatcher and had charge of the round house at Watertown. Batchelder says: “ There was no inspection, except that of the engineer and myself when I was around there ; I used to inspect them myself when I was there, and when I was absent the only inspection made was by the engineer ; the engineers have orders to inspect their engines, and make reports every trip; if the engineer came in with an engine and didn’t report anything the matter to me, and I was not around, the engine would not be inspected by any person; I would make an inspection of the engine generally; not necessarily of her boilers ; I generally looked around the engine; I have always made it a practice when I would go around an engine to inspect it, to see if there was anything out of order.” There was evidence given to the effect that burning or scorching of the steel crown sheet would cause the crown sheet to leak into the fire box around the stay bolts. There was also evidence given tending to show a leakage. Shepard, the hostler at the round house, testifies that he saw engine 103 on the ■eighth of October, that he cleaned her fires and had her coaled up, and he says, “ I don’t recollect that it is a fact that I saw her leak before she went out that day; I don’t remember as I did; my best recollection to-day is that I did not; 1 cannot remember as to whether she leaked before or after the accident; I know she did leak; whether it was before or after I don’t just remember; I did not see her after the accident until after she came back from the shop ; I can’t say how long it was, but it was after she had a new crown sheet; I say she either leaked before or after there was a new crown sheet put in her, and I don’t remember which; I will not swear that she did not leak before the accident; I don’t know how many days I have had her in charge; * * '■ * I have seen her leak quite a number of times ; * * * I could not say whether it was before or after the accident; yes, I saw her leak; I looked at her crown sheet, but I can’t say whether it was before or after the accident; I didn’t discover anything about her being scorched or heated; I didn’t say anything to Batchelder about her being scorched or heated ; I said nothing except about her leaking-; the leaking was in the right hand back corner of the fire box; not under her stay bolts; it is where the crown sheet is connected onto the side sheet; it was caulked up quite a number of times; I think Gates did the caulking at Watertown; I don’t know when; Gates is the boiler maker and he is here in the court room; * * * the leaking was done where the crown sheet connects onto the side sheet; it was on the edge where the crown sheet connects onto the side in the right hand back corner — upper corner.”
    There was evidence tending to show that a hot fire generating steam of 150 pounds would have a tendency to close any leaks that might have been in her crown sheet, and evidence was also given tending to show that if she leaked only a little it would not be discovered unless someone looked up at the top crown sheet through the furnace door.

      Mullin, Griffin <& Wallcer, for the appellant.

      John JJ. Carlisle, for the respondent.
   Hardin, P. J.:

Upon the trial no serious question was made as to the intestate’s freedom from contributory negligence, nor do we understand that question is made in the argument before us. That question was properly submitted to the jury, and we must assume that their verdict finds that the deceased was free from contributory negligence, upon evidence sufficient to establish that fact.

(2) The main question litigated at the trial and pressed upon us. in the argument, relates to the defendant’s alleged negligence. Plaintiff’s position at the trial was that the accident occurred by reason of the collapse of the crown sheet of the engine, and that it had been burned prior to the occasion when the deceased entered upon the engine for the trip when his life was lost. According to the testimony of Grower there were two full gauges, at least, of water in her, and from the time he took charge of her until she collapsed, the crown sheet was covered with water all the time. Shepard, the hostler who had charge of her while she was in the yard at Watertown, testified that he kept water in her boiler while she was. there, and from this evidence it is insisted that the crown sheet must have been burned before Shepard took charge of her, and that she was in that burned or defective condition while she was in the yards. There was some evidence tending to show that the top of the crown sheet had a bluish cast on the under side which extended along her length, and could have been discovered upon careful inspection had for that purpose. Defendant gave considerable evidence of the condition of the crown sheet after the accident, and the evidence tended to show that an engine with its crown sheet burned to the extent of this one could not be made to run at all,, and that one with the crown sheet slightly scorched might be made to work for a short time, and that when the sheet is scorched the soot leaves the fireside of the sheet, and that such was the condition of the sheet just after the accident; and that the scorched area was some thirty-two inches in width at the front of the fire box, and extended the whole length of the sheet, gradually diminishing until at the back end of the sheet the scorched area was only sixteen inches in width. When the plaintiff rested the defendant moved for a nonsuit, which was denied, and when the evidence was. closed the defendant again moved for a nonsuit, and an exception was taken on each occasion, the court holding that the question relating to the defendant’s negligence was one of fact for the jury. The defendant contends that the exceptions present error, and that the evidence clearly indicated that the crown sheet was burned at the time of its collapse, and not at a prior time, and that, therefore, the verdict is against the evidence. We are of the opinion, however, that whether the engine was in a defective condition or not at. the time when it was placed in the hands of Grower and the deceased by reason of the fault or negligence of the defendant, was a question of fact which was properly submitted to the jury. The charge was very elaborate, carefully presenting to the jury the evidence relating to the question of the defendant’s negligence; and the judge repeated the question for the jury’s determination in several different expressions in commenting upon the evidence. He said: “ But I leave it as I have left it, for the jury to say whether the boiler was in such a condition when it left the Watertown yard as that the failure of the defendant to discover it was negligence ; that is, whether, in the exercise of ordinary, reasonable care, they ought to have discovered it.” Again, he says : “ I cannot say what the jury would have a right to find the condition of the engine was when it left Watertown. I simply leave it to the jury to say what its condition was. It is not for me to say. When they have determined what its condition was, I leave it to them, as a question of fact, to say whether the defendant, in just the condition it was in, was guilty of negligence in not having discovered it before it left the Watertown yard; I will say that their duty was to exercise reasonable care in discovering defects, and nothing more; they were not under obligation to make any very extensive inspection of it unless their attention was called to it. They were to use reasonable care in discovering defects, and if, by the exercise of reasonable care they ought to have discovered it, then they were guilty of negligence in not discovering it, and sending it out on the road — in such a condition.” We think the rulings and charge of the trial judge were as favorable to the defendant as it was entitled to, and that the verdict is supported by the evidence. (Buck v. Webb, 58 Hun, 188; Stevenson v. Jewett, 16 id. 210 ; Northern Pacific Railroad Co. v. Herbert, 116 U. S. 642.) It has been repeatedly held that where the question of negligence is presented on conflicting evidence, and where different inferences may be drawn.by the jury from such evidence, the trial court must submit the question to the jury. (Kain v. Smith, 89 N. Y. 376; Bailey v. Rome, Watertown & Ogdensburg Railroad Co., 139 id. 302.) In the case just cited the court said : “ The evidence of the negligence of the ■defendant is not direct or positive. But this is an infirmity whicli ■attends the investigation of facts in courts of justice in very many •.cases; * * * we are unwilling to say in this case that tliere was no evidence from which a just inference might not be drawn by the jury, that the defective condition of the brake existed when the car left Norwood, and that there was a negligent failure to discover it at that point.” We think the principle announced in the opinión which we have just quoted is applicable to the facts of the case now presented at bar. Criticism is made by the learned counsel for the appellant in regard to the testimony of Grower on certain , essential features of the case. That criticism may be answered by a remark of O’Brien, J., in Hastings v. B. L. Ins. Co. (138 N. Y. 479), which was as follows: “ However improbable the testimony of a witness may appear, who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force and effect of such testimony is for the jury.” In the argument submitted to us by the learned counsel for the appellant it is not claimed that any error was committed in the course of the charge' or in dealing with the requests, which were numerous, following the body of the charge. "We have discovered no error in the progress of the trial warranting us in overturning the verdict of the jury.

Martin and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.


author: Per Curiam :

text:
    The People of the State of New York, Respondent, v. Samuel P. Hill, Appellant.

      Criminal appeals — amendment of an order entered on a defective memorandum of decision — duration of the jurisdiction of the appellate court.

    When the General Term has reversed, on appeal, a judgment of conviction in a criminal action, with (he intention of ordering a new trial, but the memorandum of' the decision as handed down contains, through inadvertence, merely a statement of reversal, without either ordering a new trial or directing that the defendant be discharged or his bail be exonerated as prescribed by the Code of Criminal Procedure (§ 545), and an order has been entered on the decision as handed down, but no judgment has been entered thereon, it is the duty, and is within the power, of the General Term, to amend such order so as to make it conform to and carry into effect the decision intended.
    A criminal case, taken to the General Term on appeal, is to be regarded as still in that court after its .decision there, until a judgment has been entered in the judgment book of the county where the court is in session when the decision is made, and has been certified to the county where the original judgment roll is filed (Code Crim. Proc. §§ 547, 548); until this has been done, the General Term has sufficient jurisdiction of the case to make an order granted by it conform to its intended decision.
    Motion by the People of the State of New York to correct the order of reversal of the General Term heretofore made in the above-entitled action; the decision upon which such order was made is reported in 65 Hun, 420.

      James J. Faumes, for the appellant.

      W. F. White, for the respondent.
   Per Curiam :

This is a motion to correct an order made by this court reversing the judgment of the Oyer and Terminer by adding to such order a direction for a new trial, or that the defendant be discharged or his bail exonerated, as required by section 545 of the Code of Criminal Procedure.

The defendant was indicted for murder in the second degree, and, at the Oyer and Terminer held in Delaware county September, 1890, convicted of manslaughter in the second degree. From the judgment of conviction thus rendered an appeal was taken to this court, where the judgment was reversed for errors in rejecting evidence offered by the defendant and in the judge’s charge.

In the memorandum of decisions handed down by this court it was stated that the judgment and order were reversed, without directing a new trial or discharging the defendant or his bail. In pursuance of that memorandum the defendant caused an order to be entered in the office of the clerk of Oneida county, where the court was held when the decision of this appeal was made, and the clerk of that county thereupon certified a copy thereof to Delaware county where the original judgment roll was filed.

■ Subsequently this motion was made, and the Court of Oyer and Terminer was requested to return to this court the papers and proceedings sent to the clerk of Delaware county, and the judgment entered therein, to be used upon the consideration of this motion. "With that request the Court of Oyer and Terminer complied, so that the judgment roll and all the papers in the case are now before us. These papers disclose that no judgment has in fact been entered on the decision of this court, either in Oneida or Delaware county, but that only an order has been entered.

It is manifest that the decision handed down by this court, and the order entered in pursuance thereof, do not comply with the requirements of section 545. It is also manifest that the omission to comply with the provisions of that section occurred through inadvertence and not by design. That this court did not intend to discharge the defendant or exonerate his bail becomes obvious when we consider the grounds upon which the judgment and order were reversed. It is clear from the papers that the omission in this case was of a direction ordering a new trial in the court below, and such was the fact. Under these circumstances, it is clearly the duty of this court to amend the order in this case, so as to carry into effect the actual intention of the court, if it has jurisdiction and power to make such an order at this time.

The defendant contends that this court has no such power. Ilis precise contention is that the court having announced its decision, although upon its face it disclosed that it was imperfect in failing to comply with the requirements of the statute, the power of the court is-spent, and it cannot amend the order so as to make it conform to the decision intended. We think this contention cannot be sustained. A bare inspection of the memorandum handed down by the court showed that it was imperfect and incomplete ; yet the defendant, who must have discovered that fact, saw fit to procure an order to be entered and certified, without in any way calling attention to the omission, or seeking- to have the decision amended or to discover-whether the court intended' to discharge the defendant, or to grant him a new trial. Upon these facts, and with all the orders and papers before us, we think we have power and authority to amend this order so as to make it conform to the decision intended to be-made. (Altman v. Hofeller, 137 N. Y. 619, 620; The People v. Phelps, 44 N. Y. St. Repr. 737; affd., Id. 910.)

We find nothing in section 549 of the Code of Criminal Procedure that prohibits this court from granting the order sought.. We are of the opinion that the intention of that section was not to prohibit an appellate court from so amending its order or decision as-to make it conform to the decision intended, but that it applies only to a case where the decision of the court has been fully perfected in accordance with its intentions.

Moreover, no judgment has been entered or remitted as required by section 547. While in some of the affidavits, read upon this-motion the affiants are made to say that a judgment was entered, still, in each case, they refer to a paper annexed as a copy thereof. When the paper to which they refer is examined, it is found that it is not a judgment, but only an order, upon which a judgment might have-been entered. By an examination of section 532 of the Code of' Criminal Procedure it wdll be seen that, upon an appeal being taken, it is the duty of the clerk with whom the notice is filed to transmit a copy of the notice of appeal and of the judgment roll to the clerk of the county where the next General Term is to be held. Section 547 declares that after “ the judgment of the appellate court is given it must be entered in the judgment book,” and when so entered, “ a certified copy of the entry ” shall be remitted to the clerk with. whom the original judgment roll is filed,” while section 548 provides that “ The decision of the court and the return shall be remitted to the court below in the same' form and manner as in civil actions.” Thus the practice is clearly pointed out by the statute, and requires, among other things, that a judgment shall be entered in the judgment book in the county where the court is in session when the decision is made, and that it shall be certified to the county where the original judgment roll is filed. Until this is done a case must be regarded as still in the appellate court, and it must have sufficient jurisdiction to make an order granted by it conform to its intended decision. •

Thus we are led to the conclusion that this court has jurisdiction and authority to amend the order in this case, and that it should be amended so as to conform to the intended decision of the appeal herein.

The order should be amended in accordance with the foregoing opinion.

Present — Hardin, P. J., Martin and Merwin, JJ.

Motion granted and order and papers filed with the clerk of ■Onondaga county.


text:
    Ellen Pickert, as Administratrix, etc., of Solon S. Pickert, Deceased, Appellant, v. Frederick Windecker, John W. Windecker and Joseph T. Wooster, Impleaded with Others, Respondents.

      A contingent remainder is alienable — amendment of summons and complaint by changing the title of the suit ■ — decision of a referee solely upon evidence taken before the amendment, sustained — two bills of costs.

    A contingent remainder being a contingent future estate in expectancy, is alienable in the same manner as estates in possession.
    A will devised certain land owned by the testator in fee to the testator’s son Emilius for his natural life, with this provision : “In case my said son Emilius should have a child or children living at his death, then, in that case, I give and bequeath the aforesaid sixty-eight acres of land bequeathed to him during his life, to such child or children, if living' at his death, and to their heirs and assigns forever, to have the remainder after his death and not before,” followed by a provision that in case Emilius died leaving no children, the property should go to the testator’s other children.
    Emilius survived the testator and entered into possession of the land under the will, having several children, one of whom, Solon, executed an instrument, whereby, fora good consideration, he did “sell, set over, transfer and assign all. his right, title and interest in and to said sixty-eight acres of land, and all his share, right, title and interest to the said real estate or any part thereof, of whatever name or nature,” to the grantee, his heirs and assigns forever. Thereafter Emilius died, leaving his son Solon and other children surviving.
    Solon thereupon brought an action for the partition of the land.

      Held, that, under the will, Emilius took only a life estate in the land; that the remainder vested in his children, and was alienable; and that the interest of each of his children would pass by conveyance thereof;
    That the instrument executed by his son Solon operated as a conveyance of his contingent interest in the land to the grantee, and entitled the latter to hold such interest absolutely upon the death of Emilius; and that consequently Solon had no title to or interest in the premises at the time of the commencement of the action for partition, and hence could not maintain it.
    Solon was a lunatic when the action for partition was brought, and the action was brought in the name of his committee as plaintiff; it was referred, and after the taking of evidence and before the final submission of the cause to the referee, the plaintiff’s attorney obtained an order amending the summons and complaint so that the action was entitled in the name of the lunatic by his committee. After this order was made the defendants’ attorneys served notice of trial before the referee upon the plaintiff’s attorney; thereafter the plaintiff’s attorney appeared before the referee and applied for an adjournment. The referee denied the application, but the defendants’ counsel consented to allow the plaintiff to put in further evidence, which was not done. Both parties submitted written arguments and points to the referee, who took the case under advisement upon the evidence given prior to the order of amendment, and rendered a decision dismissing the complaint. The plaintiff appealed from the judgment entered on the decision, but not from the order of amendment.

      Held, that it must be assumed that the order of amendment was properly granted, and that the action submitted to the referee must be regarded as an action brought in the name of the lunatic;
    That under the facts it must be assumed that the plaintiff was satisfied to submit the case upon the evidence which was taken before the referee before the amendment of the title of the action; and, hence, that the contention of the plaintiff, that the judgment was void because “ there was no proper evidence offered on the part of either the plaintiff or the defendants or received by the referee after the order was granted,” could not be sustained.
    Three defendants defended the action; one of them appeared and answered by one attorney, and the other two appeared and answered by another attorney. The referee, on dismissing the complaint, awarded two bills of costs.

      Held, that there was nothing in the record to indicate that the referee erroneously exercised his discretion in respect to the award of costs to the defendants. (Code Civ. Proc. § 3229.)

      Appeal by the plaintiff, “ Solon S. Pickert, a lunatic, by Ellen Pickert, as committee of Solon S. Pickert, a lunatic,” from a judgment of the Supreme Court in favor of the defendants dismissing the complaint, entered in the office of the clerk of Herkimer county ■on the 3d day of March, 1892, upon the report of a referee.
    The action was originally brought in the name of “ Ellen Pickert, as committee of Solon S. Pickert, a lunatic,” plaintiff. Thereafter an order was granted permitting the plaintiff to serve an amended summons and complaint by which the designation of the plaintiff was changed to “ Solon S. Pickert, a lunatic, by Ellen Pickert, as committee of Solon S. Pickert, a lunatic.”
    Solon S. Pickert, after the appeal was taken in this case, died, and an order on the 14th of January, 1893, which was amended by an order of the Special Term on the 27th of January, 1893, was made continuing the “ action and appeal herein, in the name of Ellen Pickert, as administratrix of the goods, chattels and credits of Solon S. Pickert, deceased, as plaintiff and appellant, against the parties defendant and against Ellen Pickert individually.”
    The referee, on dismissing the complaint, with costs, awarded costs as follows: “Inasmuch as the defendant Joseph T. Wooster appeared and answered by Devendorf & Smith, his attorneys, and John W. Windecker and Frederick Windecker appeared and answered by their attorney, C. J. Palmer, I conclude each should have costs, to wit, one bill of costs to said defendant Joseph T. Wooster, and one bill of costs to the defendants John W. and Frederick Windecker, and judgment is ordered accordingly.”

      George C. Carter, for the appellant.

      C. J. Palmer and Devendorf <& Smith, for the respondents.
   Hardin, P. J.:

In 1891 this action was commenced to partition certain lands described in the complaint, situated in the town of Fairfield, consisting of some sixty-eight acres of land; and in the complaint it was claimed that Solon S. Pickert, then a lunatic, was the owner of one undivided sixth of the lands sought to be partitioned. On the 12th of January, 1837, John Pickert was seized and possessed of the lands described in the complaint, and on that day died, leaving a last ■will and testament, wliicli was probated. He left several children who were provided for by his will. Emilius Pickert, one of his sons, was provided for in the testator’s will as follows: “ I give and bequeath unto my said other son, Emilius, sixty-eight acres of land, situate in the town of Eairfield, west of the said homestead lot, and on the west side of the Fairfield road, to have and to hold to him for and during his natural life, subject also to the use thereof, as above expressed for one year after my decease and to the charges for half of my debts as above stated.” The provision just quoted related to and carried the lands described in the complaint. The said will also contained the further provision: In case my said son Emilius should have a child or children living at his death, then, in that case, I give and bequeath the aforesaid sixty-eight acres of land bequeathed to him during his life to such child or children, if living, at his death, and to their heirs and assigns forever, to have the remainder after his death and not before, and in case my said son shall die having or leaving no children living or in ventre sa mere, then sxich remainder of said lands and premises, I give, devise and bequeath unto all my other children above named and mentioned and their respective heirs, in case any of them be dead such share as would come to their parents, if living, at the death of my said son as tenants in common and not-as joint tenants in fee simple.” After the death of John Pickert and the probate of his will, his son Emilius Pickert entered into possession of the sixty-eight acres of land “ as a devisee under said will.” It was admitted at the trial that he had a wife and six children the issue of this marriage, and that Emilius afterward died October 8, 1889, leaving no widow, but leaving the following children, his only heirs at law him surviving, to wit, John O. Pickert, Julius Pickert, Lotta E. Putman, wife of Arthur Putman, Elzina Bishop, wife of Lyman Bishop, deceased, Medora Rohan, wife of Patrick Rohan, and Solon S. Pickert.” It is obvious from the language of the will of John Pickert, that his son Emilius took only a life estate in the lands in controversy, and that the remainder after his death ” vested in his children by virtue of the terms of the will already stated, and such vested remainder was alienable, and the interest of each child would pass by conveyance thereof. (Lawrence v. Bayard, 7 Paige, 70 ; Mead v. Mitchell, 17 N. Y. 210; Chrystie v. Phyfe, 19 id. 344; Miller v. Emans, 19 id. 384; Moore v. Littel, 41 id. 66 ; Woodgate v. Fleet, 44 id. 1, and note at p. 20 ; Taggart v. Murray, 53 id. 238 ; Smith v. Scholtz, 68 id. 61; Sheridan v. House, 4 Keyes, 569.)

In Beardsley v. Hotchkiss (96 N. Y. 213) the court, in speaking of a limitation over which created a contingent future estate in expectancy, said that Before the Revised Statutes the limitation would have been called an executory devise. Now it is more properly called a contingent remainder. Future estates are contingent, while the person to whom, or the event upon which they are limited to take effect, remains uncertain (1 R. S. 723, § 13); and such estates are descendible, devisable and alienable in the same-manner as estates in possession. (1 R. S. 725, § 35.) In the share-given to each child, all the other children, therefore; had a contingent remainder, which they could convey;” citing Miller v. Emans (19 N. Y. 384); Moore v. Littel (41 id. 66), and other cases. (Terry v. Wiggins, 47 N. Y. 512.)

In January, 1875, John W. Windecker resided near the lands in-question and owned lands adjacent thereto, and, according to the -testimony in the appeal book, he had an interview with Solon S. Pickert in respect to his interest in the sixty-eight acres, and it is infer-able that they called upon the late Major Link to draw an instrument in respect thereto, which instrument was executed by them and was acknowledged on the 27th of January, 1875, and was subsequently recorded in the clerk’s office of Herkimer county on the 22d day of November, 1878. The instrument in question starts out with a recital referring to the will of John Pickertand the probate thereof, and a declaration that the testator devised to his son Emilius Pickert the sixty-eight acres in question, “ to have and to hold said sixty-eight acres during his natural life, subject to certain other provisions in said will contained.” The instrument contains a further declaration, “ by a subsequent clause and provision in said -will the testator further provided that in case his said son Emilius should have a child or children living at his death, that in that case I give and bequeath the aforesaid 68 acres of land to such child or children, if living at his death, and to their heirs and assigns forever, to have the remainder, after his, said Emilius’, death.” The instrument then contains a further declaration that Solon S. Pickert desires to sell and dispose of his interest in said real estate described,” and then the instrument continues as follows : “ Now, therefore, said Solon, the party of the first part, and John W. Windecker, of Fairfield, Herkimer county, State of New York, of the second part, enter into the following covenant and agreement, as follows: The said party of the first part, for and in consideration of the sum of five hundred dollars to him paid by said Windecker, the receipt whereof is hereby acknowledged, does hereby sell, set over, transfer and assign all his right, title and interest in and to said sixty-eight acres of land, and all his share, right, title and interest to the said real estate or any part thereof, of whatever name or nature, to said Windecker, his heirs and assigns forever, and the said party of the first part, in consideration of said sum, for himself, his executors, administrators and heirs, doth hereby also covenant, promise and agree to and with said Windecker, his legal representatives, heirs and assigns, that he will immediately upon the death of his said father, Emilius Piekert, make and deliver to the said Windecker a good and sufficient deed of conveyance, with the usual covenants of warranty, of all his share, right, title and interest in the said sixty-eight acres of land or any part thereof, the title of which shall descend to him by virtue of said will in case of his father’s death.” A careful consideration of the language found in the instrument, in connection with the circumstances disclosed by the evidence, has left upon our minds no doubt that the intention was that Solon Piekert should' convey to Windecker his interest in the premises, and that it was the intention of Windecker to acquire the same by the payment of $500 therefor, as we have seen by one of the sentences already quoted there was a declaration in the instrument that Piekert “ desires to sell and dispose of his interest in said real estate described; ” and to effectuate that intention we think the words “ does hereby sell, set over, transfer and assign all his right, title and interest in and to said sixty-eight acres of land, and all his share, right, title and interest to the said real estate or any part thereof, of whatever name or nature, to said Windecker, his heirs and assigns forever,” were used to, and that they were ample and adequate to, carry the right and title of Solon in the premises derived by him under his grandfather’s will. (Hunt v. Johnson, 44 N. Y. 27). Nor do we think the subsequent language found in the instrument can be construed to defeat the force and effect of the words just given as words of conveyance. It was known to the parties at the time the instrument was executed that there was a contingency relating to the interest of Solon in the lands, and that the contingency would remain until the death of his father. Apparently, to guard against that contingency, and to reimburse Windecker in case there was a failure of title, subsequent language was used by the parties, in respect to a return of the consideration in the event of the failure of title. Favoring this idea are the words, “ And, whereas, there is extreme risk in the advance of so much money upon such a contingent interest, and in order to provide for and secure the said Windecker for the repayment of said principal sum, with interest, and expenses and disbursements which may be made by him under the stipulations of this contract, and interest on said disbursements. * * * Now, therefore, the said party of the first part hereby further covenant, promise and agree to also sell, assign, transfer and set over to said Windecker the aforesaid policy of insurance.” We see nothing in the language just quoted, or in the subsequent language of the instrument, that should be held to defeat the language first used, which was sufficient to convey the interest of Solon, in case lie survived his father, to the grantee. Being of the opinion that the instrument operated as a conveyance to Windecker, it follows that he was entitled to hold such interest in the lands absolutely, upon the death of Emilius Pickert, and, therefore, Solon S. Pickert had no title to the premises, or interest therein at the time of the commencement of this action. We are not called upon in the determination of the questions now before the court to indicate what rights, if any, Solon had in the policy of insurance in virtue of the stipulations found in the instrument executed by him. Although he made an absolute assignment of the policy, it is insisted that the provisions of the instrument of January, 1875, may be read as giving only such interest in the policy to Windecker as was necessary to secure him against the contingency of the loss of the title of the property, and to reimburse him for any moneys that he might advance or did advance in payment of premiums upon the policy. Upon those questions we are not called upon to pass in determining the question of the plaintiff’s right to a partition of the real estate. The foregoing views lead us to approve of the conclusion of law stated by the referee, that at the time of the commencement of this action, said Solon S. Pickert had no title or interest in the lands mentioned in the complaint.”

(2) It seems that before the final submission of the cause to the referee, the learned counsel for the appellant discovered, as appears by his affidavit, sworn to the 22d of August, 1891, that according to the doctrine laid down in Burnet v. Bookstaver (10 Hun, 481) and Skinner v. Tibbitts (13 N. Y. Civ. Proc. Rep. 370), the action ought to be in the name of the lunatic by his committee, instead of in the name of the committee, and applied to the court for leave to amend the summons and complaint, which leave was granted by an order made on the 1st of September, 1891, at Special Term held in Herkimer county, and the summons and complaint as amended and served, with notice of motion, were ordered “to stand without further service of said proposed amended summons and complaint,” and the defendants were given twenty days to serve their answer to the amended complaint. As there is no appeal from that order before us, we must assume that it was properly granted, and the right to make such amendment seems to be within the power of the court by the closing language of Mullin, P. J., in Burnet v. Bookstaver (supra). ~We must regard the action submitted to the referee as an action brought in the name of the lunatic. By the case it appears that the trial commenced before the referee on the 19th day of July, 1891. After the plaintiff’s evidence was put in and several admissions and concessions were made, the case states: “ Plaintiff rested subject to right to supply papers hereinbefore mentioned.” Defendants then proceeded to put in evidence, and then the case states: “ Evidence closed except as to reservation as hereinbefore stated. Adjourned to Monday, July 25, 1891, for argument.” Then the case states that July twenty-fifth, “ Case called pursuant to adjournment,” and the appearance of counsel for the respective parties was entered; thereupon “ plaintiff made a motion to adjourn so as to be at liberty to make a motion to amend,” etc. The motion was granted, and the case was adjourned to September eighth. The case then states, viz.: “ Case called October 21st, 1891. * * * Plaintiff does not appear.” Although the counsel for the plaintiff did not appear before the referee, the case was “adjourned to November 6th, 1891, at 10 Á. m., at office of Mr. Palmer.” It appears in the appeal book “November 6th, 1891, case called at Mr. Palmer’s office; attorneys for the defendants appear and the attorney for the plaintiff appeared.” It also appears that October 21, 1891, the referee designated November 6,1891, as the time, and Mr. Palmer’s office as the place, for the next hearing, and thereupon the defendants’ attorneys gave notice to the plaintiff’s attorney that the cause “ will be brought to tidal ” before the referee at the time and place designated, to wit, November 6, 1891, at ten o’clock. Affidavits are inserted in the case showing the service of the notice of hearing on the plaintiff’s attorney by the defendants’ attorneys. The plaintiff’s attorney applied for an adjournment, and, among other grounds, stated that he had not noticed the cause for hearing, and that the cause was not regularly at issue, and that one of the counsel for the plaintiff “ is now engaged upon a trial elsewhere, whose attendance is deemed necessary on the trial of this cause.” After such application was made, the case states: “ The referee does not deem the foregoing legally sufficient to entitle the plaintiff to a postponement of the trial as a matter of right, unless consented to by the attorneys for defendants, who have regularly noticed the trial for this time.” Defendants state “ they have no objection to further evidence being offered by plaintiff.” In the judgment entered March 3, 1892, the following words appear, “and the evidence having been closed, and the case having been submitted to the referee, upon written briefs herein, filed by the plaintiff’s attorney herein; and the defendants’ attorneys having respectively filed their briefs herein, and the said referee having made his report, wherein he finds and orders that the plaintiff’s complaint be dismissed * * * and the said referee, by his report aforesaid, having ordered judgment accordingly” with two bills of costs. We think the position taken by the appellant, “ that the report of the referee and the judgment are void,” ought not to be sustained; nor the position taken by the appellant, that “ there was no proper evidence offered on the part of either the plaintiff or the defendants or received by the ref mee after the order was granted.” Nor do we think the position of the appellant, “ that there was no evidence to support ” the findings of the referee, can be sustained.

Our attention is called to Wood v. Swift (81 N. Y. 31). In that case an order was granted bringing in the parties as defendants and directing that the trial continue before the referee “ to the same force and effect as though all parties now to the record had thus been from the beginning of the action.” In that case there was an appeal from the order and it was held the order was too broad and the new party had the right to be heard as to the appointment of a referee, and he had the right to be present when the witnesses were sworn and examined. In the case in hand it appears that after the order of September first was made, the plaintiff appeared before the referee and, according to the recitals and the judgment, submitted argument and points, and under the circumstances disclosed by this record ought not to be permitted to overturn the ruling of the referee refusing further adjournment. It may be observed in this connection that the defendants voluntarily consented before the referee to allow the plaintiff to put in further evidence. It must be assumed that the plaintiff was satisfied to submit the case upon' the evidence which was then before the referee, inasmuch as, subsequently to that proffer of the defendants the plaintiff submitted arguments and written points to the referee.

(3) "We see nothing in the record to indicate that the referee erroneously exercised his discretion in respect to the award of costs to the defendants. (Code Civ. Proc. § 3229; Hodgkins v. Mead, 25 N. Y. St. Repr. 937.)

The judgment must be affirmed, with one bill of costs to the respondents against the appellant.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with one bill of costs to the respondents against the appellant.


text:
    William R. Chadwick, Appellant, v. Warren Wilson, Respondent.

      Will — creation of a life estate.

    A will contained the following clause: “As I know nothing of the whereabouts of my son Melville D. Wilson, and whether he is dead or alive I know not, and as I have given him much more than any of the others' of my children, I give and bequeath to him the twelve acres known as the ‘Carr lot,’ or its equivalent, provided I sell my farm, in trust for his heirs.”

      Held, that under this clause, construed in connection with the entire will and the surrounding circumstances, the son named therein acquired a life estate in the “ Carr Lot,” and that a conveyance thereof by him operated to vest in his grantee the right of-possession thereof.

      Appeal by the plaintiff, William R. Chadwick, from a judgment of the Supreme Court in favor of the defendant dismissing the complaint upon the merits, entered in the office of the clerk of Jefferson county on the 10th day of May, 1893, upon a decision of the court rendered after a trial by the court without a jury, by consent of parties, at the Jefferson Special Term.
    This action was brought to recover twelve acres of land particularly described in the complaint and known as the “ Carr lot.” A trial was had at the Jefferson Special Term, and a decision made dismissing the complaint based upon the following findings of law: “ First. That it was the intention of the testator, Lyman Wilson, by the seventh item or clause of said will, to create a trust for whoever should be Melville’s heirs at the time of his death, and not to vest title in him of the land in said clause mentioned. Second. That the trust attempted to be created by the said seventh item or clause of said will was void under the statutes of this State, and no title whatever to said twelve acres of land vested in said Melville Wilson. Third. That by the deed of Aaron E. Chadwick, as attorney, to William R. Chadwick, the plaintiff,, the plaintiff acquired no title to the twelve acres of land in question which entitles him to maintain this action.”
    Lyman Wilson died in the town of Philadelphia, Jefferson county, January 2d, 1877, leaving him surviving his wife, Ruth Wilson, two daughters, Chloe and Emma, and four sons, Warren, Lyman, Henry and Melville. He left a last will, which was dated October 2d, 1876, which was drawn by himself, and admitted to probate May 21, 1877, in and by which he attempts to dispose of all his property, both real and personal, giving to liis wife the use thereof “ during her natural life,” except a small provision out of the personal property given to his two daughters “ to make their shares equal to what had been advanced to the boys, excepting Melville.” The seventh clause of said will is as follows: “ Seventh. As I know nothing of the whereabouts of my son Melville D. Wilson, and whether he is dead or alive I know not, and as I have given him much more than any of the others of my children, I give and bequeath to him the twelve acres known as the e Carr lot,’ or its equivalent, provided I sell my farm, in trust for his heirs.” Near the close of the will is the following provision: “ My children are not to have any control of the above bequests until after the decease of my wife, Ruth. Wilson.” It is found as a fact that Melville married and left home several years prior to the death of the testator “ and had not been heard from by his father up to the time of the making of his will or the time of his death, and at the time of the making of said will the said Lyman Wilson did not know whether his son Melville was living or dead, or whether he had any children. He did know at the time Melville left home that he then had no children.” It is found that: “ It does not appear from the evidence whether Melville ever had any children, but it does appear that he is not living with his wife.” In September, 1889, he executed a power of attorney authorizing a conveyance of the Carr lot to the plaintiff, which conveyance was made and recorded. Plaintiff demanded possession of the twelve acres before the commencement of this action, which was refused by the defendant. Ruth Wilson, the widow, died prior to the commencement of this action.

      Brown <& Adams, for the appellant.

      Ilenry Purcell, for the respondent.
   Hardin, P. J.:

Hpon the construction to be given to the seventh clause of the will hinges the decision of this case. Searching for the intention of the testator in regard to Melville reference may be had to all the provisions of the will. In the latter provision of the will is found the clause that “ my children are not to have any control of the above bequests until after the decease of my wife, Ruth Wilson.” This language is suggestive of the fact that the testator supposed by the language he had used, his children, including Melville, were to have control of the property specifically devised to them. The language is used after the provision for the wife which clearly limited the use of his property to her life, and, therefore, it may be supposed that the later words, implying that the children were to have control of her property given to fliem after her death, significantly indicate the intention, as well as the supposition of the testator that the words as to the devises to the children carried out an intention that each should share in the property left by him. We are also to bear in mind, in searching for the intention of the testator, that a construction is to be pre. ferred which does not disinherit a child to one that does, and also that a construction that disposes of the whole of the estate of the testator is to be preferred to one which leaves the testator dying intestate as to some of his property. (Thomas v. Snyder, 43 Hun, 15; Vernon v. Vernon, 53 N. Y. 361.) It seems reasonable to suppose that the testator, a layman, in drawing his will intended that his son Melville should take, hold and have control of the Carr lot, after the death of the widow and was to enjoy it during his lifetime. Hntil his death it could not be known who his heirs were; and under the statute as to express trusts no authority is given to receive and hold property for indefinite unascertained beneficiaries ; nor is such a trust one authorized by statute. The words of the devise are clear and definite in expressing an intent to give the Carr lot to Melville as they appear in the eai’ly part of the clause under construction ; and an intent to overturn or cut down such an intent on the part of the testator ought not to be allowed in the absence of words clearly and decisively giving the whole estate to another. (Roseboom v. Roseboom, 81 N. Y. 359 ; Campbell v. Beaumont, 91 id. 464.) In the early part of the clause the declaration is made by the testator that he knows nothing of the whereabouts of his son Melville, and that whether he is dead or alive he knows not, and then there is the statement that he has “ given him much more than any of the others of my children.” These words are suggestive of and an explanation why less is given to Melville than to some of the other children; and they also give rise to an implication in the connection with which they were used, that it was the intent of the testator to make a moderate provision for his son Melville, and in carrying out that intent he uses the words, I give and bequeath to him the twelve acres known as the Carr lot ’ or its equivalent, provided I sell my farm, in trust for his heirs.” It must be borne in mind that the testator was uninformed as to whether Melville had children, and that the language used was to cover the contingency, providing that in case he had children they should be permitted to share in the testator’s estate. He had used words in the primary bequest sufficient to carry an absolute estate to Melville, although not accompanied with any words of succession. (Tyson v. Blake, 22 N. Y. 562; 1 R. S. 748, § 1.) Tlie subsequent provision found in the words “ in trust for his heirs,” under the circumstances, may well be interpreted as refering to Melville’s lineal descendants only (Bundy v. Bundy, 38 N. Y. 421); and it does not seem unreasonable to infer from the language used and from the circumstances disclosed, which are to be considered in giving interpretation to the language found in the will, that the intention of the testator was to devise to Melville a life estate in the Carr lot with a “ subsequent limitation to take effect immediately upon the determination of such first estate,” which would confer upon his children the remainder. To give effect to the primary language used and to construe it as carrying a fee to Melville would render inoperative the subsequent words apparently used by the testator for the purpose of providing for the children of Melville, in the event that he had any ; and it is, therefore, deemed a reasonable construction of the whole language used to limit the primary language so that the will operated to effectuate the intent of the testator by carrying to Melville a life estate with the remainder over to his children. (Wager v. Wager, 96 N. Y. 164; Graham v. New York Life Insurance & Trust Company, 46 Hun, 266; Van Horn v. Campbell, 100 N. Y. 299.) To dispose of the question before us it is only necessary to hold and decide that Melville, by virtue of the terms of the will, acquired a life estate in the Carr lot, and that his conveyance to the plaintiff operated to vest in the plaintiff the right of possession of the premises. Our conclusion is that the trial court fell into an error in holding “ that plaintiff acquired no title to the twelve acres of land in question which entitles him to maintain this action.” We think a new trial should be ordered.

Martin and Merwin, JJ., concurred.

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


author: Harbin, P. J.:

text:
    Alonzo Roberson, Respondent, v. James Murray and Another, Appellants.

      Compulsory reference — examination of a long account.

    When in an action brought to recover a balance due ior goods sold and delivered, it appears from a schedule forming part of the complaint that the sales were made on thirteen different dates, and from an inspection of the complaint and-answer it is apparent that it will become necessary upon the trial for the plaintiff to make proof of all the sales referred to in the schedule, and thus establish the items of his account, and it is not apparent that the issues will involve the decision of difficult questions of law, and the appeal papers do not contain a bill of particulars which was before the court below, the General Term should not disturb the discretion exercised by the court below in ordering, upon the plaintiff’s motion, a compulsory reference, under section 1013 of the Code of Civil Procedure.
    Appeal by the defendants, James Murray and Robert Hill, from an order of the Supreme Court, made at the Broome Circuit upon the motion of the plaintiff, and entered in the office of the clerk of Broome county on the 10th day of May, 1893, directing a reference to hear and determine the action.

      Charles D. Bloomfield and Frank 8. Williams, for the appellants.

      W. JD. Fdmister, for the respondent.
   Harbin, P. J.:

Plaintiff's complaint alleges that goods amounting in value to $3,616.02 were sold and delivered to the defendants at their special request and instance, as stated in a schedule attached to and forming part of the complaint. By reference to the schedule it appears that the sales were made on thirteen different dates between August 11, 1891, and December Y, 1891. The complaint states that certain "payments had been made and that there remains a balance due the plaintiff of $293.14. The defendants admit “ that the goods sold • by the plaintiff to the defendants were sold upon credit,” and that there had been paid to the plaintiff $3,322.88. The ansiver then contains a denial of every other allegation in said complaint contained except as hereinafter set forth and contained.” Apparently it will become necessary upon the trial of the action for the plaintiff to make proof of all the sales referred to in his schedule attached to his complaint and thus establish the items of his account. Upon the application for the order at the Circuit an affidavit was read in which it is stated that plaintiff claims a balance due him upon an open account, but the defendants by their answer claim settlements from time to time between the dates above specified, and also claim many credits and discounts on account of such sales as aforesaid, which items of credits and settlements are denied. * * * That the trial of the aforesaid issue will, in deponent’s opinion, require the examination of a long account of both parties as to charges and credits; and deponent respectfully refers to the pleadings and bill of particulars herein in confirmation of this affidavit.” In an earlier portion of the affidavit it appears that a bill of particulars had been served. We find no bill of particulars in the appeal book. Apparently, therefore, it is inferable that a bill of particulars was used before the court when the order was made which is not presented to us. If that be so, the court had the benefit of that bill of particulars which has not been presented to us by the appellants in the appeal papers submitted to us.

Our attention is called to Spence v. Simis (22 N. Y. Supp. 76), which was a case somewhat like the one before us; it was held in that case, viz.: In an action for goods sold and delivered, where plaintiff on the answer may be bound to prove each item of his account, consisting of 23 items, and he does not stipulate, on defendant’s motion for a reference, to withdraw his claim on a qucmtwm meruit, and rely solely on his allegation of a promise by defendant to pay, so that no proof of the items will be necessary, an order of reference is proper.” Although the order made in that case was reversed by the Court of Appeals (137 N. Y. 616), it is stated in the ©pinion, as apparently the controlling ground of reversal, that defendant did not state that the trial would require “ more than the brief examination of a single witness, who may have sold and delivered the goods to him. It is evident that the real controversy between the parties relates to the defendant’s counterclaim, which is for attorney’s services and disbursements in four different suits in the Supreme Court and Justice’s Court, none of which constitutes a long account of such a character as to authorize a reference.”

The case of Thayer v. McNaughton (117 N. Y. 111) differs from the one before us. In the course of the opinion in that case it was said : “ There was no evidence before the court, when the order of reference was made, that the statutory conditions existed upon which a compulsory reference could be ordered. There was nothing in the nature of the action, or in the pleadings, tending to show that the examination of a long account on either side would become necessary on the trial.” The action is for an item of $300 for services rendered as an attorney, and there was nothing shown by the pleadings or the affidavit to justify an inference that the trial would involve the examination of a long account.” The case differs quite essentially from the one before us.

In C. B. Keogh Manufg. Co. v. Moulton (16 N. Y. Supp. 65) the affidavit did not show how many items of charges, or how long an account was involved.

In Welsh v. Darragh (52 N. Y. 592) Church, Oh. J., said: Actions on contract may be referred. This is an action on contract. The character of an action is determined by the complaint. * •» «- TEis court will not review the finding below that the action involves the examination of a long account if the facts will warrant such a finding. If the facts show that the examination of a long account may be necessary, and the court below has decided to refer the action, this court will not interfere. It is only when it is palpable that no such account can be involved that an appeal will lie to this court; ” citing Kain v. Delano (11 Abb. [N. S.] 29).

In Williams v. Allen (2 Hun, 377) it appeared that the defendants only intended to dispute three items of the account; it also appeared that one of these items was made up of a large number of small charges which would have to be proved on the trial, and an order of reference was sustained by this court in the General Term held by the first department. It is not apparent from the pleadings, the nature of the action, or from any affidavit produced to the court below, that the issues will involve the decision of difficult questions of law. Upon the papers before us we think we ought not to disturb the discretion exercised by the Circuit when it ordered a reference pursuant to the power conferred upon the court by section 1013 of the Code of Civil Procedure.

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

Merwin, J\, concurred; Martin, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: Barnard, P. J.:

text:
    John M. Canda and Another, Appellants, v. Ervin G. Gollner and Another, Respondents.

      An injunction contained in an order in supplementary proceedings prohibits a general assignment by the judgment debtor.

    An injunction forbidding judgment debtors from transferring or otherwise disposing of their property, contained in an order made in supplementary proceedings, prohibits them from executing and delivering an assignment of their property, without preference, under the General Insolvent Assignment Law.
    Appeal by the plaintiffs, John M. Canda and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of February, 1893, denying a motion to punish the defendant Ervin G. Gollner for a contempt in violating a restraining order made in proceedings supplementary to execution.

      J. Woolsey Shepard, for the appellants.

      Alfred R. Page, for the respondents.
   Barnard, P. J.:

The plaintiffs recovered a judgment against Ervin G. Gollner and Ada F. M. Gollner in September, 1892, for $329.38. In October, 1892, an order supplementary to execution was obtained for the examination of the defendants in respect to their property. This order contained the usual words by which all transfers or other dispositions of the property of defendants, except exempt property, was forbidden. After the order was served the defendants severally executed and delivered an assignment of all their property, without preference, under the General Insolvent Assignment Law. The plaintiffs made an application to punish the defendants, for a contempt, based upon a disobedience of the order in supplementary proceedings. This was denied, and this appeal presents the question whether a general assignment was a violation of the injunction contained in the order in supplementary proceedings. It cannot be claimed but that the defendant violated the express words of the order forbidding the transfer. This violation was made by his voluntary act. The plaintiffs were injured by this act; they had taken steps by which they could have had the first lien on the estate, real and personal, of the judgment debtors. (Code, § 2469 ; McCorkle v. Herrman, 117 N. Y. 297.)

The old Chancery practice is abrogated. If it were not, the rule Avould not protect the party making an assignment, except such as was necessary to obtain a discharge under the insolvent laws of the State. A voluntary assignment has no such effect. An assignment to obtain a discharge from the debts of a petitioner, under our insolvent laAVS, is made by the order of the court, and the rule of the Court of Chancery was aimed at the impropriety of punishing a person for an act done under legal sanction, even when the proceeding was instituted by the debtor’s own petition.

The rule reserves the right to even enjoin such an assignment, specially, in an injunction. The Code, however, must govern without regard to the Chancery rule.

The order should, therefore, be reversed, with costs and disbursements, and the defendant be adjudged guilty of a contempt of court, with ten dollars costs.

Dykman, J., concurred; Pratt, J., not sitting.

Order reversed, with costs and disbursements, and defendant adjudged guilty of contempt, Avith ten dollars costs on each appeal.


author: Pratt, J.: Barnard, P. J.

text:
    The People of the State of New York ex rel. Lucy D. Kittredge and Others, Respondents, v. John Mabie, 2d, and Others, Appellants.

      Application of section 28 of title 8 of chapter 291 of the Laws of 1870.
    The provisions of section 28 of title 8 of chapter 291 of the Laws of 1870 apply only to villages created thereunder. (Barnard, P. J., dissenting.)
    Appeal by the defendants, John Mabie, 2d, and others, as assessors of the village of Peekskill, from a judgment order of the Supreme Court hi favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 10th day of July, 1893, upon a decision of the court rendered at the Orange County Special Term, directing that assessments on property of the relators be stricken from the tax roll.

      levereít F. Grumbm.& Eckoa/rd Wells, for the appellants.

      Gyrus Wm. Horton, George F Gcmfield and Frcmldm Oouoh, for the respondents.
   Pratt, J.:

Section 28 of title 8 of chapter 291, Laws of 1870, provides in terms that its provisions shall only apply to villages incorporated under it.

The fact that the Legislature in 18J3 and again in 1883 passed special acts concerning the village of Peekskill shows that it was not then supposed that the board of supervisors had the powers now claimed. The act of 1884 gives no such powers.

The order of Special Term must be affirmed, with costs.

Dykman, J., concurred.

Barnard, P. J.

(dissenting):

The village of Peekskill- was incorporated by special act. No right was given by its charter to increase its territory. (Chap. 117, Laws of 1883.)

.The general act for the incorporation of villages was only applicable to villages incorporated under its provisions. • The boards of supervisors had the power to extend village limits in such villages as were incorporated under the general act. By chapter 308, Laws of 1884, all villages created by special charter were clothed with all powers prescribed by the general act for the incorporation of villages within this State, except where the special charter is in conflict with the general law. This section gave the trustees of Peekskill village power to petition for an increase of territory, and the power given to the supervisors to extend or diminish territories in villages under the general law was carried to villages created by special charter through the enactment of 1884. The village limits were, therefore, properly extended, and the order directing the assessors to vacate the assessment of relators’ property should be reversed and the writ of certiorari dismissed, with costs.

Order vacating assessment affirmed, with costs.


text:
    Edward Martin, Respondent, v. The New York Life Insurance Company, Appellant.

      The modification of a salary does not make a yearly contract — release by letter from an existing contract — a subsequent disavowal of any intention to release the employer, ineffective.

    Upon the trial of an action brought to recover a salary alleged to be unpaid, it was shown that the plaintiff, on July 1, 1881, was engaged by the defendant at the rate of $5,000 a year, to take charge of its real estate, and that this rate of compensation was, from time to time, increased, finally to $10,000 per annum. When the salary was increased to $10,000 a year the plaintiff asked for $15,000 from January 1, 1884, and was told that he would be given $10,000 a year without further mention of the time of the commencement of the term.

      Held, that there was no original hiring for a year and that the subsequent modification of the agreement as to the rate of compensation did not make a yearly contract from the date of the raising of the salary.
    A person employed as a real estate agent was notified by a letter dated April thirteenth, that his services would not be needed after the thirtieth of that month, and on the next day such person wrote to his employer, acknowledging the receipt of such letter, and saying, “ I accept your ultimatum. I regret that you have shunned me, but, I presume, your motives were good. With my best wishes for the prosperity of the New York Life (his employer) and that your management may be crowned with success.” He subsequently wrote another letter to the effect that he did not mean to release his employer from the payment of the salary for the remainder of the year and offered to perform the duties of the position after April thirtieth.

      Held, that the effect of the first letter was to release both parties from the obligation of an existing entire contract, if one did exist; and that the last letter and offer did not reinstate the original relations of the parties, as such reinstatement must have been established, if at all, by mutual agreement.
    Appeal by the defendant, the New York Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of June, 1893, upon a verdict in favor of the plaintiff for $6,952.90, directed by the court after a trial at the Westchester Circuit.

      Wm. B. Hornblower and Jmies Byrne, for the appellant.

      James M. Hunt, for the respondent.
   Barnard, P. J.:

The cause of action of the plaintiff is based upon an averment that he was employed by the defendant for the period of one year from the 1st of January, 1892, and that the defendant, without legal excuse or cause, discharged him from the performance of the services. The defendant denies the contract for the year stated, and avers that the employment was terminated by mutual consent on the 30th of April, 1892, and that the services up to that time were fully paid and satisfied.

The proof shows that the plaintiff, in 1881, was employed to take charge of the real estate of the defendant “ at the rate of five thousand a year.” The employment commenced on July 1, 1881. Before January, 1883, the plaintiff asked for an increase of salary. This was agreed to, and a salary in excess of the rate of $5,000 a year was begun in February, 1883, and dated from January 1,1883. This salary was $6,500. From the 1st of January, 1884, it was increased to the rate of $10,000.” Such salary was continued at that rate up to the 30th of April, 1892, when the employment terminated. The salary was paid monthly. When the increase of salary was made up to $10,000 a year, the plaintiff asked for $15,000 from the 1st of January, 1884, and the reply was, we will give you $10,000 a year without further mention of the time of the commencement of the term. There was no original hiring for a year, and the subsequent modification as to the rate of compensation did not make a yearly contract from the date of the raising of the salary.

The case further shows that ou the 13th of April, 1892, the defendant sent a letter to the plaintiff, in these words :

April 13, 1892.
“ Edward Martin, Esq.,
“ 346 Broadway, City:
“ Dear Sir — Acting in conjunction with the finance committee, in the determination to reduce the expenses of this Company, I have to notify you that your services will not be needed after April 30th inst.
“ Respectfully yours,
“JOHN A. McCALL, President.”

On the next day, April 14, 1892, the plaintiff replied as follows:

“New York City, April 14, 1892.
“ John A. McCall, Esq.,
President New Norh Life Lnswrcmoe Oo.:
“Dear Sir — Your favor of the 13th inst. received. I accept your ultimatum. I regret that you have shunned me, but, I presume, your motives were good. With my best wishes for the prosperity of the New York Life, and that your management may be crowned with success, I remain
“ Respectfully,
“EDWARD MARTIN.”

The effect of these letters was to release both parties from the obligation of an existing entire contract, if one did exist. The plaintiff was bound to serve and the defendant to pay for the services. The agreements were mutual and the letters left each party free, after the 30th of April, 1892, from all performance under the contract. The subsequent letter, that the plaintiff did not mean to release the defendant from the payment of the salary for the remainder of 1892, and the offer to perform after April 30, 1892, did not reinstate the original conditions of the parties. Such a reinstatement must be established by a mutual agreement.

The judgment should be reversed and a new trial granted, costs to abide event.

Pratt and Dykman, JJ., concurred.

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