text:
    The People of the State of New York ex rel. Daniel S. Toy, Respondent, v. Alexander U. Mayer, as a Commissioner of the Superior Court of Baltimore City, Maryland.

      Writ of prohibition — issuance of peremptory writ, without a prior alternative writ.

    When a hearing upon the merits has been had upon the return of an order to ■ show cause why a writ of prohibition should not issue to prevent a commissioner appointed by a court of another State from oppressively and illegally committing the relator to prison for refusing to answer interrogatories calling for the disclosure of a privileged communication, and it appears that only a question of law is involved, it is proper to issue a peremptory writ instead of an alternative writ.
    Appeal by the defendant, Alexander IT. Mayer, as a commissioner appointed by the Superior Court of Baltimore city, Maryland, from an order made by a justice of the Supreme Court at Special Term, and entered in the office of the clerk of Westchester county on the 11th day of February, 1893, granting the relator’s motion for a writ of prohibition, and also from an order made by the same justice at Special Term, and entered in the same clerk’s office on the 25th day of February, 1893, denying the defendant’s motion to vacate the absolute writ of prohibition issued against him on the 11th day of February, 1893.
    • The proceeding was instituted by an order to show cause, on the return of which the following writ was issued, under the seal of the court, in which the facts presented are set forth:

      “ In the nmm of the People of the State of Pew York.

    “ To Alexander IJ. Mayer, Esq., a commissioner appointed by the Superior Court of the city of Baltimore:
    “ Whereas, It doth appear to our Supreme Court of the State of New York that you, as commissioner appointed by the Superior Court of the city of Baltimore, are about to issue a process for contempt against one of the citizens of our said State of New York, by name Daniel S. Toy, for refusal to answer certain interrogatories proposed by you, as such commissioner, to the said Daniel S. Toy; and whereas, it further appears that said Daniel S. Toy is a minister of the gospel and clergyman of the Baptist church; and whereas, it further appears to our Supreme Court of the State of New York that the declarations, if any, were made in the nature of a confession to the said Daniel S. Toy, as such minister of the gospel, under a course of discipline prescribed by the Baptist church, to which religious body the said Rev. Daniel S. Toy belongs,
    “Now, therefore, we command you, Alexander IT. Mayer, as such commissioner, appointed by the Superior Court of the city of Baltimore, that you do refrain from issuing any commitment for contempt or' from doing any act to compel the said Daniel S. Toy to answer such interrogatory, or, in any way, interfere with the liberty of said Daniel S. Toy.
    “Inwitness whereof we have hereunto affixed the seal of our Supreme Court this 11th day of February, 1893.
    “ [l. s.] J. Ó. DYKMAN, J. S. OS

      Alexander XI. Mayer, appellant, in person.

      Pavid II. Hunt, for the respondent.
   Pratt, J.:

There is no merit in this appeal. The only point made is that á peremptory writ of prohibition was issued instead of an alternative writ. No point is made that this was not a proper case for such writ or that the facts did not warrant it, but only that an alternative writ should have been issued.

A hearing upon the merits was had upon an order to show cause which in effect fully answered the purpose of an alternative writ.

The object of the proceeding was to prevent the defendant from oppressively and illegally committing tlie relator to prison; and the fact that it was called a writ of prohibition is not material so long as the decision was right upon the merits and a proper result was accomplished.

No object could have been served by issuing an alternative writ, as it appeared that only a question of law was involved, and a short cut was adopted to accomplish a just result.

The order must be affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Pratt, J.: Cullen, J.:

license: Public Domain

text:
    Henry H. Isham, as Trustee, etc., Respondent, v. Mary E. Post, as Administratrix of Augustus T. Post, Deceased, Appellant. Mary E. Post, as Administratrix of Augustus T. Post, Deceased, Appellant, v. Henry H. Isham, Individually, and as Trustee, etc., and Others, Respondents.

      (¡heck signed as “ trustee ” — resulting notice to the receiver of the check — UaMlity of one who invests funds for another upon forged securities.

    The fact that the signature of the drawer of a check, given to a banker for the purpose of investing the funds covered thereby, is followed by the word “trustee,” gives notice to the receiver of the check that the funds are not or may not be the property of the drawer personally.
    But such use of the word ‘ ‘ trustee ” is not of itself sufficient to put the receiver of the check on notice that the funds belong to a trust of such a character that the trustee is limited in the investment thereof solely to what are called “legal investments,” so as to render the receiver of the check liable, as for a spoliation of the trust estate, if he loans the proceeds of the check to stock brokers on stock collaterals.
    "Where, however, a banker loans trust funds so received by him for investment, on the faith of stock collaterals, and the securities so taken by him are spurious, and are not the securities contemplated by the parties, and he fails to take any precautions to verify the genuineness of the securities, although an opportunity for inquiry was open to him, and if availed of would have disclosed the forgery and prevented loss, he will be liable to the trustee for a resulting -loss of the trust funds.
    Appeal by tlie defendant in the first above-entitled action, and plaintiff in the second, Mary E. Post, as administratrix of Augustus T. Post, deceased, from the judgments of tlie Supreme Court, entered in tlie respective actions in tlie office of tlie clerk of Kings county on tlie 4th day of November, 1892, upon a decision of the court rendered afffir a trial by the court, at the Kings County Special Term.
    The actions involved the same subject-matter, the liability of Augustus T. Post for funds belonging to the Trumbull estate, of which Henry II. Isham is trustee, loaned by Post upon securities which turned out to be forged. The actions were tried at the same time, as one action, tlie judgment roll in one being the same as the judgment roll in the other.
    The judgment in the first action required the defendant, the present appellant, to give security to the plaintiff for the payment of $21,952, on demand; the judgment in the second action was for a dismissal of the complaint.
    The evidence showed that on the 13th day of November, 1890, Henry H. Isham, having in his hands the sum of $25,000 of moneys belonging to the Trumbull estate, of which he was thé trustee, employed tlie appellant’s intestate, Augustus T. Post, a banker, who had for fifteen years made investments for the trust estate, to loan these moneys upon securities sufficient to assure its repayment.
    Upon this day Mr. Post received a check for $25,000 from Mr. Isham, signed “ Henry H. Isham, trustee,” deposited it to his own credit in his bank, and loaned $25,000 by his own check and in his own name, to certain stock brokers, upon stock collaterals, some of which had been forged by one of the borrowers, by altering or raising the number of shares which the certificates purported to represent. On the 15th day of November, two days after the loan, the borrowers, who were in fact insolvent when the loan was made, failed, and made an assignment..
    Other facts are sot forth in the Special Term opinion.

      'Alexander Ely, for the appellant.

      Frederick A. 1 Yard, for the respondent Isham.

      Clarence D. Ashley, for the respondent Ripley.
   Pratt, J.:

The opinion at Special Term sufficiently discusses the law and facts.

The judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment in each of these appeals affirmed, with costs.

The opinion delivered at Special Term was as follows:

Cullen, J.:

Even though the plaintiff were a party to the wrong, if the defendant’s intestate was guilty of a spoliation of the trust estate, the plaintiff in his representative character can maintain this action. But I do not think that the loan Mr. Post assumed to make was per sa a misuse of trust funds, for which he would be responsible. The word “ trustee ” in the check gave notice to the banker that the funds were not or might not be the property of the plaintiff individually. (Jaudon v. Nat. City Bank, 8 Blatchf. 430; Shaw v. Spencer, 100 Mass. 382; Baker v. Bliss, 39 N. Y. 70.)

Therefore, if the transaction was prima facie a waste or spoliation of the trust estate, or if the trustee apparently was using the trust funds for his personal benefit, the banker participating in the matter and receiving the funds would be liable. But I think that this transaction was not of that character. I find as a fact that Post had no knowledge or notice that that money belonged to the particular trust estate of which it now seems to be the property. The transaction was not dishonest or hazardous. The plaintiff himself had no thought that he was wrongdoing. Loans on collateral to brokers are made by banks, bankers and trust companies. To declare the defendant liable on the theory that the loan as it was intended to be made was illegal and a waste of trust funds, it is necessary to hold that the word “ trustee ” put the receiver of the check on notice not only that the plaintiff did not hold the moneys in his own right, but that the trust was of such a character that the trustee was limited solely to what are called legal investments.” I think that would be carrying the doctrine of implied notice too far. In this very case the trustee could, with the assent of the beneficiaries, invest in any class of securities. It is a matter of common knowledge that many of the bank accounts in the name of a person simply as trustee require no such strictness in investments. I am not disposed, therefore, to hold the defendant liable on this ground.

The question then arises as to the responsibility for receiving the forged or altered certificates of stock. I have searched in vain for precedent in this respect. Two cases arising from stock transactions are to be found in the reports which approach the case in hand, but still are to be distinguished from it. In Lambert v. Heath (15 M. & W. 484), the stock broker was held not liable for the invalidity of certain Kentish Coast railroad scrip purchased by him for his principal, on the ground that he bought the thing he was ordered to buy, that is, the scrip that was selling in the market. In Peckham v. Ketchum (5 Bosw. 506), the stock delivered by the broker to his principal was a genuine certificate, but was alleged to be invalid because of an over issue of stock by the officers of the New York and New Haven Railroad Company. Here, also, the broker was held not liable.

But here the loan was concededly to have been made on the faith of the collaterals and the securities on which it was made; spurious securities were not the securities contemplated by the parties, nor did the banker take any precautions to verify the genuineness of the securities and guard against forgery. There were accessible to the banker both the office and the company issuing the stock, and the office of the trust company which registered the certificates. An inquiry at either office would have disclosed the forgery and prevented the loss. It is true that the banker did not take this precaution in the case of his own loan. But this does not determine the question of care. He undoubtedly relied on the standing of the firm to whom he made the loan. But this confidence was his own; the plaintiff did not know the parties. This is a hard case for either party on whom ultimately the liability is adjudged to rest. But where so simple a precaution as that already stated would have exposed the fraud, I think that the liability should rest on the party who neglected to avail himself of it. There will, therefore, be judgment for plaintiff, with costs.

This decision disposes of the cross suit of Post v. Isham, in which the complaint will be dismissed, without costs.


author: Pratt, J.:

text:
    The People of the State of New York ex rel. Winfield S. Overton, Respondent, v. The Board of Trustees of the Village of Whitestone, Appellant.

      Public officers — mandatory ckities — milage of Whitestone — vacancy in, the office of trustee — special election.

    Every citizen has a right to compel the performance, by public officers, of the duty imposed on them of executing the law.
    Where a public body is' clothed by statute with power to do an act which the public interests require should be done, the execution of the power may be insisted on as a duty, though the statute conferring the power appears to be only permissive in terms.
    'The provision of the charter of the village of Whitestone (Laws of 1869, chap. 199, tit. 2, § 8) that “ in case of any vacancy in the oifice of trustees, * * * it shall be in the power of those remaining trustees, or a majority of them, to call a special election,” is mandatory and requires the remaining trustees to call a special election whenever a vacancy in the' board occurs. A voter and taxpayer of the village has a right to compel, by mandamus, the performance by the village trustees of the duty imposed upon them of executing the above statutory requirement.
    Appeal by the defendant, the Board of Trustees of the Village •of "Whitestone, from an order of the Supreme Court, made at the Kings County Special Term, on the return of an order to show cause, and entered in the office of the clerk of Queens county on the 29th day of April, 1893, directing the issuance of a peremptory writ of mandamus commanding the board of trustees to call a special election of the voters of the village of Whitestone to fill a vacancy in the board.
    The charter of the village of Whitestone (Laws of 1869, chap. 199, tit. 2, § 8) contains the following provision, “ and in case of any vacancy in the office of trustees or police justice, by death, resignation or otherwise, it shall be in the power of those remaining trustees, or a majority of them, to call a special election, at such time, place, •and in such manner as they, or a majority of them, may prescribe,” etc.
    By chapter 133 of the Laws of 1885, supplementary to the village charter, the board of trustees of the village is made to consist of seven members.

      B&nya/mi/n W. Downing, for the appellant.

      Alfred Mitchell, for the respondent.
   Pratt, J.:

This is a special proceeding against village trustees to compel them, by mandamus, to call a special election to fill a vacancy.

The relator is a voter and taxpayer of the village of "Whitestone, Queens county, and the defendant is the acting governing body of said village, and consists of a board of seven trustees who were in office on and prior to January 18, 1893, when one of them, August M. G-raue, then resigned his said office, and the vacancy thereby created existed when this proceeding began.

This proceeding was commenced by the granting, on the expa/rte application of relator’s counsel, upon the affidavits of himself and the-relator, on April 18, 1893, of an order requiring defendant to show cause, why a peremptory mandamus should not issue commanding it, to forthwith call a special election to fill said vacancy. Defendant, appeared by counsel, and opposed said motion, admitting the foregoing facts, but contending that the power given was discretionary,, and that they wished to save the expense of election.

It is well settled in this State that every citizen has a right to-compel the performance by public officers of the duty imposed on them of executing the law. (People ex rel. Boltzer v. Daley, 37 Hun, 461, and cases there cited.)

There being no disputed facts, a pure question of law was raised making it the duty of the judge below either to deny the application or grant a peremptory mandamus.

The question is whether the law which provides that there shall be seven trustees of the village is permissive or mandatory. Reason and authority seem to indicate very strongly that it is mandatory. If it is discretionary, as members of the board of trustees drop out,, whether to call an election or not, they might thus be reduced to one man and the representative character of the government destroyed. The power is conferred to call a special election in such a case and we think it is mandatory.

"Where a public body is clothed by statute with power to do an act which the public interests require to be done, the execution of the power may be insisted on as a duty though the statute confer-ing the power appears to be only permissive in terms. (Hutson v. Mayor of New York, 9 N. Y. 163, following 3 Hill, 612; People ex rel. Raymond v. Connolloy, 4 Abb. [N. S.] 376; People v. Supervisors, 51 N. Y. 401.)

The order must be affirmed, with costs and disbursements.

Barnard, P. J., and Dykman, J., concurred.

Order granting writ of mandamus affirmed, with costs and disbursements.


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

text:
    Matilda Ackerman, as Administratrix, etc., of John K. Ackerman, Deceased, Appellant, v. Mary A. Herrick, Respondent.

      Change of venue — transfer of a savings hank hook and deposit — witnesses to the transfes'.

    In an action brought in Orange county, which involved the right of the defendant to the deposits, made by a deceased intestate depositor, and represented by a book issued by a savings bank in Ulster county, to the decedent, indorsed, “ In case of my death to my daughter, Mary Ann Herrick (the defendant), Kingston, Jan. 1, 1890,” the defendant moved for a change of the place of trial to Ulster county, on the ground of the convenience of witnesses, and stated in her moving affidavit that the decedent assigned the book and the deposits represented thereby to her on or about the above date, and that at about that date the book was delivered to her.

      Held, that the transaction was one which arose in Ulster county, and required the witnesses to the transfer as well as to the delivery of the book;
    That it could not be said that the defendant would not be entitled to produce such witnesses upon the trial even if the plaintiff should stipulate to admit copies of the bank’s books; and, hence, that the motion for a change of the place of trial was properly granted.
    Appeal by the plaintiff, Matilda Ackerman, as administratrix, etc., of John K. Ackerman, deceased, from an order made at the Ulster Special Term, and entered in the office of the clerk of Orange county on the 4th day of April, 1893, upon the motion of the defendant, changing the place of trial of the action from the county of Orange to the county of Ulster, for the convenience of witnesses.
    The nature of the action and of the defense thereto, appears from the following portions of the defendant’s moving affidavit:
    “ That this action is brought to recover the' sum of $7,860.82, with interest since July 1, 1891, which is alleged to be represented by two deposit books, issued by the Ulster County Savings Institution, of the city of Kingston, Ulster county, N. Y., and by one deposit book issued by the Newburgh Savings Bank (of Newburgh, Orange county, N. Y.).
    The defense is, that one of said deposit books issued by said institution is numbered 21,937, and that the deposits represented thereby were made by the defendant herself, with her own money and in her own name, and that ever since the date of the first deposit thereon, to wit, February 19, 1887, she has had the actual and rightful possession thereof, and since that time has been, and still is, the sole and exclusive owner thereof and of the deposits, credits, money and property represented thereby. That the other deposit book issued by said institution is numbered 23,238, and was issued to John K. Ackerman in his lifetime, but the said John K. Acker-man, deceased, on or about January 1, 1890, duly assigned, gave and delivered said deposit book and the deposits, credits, moneys and property represented thereby to this defendant; that she has ever since that time been in the actual and rightful possession of the same and is the sole and exclusive owner of the said deposit book, and is entitled to the deposits, credits, moneys and property represented thereby.
    That the said Ulster County Savings Institution has been restrained by the court from paying a portion of the deposit and money represented by said deposit books and from paying interest for a portion of the time for which interest is claimed by the complaint herein. That said transaction took place and occurred in Ulster county.
    ■ That said deposit book issued by the Newburgh Savings Bank is numbered 36,428, and that the deposits entered therein and represented thereby were made in trust for this defendant by her father, the said John K. Ackerman, deceased, and he caused the following entry to be made upon the said deposit book and the books of the said bank : “ J. K. Ackerman in trust for Mary A. Herrick.” That the defendant thereby became entitled thereto and to the credits, deposits and money represented thereby. That the said deposit book was delivered to this defendant by the plaintiff with the intention that she should draw the money thereon, which she accordingly did. * * *

      That the facts she expects to prove by said witnesses (residents of Ulster county) are as follows : By said Daniel Herrick, Irving Herrick, John Y. Herrick, Samuel D. Coykendall, George W. Burger and John G. Burger that the said John K. Ackerman, deceased, in his lifetime told and declared to each and every one of them that he had given and delivered the said deposit books issued by the Ulster County Savings Institution and the deposits and money represented thereby to this defendant and that she was the owner of the same. That she expects to prove by Alfred Yan Nostrand that he was the bookkeeper of the Ulster County Savings Institution at the time the said deposits were made in the said institution, and that the defendant personally made a number of said deposits. That she expects to prove by Charles W. Deyo, Charles D. Bruyn and Cornelius Hume that the assignment in said deposit book numbered 23,238, is in the handwriting of M. T. Trumpbour and that he signed the same as a witness thereto. ' That she expects to prove by John B. Alliger that he is the treasurer of said Ulster County Savings Institution, and as such has the charge, control and custody of the books of said institution; that the original deposit represented by said book numbered 21,931 was made in the name of this defendant and was so entered upon the books of said institution; that the said institution, its officers and agents have been restrained from paying out a portion of the aforesaid deposits, and that they still retain the same and the amount thereof; that the said institution, for a portion of the time for which interest is claimed by the complaint, has been restrained from paying any interest on its deposits, and she expects said witness to produce upon the trial of this action the books of said institution which contain the accounts of the said deposits represented by said bank books numbered 21,931 and 23,238.”

      William D. Dickey, for the appellant.

      J. E. d? J. G. Van Etten, for the respondent.
   Barnard, P. J.:

There is nothing in the papers which tends to invalidate the title of the defendant to the Newburgh Savings Bank book. The deceased intestate made the deposit and took a book in the name of “ J. K. Ackerman, in trust for Mary A. Herrick.” This raises an inference of an attempt to give the money and create herself the depositor, the trustee of the donor. (Martin v. Funk, 75 N. Y. 134; Mabie v. Bailey, 95 id. 206.)

One of the other bank books was deposited in the name of the defendant, and there is nothing stated in either the complaint or affidavits which constitute any claim by the administratrix to it. The other book represents deposits made by the deceased in his own name. This book contains this indorsement: In case of my death to my daughter, Mary Ann Herrick, Kingston, Jany. 1, 1890.” The defendant states in her affidavit that this book, with its indorsement on it, was delivered to her at about the date of the assignment. If this was so, and she agreed to pay the intei’est to the deceased for her life, the gift would be complete. (Young v. Young, 80 N. Y. 422.)

This transaction is one which arose in Ulster county, and requires the witness to the transfer as well as such, if any, besides the defendant who can testify to the delivery of the book in January, 1890.

The order changing the place of trial from Orange county to Ulster was, therefore, right, and the order should be affirmed, with costs and disbursements

Pratt, J.:

This is an appeal from an order changing the place of trial of an action from Orange to Ulster county.

There is not such a preponderance of evidence in the affidavits, that we are enabled to say there was such an abuse or misuse of discretion in the court below as to warrant us in reversing the order.

The respondent claimed, and seemed to have a large number of witnesses whose convenience would be promoted by a change of venue, and we cannot say that she would not be entitled to produce them upon the trial, even if the appellant should stipulate to admit copies of the bank books.

Considering all the facts and circumstances, we think the order should be affirmed, without costs.

Order changing place of trial affirmed, without costs.


text:
    Elizabeth A. Lydecker, Respondent, v. Henry M. Valentine, Appellant.

      Contract to pay for room and boan'd — measure of damages for its bi'each.

    The proper measure of damages for the breach of a contract to pay for room and board is the profits which the plaintiff would have made if the defendant had carried out his contract, and proof of the amount of such profits must be given in order to furnish a basis for the making of an estimate of such damages.
    Appeal by the defendant, Henry M. Valentine, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Rockland county on the 3d day of October, 1892, upon a verdict rendered at the Rockland Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      Snider & Hopper, for the appellant.

      A. S, Tompkins, for the respondent.
   Pratt, J.:

This action was for damages for breach of a contract for rooms and board with the plaintiff.

The complaint alleged that the defendant agreed to pay plaintiff for a room and board fourteen dollars per week from May 1 to November 1, 1890. That he did so pay'until June 1,1890, when he left the premises.

The court charged the jury that the plaintiff was entitled to recover the amount of the contract price for board and room less the amount of $107, which the plaintiff had from other parties for the same room. This we think was error. The damages could not be the whole contract price, but only what the plaintiff lost by defendant not being there, i. e., the profits she would have made if defendant had carried out the contract.

The defendant’s counsel asked the court to charge that proposition, but the court refused, to which exception was taken.

The case was bare of evidence on which damages could be computed. The plaintiff ought to have proved how much profit she could have made if defendant had kept his contract, as a basis for the jury to estimate the damages. (See Wetmore v. Jaffray, 9 Hun, 140; De Lavalette v. Wendt, 11 id. 432.)

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

Barnard, P. J,, and Dykman, J., concurred.

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


text:
    In the Matter of the Application of Sophia A. Daniels, Respondent, for the Appointment of a Temporary Guardian of the Person of Jennie R. Willett, an Infant under Fourteen Years of Age. Martha S. Willett and Edward S. Willett, Appellants.

      Infant under fourteen — a/ppmntment of a temporary guardian — residence of the infant.

    When the residence of an infant under fourteen years of age has been fixed, by the, act - of its parents, in another State, in which all its property is situated, the infant’s residence cannot be changed in contemplation of law, after the death of its parents (except by a guardian), so as to make the infant a resident of a county in the State of New York, within the meaning of section 3837 of the Code of Civil Procedure in relation to the appointment of temporary guardians for infants under fourteen.
    Appeal by Martha S. Willett and Edward S. Willett from an •order of the Surrogate’s Court of Kings county, entered in the office of the surrogate on the 15th day of February, 1893.

      Michael J. Gcurdozo and Edgm J. Nathcrn, for Martha S. and E. S. Willett, appellants.

      Wm. H. Ao'noum, for Sophia A. Daniels, respondent.
   Pratt, J.:

This is an appeal from an order of the surrogate of Kings county, appointing the petitioner, Sophia A. Daniels, temporary guardian of the person of Jennie R. Willett, an infant, until said infant'attains the age of fourteen years. The guardian so appointed is the maternal grandmother of the infant, and resides in the city of Brooklyn. George W. Willett, tlie paternal grandfather of said infant, who resides in the city of New York, also made petition for the appointment of Mrs. Daniels as guardian. Martha S. Willett, the paternal grandmother, and Edward S. Willett, the paternal uncle, of said infant, who reside in the city of Bridgeport, Connecticut, opposed the appointment of a guardian of said infant. Both the father and mother of the infant were residents of Connecticut. The mother died on December 6,1889; the father died on July 9,1892. After the death of the mother the infant lived with her paternal grandmother, in Bridgeport, until May 24,1892, when, by the father’s direction, she went to her maternal uncle, Mr. Sandford, in Bridgeport, and lived in his family until September 22, 1892, when he caused her to be taken to Mrs. Daniels, in Brooklyn.

On September 22,1892, the Probate Court at Bridgeport rejected the probate of the will of the infant’s father, made April 14, 1892, on the ground that he was not of sound and disposing muid when he executed it. By that will Mr. Sandford was appointed sole guardian of the person and property of the infant. On September 26, 1892, Mrs. Daniels made her application in this matter. The infant had no property in the county of Kings, or indeed in this State; all her property was in Connecticut. Until sent here by her •uncle she had resided in Connecticut. She was living in the family of her uncle, and the father by his will had attempted to appoint him her guardian, but the Probate Court in Connecticut rejected the will, and the uncle had no power or right thereafter except to deliver her to some person legally authorized to receive her. No person at that time was authorized to receive her. No guardian of her person had been appointed, and it was, therefore, his duty to retain and care for the child until some court having jurisdiction should make an order with respect to her. Instead of doing that, as soon as the will appointing him guardian was rejected, he at once sent the child outside the jurisdiction of the courts'of Connecticut, to her maternal grandmother in Brooklyn, although equally near relatives were then living in Bridgeport. Ilis object in doing so is apparent. lie did not wish the courts of Connecticut to appoint a guardian of the person of this infant, who had always resided and all of whose property was in Connecticut. It seems to us that this was merely a change of locality of the infant, made by one -who did not under the circumstances have the right to do- even that; and that such change did not make the infant a resident of Kings county within the meaning of section 2827 of the Code. The infant’s residence was in Connecticut, fixed there by act of her parent, and could not be changed in contemplation of law except by a guardian.

The order appealed from should be reversed and the proceedings dismissed, with costs. , ■

Barnard, P. J., and Dykman, J., concurred.

Order appointing guardian of Sophia Daniels reversed and the proceedings dismissed.


author: Dykman, J.:

text:
    John Raven, Respondent, v. William R. Smith, Appellant.

      Lien foi' grading building lots — ■jurisdiction of the County Court of a foreclosure thereof — pendency of another action for the same services.

    By force of section 7 of chapter 342 of the Laws of 1885, which provides in section 1 thereof for a lien to any person who performs labor or services in “altering or repairing” any building or building lot, the County Court of the county in which the property is situated has jurisdiction of an action to enforce a lien acquired under the act, when that court would have jurisdiction to render a judgment in an action founded upon a contract for a sum equal to the amount of the lien, and it is not requisite that the defendant should be a resident of the county.
    The pendency of an action brought to recover for services rendered is not a bar to a proceeding, between the same parties, for the foreclosure of a lien for the same services.
    Appeal by the defendant, William R. Smith, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of that county on the 18th day of March, 1893, upon findings of fact 'and conclusions of law made by the county judge after a trial by the court without a jury.
    On the trial the defendant objected to the jurisdiction of the County Court on the ground that he was not a resident of the county of Westchester, and claimed that the proceeding was barred by the pendency of an action brought against him in the Supreme Court by the present plaintiff to recover payment for the same services for which the lien in suit was filed.

      The county judge made, among others, the following findings of fact:

      Fifth. That at the time of the commencement of this action the defendant was not a resident of the county of ’Westchester.

      Sixth. That at the time of the commencement of this action there was another action pending in the New York Supreme Court, in which the plaintiff herein was plaintiff and the defendant herein was defendant, and that said action in the New York Supreme Court was brought by the plaintiff herein to recover judgment against the defendant herein, for the identical work which the plaintiff herein alleges in his complaint herein that he performed for the defendant.

      Jas. B. Bowen, for the appellant.

      Frederick W. Clark, for the respondent.
   Dykman, J.:

This is an appeal by the defendant from a judgment of the County Court of Westchester county, in favor of the plaintiff, against the defendant, in an action to foreclose a lien in favor of the plaintiff for grading building lots.

The action is prosecuted under chapter 342 of the Laws of 1885, and the 1st section of that act provides for a lien to any person who shall perform labor or service in altering or repairing any building or building lot.”

The claim of the plaintiff falls directly under this provision, and the contention of the defendant that no lien could be acquired, is destroyed by the statute.

It is also contended that the County Court had no jurisdiction 0^ er the action, but the Lth section of the act provides that the claimant may enforce his claim against the property mentioned in the lien, and against the person liable for the debt, by a civil action in a court of record in the city or county where the property is situated, which would have jurisdiction to render a judgment in an action founded upon a contract for a sum equal to the amount of the lien.

This provision includes this case, and the objection is baseless.

The other suit pending between these parties is not for the same relief as this, and presents no obstacle to the maintenance of the present action. The judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment of County Court affirmed, with costs.


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    Philip H. Moore and Another, as Administrators, etc., of Barbara C. Rikert, Deceased, Respondents, v. The Hanover Fire Insurance Company of the City of New York, Appellant, Impleaded with Maggie P. C. Smith.

      Fire insurance on mortgaged premises — waiver of conditions of the policy — proofs of loss.

    A fire insurance policy on mortgaged premises, iss.ued to the mortgagor and payable to the mortgagee in case of loss, contained a condition that, unless otherwise provided by agreement indorsed on the policy, it should be void if, with the knowledge of the insured, foreclosure proceedings were commenced or notice of sale given of any property covered by the policy by virtue of any mortgage, and that in case of a fire the insured must make proof of loss within sixty days.
    The mortgagee commenced foreclosure proceedings and served the papers on the, insured; an agent of the insurance company was informed of the fact, and agreed that the proceedings might be commenced without injuring the policy, but no agreement was indorsed on the policy. Thereafter the insured building was destroyed by fire, and there being a deficiency on the foreclosure, the mortgagee sued the insurance company on the policy.
    The insured refused, without just cause, to make out proofs of loss, and thereupon the mortgagee made them out and served them on the company more than sixty days after the fire; the proofs were rejected, not because not served in time, but because not made by the insured.

      Held, that the facts established a waiver of the conditions as to the time of service of proofs of loss, and as to the indorsement on the policy of the agreement that the foreclosure should not affect the policy.

      Held, also, that, under the circumstances, service of proofs of loss by the mortgagee, instead of the insured, was good.
    Appeal by the defendant, the Hanover Fire Insurance Company of the city of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of Dutch-ess county on the 30th day of July, 1892, upon a decision of the court rendered after a trial by the court at Special Term.

      The action was brought to recover, under a policy of insurance, “loss, if any, payable to Barbara C. Rickert, mortgagee, as interest may appear,” the deficiency on a mortgage foreclosure sale.

      A. T. Clearwater, for the appellant.

      Esselsi/yn <& McCarty, for the respondents.
   Pratt, J.:

The plaintiffs, Moore et al., administrators of the mortgagee of the insured premises, sue on defendant’s policy of fire insurance issued to Smith, covering, among other things, a dwelling house on the mortgaged premises, $1,500, loss, if any, payable to the mortgagee.

The policy contained a condition that (unless otherwise provided by agreement indorsed on the policy) it should be void “ if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale, of any property covered by this policy by virtue of any mortgage or trust deed.” If any fire occurred, the insured was to give immediate notice to the company and make proof of loss within sixty days after the fire.

The mortgagee commenced foreclosure proceedings August 17, 1891; the papers were served on the insured on that day. An agent of the defendant was informed of the fact and agreed that the proceedings might be commenced without injuring the policy. It did not appear what the extent of the agent’s authority was, but the fact was that no agreement of waiver was indorsed on the policy.

Again, the building was destroyed by fire October 23, 1891, and the assured (Smith), without just cause, refused to sign the proofs of loss, and thereupon the plaintiff made them out and sent them to the company on December 26, 1891, which was the sixty-first day after the fire. The case shows no complicity between the assured and the company in her refusal to sign the proofs. There was a deficiency on the foreclosure.

[ find no difficulty with the failure to furnish proofs of loss within the sixty days. They were sent to and received by the company. It did not reject them because they were not served in time. On the contrary, it did specify the objection that the assured had not made the proofs of loss herself. This would seem to indicate a waiver of the mere matter of time.

I think we are justified in holding a similar rule respecting the failure of the agent to indorse the agreement about foreclosure proceedings on the policy. The proof is clear that he said and orally agreed that the policy should stand, notwithstanding the proceedings instituted. Then when the notice and proofs were served, they were not rejected because the policy had become void. On the contrary, they were retained, and the company contented itself with merely “calling attention” to this clause of the policy, without stating that it would stand on that objection. Instead of standing there, they apparently selected then- ground, which was that the assured had not herself made the proofs of loss. I think we are, therefore, justified in holding that these objections were waived, and that the case stood as though they were without foundation.

In respect to the remaining objection we shall hold that the proofs of loss were well served by the plaintiffs. This assured refused to make the proofs of loss unless she was paid for it. There was no ground for her refusal. She ought to have signed the proofs, but she, without cause, refused, simply to induce plaintiff to pay money to her or her lawyer. Without attempting to characterize such conduct further than to say that it was a fraudulent attempt to obtain money, we hold that, under all the circumstances, the real beneficiaries of this policy made the best proof which they were able to furnish. The fact that the loss was payable to the mortgagee furnishes a strong reason inducing us to hold that, in face of this fraudulent refusal to do her duty, the real beneficiary was justified in making the proof.

We, therefore, though not without some hesitation, affirm this judgment, with costs.

DyxmaN, J., concurred; RakNAbd, P. J., not sitting.

Judgment affirmed, with costs.


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    The People of the State of New York ex rel. John J. Griffin, Appellant, v. Austin Lathrop, Superintendent of State Prisons, and William R. Brown, Agent and Warden of Sing Sing Prison, Respondents.

      The State prisons — power of the wardens to a/ppoint and, remove their subordinates — honorably discharged Union, soldiers.

    The power conferred upon the wardens of the State prisons by section 4 of article 5 of the Constitution of the State of New York, to appoint officers of their respective prisons, subject to the approval of the Superintendent of State Prisons, is subject to regulation and control by the Legislature.
    The power conferred upon the wardens of the Stite prisons by subdivision 3 of section 30 of chapter 383 of the Laws of 1889, to remove subordinate officers and employees appointed by them with the approval of the Superintendent of State Prisons, must not be exercised for political or personal or merely arbitrary reasons, but wholly for the efficiency of that branch of the public service.
    To the extent of being empowered to remove subordinate officers and employees for the good of the service, in the honest exercise of sound discretion, the wardens of the State prisons are relieved by the act of 1889 from the force of acts prior to 1889 in relation to the appointment and removal of honorably discharged Union soldiers and sailors in the public departments of the State of New York; but, subject to this broad discretion, the wardens are bound to give preference to such soldiers and sailors in cases otherwise evenly balanced. The fact that a duly appointed keeper in a State prison is an honorably discharged Union soldier does not give him a vested right in his office, and he may be removed therefrom by the warden, in an honest exercise of discretion, for the good of the prison service.
    The wardens of the State prisons are responsible to the criminal authorities for the discharge of their duty in the appointment and removal of subordinates ; and the question may be reviewed also by the courts in a proceeding for mandamus.
    Appeal by the relator, John J. Griffin, from an order made at Special Term and entered in the office of the clerk of Westchester county on the 31st day of December, 1892, denying the relator’s motion for a peremptory writ of mandamus directing the respondents to reinstate the relator as a keeper in Sing Sing State prison.
    The relator, an honorably discharged Union soldier, on or about March 8, 1866, was appointed guard at Sing Sing prison, and continued as such until April 1,1869. July 26,1873, he was appointed keeper, and held that position until 1879. October 1, 1879, relator was again appointed guard. April 1, 1880, he was promoted to the position of keeper, and held that position continuously until September 25, 1891. On tbe day last named the relator was relieved of duty by tbe agent and warden. At tbe time of the discharge relator gave notice to the agent and warden that be, relator, was an honorably discharged soldier, and as such claimed preference and continuance in employment as such, and after such notice the agent and warden discharged the relator. The agent and warden of Sing Sing prison bled an affidavit alleging his appointment as such officer under the provisions of section 4, article 5 of the Constitution, and that tbe removal of relator was made by him by the direction and approval of the Superintendent of State Prisons, by virtue of tbe power granted to so remove, by tbe Constitution of this State. Relator applied for a writ of peremptory mandamus to compel his reinstatement, and a hearing was had thereon at Poughkeepsie Special Term, September 24, 1892, and tbe application was' denied, whereupon tbe relator appealed to the General Term.
    Section 4 of article 5 of tbe Constitution of the State of New York contains the following provisions: “A Superintendent of State Prisons shall be appointed by the Governor, by and with the advice and consent of the Senate' * * * he shall have the superintendence, management and control of State prisons, subject to such laws as now exist or may hereafter be enacted; be shall appoint the agents, wardens, physicians and chaplains of the prisons. The agent and warden of each prison shall appoint all other officers of such prison, except the clerk, subject to the' approval of the same by the Superintendent. The Comptroller shall appoint the clerks of the prisons. The Superintendent shall have all the powers and perform all the duties not inconsistent herewith, which have heretofore been had and performed by the Inspectors of State Prisons; * * * ” ' *■
    Section 30 of chapter 382 of the Laws of 1889, entitled “ An act to amend title 2 of chapter 3 of part 4 of the Revised Statutes, relating to State prisons and for other purposes connected therewith,” contains the following provisions: “ § 30. The Superintendent of State Prisons shall appoint the agent and warden, physician and chaplain of each of the saic. prisons, as provided in the Constitution ; and he may remove them from office whenever in his judgment the public interests shall so require. He shall designate such number of keepers, guards, teachers and other einployees at each of said prisons as lie may deem necessary for tlie safe-keeping and improvement of the prisoners or for the maintenance of discipline, and he shall also designate which of them shall reside at tlie ■prison. * * *
    “ 2. The agent and warden of each of said prisons shall appoint, subject to the approval of the Superintendent of State Prisons, a principal keeper, a store keeper, a kitchen-keeper, a hall-keeper, a yard-keeper, a sergeant of the guard, and so many other keepers, guards, teachers and employees of such prison as shall be designated by the Superintendent of State Prisons as aforesaid, and such agent and warden shall have the power to remove such subordinate officers and employees so appointed by him.
    “3. No appointment shall be made in any of the State prisons of this State on the grounds of political partisanship; but honesty, capacity and adaptation shall constitute tlie rulo for appointments, and any violation of this rule shall be sufficient cause for the removal from office of the officer committing such violation. * * * ”
    The legislation in reference to the appointment and removal of honorably discharged Union soldiers and sailors in the public departments of the State of New York is to be found in chapters 312 and 410 of the Laws of 1884, chapter 20 of the Laws of 1886, and chapter 464 of the Laws of 1887,

      Horace .D. Ellsworth, for the relator.

      8. W. Rosendale, Attorney-General, &&& John W. Ilogan, Deputy Attorney-General, for the respondents.
   Pratt, J.:

The points involved in this case gravely affect the public service, and we assume that they will be submitted to the Court of Appeals. Perhaps the ends of justice might be served quite as well, if, under these circumstances, we merely announced our conclusion without any opinion. But we, nevertheless, briefly state our view.

The Constitution (§ 4, art. 5) undoubtedly vests the superintendence, management and control of the State prisons in the Superintendent of State Prisons, but that management and control is “ subject to such laws' as now exist or may hereafter be enacted.” Hence, tbe superintendent is certainly subject to tbe action of tbe Legislature in tbe exercise of tbeir “management and control.”. Tbe warden is to be appointed by tbe superintendent. True, tbe. Constitution does not say tliat tbe warden is subject to tbe control of tbe Legislature, but Ms power of appointment is subject to tbe “ approval of tbe same by tbe superintendent.” It is plainly subordinate to tbe superintendent, and it would be singular indeed if tbe warden is not bound to obey tbe letter and spirit of a statute which bis superior is bound to observe.

We find nothing necessarily inconsistent between tbe act of 1889 (Chap. 382) and prior statutes, so far as they bear on the point here involved. Tbe only difficulty is in tbeir application. Tbe warden’s power of removal from office must not, in our judgment, be exercised for mere political or personal or other arbitrary reasons; but wholly for tbe efficiency of this branch of the public service.

Tbe warden is undoubtedly vested with a most important trust-.. His employees must be men of great skill in judging of men, particularly those who become prisoners, and, above all, men of absolute loyalty, courage, coolness and bravery, nerve, as it is sometimes, expressed. It is not according to our experience that these qualities are always found in the people who are most proficient in geography, or arithmetic or any other acquirement of that character. Hence, tbe widest latitude was needed and was extended by the act of 1889, in this case to tbe warden, and to that extent he was relieved from tbe force of acts prior to 1889. But, subject to this broad discretion, we think be was bound to give preference to honorably discharged Union soldiers and sailors in cases otherwise evenly balanced. But it must be observed that tbe discretion is so broad that it is difficult to determine judicially just where this officer may err in one direction or tbe other. It'was and is undoubtedly a question of fact whether be acted within tbe line of bis duty in this case —■ that is to say, that whether or not bis honest judgment was that tbe public interests required tbe removal of this relator. If be so honestly judged, I do not see why we should, or bow we can, lawfully interfere. It would undoubtedly be our duty to determine, in a proper case, whether or not be acted honestly or dishonestly in tbe premises; but we see no fair reason to question bis action in that regard in this case.

It was natural that the relator should think that his removal was attributable to purely political considerations. But that is a mere conclusion at best, and is scarcely supported by sufficient evidence. Besides that, the allegation is denied by the warden, who says that he acted solely for the good of the service. The relator may have been, and doubtless was, an excellent man, one wholly satisfactory in general ways ; but what if the warden should discover that tlmre was at his service another man of pre-eminent ability, whose skill and service he could secure in this department of the public service ? Can there be any doubt, in view of this statute, that the warden would be authorized to secure his services even at the expense of creating a vacancy for that purpose ? We think not. The public interest in that case might require a removal of the least efficient, though perhaps fair man, as means of greater efficiency, for that matter is always relative. It will be thus seen that we do. not accept this proposition that the relator’s office gave him a vested right in the office which he might hold as his property. The efficiency of the service is the controlling consideration. The relator held his place subject to the warden’s judgment of the public interest, to be honestly exercised. We see no reason to disturb the judgment of the learned judge at Special Term on this question of fact.

The warden is doubtless responsible to the criminal authorities for his discharge of this duty. So, too, we think that a court in such a proceeding as this may review that question, but we do not see that the relator has placed himself in a position where we can help him in that particular now.

We, therefore, affirm the order.

DyKMAN, J., concurred; BabNAed, P. J., not sitting.

Order denying writ of mandamus affirmed.


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    William W. Taylor, Appellant, v. Franklin B. Bernard and Others, Respondents.

      Mortgage — payment by goods taken in trade from the mortgagors store.

    In an action commenced in 1892 for the foreclosure of a mortgage made in 1877, both parties to which were dead, and where the defense was payment, it appeared that the mortgagor and mortgagee were neighbors and dealt with each other as long as they both lived; that the mortgagor kept a store and the mortgagee dealt there continuously, and that in 1883 the account was substantially closed, the mortgagee then owing the mortgagor on book account the amount of the mortgage.

      Held, that all the circumstances pointed to the theory that the. mortgagee permitted the mortgagor to pay off the mortgage by goods furnished from his store.
    Appeal by the plaintiff, William W. Taylor, from a judgment of the Supreme Court, entered in the office of the clerk of Westchester county on the 8th day of April, 1893, upon a decision of the court rendered after a trial by the court at the Westchester Special Term.
    The action, which was commenced in 1892, was brought to foreclose a mortgage for $600, made in 1877. The mortgagor died in 1889, and the mortgagee in 1890. The trial judge found that there was due on the bond and mortgage only the sum of forty-four dollars and fifty-nine cents, with interest thereon from March 10,1883, and directed judgment of foreclosure and sale for that amount, and judgment was entered accordingly.

      James G. I)e La Mare, for the appellant.

      J. Menoton Williams, for the respondents.

      G. De W. Cloche, guardian ad litem, for infant defendant.
   Pratt, J.:

This is an action for the foreclosure of a mortgage for $600, made in 1877, and both parties to it aré dead. It was assigned by the mortgagee’s administrator to the plaintiff. The defense was payment in effect.

The original parties to the mortgage were neighbors and friends, and dealt with each other as long as they both lived. The mortgagor kept a store, and the mortgagee dealt there continuously, and in 1883 the account appears to have been substantially closed, by it appearing that the mortgagee owed the mortgagor on book account the amount of the mortgage. This was proved beyond question, so that if the amount which the mortgagee owed the mortgagor could not be set off or regarded as payment pro tcmto, the result would be to collect the whole amount of the mortgage, and leave the book account entirely unpaid as the Statute of Limitations would cut it off. It is difficult to conceive how anyone can maintain such a proposition in this case.

We think the findings of the court below are just, and amply supported by the evidence, and that the conclusions of law naturally follow from the findings.

The only question is as to the admissibility of the books. "We think they were admissible uj\der the proofs, and that, taken with all the other proof in the case, established beyond all question the-.payment of the mortgage.

All the circumstances surrounding the transaction point to the payment of this mortgage during the lifetime of the parties, and, even disregarding the evidence furnished by the book of account, it looks very much as if the mortgage was regarded by both .parties as settled and paid.

When we take into consideration the relations of the parties, their course of business, the fact that interest on the mortgage was credited on the books of the mortgagor with the items of goods sold to the mortgagee, that no claim was made for so many years that anything was due on the mortgage, all point to the theory that the mortgagee permitted the mortgagor to pay off the mortgage by goods out of his store. No other reasonable construction can be placed upon their conduct.

The decision below was just and right, and should be affirmed, with costs.

BarNard, P. J., concurred; DykmaN, J., not sitting.

Part of judgment appealed from affirmed, with costs.


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    Elizabeth Byrnes, as Administratrix, etc., of Sylvester Byrnes, Deceased, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.

      Railroad employee — personal injury — negligence — evidence as to the existence of a ,■ system of inspection of the loading of freight cars.

    In an action Drought against a railroad company to recover damages because of the death of a brakoman in its emplojL alleged to hav(e been caused by the negligence of the, defendant in permitting one of its freightAqars to be loadedin such a man-oer as to prevent the use of the brake, the defense turned upon the question whether the defendant had established and maintained a system of rules for inspection to ascertain whether its cars wuro_properly loaded before they were sent out. ■ _ . .
    The only evidence on this subject was the testimony of one Lord, who had charge of the business of the depot where the car in question was loaded, that he considered such inspection a part of his duty, and had so instructed the men under him, and proof by some of these men that he had so instructed them; opposed to this was the fact that Lord did not inspect'the car in question, and proof by former employees that he had never given them any such instructions.

      Held, that the evidence failed to so far establish the existence of a rule for inspection as to warrant a dismissal of the complaint on the ground that the defense based on such a rule was substantiated, but that the question should have been submitted to the jury as one of fact.
    Appeal by the plaintiff, Elizabeth .Byrnes, as administratrix of Sylvester Byrnes, deceased, from á judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Orange county on the 29th day of January, 1891, upon a dismissal of the complaint directed by the court at the close of the testimony on the trial of the action at the Orange Circuit.
    The action was brought to recover damages because of the death of the plaintiff’s intestate, Sylvester Byrnes, while employed as a freight brakeman by the defendant, alleged to have been caused by the defendant’s negligence. It appeared that a car loaded with lumber at a way station was to be attached to the train on which Byrnes was employed; that while it was being moved by the engine from the switch of the main track, Byrnes got upon it to stop it, but a collision occurred and he was thrown from the car and an injury inflicted which resulted in his death. The plaintiff claimed that the collision was caused by the fact that in consequence of the improper manner in which tlie car was loaded with lumber, the use of the brake was prevented.

      John W. I/yon, for the appellant.

      Lewis E. Oarr, for the respondent.
   Pratt, J.:

The law of this case has been settled by the Court of Appeals in 113 N. Y. 255. It was there held, reversing a judgment for the plaintiff, that the evidence showed that the defendant was not guilty of negligence, inasmuch as the defendant had established a system of rules for the inspection of cars after they were loaded, and before they were sent out upon the road, to ascertain if they were properly loaded so as to be safe for handling by its employees.

The cause of the accident, therefore, was the faplt of a fellow-servant in not complying with the rules in making a proper inspection.

The plaintiff claimed that the car had been loaded with lumber so as to prevent the use of the brake at one end of the car, and thereby the husband of the plaintiff lost his life.

The case was sent back for a new trial with the following instructions contained in the opinion, to wit:

“ If there should be made any question on a retrial as to whether the company had, in fact,, provided rules for an inspection of the cars, and proper men to inspect them, after they were loaded and before they were taken away, such question would be proper to submit to the jury under correct instructions.”

We think the evidence raised precisely that question, and that it should have been submitted to the jury.

It is to be observed that there was no evidence whatever on the part of the defendant of the promulgation of any such rule. N o printed or written rule of that kind was sworn to, nor even verbal instructions given by any officer to persons in charge of depots on the road.

The nearest approach to any such proof was the testimony of Lord, who had charge of the business at the depot where this car was loaded, who said he considered it a part of his duty to do so, and so instructed the men under him — and there was also proof by some men under him that lie had so instructed them. But this proof was shaken by the fact that Lord did not inspect this car, and by further proof by former employees that Lord had never given them any such instructions.

It is true Lord said it was his custom, but that is far from proving that the defendant had established and maintained a rule for the inspection of loaded cars before they were sent out.

This question was purely one of fact, and, considering the manner of Lord’s testifying, and the fact that it was possibly his fault in failing to inspect this car that the accident happened, and the further fact that he was contradicted by two witnesses, made it proper that this question should be submitted to the jury.

The defendant makes no point that the deceased was guilty of contributory negligence, or that the car was not proved to be defective when deceased took possession of it.

The only point in the case, therefore, is whether the defendant had established and maintained a system of inspection to ascertain whether their cars were properly loaded.

In this case the question is vital, as this car was not loaded by the employees of the defendant, but by the shipper of lumber.

The judgment must be reversed and new trial ordered, costs to abide the event.

DyKmAN, J., concurred ; Baekaed, P. J., not sitting.

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


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    John R. Drake, Appellant, v. The New York Iron Mine, Respondent.

      .Stay of the plaintiff’s proceedings until the costs of a piior action cvre paid — identity of the cmises of action.

    "While orders staying a plaintiff’s proceedings, until the costs of a previous action decided in favor of the defendant have been paid, are properly made where a plaintiff vexatiously pursues a defendant with unnecessary litigation, there is no inflexible rule compelling courts to make such an order where the plaintiff is not in fault and the result would he not to prevent hut to promote injustice.

      One of the requisites to a until the costs of a previous action are paid is identity of the subject-matter of the two actions.
    Where a defendant has once procured a ruling that the causes of action are different, and has prevented a determination in the prior action of the facts set up in the subsequent action, rendering a new action necessary, he cannot be heard to assert, on an application to stay the plaintiff’s proceedings in the subsequent action until the costs of the prior action have been paid, that the causes of action are the same.
    Appeal by tbe plaintiff, John R. Drake, from an order of tbe Supreme Court, made at Special Term and entered in the office of tbe clerk of Queens county on tbe 2d. day of April, 1893, upon tbe motion of tbe defendant, staying all proceedings on the part of tbe plaintiff until tbe costs of a previous action shall have been paid.

      Roger M. Sherman, for tbe appellant.

      Frank F. Smith, for tbe New York Iron Mine, respondent.
   Pratt, J.:

Tbe plaintiff costs of a previous action are paid.

Such orders are sues a defendant with unnecessary litigation (Ex parte Stone, 3 Cow. 380), but there is no inflexible rule compelling courts to make such order where tbe plaintiff is not in fault and tbe result would be Pot to prevent but to promote injustice.

In tbe present case cause of action. There is no answer, not even an affidavit of merits, nor any doubt thrown over tbe justice of plaintiff’s claim.

So far as can plaintiff has for many years bad meritorious grounds of complaint against which defendant has successfully defended itself by skillful use of technicalities. "Whether in such case a stay of proceedings should be granted, even should defendant bring itself within tbe letter of tbe rule, may well be doubted. of

But one of the grounds a the subject-matter of the actions.. In the former action (reported 25 J. & S. 404), the plaintiff sought to introduce by a supplemental complaint tbe facts upon which this action is based. This was prevented by the objection of the defendant and the ruling of the court that the present cause of action could not be introduced and tried in that action.

As defendant has once procured a ruling that the causes of action are different, and prevented a determination in that action of the facts now set up, rendering a new action necessary, it cannot now be sustained when it seeks a stay and asserts the causes of action to be the same.

The order appealed from should be reversed and original motion denied, with costs in all the courts.

Harvard, P. J., and DyemaN, J., concurred.

Order reversed, with costs and, disbursements, and motion denied, .with costs.


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    John Fiero, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Personal injury — negligence — railroad employee — measure of the ca/re required of

    The care of a prudent man, which is the measure <of the duty of care imposed upon an employee who seeks to recover damages for a personal injury alleged to have been caused by his employer’s negligence, is consistent with the forgetting for an instant of a well-known fact when fully occupied with pressing duties.
    The conductor of a passenger train was injured by stepping off the rear of the car while in motion, in a tunnel, under the momentary impression that it was not the last ear, and brought an action against the railroad company for damages, on the ground that the accident was caused by its negligence in leaving the passageway in the railing of the rear platform unguarded by a rope or chain. The trial court refused a request of the defendant to charge the jury that if the plaintiff knew the number of cars in the train he could not recover.

      Held, that the refusal was proper; that the plaintiff might know the fact, yet the various duties to which his attention must be addressed might so occupy his mind that he might forget it for a moment without being guilty of negligence that would bar his recovery. __
    Appeal by tlie defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of West-cheater county on the 22d day of March, 1892, upon a verdict rendered at the "Westchester Circuit, and from an order denying the' defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for a personal injury suffered by the plaintiff while in the employ of the defendant company as a passenger train conductor by his stepping off the rear end of the rear car of a train of which he was a conductor, while passing through the Fourth avenue tunnel in the city of New York, on the 19th day of November, 1888.
    The plaintiff claimed that the defendant was negligent in furnishing a rear car which was insecure, in that it was not equipped with a chain, rope or other safeguard across the end of its rear platform to prevent the plaintiff from walking or falling off it, and in maintaining and furnishing “a certain unsafe and insecure passageway, portion or section of said track, to wit: a certain dark, smoky, dangerous, insufficiently lighted, aired and ventilated, and otherwise unsafe and insecure underground passageway or tunnel, on a portion or section of its said track in the city of New York, of about three miles in length,” along which the plaintiff’s train was obliged to pass when proceeding from Forty-second street.
    As to the manner of the accident, the plaintiff testified that after leaving Grand Central depot, he went through his train from the front end towards the rear, taking up tickets; that he had his lantern under his left arm ; that the tunnel Avas dark by reason of dense fog and smoke; that when he came to the rear door of the third car, the last car of the train, he saw in the glass of the door what he supposed was another car, the lights and people sitting in it; that he opened the door, went out upon the platform, took a step or two towards the car which he supposed was there, and the passageway not being closed by chain or rope, was plunged headlong upon the track.
    He testified also that in going through his train taking up tickets he walked slowly, and that taking up tickets “ is very confusing, and with your mind intent upon doing it accurately, it seems to drive other thoughts out of your mind.”

      Frank Loomis and D. IF. Teas, for the appellant.

      WilUam P. Fiero, for the respondent.
   Pratt, J.:

The charge of the court correctly stated the respective duties due to each other from the plaintiff and defendant. Probably the court might have properly refused the various requests to charge thereafter made by defendant, on the ground that the charge already made sufficiently set forth their respective duties. But the court did.-not take that course, but received the requests and restated the law in defendant’s favor so far as could be done consistently with the law.

The objection to the charge most strenuously urged was to the refusal to charge that if plaintiff knew there were but three cars in the train he could not recover. ' '

We think that request was properly refused. The plaintiff might know that fact, and yet the various duties to which his attention must be addressed might so occupy his mind that he might forget it for a moment without being guilty of negligence that would bar his recovery. j

The care of a prudent man was the measure of his duty. Such a man might for an instant forget a well-known fact, when fully occupied with pressing duties.

The judgment must be affirmed, with costs.

BarNArd, P. J., concurred; DyrmaN, J., not sitting.

Judgment affirmed, with costs.


author: Barnard, P. J.: DykmaN, J.

text:
    Israel Susman, Respondent, v. Grace E. Whyard, Appellant.

      Bill of sale — when not a mortgage — judges charge.

    The property described in a bill of sale remainedjn the possession of the vendor until it was subsequently taken by the vendor’s wife, who claimed title thereto under a sheriff’s sale thereof. In such, first-mentioned bill of sale it was provided that two dollars and fifty cents a week was to be paid by the vendor to the vendee for the use of the property, and also that in case the vendor paid to the vendee $400, the vendee agreed to resell the property to the vendor.
    Upon the trial of an action brought by the vendee against the wife of the vendor, to recover the property mentioned in such instrument, or the value thereof, evidence was introduced tending to show that the alleged bill of sale was a mortgage; that the loan, was either $250 or $400, and that the agreement to pay two dollars and fifty cents per week was usurious.
    The vendee gave testimony tending to show that the hill of sale was absolute ; that its consideration was $400, which was all paid, and that the rent reserved therein for the use of such property was what it therein purported to he.
    The jury rendered a verdict in favor of the plaintiff.

      Held, that there was no reason to reverse the verdict on appeal. (Dyicman, J., dissenting.)
    Upon the trial of the case the court charged the jury that the instrument, if given for a loan, was a mortgage, and, therefore, void as against the vendor’s creditors, and although real, if not made in good faith, it was void.

      Held, that this was an eminently fair charge.
    Appeal by tbe defendant, Grace E. 'Wliyard, from a judgment of tbe County Court of Rockland county in favor of tbe plaintiff, entered in tbe office of tbe cleric of tbe county of Rockland on tbe 17th day of September, 1892, upon a verdict for $400 rendered at tbe Rockland County Court, and from an order entered in tbe said clerk’s office of Rockland county on tbe 81st day of October, 1892, denying tbe defendant’s motion for a new trial made upon the minutes.
    Tbe action was commenced on April 10, 1891, by tbe service of tbe summons, complaint, affidavit, undertaking and requisition in replevin; an answer was served on April 13, 1891, at which time tbe property in question was replevined by the defendant. The following is a copy of the bill of sale given by W. W. Wliyard to Susman:

      “ Know all men by these presents, that I, William W. Wliyard, of Nyack, Rockland county, New York, party of the first part, for and in consideration of tbe sum of four hundred dollars, lawful money of the United States, to him in hand paid at or before the enseal-ing and delivery of these presents, by I. Susman of tbe same place, county and State, party of tbe second part, tbe receipt whereof is hereby acknowledged, hath bargained and sold and by these presents doth grant and convey unto the said party of tbe second part, bis executors, administrators and assigns, all this certain property and chattels, to wit:
    “ One bay mare named £ Jenny.’

      “ One sorrel horse named ‘ Rube.’

      “ One black horse named ‘ Jim.’

      “ Two bakery wagons, one double truck, one set of double harness, two single sets, stable utensils, two large ice cream machines, two hundred forms and cans, twelve cherrie tables, thirty-six cherrie chairs, two thousand dishes, three hundred cups and saucers, three hundred silver, knives, three hundred silver forks, six hundred silver tea spoons, two hundred silver table spoons, twelve castors, six show cases, two scales; two counters, and all store fixtures, three hundred glasses, four stoves, soda fountain and all bake house tools, trough, machines, etc., which property is now used in the baking business at 54-, Main, in said village, county and State, to have and to hold the same unto the said party of the second part, his executors, administrators and assigns forever, and the. said party of the first part, does for himself, his heirs, executors and administrators, covenant and agree to and with the said party of the second part to warrant and defend the sale of the said property, hereby sold unto the said party of the second part, his executors,- administrators and assigns, against all and every person or persons whomsoever. And it is further understood and agreed by the parties hereto, that if the said party of the first part pay unto the said party of the second part the sum of four hundred dollars within —— from the date hereof, the party of the second part agrees and will resell the property mentioned herein back to the said party of the first part. And it is still further understood and agreed by the parties hereto that the property mentioned herein and specified in the schedule shall remain in the possession of the said William W. Wliyard, party of the first part, he agreeing to pay the said party of the second part the sum of two dollars and fifty cents per week for the use of the said mentioned property in his baking business.
    ’ “ In witness whereof, I have hereunto set my hand and seal this 28th day of October, 1890.
    “W. W. WHYARD. [l. s.]
    “ Sealed and delivered in the ) presence of Í

      “ Wm. II. BaNNistek, Jb.
    “ State of New Yoeic, ) ’ > “ Coimty of RooMand, )

      ss.:

    “On this 28th day of October, 1890,-personally appeared before me William W. Wliyard, known to me and to me known to be the individual described in and who executed the within instrument and he acknowledged to me that he executed the same.
    “¥M. II. BANNISTER, Jb.,
    “ Notary Public,

    “ Rockland County.”
    The foregoing exhibit was indorsed:
    “ Filed Nov. 17th, ’90, at 10 o’clock, a. m.
    “ ANDREW MURRAY,
    “ Town Olerk.”

      A. S. Tompkins, for the appellant.

      W. II. H. Ely, for the respondent.

       Decision handed down September, 1893.

   Barnard, P. J.:

The defendant is the wife of William W. Whyard. He executed to the plaintiff a paper in form of a bill of sale on the 18th of July, 1892. The plaintiff claims title to the property conveyed by it to him. The property was left in the possession of the vendor, and by the bill of sale the sum of $2.50 a week was to be paid for the “ use of the said mentioned property.” The defendant claims title under a sheriff’s sale thereof under execution against William W. Whyard. The only question litigated on the trial was whether this bill of sale was a mortgage or a bill of sale. The lawyer who drew it gives evidence tending to show that the paper was a mortgage; that the loan was either $250 or $400, and that the $2.50 per week was possibly usurious. The plaintiff gave evidence tending to show that the bill of sale was absolute. That the consideration was $400 and was all paid, and that the rent reserved for the use of the property was what it purports to be in the bill of sale. The jury found for the plaintiff. There is no reason to reverse this verdict on appeal. The attorney vfho drew the paper apparently drew a bill of sale for a mortgage under his testimony, and his evidence was probably weakened by the fact that an unrecorded personal mortgage was of no use as a security, which fact was discussed and a bill of sale given instead. Assuming the bill of sale and the payment of the consideration, the possession of the property in the vendor subsequently was fully explained and shown to have been in good faith and without any intent on the part of either party to defraud the creditors of the vendor. The charge of the county judge was eminently fair. The jury were told that if the bill of sale was, in reality, given for a loan, it was a mortgage and void as against the creditors of the vendor. That if the bill of sale was real and was not made in good faith, then it was void. The jury has found that the bill of sale was absolute, and that the property was left in the hands of the vendor under a covenant for rent for the use of it, and that the paper was made in good faith and without any intent to defraud creditors.

The judgment should be affirmed, with costs.

Pbatt, J., concurred.

DykmaN, J.

(dissenting):

This is an action for the recovery of personal property. It was commenced and tried in the County Court of Rockland county, where the plaintiff obtained a verdict, and the defendant has. appealed to this court from the judgment entered thereon, and from an order denying a motion for a new trial on the minutes of the court.

The plaintiff claimed title to the property by virtue of a written instrument which he insisted was a bill of sale, and the defendant bought it of Andrew Wood, who purchased the same at a sale under several executions against the property of William W. Why-ard, the husband of the defendant, issued upon judgments against him. The judgments were all recovered on and before the 11th day of November, 1890. Two of the executions were received by the sheriff of Rockland county on the 13th day of November, 1890, and one of them was dated October 23,1890, but it does not appear when it was delivered to the constable.

It was conceded upon the trial, however, that the instrument under which the plaintiff claimed, was filed in the office of the town clerk of the proper town on the 17th day of November, 1890, and all the executions against the property of W. W. Whyard had then been delivered to the executive officers.

There was no change in the possession of the property at any time, but it remained with W. W. Whyard subsequent to the execution of the instrument, and was used by him the same as before, and was in his possession when seized under the execution.

It is important to determine the character under which the plaintiff claims title to the property in question.

The first portion of it contains language usually found in an absolute bill of sale, but in the latter part of the paper there is a statement that if the maker, Whyard, pays the sum mentioned the plaintiff agrees to resell the property to him. Aside from this, the testimony shows clearly that the instrument was intended as a security for money or against liability as an indorser of Whyard’s paper.

In our view, the instrument is in legal effect a chattel mortgage. Although the plaintiff did not sign the instrument, he yet accepted the same with the defeasance clause inserted, and he was thus under obligation to resell the property upon the receipt of the money he •advanced or the release of the obligation he had assumed as indorser.

A bill of sale, absolute on its face, transferring property to be held as security for the payment of a debt due to the vendee, is a mortgage. (Smith v. Beattie, 31 N. Y. 541.)

The rights of the plaintiff, therefore, were those of a mortgagee of chattels which remained in the possession of the mortgagor, and based upon that foundation the ease of the plaintiff encounters many obstacles.

The judgments through which the defendant makes title were perfected and the executions were issued thereon and delivered to the officer for enforcement before the chattel mortgage was filed in the clerk’s office, and while the property remained in the possession of the mortgagor.

The delivery of the executions to the officer created a lien upon the property subsequently seized under them and sold to Wood, the plaintiff’s assignor. (Ray v. Birdseye, 5 Denio, 619.)

Under all circumstances, a chattel mortgage must be filed as required by the statute before it becomes operative against a judgment creditor. (5 Denio, supra.)

And as this instrument was not so filed until a lien of the judgment had attached to the property by the issuance of the executions, the sales thereunder were valid and conferred a valid title to the purchaser whose rights have been acquired by the defendant.

It was erroneous to submit the question to the jury respecting the character of the instrument. That was a question of law to be decided by the court, and it was the duty of the trial judge to determine the question instead of leaving it to the jury. (Arctic Fire Ins. Co. v. Austin, 69 N. Y. 477.)

The material facts in tbe case cannot be changed. The chattel mortgage was void as against the judgment creditors until it was filed, and as the lien of the execution atttached before such filing, the title -made by the sale is valid and must prevail.

My own conclusion, therefore, is that the judgment should be reversed and a new trial granted, with costs to abide the event.

■ Judgment and order affirmed.


author: Cullen, J.:

text:
    Thomas J. McCahill, Respondent, v. Annie L. McCahill, Appellant.

      Deed of trust — statements that -mill not amount to a deda/ration of trust.

    Upon the trial of an action brought to obtain an adjudication declaring a deed of certain real estate paid for by the plaintiff, who directed that an absolute deed thereof be made out in the name of his wife, to be a trust deed for the benefit of the husband and children of the grantee therein named, and directing the wife to reconvey the same to the husband, and to divest herself of any and all interest therein, the plaintiff, the husband, testified that his wife said to him, he being in poor health- at the time, that it would be a good thing, if anything happened to him, for her and her children to have a home, and that the title had better be taken in her name, to which he assented, and without her knowledge obtained the deed and recorded it. Afterwards he gave the deed to his wife, saying to her: “You keep that, and if anything happens to me you are to take care of it for yourself and children, and as long as I live I will pay the taxes and insurance, so that there will be no expenses.”
    The parties kept the premises as their residence for several years and until the-wife left the home and resided apart from her husband, and she then offered the property for sale.

      Held, that the plaintiff was not entitled to judgment;
    That, as far as the husband was concerned, there was no agreement to hold the land in trust for his benefit, and the children not being parties to the action, their rights could not be adjudicated therein.
    Appeal by the defendant, Annie L. McCahill, from a judgment of the Supreme Court in favor of the plaintiff, entered pursuant to the decision of the court, rendered at a Special Term thereof, in the office of the clerk of the county of ’Westchester on the 17th day of April, 1893.

      This action was brought by Thomas J. McCahill for the purpose of compelling Annie L. McCahill to make, execute and deliver to him a deed of certain premises, divesting her of all interest therein, and to obtain a decree that Thomas J. McCahill shall hold the said premises in trust for himself and his two children, and judgment was asked that the defendant, Annie L. McCahill, be forever restrained from interfering with the possession of the said premises by the plaintiff, or from having anything whatever to do therewith.
    Judgment was rendered declaring the premises to be held in trust by the defendant, Annie L. McCahill, upon the trust, and for the purpose of providing her husband, Thomas J. McCahill, and their two children with a home, for the ultimate purpose of vesting the title of the said lands in the said two children, and further ordering that Annie L. McCahill be enjoined and restrained from intei’fering with the possession of said premises by the said plaintiff, Thomas J. McCahill, and the said children, or from having anything whatever to do therewith.

      Martin J. Keogh, for the appellant.

      H. T. Dyhnan, for the respondent.

       Decision handed down September, 1893.

   Cullen, J.:

Though it may seem inequitable that the defendant, having now separated from her husband and children, should retain the fruits of his generosity, we do not see how this judgment can be sustained either on the facts or the law.

The premises, the subject of this action, were paid for by the plaintiff who took the deed therefor in the name of his wife, the defendant. The deed is absolute in terms. The plaintiff is a lawyer. It was he who negotiated the purchase, and by his direction the deed was drawn.

He testifies that the wife said to him (he being in poor health at the time) that it would be a good thing if anything happened to him for her and the children to have a home, and that the title had better be taken in her name. He assented. Without her knowledge he obtained the deed and, recorded it. Afterwards he gave the deed to his wife, saying: “You keep that, and if anything happens to me you are to take care of it for yourself and children, and as long as I live I will pay the taxes and insurance, so there will be no expenses.” The parties continued to occupy the premises as their residence for years until, differences arising betweeñ them, the defendant left the home and resided apart from her husband. The wife then offered the property for sale, and the husband brought this action. We are inclined to the belief that this conversation did not amount to a declaration of trust in favor of any person, but that the transaction was the ordinary one of a gift by the husband to the wife, and that, the reference to the home for the defendant and the children was only a statement of the motives dictating the gift. Certainly, as far as the husband is concerned, there was no agreement to hold it in any trust for his benefit. The children are not parties to this action, and their right cannot be adjudicated here. This action must,' therefore, fail. As a matter of law also we think the suit cannot succeed.

The provisions of the Revised Statutes as to trusts (1 R. S. 728, § 51) prevent any trust being raised in the plaintiff’s favor from the fact that he paid the consideration for the conveyance.

The Statute of Frauds (2 R. S. 134, § 6) requires the declaration of any trust to be in writing. The transaction seems barren of any of those collateral circumstances by which courts of equity are enabled to take cases out of the statute.

This case is clearly to be distinguished from those cited by the respondent’s counsel, hi that here the deed was taken in the name of the defendant by the plaintiff’s consent and equally by such consent the deed was made absolute in form.

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event,

Pratt, J., concurred.

Judgment reversed and new trial ordered.


text:
    Annie L. McCahill, Respondent, v. Thomas J. McCahill, Appellant.

      Decision upon questions of fact — when reversed — weight of evidence in an action for sepa/ration and alimony.

    Where an appeal involves only questions of fact, the determination of the trial court should he reversed only when the clear weight of testimony is against the findings made.
    In an action brought by a wife’for a separation from bed and board, and for alimony, the complaint alleged many instances of maltreatment, as to all of which, with but one exception, the trial judge found against the plaintiff. The judgment of separation and for alimony was granted by the court because of an alleged case of assault by the son of the parties on the plaintiff, his mother, by the direction of the defendant, which the defendant and his son both denied. It was admitted, however, that an altercation took place at the time, and not denied by the wife that she threw a basin of water on the defendant, and a servant testified that she saw some blood upon the plaintiff’s face. The defendant had for years suffered from locomotor ataxia, and was physically incapable of much violence.

      Held, that such judgment was against the weight of evidence, and should be reversed.
    Appeal by the defendant, Thomas J. McCahill, from a judgment of the Supreme Court in favor of the plaintiff, dated the 28th day of November, 1892, and entered, after a trial at the Westchester Special Term, in the office of the clerk of the county of Westchester, and from the decision of the court upon the trial, denying the defendant’s motion for a new trial.
    The action was brought by a wife to obtain a judgment of separation from bed and board and for alimony to be paid by the defendant, her husband. '

      II. T. Dyhman, for the appellant.

      Ma/rtvn J. Keogh, for the respondent.
   Cullen, J.:

This is an appeal from, a judgment of the Special Term granting the plaintiff a separation and alimony.

The appeal involves only questions of fact. We are conscious that we should reverse the determination of such questions by the trial court with much hesitation, and only where it seems to us that the clear weight of testimony is against the findings made.

The pai’ties were married in 1816 and lived together for over fifteen years. The complaint alleged various specific occasions on which the defendant assaulted her, and also periods during which his violence was habitual.

It further alleged that the defendant failed to properly provide for his family, and that at times he called the plaintiff names. The learned trial judge found that the defendant properly supported his family, and found but one occurrence of violence on the part of the defendant, upon which occurrence the decree was granted. The case depends principally on the testimony of the parties. The occurrence upon which the decision below is based is an alleged assault by the son of the parties on the plaintiff, his mother, by direction of the defendant. The defendant and his son both deny the assault. The learned trial judge found corroboration of the plaintiff’s story in the fact that the servants saw some blood upon the plaintiff’s face. That there was an altercation at this time is conceded. The defendant and his son say that the. plaintiff threw a basin of water on the defendant, and that while the son was trying to take the basin from the mother she fell. The plaintiff, while she says that the son struck her, admits that she may have thrown the basin of water. ¥e think this transaction is by no means sufficiently clear to justify a separation. The defendant has been for years a cripple suffering from locomotor ataxia and physically incapable of much violence. The court found against the plaintiff on all the other allegations of maltreatment. She could not, therefore, have impressed the trial judge very strongly as to her accuracy of statement. At the most this affair seems to have been a quarrel in which the wife was fairly a party combatant. The defendant himself certainly used no violence, and both he and his son deny that he directed the son to do so. It seems to us unfair on this occurrence to stamp the defendant guilty of cruel or inhuman treatment.

Though the parties may not live together hereafter we do not think this a proper case to compel the defendant to make provision for the separate support of the plaintiff. She has received from her husband as a gift the home in which they have heretofore lived. The decree made in another action declaring such gift a trust for the husband and children we have reversed. If the plaintiff will continue to- live apart from her husband and children voluntarily and without sufficient cause we think this gift is sufficient provision for her.

The judgment appealed from should be reversed and new trial •ordered, costs to abide the event.

Pratt, J., concurred.

Judgment reversed and new trial ordered.