author: JVIayhaM, P. J.:

text:
    William H. Durkee, as Administrator, etc., of Crosby Durkee, Deceased, Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellant.
    Negligence,— notice required of the approach of a train — •negative evidence as to signals:■ — verdict against the weight of evidence — contributory negligence.

    While there is no longer any statutory requirement that railroad companies shall give notice of the approach of a train to a highway crossing by the ringing of a bell or the blowing of a whistle, yet such companies are not absolved from the obligations to give such a warning as will afford reasonable notice to one ' approaching the crossing.
    Evidence of a negative character, to the effect that the witness did not hear the bell or whistle, while entitled to weight, does not prove that the signals were not given.
    Where the evidence in an action brought against a railroad corporation to recover damages caused by its alleged negligence preponderates greatly in favor of the defendant, and the plaintiff's case is but slightly supported, and the "jury renders a verdict for the plaintiff, it is the duty of the General Term to exercise an independent judgment, and, where proper, to grant a new trial upon the ground-that the verdict is against the weight of the evidence.
    The burden is upon the plaintiff in such cases to show freedom from contributory negligence, and it must appear that the injured person approached the place where the accident occurred with prudence and care and with senses alert to the possibility of approaching danger. This rule obtains whether or not the railroad company was negligent in giving proper signals.
    Appeal by tlie defendant, The President, Managers and Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 3d day of October, 1894, upon the verdict of a jury rendered after a trial at the Washington Circuit, and also from an order made on the 20th day of September, 1891, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    This action was prosecuted by the plaintiff as administrator to recover for the alleged negligence of the defendant in the management of its railroad train by reason of which the plaintiff’s intestate was killed.
    On the trial the plaintiff recovered a verdict; a motion was made by tlie defendant to set aside the verdict, which was denied, and judgment was entered by the plaintiff.

      Lewis F. Oarr, for the appellant.

      A. V. Pratt and T. F. Hamilton, for the respondent.
   JVIayhaM, P. J.:

Three grounds for a reversal of the order and judgment in this case are urged by the defendant on this appeal:

First. Because, upon the whole evidence given upon the trial, it does not appear that there was any omission of duty on the part of the defendant in operating the train causing the death of Durkee, plaintiff’s intestate.

Second. The evidence was not sufficient to sustain a finding that the absence of signals of the approaching train, even if they were not given, caused the intestate’s death.

Third. The evidence was not sufficient to sustain a finding that the deceased exercised the care he was bound to, to establish absence of contrilmtory negligence on his part.

The first point, it seems from an examination of the case and the arguments of counsel in their briefs, is the alleged failure of the defendant to sound a whistle or ring a bell on approaching this railroad junction and road crossing, at which the accident occurred.

While it is true that there is no longer any statutory requirement that such signals shall be sounded at such points of danger, it is also true that railroad companies are not absolved from all obligations to exercise care and caution at such places, and a negligent disregard of that duty may constitute negligence for which the railroad company, in a given case, may be held liable. This proposition seems to be conceded by the learned counsel for the appellant, but it is insisted that the proof establishes that signals were, on this occasion, given by the operatives of the train; that the whistle sounded when the train approached within 1,200 to 1,500 feet from the crossing, and that the bell was rung until the collision occurred. And it is urged by the appellant that there is, upon this point, such an overwhelming,preponderance of evidence as to make it the duty of this court to find with the defendant upon this question. The jury having found with the plaintiff on this disputed question of fact, their verdict should not be interfered with on that question on this appeal, unless there is suftli an overwhelming preponderance of evidence on the part of the defendant as to lead to the conclusion that they had failed to have fairly, and properly considered the evidence, or had adopted some erroneous method of calculating its weight and force.

The evidence on the part of the plaintiff relied upon to establish his contention, that no signals or warning were given, is the testimony of Green, who was riding with deceased and driving the horse at the time of the accident. He says he looked and listened, and heard no whistle and no bell until just as the train struck him. Plaintiff proved by two other witnesses who stood at the depot, and saw the whole transaction, that they heard no bell or whistle, but they state that their attention was not specially called to that fact at the time, and that they were not listening for a signal from the train.

On the part of the defendant it was proved by the testimony of nine witnesses, who were in hearing and sight of the train, that the bell was rung, and by some of them that the whistle was sounded as the train approached the place of the accident. Daly, who was near the depot, and Barrett, who was at the depot, and Gilbert, the conductor, Keating, the engineer, who was riding on the engine, testified to the sounding of the whistle and the ringing of the bell. "Wooden, the express agent, Hogan and Whipple, trainmen on the train, and Finn, who was employed in the yard, testified to the ringing of the bell as the train approached the crossing and at the time of the accident.

All these witnesses assumed to testify to what they saw and heard. Their testimony is, therefore, of an affirmative character, and, if not true, must be regarded, as deliberate perjury.

On the other hand, the testimony of the plaintiff’s witnesses, who say they did not hear the bell or whistle, is of a negative character, and, while it may be entitled to great weight, it does not prove positively that the signals were not given.

In Culhane v. N. Y. C. & H. R. R. R. Co. (60 N. Y. 133, 137) Allen, J., in pronouncing the opinion of the court and in discussing this character of evidence, uses this language : “ As against pos-itiye affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it to authorize the submission of the question to the jury. It must appear that they were looking, watching and listening for it; that their attention was directed to the fact, so that the evidence will tend to some extent to prove the negative. A mere I did not hear ’ is entitled to no weight in the presence of affirmative evidence that the signal was given, and does not create a conflict of evidence justifying a submission of the question to the jury as one of fact.”

Applying the reasoning of this case, and the rale here enunciated to the case at bar, it would seem that the plaintiff had failed to prove the negative except by the testimony of the witness Green. He testifies that he looked and listened, but the force of his testimony is somewhat weakened by the testimony of Baldwin and Moran, who say that Green and the intestate appeared to be in conversation and did not appear to be observing the approaching train. Baldwin and Moran, who swear they did not hear the whistle, state that they were not listening for a signal. All of the defendant’s witnesses upon this branch of the case swear to what they claim to have seen and heard.

But it is urged by the learned counsel for the plaintiff that their testimony should be taken with a great degree of allowance, for the reason that they, or most of them, were employees of the company. While the jury might take that fact into consideration, it does not seem that that fact alone would justify the jury in entirely disregarding and treating as untrue the testimony of so large a number of witnesses, when no other circumstance is presented to discredit them.

It is urged by the defendant that Green, who has an action pending against the company for the same accident, had a stronger motive for giving color to his testimony than any of the witnesses introduced on the part of the defendant.

Yiewing this testimony in the light of -the rules for weighing evidence, it would seem that there was an overwhelming preponderance of proof in the case that the whistle was blown and the bell sounded at the time the train approached this crossing; and while, as we have seen, the court should not interfere, in a substantially evenly balanced case, or even where there was an apparent preponderance of evidence, with the conclusion arrived at by the jury, still it would seem if in any case it was the duty of the court to interfere with the verdict upon questions of fact, this is such a case.

In Kaare v. The Troy Steel & Iron Co. (139 N. Y. 369) Earl, J., in pronouncing the opinion of the Court of Appeals, after adverting to the rule that deference may properly be paid to the views of the trial judge who heard the witnesses testify, in cases where there is a fair conflict in the evidence, yet no marked preponderance either way, adds as follows:

“ But where there is a vast preponderance in the evidence in favor of the defendant, and the defense is supported by numerous witnesses, apparently entitled to credit, and the plaintiff’s case stands upon his own evidence, either unsupported or slightly supported, the General Term should exercise an independent judgment and give the defendant appealing to it the full benefit which the law, by the right of appeal, intends he should have.”

The learned judge in using this language is discussing the duty of the General Term to interfere on appeal by an examination and review of the facts and by reversing where the verdict of the jury is manifestly against the overwhelming weight of evidence. And he adds: “ If under such circumstances the General Term will refuse to grant a new trial on the ground that the verdict is against the weight of evidence, it is difficult to conceive of any case where it ought to do so, and an appeal to it in such cases will be entirely useless.”

It would seem to follow that in cases of this character the General Term, on appeal, is under the same obligation to review and reverse the verdict of a jury and judgment thereon, when it is overwhelmingly against the weight of evidence, as it is to reverse for errors of law committed by the judge, where the question has been properly presented by a motion for a new trial on the judge’s minutes on the ground that the verdict is against the weight of evidence.

It is insisted by the learned counsel for the defendant that the-trial judge erred in discussing before the jury the defendant’s obligation to give some signal by the ringing of a bell or sounding of a whistle, or in some other way, on approaching the highway crossing.-.

While the instruction of the trial judge to the jury upon that branch of the case may not be as full and complete as the defendant’s counsel might wish, yet we fail to see that any erroneous ruling or direction by the trial judge was made upon that point. The effect of the charge was, that notwithstanding the repeal of the statute, which required railroad companies to signal the approach of a train at a highway crossing by the ringing of a bell or blowing •of a whistle, they were not absolved from giving such warning as might afford reasonable notice to the traveler upon the highway of the approach of the train. Such instruction was not erroneous or misleading.

It is further insisted by the learned counsel for the defendant that the case does not disclose facts from which it can be found that plaintiff’s intestate was himself free from negligence which caused •or contributed to the injury, and that if it can be held that defendant was negligent in omitting to give proper signals still the plaintiff should not recover because of such failure of proof.

The undisputed facts are that intestate and Green were riding in .a wagon belonging to intestate drawn by Green’s horse; that Green was driving; that from the point where defendant’s train first hove in view to where intestate and Green were in the highway was a distance of fifty feet; that on either side of the highway was a clear, level, unobstructed surface upon which the horse and buggy might have been turned, and that proper care and attention on the part of Green and the intestate, had they looked and listened, would have enabled them to have 'turned aside and avoided the collision, ■and that in failing to do so the intestate was guilty of negligence which contributed to the injury.

To meet this contention on the part of the defendant it is claimed by the plaintiff that the horse attached to the vehicle in which intestate was riding became unmanageable, and despite the efforts of the driver ran over this intervening distance between the train and the vehicle and dashed upon the track, without fault of the intestate or Green, and that the negligent omission of the trainman to give signal of the approach of the train was the cause of the horse becoming frightened.

While there is evidence that Green on approaching the railroad crossing looked and listened there is no proof that intestate took that precaution; and it is proved by the evidence of Moran tliat lie- and Green were talking while driving leisurely along the road about, the time of the collision. "We find in this testimony no evidence affirmatively establishing the freedom of the intestate from contributory negligence.

In Brickell v. The N. Y. C. & H. R. R. R. Co. (120 N. Y. 290), which was somewhat analogous to the case under consideration, where the intestate was riding in a buggy seated beside a driver and the approaching train could be seen for some distance before crossing at a location well known to both, and that neither made any effort by looking or listening to discover the approach of the train, it -was held that the plaintiff was properly nonsuited on the ground of contributory negligence of the intestate.

It is true that in that case the driver was hired by the deceased to convey him to a given point. The case at bar differs from that in this, that the deceased was riding in his own buggy which was drawn by a horse owned by the driver. But that fact, instead of releasing the deceased from the obligation of looking and listening, would seem to incréase that obligation, and Potter, J., in delivering-the opinion in the case cited, uses this language:

“ The general rule in this class of cases is that the burden of' establishing affirmatively freedom from contributory negligence is upon the plaintiff, or, in the language of the opinion in Tolman v. S., B. & N. Y. R. R. Co. (98 N. Y. 202), that ‘ plaintiff approached the crossing where the collision and injury occurred with prudence and care and with senses alert to the possibility of approaching-danger,5 ” and the learned judge adds : “And this rule obtains even where the railroad company neglects to ring its bell or sound its whistle, as required when its trains approach a crossing.” *

In Donnelly v. The Brooklyn City R. R. Co. (109 N. Y. 16) the plaintiff was riding on a fish wagon with one McNally, which the-latter was driving, and the plaintiff gave some direction as to where McNally should drive, and, following that direction, the wagon collided with a moving train on defendant’s railroad, and plaintiff was injured. It was held that the plaintiff’s evidence showed contributory negligence on the part of the plaintiff and his companion, with which he was chargeable, and a refusal to nonsuit was held error.

Tested by these cases and by t'he well-settled law, we are of opinion that the plaintiff failed to show want of contributory 'neglige nee, and that for that reason the motion for a nonsuit should have been granted, and that the verdict in favor of the plaintiff cannot be sustained, and that it was error on the part of the learned judge to refuse to set aside the verdict and grant a new trial on the minutes on the defendant’s motion.

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

Putnam and Herrice, J.P, concurred.

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


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    Lemon Thomson and John A. Dix, Appellants, v. Hiram Harris, Respondent.

      'Statutory pi'omsions relating to procedure, when directory, when mandatory —failure to prefix to a school tax list the purposes of the tax — it does not render a warrant mid.

    ¡Statutory provisions, in. regard to the time and the mode of procedure by public functionaries, are generally directory and are not of the essence of the thing to be done. They are made simply with a view of securing system, uniformity and dispatch in the conduct of publip business.
    ■One of the tests to determine whether a statutory provision relating to the performance by an officer of a public duty is mandatory, is whether the statute contains negative words which render the act illegal or improper if the provision is disregarded.
    The provision contained in section 65 of title 7 of the General School Act of 1864 (Chap. 555), that the trustees of a school district “ shall also prefix to their tax list a heading showing for what purpose the different items of the tax is levied,” is directory in its nature and not mandatory.
    A warrant for the collection of school taxes, issued upon a tax levy in a case where the tax list is not prefixed by a heading showing the purposes for which the different items of the tax are levied, is not void upon its face, and such a warrant is a protection to the collector of a school district who executes it.
    ■Qucw'e, whether it would protect the officer who issued the warrant.
    Appeal by the plaintiffs, Lemon Thomson and another, from a judgment of the County Court of Saratoga county in favor of the defendant, entered in the office of the clerk of said county on the 13th day of November, 1893, after a trial at a Special Term of said court at which the complaint was dismissed.

      William S. Ostrander, for the appellants.

      Joseph D. Baueus, for the respondent.
   Mayham, P. J.:

This appeal was tried in the County Court as a new trial. On the trial before the justice from which the appeal is taken the parties stipulated the facts and the justice rendered judgment in favor of the defendant, dismissing plaintiffs’ complaint.

On the trial in the County Court the parties stipulated upon the same facts submitted to the justice and passed upon by him, and the county judge made a decision in favor of the defendant, dismissing plaintiffs’ complaint, with costs. Prom a judgment entered upon that decision this appeal is taken.

This action was brought by the plaintiffs to recover damages against the defendant for wrongfully entering upon plaintiffs’ premises and taking, selling and disposing of a quantity of shingles.. The answer was:

First. A general denial.

Second. A justification as a school district collector, acting under a warrant issued by the trustees of a school district, and delivered to the defendant, as collector, under which he seized and sold the shingles in question to satisfy a tax levied and assessed by the trustee of the school district against the plaintiffs, who were residents of the district.

The warrant and tax list upon which the defendant sought to justify was put in evidence, from which it appears that a warrant, regular and proper in form' and duly signed by the trustee, was placed in the hands of the defendant, as collector, and that attached thereto was the assessment and tax levy of the various inhabitants of the district, among which was the assessment and tax levied and assessed against the plaintiffs.

There was not prefixed to the tax list a heading showing for what purpose different items of the tax were levied, and the only ground upon which the plaintiffs sought to recover, and upon which this appeal is prosecuted, is that the warrant under which the shingles were sold was void, because of the omission from the tax list of the statement of the purpose for which the tax was levied.

This contention is based upon section 65 of title 7 of the General School Act of 1864 (Chap. 555). That section reads as follows:

“ Within thirty days after a tax shall have been voted by a' district meeting the trustees shall assess it and make out the tax list therefor and annex thereto their warrant for its collection. But they may at the same time assess two or more taxes so voted and any tax or taxes they are authorized to raise without such vote, and make out one tax list and one warrant for the collection of the whole. They shall also prefix to their tax list a heading showing for what purpose the different items of the tax is levied.”

The tax levy upon which this warrant is issued does not appear to have been made out for the collection of a tax voted by the district, but was for the collection of such tax as by law the trustee was authorized to levy without any vote of the district.

It is urged by the learned counsel for the respondent that the provisions of section 65, above quoted, do not require the trustee to prefix to a tax list for the collection of a tax not voted by the" district any statement showing for what purpose the tax is levied. And this contention is based upon the fact that the law fixes the tax which may be levied by the trustee without a vote, and that there is no reason for prefixing to such a tax a statement of the items for which it is levied. There is some force in this argument, but we do not think the section quoted justifies such a construction, as the provisions seem to be general and to relate to any tax list levied by the trustee and annexed to the warrant.

It is quite clear, as is contended by the learned counsel for the appellants, that in any proceeding, either by the government or individual, under any statute, in derogation of the common law, whereby the property of any citizen is taken against his will, such statutory proceeding should be strictly pursued. This proposition is so thoroughly established by authority that it seems unnecessary to cite cases.

But it is insisted by the counsel for the respondent that the provision of the statute relating to the list of purposes for which the tax is levied, and which was omitted from this warrant, is directory only and not mandatory, and that tbe validity of the warrant for the collection of this tax in no -way depended on the prefixing of such list.

If this contention be sound, then the warrant, which was the authority under which the defendant acted, was not void upon its face and would furnish adequate protection to the officer who executed it. If, on the contrary, this provision of section 65 was mandatory and constituted a condition upon which only a valid warrant could be issued, then such warrant without the list would be defective upon its face and void, and the officer executing it would be without protection.

It will be observed that there are no negative words in this last clause showing that the warrant would be irregular or defective if the provision of such clause were not complied with. The general rule is that “statutory prescriptions in regard to the time, form and mode of proceeding by public functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity and dispatch in the conduct of public business.” (23 Am. & Eng. Ency. of Law, 4-58.)

And one of the tests for the purpose of determining whether a provision of the statute in reference to the performance by an officer of a public duty is mandatory, is whether the statute contains negative words which render his acts illegal or improper if the provision is not complied with.

In the case at bar the object to he attained was the collection of the tax for school purposes. The method of attaining that object was by the levying of a tax on the taxable inhabitants of the district in proportion to their respective valuation, and the method by which that was to he enforced was -through the warrant issued by the trustee to the collector.

All these objects were attainable without the prefixing of the purpose of the tax to the tax list, and there is nothing in the statute in terms which renders the levy, assessment and warrant void if a statement of the object for which the tax is levied is not prefixed to the assessment. If this view is correct the provision of the section which requires the prefixing of a statement of the object of the tax to the tax list was not mandatory, but directory only, and the warrant and tax list, therefore, were not defective upon their face, so as to render them void in the hands of the collector.

We are, therefore, inclined to hold, not -without some hesitation, that the warrant and tax list were fair upon their face, and that they furnished protection to the officer who executed them. Whether they would be a protection to the officer who issued them we are not called upon to determine.

The judgment of the County Court should, therefore, be affirmed, with costs.

PutNAm and HebbicK, JJ., concurred.

Judgment affirmed, with costs.


author: MayhAM, P. J.:

text:
    Betsey Ketchum, Respondent, v. James A. Holden, as Administrator with the Will Annexed of Austin W. Holden, Deceased, Appellant.

      Money paid by mistake — agent of a deceased person may prove his declarations— indirect testimony as to transactions with, a decedent.

    A wife paid money to a person who was surety upon a bond given by her husband to an insurance company for the faithful performance of his duties as its agent, the insurance company claiming that the agent was short in his accounts in an amount not definitely known. It was subsequently found that the deficiency was less than the wife’s payment to the surety.

      Held, that she was entitled to recover of the surety or his estate the difference between what she gave him and what he paid, as money paid by mistake;
    That the testimony of the agent of the surety, who had charge of the transactions by which the surety was indemnified (the surety having died), as to declarations of his principal, was not obnoxious to the provisions of section 829 of the Code of Civil Procedure;
    That testimony of the wife as to the time when she first learned that the surety had paid to the insurance company for her husband’s default a sum less than that which she had paid the surety was not objectionable under section 829 of the Code of Civil Procedure.
    Appeal by tbe defendant, James A. Holden, as administrator with tbe will annexed of Austin W. Holden, deceased, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Warren on the 2d day of January, 1895, upon tbe report of a referee, with notice of an intention to bring up for review upon such appeal an order or certificate of said referee allowing costs to the plaintiff.

      IT. P. King, for the appellant.

      J. H. Pain, for the respondent.
   MayhAM, P. J.:

Daniel B. Ketchum, being an agent of an insurance company, gave his bond to said company, with Austin W. Holden and William Mallory as sureties, for the faithful performance of his duties as agent.

In December, 1884, Holden, one of the sureties, was notified by the insurance company that Ketchum, the agent, was short in his accounts in an amount not definitely known, but supposed to be about $350. On the 17th of December, 1884, the plaintiff executed and delivered to Holden her bond and also a mortgage collateral thereto on property owned, by her in the village of Glens Falls for the sum of $350. The bond and mortgage were given to secure Holden against his liability as surety on Ketehum’s bond to the insurance company. The business was transacted, as appears by the evidence on the part of Holden, by Daniel A. Wilson, who was paid thirty-eight dollars by Holden for transacting such business.

At the time of making the arrangement and the execution of the mortgage, it was understood and agreed that the mortgage was to indemnify Holden for any amount that he might be required to pay as surety for Ketchum, within the $350, and that if the amount fell short of that sum, the difference between the amount which he was compelled to pay and the $350 was to be indorsed upon the bond and mortgage.

On the 24th of August, 1885, the plaintiff borrowed $500 of one Ordway, and in order to give a clear title, placed that amount with Judge Cheritree, as her agent, with directions to satisfy Holden’s claim, so that her mortgage to Ordway should be a first claim. At that time the amount of Holden’s liability on Ketchum’s bond to the insurance company had not been ascertained, and Cheritree paid the whole amount of the mortgage to Holden, who, at that time, was ignorant of the amount of his actual liability to the insurance company, as was also this plaintiff and Cheritree.

Subsequently tlie amount of Holden’s liability on the bond was liquidated with the insurance company, and on such liquidation it appeared that Cheritree had paid Holden eighty-five dollars more than sufficient to indemnify Holden for the amount of his liability to the insurance company as surety on the bond.

Holden having died, and this defendant having been appointed his administrator, the plaintiff presented a claim against the estate of Holden to the administrator for this sum of eighty-five dollars and interest, claiming that that money was paid by mistake, and under the agreement between herself and the agent of Holden, at the time of the execution of the bond and mortgage, she was entitled to that amount from his estate.

The administrator rejected the claim and refused to allow the same, and upon that rejection a referee was agreed upon, with the approval of the surrogate, and upon the hearing of that reference a report was made in favor of the plaintiff for the eighty-five dollars and interest.

That report was confirmed and the plaintiff, upon such confirmation, had judgment against the defendant as administrator for that amount, together with the costs of the action. From that judgment the appellant appeals.

The referee found substantially the above-recited facts, and, as a conclusion of law from' those facts, makes the following finding:

'“I find as conclusion of law that the overpayment to the said Holden of $85.01 was by a mistake and want of knowledge of the the facts; that plaintiff is entitled to recover said sum and interest thereon from time of payment. Judgment, with costs, is ordered accordingly.”

This report was signed by the referee.

From the evidence in the case the referee’s finding of facts seem to be fully sustained.

On the trial some objections were taken to evidence offered on the part of the respondent. Daniel A. Wilson, who assumed to act as agent for Iiolden in obtaining the mortgage, was called by the respondent and asked to narrate a conversation between him and Holden. This was objected to by the appellant on the ground that his testimony was inadmissible under section 829 of the Code.

We see no force in that objection. Wilson was not a party to the action, nor does it appear that he was interested in the event of the action. As the agent of Iiolden it was clearly competent, it seems to me, to prove Holden’s declarations by him.

It is also insisted that the referee erred in refusing to strike out that portion of the testimony of the respondent wherein she states that "Wilson informed her, after the death of Holden, what amount Holden had in fact paid to the insurance company, and that was the first information she had of that amount. This evidence was not objected to, but after it was given the appellant moved to strike it out.

While technically such evidence might not have been competent if obj'ected to before it was given, yet, in view of the remote bearing, if any, which it could have upon the merits of this case, and the fact that the objection came too late, we do not think it such an error as would justify the reversal of this judgment.

It was also objected that the testimony of the respondent, as to the time when she first learned that Holden had paid less than the full amount of the mortgage to the insurance company, was objectionable and improper, on the ground that it was indirectly testifying to a transaction or communication with Holden, or was testifying to a non-transaction which brought it within the prohibition of section 829 of the Code.

We do not think the evidence involved any personal transactions with the deceased, nor was it that class of evidence held to be objectionable on the ground that it proves the want of a transaction with the deceased.

We can see nothing in the evidence which renders it illegal, for which the judgment should be reversed.

On the whole case, we find no error committed by the referee which would authorize this court to reverse the judgment.

Judgment affirmed, with costs of this appeal against the administrator as such to be paid out of the estate.

PutNam and Hkkriok, JJ., concurred.

Judgment affirmed, with costs to be paid out of the estate.


author: MayhaM, P. J.:

text:
    Caroline S. Ogier, as Administratrix, etc., of Cyrus Merrill Ogier, Deceased, Respondent, v. The Albany Railway, Appellant.

      Negligence — injury to a child running in front of a motor cwr.

    An'action was brought by an administratrix to recover the damages resulting from the death of her intestate, a child aged five years and three months, caused, as alleged, by the negligence of a corporation which was operating an electric Street railroad. It appeared that at three o’clock in the afternoon, at a point where there was no crosswalk, the child was struck by a motor car moving at the point in question by gravity, at the rate of from four to five miles an hour lipón the southerly track of the railroad; that a coal wagon was proceeding in an opposite direction upon the northerly track of the road, and was about opposite the motor when the deceased rushed from behind this wagon in a southerly direction and came upon the southerly track, at a distance of about five feet, in front of the advancing motor; the motorman first applied the brake and then reversed the power, but the car passed on and over the child.

      Held, that upon the facts shown there was no proof of negligence upon the part of the defendant.
    Appeal by the defendant, The Albany Railway, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 28th day of May, 1894, upon the verdict of a jury rendered after a trial at the Albany Circuit, and also from an order entered in said clerk’s office on the 29th day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Simon W. Mosendale, for the appellant.

      Edwi/n Countryman, for the respondent.
   MayhaM, P. J.:

This action was brought by the plaintiff, as administrator, for alleged negligence of the defendant in running its motor car against and over plaintiff’s intestate, a child of the age of five years and three months. -

The defendant was a railroad corporation owning and managing an electric street railroad in the streets of the city of Albany. While one of its motor cars was passing along Central avenue about three o’clock in the afternoon of the 27th of October, 1893, at a rate of speed of about four or five miles an hour, the plaintiff’s intestate, while attempting to cross the street, was hit and killed by such car. The accident occurred at a point in the street where there was no street crossing or crosswalk, at a locality where few pedestrians traveled upon or were accustomed to cross the street.

At the conclusion of plaintiff’s evidence defendant’s counsel moved to nonsuit the plaintiff upon the following grounds:

First. That the plaintiff has failed to establish a cause of action.

Second. The testimony fails to show that the deceased was free from negligence causing or contributing to the accident.

Third. That the evidence fails to show that any negligence on the part of the defendant caused the injury, or that the negligence of the defendant in any way caused or contributed to the injury of the deceased.

Fov/rth. The plaintiff has failed to show that she, as the mother of the intestate, was free from negligence in the care of the deceased, and that there was no negligence on her part in causing or contributing to the accident in question.

Fifth. That there is no evidence which would justify a verdict to be rendered from the plaintiff’s testimony as it now stands.

Sixth. That the testimony fails to show any act of carelessness or negligence on the part of the defendant, or any of its officers or servants, which caused or contributed to this accident.

Seventh. The undisputed facts show that this child, over five years of age, suddenly came upon the track of this defendant, and within a short distance of its car while in motion ; that the injury and death, which was the result of it, was an inevitable accident, for which the defendant is not liable.

Eighth. That the plaintiff was bound to show, béfore a recovery can be had, that she was free from negligence, and that the deceased was free from negligence, causing or contributing to this accident. This she failed to do.

Ninth. The testimony fails to show that fact, but, on the contrary, shows that there was such negligence on the part of the plaintiff here and of the intestate, causing or contributing to this injury, which would prevent a recovery.

Tenth. The undisputed facts show that the accident which caused tee death of the plaintiff’s intestate was the result of a sudden and unexpected occurrence, not to be anticipated by tlie motorneer of the defendant’s ear, and lienee there is no cause of action.

Eleventh. Tlie acts of tlie plaintiff’s intestate in running or coming in front of tlie defendant’s car, in motion, as tlie undisputed testimony shows, was such negligence as would prevent a recovery in the case.

Twelfth. That the act of the plaintiff, the mother of the deceased, in permitting the intestate to be at the place where the injury occurred, was such contributory negligence as to prevent a recovery.

Thirteenth. That the testimony shows that the mother of the' deceased was negligent in permitting the deceased to be at the place where the injury occurred, and there was such conduct on the part of the deceased, contributing to the accident, as would have defeated •him in an action by him if he had been an adult.

Fourteenth. That the knowledge of the mother of the decedent as to the fact that the place was a dangerous one in the street, by the fact of the frequent passing and repassing of the cars of the defendant, imposed an additional duty on her to prevent the intestate from being in a place of danger, and her permitting him to be between the tracks unattended, was negligence contributing to the accident, for which no recovery can be had.

Fifteenth. That, from the evidence, no inference that can be indulged in, is consistent with the exercise of that care and prudence required by law under the circumstances on the part of the deceased, or on the part of the plaintiff.

Sixteenth. That the plaintiff has failed to give any evidence that the deceased was, as matter of fact, capable of exercising judgment or discretion.

Tlie motion was denied, to which the defendant excepted.

At the conclusion of tlie defendant’s testimony, a motion for a nonsuit was renewed upon tlie grounds above stated, and denied.

The first contention on the part of the appellant in this case is that there is a complete failure of proof to establish any negligence or wrongdoing on the part of the defendant in the management of the car by which the injury was inflicted.

Manifestly the burden was upon the plaintiff to establish some negligent act or omission on the part of the defendant which caused the injury before the plaintiff could recover.

The unfortunate killing of the boy, if it was the result of unavoidable accident on the part of the defendant in the movement of its cars, would not create a liability, so long as it appeared that the defendant was in the lawful and prudent irse of the privileges conferred upon it by the franchise, which authorize the defendant to operate its railroad.

It was the duty, therefore, of the plaintiff, before a recovery can be had against the defendant, to establish some negligent or improper act or omission by the defendant which produced the injury complained of.

The undisputed facts shown by all the evidence on the part of the plaintiff and defendant fail, it seems to me, to prove tlxe defendant guilty of any negligence or want of skill or care in the management of its motor, by which this unfortunate accident was produced.

The car was moving down the grade on the southerly track at a rate not exceeding five miles an hour within all the evidence, a rate of speed seven miles less than the maximum speed at which it was permitted to move within the charter or city ordinance.

It was running by its own gravity, the power having been taken off by the motorman, and the brakes were gently applied to prevent the car attaining too great a speed. One or two coal wagons were moving in front of the car in the same direction, and on the same track upon which the car was running. Two coal wagons were going west on the northerly track, the forward wagon of which was opposite the motor. From behind that wagon the decedent rushed southerly upon the track upon which the motor was running, at a point not exceeding five feet from the forward end of the car. Up to that time the evidence discloses that the presence of the child was unknown to the motorman, and he was hidden from the motonnan’s view by the intervening coal wagon.

The evidence discloses that after discovering the child the'motorman did everything in his power to stop the car and thus prevent the injury, first applying the ordinary appliance of the brakes, and, fearing that ineffectual, reversing his power. All his efforts failed to save the child, and, I think, this must be regarded as one of the unavoidable accidents which sometimes • occur, without fault, and against which the law furnishes no indemnity.

In Chrystal v. The Troy & Boston Railroad Company (105 N. Y. 164) it was held that a railroad company “ is not responsible for an error of judgment on the part of the engineer as to the speed of his train, or his ability to stop it in time. All the engineer is bound to do after discovery of the peril is to uso reasonable diligence and eare to avert it.”

In Fenton v. The Second Avenue Railroad Company (126 N. Y. 627) the court, in reversing a judgment for the plaintiff in an action somewhat similar to the one at bar, uses this language :

“ Street railway cars have a preference in the streets, and while they must be managed with care so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable eare to keep out of their way.

“ The unfortunate death of this boy was due to his own carelessness, or it was a pure accident, and in either event the defendant cannot be held responsible for it.”

The evidence in this case, from which the above quotation is taken, showed that the injured party fell upon the track twenty feet in front of the team drawing the car, and that the horses, going at the usual rate of speed, would have reached him in two seconds, and that that was all the time the driver had to apply the brakes and arrest the motion of the car.

It appeared in that case that lie did what he could, but failed, and the court held the company not liable. In the case at bar the car was within five feet of the child before the motorman could see it. He holloaed and the child undertook to retrace its steps. At the same time the motorman did all lie could to avert the collision. Both failed in their efforts and fatal consequences resulted, which it appears to me were,unavoidable.

This, perhaps, renders it unnecessary to examine the other point in the case, as to the contributory negligence of the mother, as it seemed to be conceded that the child was non sui juris, and that if negligence was imputable to the plaintiff or her intestate it must be the negligence of the mother and not the child.

I am of the opinion that within the authorities cited by the learned counsel for the respondent that was a question of fact for the jury, and properly submitted to them by the learned trial judge. But as we can find no proof of negligence or improper conduct on the part of tbe defendant in tbe management of its car, we think tbe learned trial judge should bave, upon tbe motion of tbe defendant, non-suited tbe plaintiff, and his failure to do so was error for which this judgment should be reversed.

Putnam, J., concurred; Hebbiok, J., not acting.

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


author: Mayiiam, P. J.:

text:
    Isabella Merritt, Respondent, v. Derrick W. Sparling, as Receiver, Appellant.

      Contempt — receiver in an action of ejectment — not compelled in proceedings under a judgment in another action to pay such judgment,

    John E. Van Etten brought an action oí ejectment against Isabella Merritt, in ■which. Derrick W. Sparling was appointed receiver of the premises. Van Etten subsequently recovered a judgment in the action by which it was adjudged that certain crops and fruits harvested by the receiver were the property of Van Etten.
    Thereafter Isabella Merritt was ejected from the premises, and she began the present action against the receiver to recover upon certain assigned claims for services rendered the receiver in and about the crops.
    Upon the trial of this action she recovered a judgment which the receiver neglected to pay, and thereupon the court made an order in the present action directing the receiver to pay the judgment of Isabella Merritt within twenty days or in default thereof that he he held as in contempt. This order recited a finding by the court that the receiver had received enough moneys from the produce of the farm to pay the judgment.

      Held, that the application to compel the receiver to pay the judgment should have been made in the action in which he was appointed receiver, and that he could not he punished, as for a contempt, for a failure to pay the judgment in an action in which he was not appointed receiver.
    Appeal by tbe defendant, Derrick W. Sparling, as receiver, from an order of tbe Supreme Court, made at the Ulster Special Term, and entered in tbe office of the clerk of the county of Ulster on the 15th day of January, 1895, adjudging that the defendant pay the plaintiff a judgment recovered by her against him within twenty days from entry of tbe order and notice thereof, and that in default thereof tbe defendant be held as in contempt of this court.

      J. E. Van Etten, for the appellant.

      William lounsbery, for the respondent.
   Mayiiam, P. J.:

The case discloses that the defendant Sparling was on the 20th of June, 1890, appointed receiver of the crops and fruit growing on a farm for the recovery of possession of which John E. Yan Etten was at that time prosecuting an action of ejectment against this plaintiff, which farm she held under a contract of purchase, and that such action was subsequently prosecuted to judgment against this plaintiff in favor of Yan Etten, and in such judgment it was, among other things, adjudged that the plaintiff in such action recover the crops and fruits upon the premises, gathered and put in by the receiver, which were therein adjudged to be the property of the plaintiff in that action.

After the plaintiff herein was ejected and dispossessed in that action she commenced and prosecuted this action against the defendant, as receiver, to recover on an alleged assigned account for services- rendered for the receiver in gathering crops oil the farm and boarding hands while engaged in harvesting thereon.

On the trial of this action the judge directed the jury to find a verdict for the plaintiff against the defendant for $125, subject to the opinion’of the court. On that verdict the plaintiff entered judgment for the sum of $236.99, recovery and costs.

The defendant having failed or neglected to }iay this judgment, the Special Term, on the 17th day of November, 1891, made the following order:

“ Ordered and adjudged that the defendant, Derrick W. Sparling, as receiver, pay or cause to be paid to the plaintiff the judgment recovered by her on the 29th of May, 1893, for $236.99, with interest thereon from the last-mentioned date, with $10.00 costs of this motion, within twenty days from the entry of this order and notice thereof, and that in default thereof the said defendant be held as in contempt of this court.”

By the recital in this order the judge found that there was received into the hands of the receiver of the produce of the farm, of which he was appointed by the court the receiver, sufficient to provide moneys out of which he could pay and discharge the plaintiff’s said judgment.”

The defendant, in his affidavit in opposition to this motion, positively denies that he took possession of any crops, employed any hands to gather the same, or promised or agreed to pay the plaintiff for boarding hands in harvesting or gathering the same.

Prom the order-above recited the defendant appeals.

The appellant insists that the application to compel him, as receiver, to pay this judgment was not made in the proper action ; that as he was appointed receiver in the action wherein John Van Etten was plaintiff and Isabella Merritt and Jacob De Witt were defendants, the application to compel him to pay any moneys in his hands as receiver could only be made in that action.

There is great force in this contention, both in principle and upon authority.

While we must assume that this action, which was prosecuted with the leave of the court, was properly brought, and for the purposes of this motion that the judgment therein is valid as against the receiver as such, and correctly fixed his liability to the plaintiff, and that execution thereon, while it could not be levied on property in the hands of the receiver, as the same was constructively in the possession of the court through its receiver, the court could, in that action, in which he was receiver, make an order which would properly reach any trust estate in his hands as receiver. (Walling v. Miller, 108 N. Y. 177.)

But, as he was not receiver in this action, it is difficult to see upon what principle he can be punished as for contempt, and subjected to fine and imprisonment for the failure to pay a judgment in an action in which he is not a receiver, and for the payment of which he has no trust funds.

Doubtless, as an officer of the court, he would be amenable to the order of the court for the performance of the duty imposed upon him in the action in which he was appointed. But to hold him guilty of a contempt of court for failure to pay any and all judgments recovered against him as receiver, would be imposing upon him liabilities which he could not foresee when he accepted the trust, and which do not arise out of the trust itself.

Rut tliis question seems settled upon authority of many well-considered cases.

In Walling v. Miller (108 N. Y. 177) the rights of a party haying a lien by judgment and execution on property in the hands of a receiver were clearly pointed out where the lien of the execution had attached before the appointment of the receiver, and the court says:

The lien of the execution was not destroyed by the appointment of a receiver, but the rights and interests of all parties in the property were thereafter to be adjusted by the court which appointed the receiver, and the property could not be taken out of the possession of the receiver and sold upon the execution without leave of the court. The execution creditor could bring his lien to the attention of the court in the action in which the receiver was appointed, and ask to have the execution satisfied out of the proceeds of the property.”

Such a course would 'be manifestly just to all parties claiming an interest in the property, as in that action Yan Etten, who, by the judgment in ejectment, was adjudged entitled to the property, the defendant in that action who is now claiming the proceeds of the property of the receiver, and the receiver, who, as the officer of the court, stood indifferently between the claimants, liable to hand the proceeds of the property to the one entitled to the same, would all be before the court, to do and receive what might be adjudged for or against them respectively. In no other way could the rights of Yan Etten, Merritt and the receiver be fully adjusted-as to all the parties.

Clearly, if, by the judgment in the ejectment case, any property in the constructive or actual possession of the receiver was adjudged to belong to the plaintiff in that action, the receiver should not in this action be compelled to pay it over to the defendant, or to account and pay over to her the proceeds or value of the same, and all the parties to that action, as well as the receiver, should be before the court in a motion in that action for a complete determination of the rights of all the parties.

In Rinn v. Astor Fire Insurance Co. (59 N. Y. 148) the plaintiff brought an action against the defendant on a policy of the ■defendant, and pending the action the defendant became insolvent, and in an action in equity by another party a receiver was appointed. Subsequent to the appointment the plaintiff recovered a judgment against the defendant, and thereafter moved in his action to compel the receiver who had been appointed in the equity action to pay the judgment. ANdeews, J"., in delivering the opinion of the Court of Appeals reversing the decision of the General Term granting such motion, uses this language :

“ "Without considering or passing upon the question whether the plaintiff has a remedy, or was, or is entitled to a distributive share in the fund which came to the hands of the receiver, we reverse the order of the General Term on the ground that her remedy, if it exist, must be sought by application to the court in the district in which the receiver was appointed, and in the action in which the appointment was made.”

In the Matter of the Petition of Mallory, Collector, etc. (18 N. Y. St. Repr. 499), Dwight, J., says: “ The rule seems to be well established that, for the purpose of reaching funds in his hands, the application must be made in the action in which the receiver was appointed.”

We have been referred to no adjudication which breaks the force of the decisions above referred to, and are ' of opinion that in principle they are analogous to the case at bar.

It is urged by the learned counsel for the respondent that the defendant, as receiver and an attorney, is an officer of the court and must obey its orders; but the answer to that seems to be that as receiver he is not an officer of the court in this action, and as an attorney of the court he sustains no fiduciary relations to this plaintiff, and, as such, holds no trust funds belonging to her.

Without considering the other questions raised by the appellant, we think the order of the Special Term, for the reasons above suggested, was erroneous and should be reversed.

Order reversed, with ten dollars costs and printing disbursements.

PutNAM and HeeeioK, JJ"., concurred in result.

Order reversed, with ten dollars costs and disbursements.


text:
    John Clancy, Appellant, v. The Troy and Lansingburgh Railroad Company, Respondent.
    Negligence— contributory negligence in crossing railroad trades before an approaching car.

    A. truckman was driving upon a street upon wliicli a motor car was approaching liim from behind and it became necessary for him to cross the track of another railroad company in order to pursue his journey. When about fifteen feet from the intersection of the tracks he saw a motor car on the latter road approaching and at a distance from him at the time of from fifty to seventy-five feet. He endeavored by hurrying to cross the track in front of him, but miscalculated the time and distance and a collision occurred.
    Held, that the plaintiff undertook to determine at his peril whether he could cross-the track in safety;
    That the risk of that determination was Bis own, and that he was guilty of contributory negligence.
    Appeal by tbe plaintiff, John Clancy, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 22d day of September,. 1894, upon the dismissal of the complaint directed by the court after a trial at the Rensselaer Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 21st day of September, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      john-T. Norton and James B. Eg cm, for the appellant.

      Thomas At Fagan, for the respondent.
   Mayham, P. J.:

This action was prosecuted by the plaintiff, appellant, against the' defendant for alleged negligence of the defendant in the management of one of its motor cars by which it collided with the plaintiff’s wagon resulting in an injury to the wagon and to the person of the plaintiff.

The case discloses that the plaintiff was driving a truck wagon loaded with beer casks and drawn by a team of heavy horses, and that in crossing the track of the defendant’s railroad the motor car on said track collided with the hind wheels, of the-plaintiff’s wagon,, breaking the axle of the same, by reason of which the plaintiff was precipitated upon the pavement, and the wheel of his wagon passed over liis foot, inflicting injury upon the plaintiff’s person.

On the trial it appeared that the injury occurred at the intersection of River and Congress streets in the city of Troy. The plaintiff was driving his wagon along Congress street, on which there are two tracks of the electric railroad, which cross the tracks of the' defendant’s railroad at the intersection of Congress and River streets. At about five-thirty o’clock on January 27, 1892, as plaintiff was driving from Congress street bridge going east, which the evidence shows was a down grade, when within about fifteen feet of the River street crossing he discovered one of defendant’s motor cars approaching such crossing at a distance of from fifty to seventy-five feet from the same.

The case discloses by the plain tiff’s testimony that he was driving on the Congress street track, and that a motor was approaching in the rear. Instead of turning from such track he endeavored to avoid collision with the Congress street car by hurrying his team across the defendant’s track, hoping to do so in time to avoid a collision with the defendant’s motor car. In this he miscalculated, and the car collided with the wagon as above stated.

It appears from the evidence that the plaintiff made no effort to stop his team and wagon before reaching the defendant’s track, nor is there any evidence that the conductor of defendant’s motor car made any effort to stop it before the collision.

Upon these facts, about which there seems to be no conflict, the defendant, at the conclusion of the plaintiff’s testimony, moved for a- nonsuit on the ground that the evidence did not disclose or tend to prove that the plaintiff was free from contributory negligence. This motion was granted by the trial judge, to which the plaintiff duly excepted. The plaintiff asked the trial judge to submit as a question of fact to the jury the question whether or not the plaintiff was guilty of contributory negligence. The judge refused to submit that question, to which plaintiff also excepted’.

It is not easy to fix the exact boundary between the question of contributory negligence as a question of law and that of contributory negligence as a guestion of fact, so as to determine whether or not it is the duty of the trial judge to submit it to the iury.

But it seems quite clear in tins case tliat the plaintiff by Ms own act contributed to the injury of which he complains, and that he undertook to determine at his own peril whether or not he could cross defendant's track in safety, and that the risk of that determination was his own, for which the defendant cannot be held responsible. The law is well settled that where the defendant is negligent, if the plaintiff, by his own negligent act, contributed to the injury of which he complains, he cannot have recourse for damages for that injury to the defendant.

I am, therefore, of opinion that the nonsuit was right, and the judgment should be affirmed, with costs.

Putnam and IIerricK, JJ., concurred.

Judgment affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. Nellie Cowie, Appellant.

      Common prostitute — definition of — triable only by a Court of Special Sessions — sufficiency of the proof thereof — right to hare the c m presented to the grand jury — right to an adjournment — when the right is not waived.

    There is no such crime, under the Code of Criminal Procedure, as that of being a common prostitute, the offense being treated in the Code only as an evidence of the crime of vagrancy.
    The crime exists under and is named in section 8 of “ An act to provide for the establishment of a house of refuge for women,” being chapter 187 of the Laws of 1881, as amended by section 1 of chapter 17 of the Laws of 1887.
    The fact that a woman is a common prostitute at the time when the warrant is issued is sufficiently made out by proof of her improper and lascivious conduct.
    The crime of being a common prostitute is, under the provisions of said acts of 1881 and 1887, and subdivision 36 of section 56 of the Code of Criminal Procedure, triable only in a Court of Special Sessions, except where the case is, pursuant to section 57 of said Code, certified to the grand jury.
    When a person is brought before a magistrate charged with a crime, triable only by the magistrate sitting as a Court of Special Sessions, and asks that her case be presented to the grand jury, she has, under section 58 of said Code, an absolute right to an adjournment to enable her to procure a judge’s certificate that it is reasonable that the charge be prosecuted by indictment.
    The refusal of a magistrate, sitting as a Court of Special Sessions, to grant an adjournment under such circumstances is erroneous and may be reviewed on appeal.

      The defendant’s right to such an adjournment is not waived by her having- previously appeared and pleaded to the merits and demanded a jury trial, when it is shown that before any further step was taken in the trial by jury the defendant’withdrew her demand for such a trial and asked that her case be presented to the grand jury
    Appeal by the defendant, Nellie Cowie, from a judgment of the Court of Sessions of Franklin county, rendered on the 8th day of December, 1894, affirming a judgment of conviction and sentence of the defendant rendered by a police justice of Malone village, and also from an order of said Court of Sessions made on the 4th day of December, 1894, upon which order the judgment of the Court of Sessions was entered.

      Charles A. Bwrke, for the appellant.

      Frederick G. Paddock, District Attorney, for the respondent.
   MayhaM, P. J.:

The defendant, appellant, was arrested upon a warrant issued by a police magistrate of the village of Malone on an information filed with such magistrate and sworn to on the 14th of September, 1894, of which the following is a copy:

“ State oe New Yobk, i
Coimty of Franklin, Yillage of Malone, j ss‘'
Be it remembered, that I, J. J. Elynn, residing in the village of Malone, county of Franklin, N. Y., now come before O. 0. Earle, Esq., a police justice of the village of Malone, in the county of Franklin, and give information under oath as follows, upon information and belief: That one Nellie Cowie, on the 1 day of September, 1894, at the village of Malone, in the town of Malone, county of Franklin, N. Y., at about 8 o’clock in the afternoon of said day, did commit the crime of being a common prostitute, against the person or property of the People of the State of New York by, on or about Aug. 15, 1894, having unlawful sexual intercourse with one Philip Goosha, and receiving pay' therefor, and with divers and sundry persons prior and subsequent thereto, whose names are to deponent unknown, wherefore your informant prays that the depositions of this informant and John Mahaney, Philip Goosha, W. A. Fobear, witness may be reduced to writing and duly subscribed, and that a warrant issue for the arrest of said accused, and that she be dealt with pursuant to the provisions of the Code of Criminal Procedure.”

This information was duly verified, and on the 15th day of September, 1894, a warrant was issued thereon, reciting the accusation in the following words :

“ Information upon oath having been this day laid before me that the crime of being a common prostitute has been committed, and accusing Nellie Doyle, nee Cowie, thereof.”

It is insisted that the information in the case was insufficient to give the justice authority to issue his warrant, as it does not state a crime known to the law as defined and regulated by the Code of Criminal Procedure.

This contention would be sound within the case of People v. Olmsted (74 Hun, 323) if the authority of the magistrate and the character of the crime charged were solely derived from the provisions of the Code of Criminal Procedure. Under its provisions common prostitution seems to be treated only as evidence of vagrancy, which is a crime, and in that case only when the accused has no lawful employment whereby to maintain herself. (Code Grim. Proc. § 88Y, subd. 4.) But while the Code of Criminal Procedure governs the method of proceedings in an action of this character, the provisions of section 8 of chapter 18Y of the Laws of 1881, as amended by section 1 of chapter 1Y of the Laws of 188Y, prescribes the nature and name of the offenses punishable by confinement in ■the “house of refuge for women,” and among them is embraced “common prostitutes.”

The information in this case in terms charged that ofíense, and was, we think, sufficient to give the justice 'jurisdiction.

Having jurisdiction the examination of the complainant’s witnesses disclosed facts sufficient to authorize the issuing of the warrant.

If it be assumed, as claimed by the appellant, that to make a defendant amenable to the charge of being a “ common prostitute ” she must maintain that character at the time of the prosecution, still that fact may be established by proof of improper and lascivious conduct immediately before the prosecution. The case in that respect is unlike that of public intoxication under the statute, when the accused must be found and arrested in a public place in a state of intoxication.

The most serious question in tbe ease raised by this appeal is whether the justice should not have allowed the defendant an adjournment to enable her to apply to a judge for a certificate that it was reasonable that the charge be presented to the grand jury under the provisions of section 57 of the Code of Criminal Procedure.

As section 8 of chapter 187 of the Laws of 1881, as amended by section 1 of chapter 17 of the Laws of 1887, confers jurisdiction on police magistrates in this class of cases, and as that is a special statute, it seems to follow that its provisions come within the language of subdivision 36 of section 56 of the Code of Criminal Procedure, and is one of the cases triable exclusively before the magistrate as a Court of Special Sessions unless the same is certified to the grand jury, unless the defendant waived that right by appearing and pleading to the merits and calling for a jury trial.

The record discloses that on the fifteenth of September the defendant was brought before the justice and by special counsel moved for her discharge “ on the grounds that the affidavits or information does not state facts sufficient to state the crime charged, or any other crime. 2. The information charges the defendant with the crime of being a common prostitute, and there is no such offense known to the Code of Criminal Procedure or the Penal Code of this State, or no such crime defined in law, and for that reason the information does not charge a crime under the statute.

“Motion denied, defendant pleads not guilty and demands an examination. Court rules that defendant is not entitled to an examination. Defendant called for jury trial.

“ The defendant’s counsel states he withdraws his request for a jury trial. The People object to the withdrawal of the demand of defendant for a jury trial, and insist that defendant, having elected to have a jury trial in this case, cannot now withdraw such election, and the People have a right to try the case by a jury.

“ Court refuses to allow the request to be withdrawn. Defendant states or asks that her case be presented to the grand jury, and the proceedings be adjourned for not less than five or more than ten days to enable the defendant to procure and file with the court a certificate’ that it is reasonable that this charge be prosecuted by indictment, as prescribed in sec. 57 of the Code of Criminal Procedure.

People object that the crime charged here is not enumerated in section 56 of the Code of Criminal Procedure, and that she is not, therefore, entitled to the adjournment provided for in section 58 of the Code of Criminal Procedure. Motion denied.

Defendant then states they demand a jury trial. Granted.”

The case shows that a venire was issued, a jury procured, and the hearing of the case adjourned from time to time until the twenty-seventh of September, then instant, when the case was tried before a jury, who rendered a verdict of guilty, upon which the defendant was, by warrant of the justice, committed to the House of Refuge for Women for a term of five years, unless sooner discharged by the board of managers.

If we are right in holding that this complaint was triable in the first instance exclusively by a Court of Special Sessions, under the provisions of section 56 of the Code of Criminal Procedure, then it was error, we think, to refuse an adjournment on the application of the defendant to enable her to apply for a judge’s certificate allowing the presentation of the matter to the grand jury. The record shows that no step had been taken in the case after the demand for a jury trial, before a request to withdraw that demand was made by tlie defendant.

The right of the defendant, under section 58 of the Code of Criminal Procedure, to have time to make that application is a legal right, guaranteed by statute, and not one resting in the discretion of the justice, and when the defendant complies with the requirements of the statute in making the demand, it is error in the magistrate to refuse, which may be reviewed on appeal.

But if this case was one triable before the magistrate as such, and not before a Court of Special Sessions, then it was error to try it before a jury, and the trial and conviction by the jury gave the justice no right to. pronounce judgment and issue his warrant for committal of the defendant.

In either aspect of this case, we think the conviction erroneous.

The judgment of conviction must be reversed.

Putoam and Hekktok, JJ., concurred in result.

Judgment of conviction reversed.


author: HeReioK, J.:

text:
    Abner Mills, Appellant, v. Etta Stewart and Others, Respondents.

      Order of reference — a pa/rty cannot submit thereto cmd subsequently appeal therefrom— when it is not an intermediate order ■ — what is not an appeal from a final judgment — the authoi'ity of an attorney continues until final judgment.

    A party cannot submit to an order of reference, proceed to a hearing upon the merits, and in the event of the decision being adverse to him attack the regularity of the order or the authority of the court to make it.
    Where a County Court makes an order sending to a referee the question-as to the amount paid upon a decree in foreclosure (there being a dispute between the plaintiff and a junior incumbrancer as to whether payments made by the latter to the plaintiffs attorney, under an agreement made by the j unior incumbrancer with the plaintiff’s attorney to take an assignment of the decree, were binding upon the plaintiff), such order is not an intermediate order and is reviewable only upon a direct appeal from it.
    An appeal from an order denying the plaintiff’s motion to vacate the order, and to set aside the report of the referee in such a case, is not an appeal from a final judgment.
    The authority of an attorney continues until final judgment is rendered, and payments made to him upon an interlocutory judgment in foreclosure are binding upon his client.
    Appeal by tlie plaintiff, Abner Mills, from an order of the County Court of Sullivan county, entered in the office of the clerk of said county on the 15th clay of January, 1895, denying the plaintiff’s motion to vacate an order of reference, dated July 9, 1894, and to set aside the report of a referee appointed under said last-mentioned order, which report was filed in said clerk’s office on the 31st day of October, 1894, with notice of an intention to bring up for review upon such appeal an order of reference made by said County Court of Sullivan county, dated July 9,1894, referring to a referee to take proof and report as to what sum was due and unpaid upon a decree in foreclosure entered in said clerk’s office on the 10th day of February, 1886, the report and decision of the referee when filed to stand as the decision of the court, all proceedings of the plaintiff being stayed until the determination of the matter.
    The controversy arose from the following facts : T. A. Read, as attorney for the plaintiff, Abner Mills, began an action of foreclosure in the Sullivan County Court against Etta Stewart, mortgagor, and others, including Warren L. Scott, a junior incumbrancer by mortgage. A decree of foreclosure was entered on February 15, 1886, for $1,076.60, and for costs $141.25. On April 10, 1886, as the referee appointed in the matter found, Warren L. Scott made an agreement with Read that, in consideration of the postponement of the mortgage sale, he (Scott) would take an assignment of the decree and make therefor payments at dates stated. Under this agreement Scott paid Read $1,000, of which Read paid the plaintiff only $450. In 1888 Etta Stewart, mortgagor, conveyed the premises to Scott. Read remained attorney for the plaintiff until his death in May, 1892. No sale of the premises had taken place. Scott applied to the County Court of Sullivan county to have the amount remaining due upon the decree fixed. ■ The court then made the order recited above and dated July 9,1894. The referee thereby appointed reported that all the payments made by Scott to Read should be credited upon the decree and were valid as against the plaintiff.

      John A. Thompson, for the appellant.

      George H. Ca/rpenter, for the respondent Scott.
   HeReioK, J.:

The order appointing the referee cannot be reviewed upon this appeal. It is not an intermediate order, nor is this an appeal from a final judgment, within the meaning of section 1316 of the Code of Civil Procedure. (Fox v. Matthiessen, 84 Hun, 396.)

The only way to review such an order is by a separate appeal. The appellant cannot submit to an order and proceed to a hearing upon the merits and take his chances of a favorable decision, and then in the event of its being adverse to him attack the regularity of the order or the authority of the court to make it.

The question then comes upon the merits of the decision of the referee so appointed. The plaintiff’s attorney had the right to act for him in all matters relating to the foreclosure suit until final judgment at least; the proceedings here had not gone to that length; only an interlocutory decree had been entered; the agreement between the plaintiff’s attorney and Scott was in effect nothing more than the law would award to Scott upon payment of the mortgage. (Twombly v. Cassidy, 82 N. Y. 157; Arnold et al. v. Green, 116 id. 566-572.)

Tbe amount paid to Scott is undisputed, tbe person to whom it was paid being tbe plaintiff’s attorney, and in tbe very proceeding in which it was paid tbe amount thereof should be credited on tbe interlocutory judgment.

Tbe order should, therefore, be affirmed, with costs and disbursements.

PutNAh and FuesMAN, JL, concurred.

Order affirmed, with costs and disbursements.


author: HeeRioK, J.: Mayi-iam, P. J.:

text:
    The People of the State of New York, Respondent, v. Eugene E. McClure, Appellant.
    Rece~iiinçj .~to~em goods - s~m'~lar acts may be slwwm to prove sciente'r - ~m'~tat~ons of thss iule.
    Upon, the trial of a person indicted for the crime of receiving stolen goods, consisting of tobacco in various forms, -which, had been stolen from a railroad car, it appeared that at the same time and from the same railroad car there had been stolen dry goods and merchandise consigned to other persons; the court, over the defendant’s objection, admitted evidence to show the theft of the dry goods and merchandise, and that various portions of these had been found in the defendant’s possession. The People gave no evidence showing that the dry goods and merchandise were received by the defendant at the same time with the tobacco, nor from the same person from whom he received the tobacco, and there was no evidence connecting the person from whom the defendant received the tobacco with the person from whom he received the dry goods and merchandise.

      Held, that the testimony was inadmissible; that while proof of other acts of a similar character, although they involve substantive crimes, may be given in evidence upon a trial to prove scienter,there must be some connection in time, place, circumstances, or in the person from whom the other articles were received, tending to connect the crimes; so that, if the defendant knew that one article was stolen, there would be a natural inference that he knew that the other articles were also stolen.
    Appeal by tbe defendant, Eugene E. McClure, from a judgment of tbe Court of Sessions of Rensselaer county on tbe 11th day of September, 1894, rendered upon tbe verdict of a jury convicting tbe defendant of tbe crime of receiving stolen goods.

      Calvin K. Keach, for the appellant.

      John P. Kelly, District Attorney, for the respondent.
   HeeRioK, J.:

The defendant was indicted for the crime of receiving stolen goods. The goods alleged to have been stolen and received by him consisted of cigars, cigarettes and various packages of tobacco. The goods so received by him had, as it appeared upon the trial, been taken from a freight car of the Delaware and Hudson Oanal Company ; at the same time various articles of dry goods and merchandise, consigned to persons other than those to whom the cigars, cigarettes and tobacco were consigned, were taken from the same car.

Evidence was received upon the trial of the stealing of such dry goods and merchandise from the car, and of the finding of various portions of them in the possession of the defendant.

There was no evidence upon the part of the People that the dry goods and merchandise were received by the defendant at the same time, or from the same person, at and from whom he received the cigars, cigarettes and tobacco; there is evidence upon the part of the defendant that he received them from a different person at a different time. There is no evidence of any connection having existed between the person from whom he received the cigars, cigarettes and tobacco and the person from whom he received the dry goods and merchandise.

Upon the trial the defendant objected and excepted to the reception of evidence showing the larceny from the cars of the Delaware and Hudson Canal Company of other property than that mentioned in the indictment, and to evidence of such property having been found in his possession.

In cases of this kind proof of other acts of a like character, although involving substantive crimes, may be given in evidence to prove the scienter. (Coleman v. The People, 55 N. Y. 81; Coleman v. The People, 58 id. 555; People v. Gibbs, 93 id. 470-473.)

The leading case'upon this kind of evidence is that of Coleman v. The People (55 N. Y. 81), and in discussing the cases of King v. Dunn (1 Moody’s Crown Cases, 146) and Rex v. Davis, the cases upon which the decision of the Coleman case was based, the court said of the reported decision of the Dunn case : The report says : ‘ As all the property had been stolen from the same persons and had all been brought to her by the prisoner, Dunn, the learned judge thought it was admissible and proper to be left to the jury as an ingredient to make out the guilty knowledge.’

“In Rex v. Davis (6 Carr. & Payne, 177) the same facts existed. The articles were all stolen from the same person and delivered to the receiver by the same thief, though at different times, and the same ruling was made. It is unnecessary to say that all these qualifications '¡most exist; but to warrant the introduction of such evidence there must be such a connection of circumstances as that a natural inference may be drawn that if the prisoner knew one article was stolen he would also be chargeable with knowledge that another was.”

In the same case, when it was again before the Court of Appeals (58 N. Y. 560), the court stated that “ the principal limitation of the rule is that the criminal act which is sought to be given in evidence must be necessarily conuected with that which is the subject of the prosecution.”

There must be some connection of time aud place so as to furnish a clue to the motive on the part of the accused.

Evidence that the defendant has received other stolen property than that mentioned in the indictment does not of itself, standing alone, prove guilty knowledge.

In Copperman v. The People (56 N. Y. 591) the court said: “ In the Qolemam case, recently decided by this court, it was intended to lay down a strict rule upon this subject, but the principle was recognized that such evidence may be admissible.

“ In the Oddys case (2 Denison C. C. 272), cited by the counsel for the accused, the offer was to prove that the prisoner had other stolen property in his possession. This was clearly incompetent for the reason stated by Campbell, Ch. J., that ‘ it would not be direct evidence of the particular fact in issue, viz., that 'at the time of his receiving specific articles he knew them to be stolen.’ Nor would it legitimately tend to prove that the accused knew that an article received of one person to-day was stolen by showing that on some other occasion he received another article from another person, not connected with the first, knowing it to have been stolen. Such evidence only tends to create vague and uncertain probabilities.”

Thus it will be seen that while evidence of the receipt of stolen goods, other than those mentioned in the indictment upon which the defendant is being tried, may be received in evidence, yet there are certain limitations upon the rule.

"When received the evidence is for the purpose of establishing guilty knowledge, and there must be some connection in time, place, circumstances, or in the person from whom they were received, tending to connect the two crimes together, so that if he knew that one article was stolen the natural inference would be that he must have known that the others were also stolen.

In the case before us there does not seem to have been any such connection. There was no evidence, as I have before stated, that the dry goods and merchandise were received from the same person as were the articles mentioned in the indictment, or that they were received at the same time; on the contrary, all the evidence that there is in the case shows that they were received at a different time and from a different person. The goods were unlike in character ; the only connection between the two classes of goods is the fact that they were stolen from the same car, and apparently at the same time.

The circumstances under which one class of goods were received by the defendant throws no light upon the circumstances under which the others were received; he may have received each with guilty knowledge; but there is nothing from which guilty knowledge in the one case leads to the inference that there was guilty knowledge in the other.

I think, therefore, that there was error in the reception of the evidence relating to the theft of the dry goods and merchandise, and the evidence of their being found in the defendant’s possession, and that for such error the judgment should be reversed and a new trial granted.

PutNAm, J., concurred.

Mayi-iam, P. J.:

I concur. It was error for the People to prove that the defendant received other stolen goods at another time from other persons. (Coleman v. People, 55 N. Y. 81.)

Judgment of conviction reversed and a new trial granted.


author: HerricK, J.:

text:
    Edward Palmer, Respondent, v. The New York and Lake Champlain Transportation Company, Appellant, Impleaded with The Lake Champlain Transportation Company.

      Negligence in the management of towboats —facts which do not establish it.

    In an action brought by the owner of a canal boat against a transportation company to recover damages resulting from personal injuries to such owner alleged to have been caused by the negligence of the transportation company, the evidence tended to show that the tug Gook, operated by the defendant, was proceeding with a tow up Lake Champlain and was followed by the tug Baker, also drawing a tow in which was the plaintiff’s boat; that there was a sharp turn in the lake known as Maple Bend, where the channel was about 150 feet wide; that the channel at this point turns east and then west; that the passage at one time of the two tows around Maple Bend was dangerous; that the Baker, shortly before reaching Maple Bend, slowly overtook the Gook, and blew proper whistles, to which a reply was received and proper action taken under the rules, which in such cases require that a vessel overtaking another shall keep out of its way, while the first vessel shall keep its course; that the Gook kept its course, except that it deviated to the east as far as was safe, giving the Baker more room; that in turning Maple Bend the plaintiff’s boat was brought by the Baker with' great force against the hawser of the Gook; that the hawser slipped, flew over the bow of the plaintiff’s boat and caused the injuries complained of.

      Held, that upon these facts there was no proof of negligence upon the part of the Gook;

    That the accident resulted from the fact that the Baker propelled the plaintiff’s boat against the hawser of the Gook, a matter which the Gook could not prevent except by going still farther to the east — an act which would ‘ have exposed her own tow to the danger of running ashore.
    Appeal by tbe defendant, The New York and Lake Champlain Transportation Company, from a judgment of the Sup2’eme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the Ith day of December, 1894, upon the verdict of a jury rendered after a trial at the Clinton Circuit, and also from an order entered in said clerk’s office on the 30th day of November, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      J. Scmclford Potter, for the appellant.

      I. L. Shedden, for the respondent.
   HerricK, J.:

This is an appeal by the defendant, The New York and Lake Champlain Transportation Company, from a judgment and order denying a motion for a new trial.

At about noon on the 9th day of May, 1891, the tugboat Robert H. Cook, owned and operated by the appellant, left "Whitehall, N. Y., with seventeen canal boats, going north through Lake Champlain.

About fifteen minutes thereafter the tugboat E. C. Baker, owned and operated by the defendant, The Lake Champlain Transportation Company, left Whitehall, N. Y., with fourteen canal boats in tow, bound northward to the same port as the first-mentioned tugboat ; the canal boat of the plaintiff was in the second-mentioned tow.

About seven miles from Whitehall there is a sharp turn in the lake known as Maple Bend ; at that point the channel is about 150 feet wide; it turns to the east, then again to the west.

Before reaching Maple Bend there is a stretch of the lake of about one and a half miles of straight water known as Long Reach.

The Baker overtook the tow in charge of the Cook at the head of Long Reach, and then gave two blasts with her whistle, that being the signal that she desired to go to the left-hand side of the Cook. The Cook answered by a similar signal, which signified an answer to the request of the Baker j the Cook thereupon moved over to the right hand, and as near as possible to the shore, continuing at the same rate of speed as before. The Baker gradually passed the Cook, and when Maple Bend was reached was about 500 feet ahead of the Cook. The hawser of the Baker was from 150 feet to 175 feet long. A canal boat is about ninety-eight feet in length.

The plaintiff’s boat was in the third tier of boats in the Baker tow, and on the right-hand, or Yermont side of said tow.

Thus, while the Baker itself, at the time of turning Maple Bend was some 500 feet ahead of the Cook, a portion of the boats it was towing were opposite the Cook and a portion of the boats in its tow.

The evidence shows that the passage of two tows of boats, at the same time, around the sharp turns of Maple Bend is dangerous.

In turning Maple Bend tlie hawser of the Cook came with great force against the plaintiff’s boat, and then slipped and flew over the bow, striking the plaintiff, and causing the injury for which this action is brought.-

The evidence shows that the Cook had gone as far to the east shore as it possibly could without running aground, and indicates also that the Baker, in endeavoring to pass the Cook and its tow of boats, in the sharp turn at Maple Bend, drew the boat of the plaintiff against the hawser connecting the Cook with its tow of boats.

The rules of the United States for steam vessels navigating waters of the United States were introduced in evidence, three of them being as follows :

Rule 22. “ Every vessel overtaking any other vessel shall keep out of the way of the last-named vessel.”

Rule 23. “ "Where by rules 1Y, 19, 20 and 22 one of two vessels shall keep out of the way, the other shall keep her course subject to the qualifications of rule 24.” *

Rule 24. “In construing and obeying these rules due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger.” (U. S. Rev. Stat. § 4233.)

This case has been once before tried, when a verdict was rendered against both defendants; the present appellant then appealed to this court; the Lake Champlain Transportation Company did not appeal. Upon the former appeal this court said : “ Were it not for the testimony which was allowed to be introduced by the court in regard to the local custom on Lake Champlain, that when one boat overtakes another, the latter slackens its speed and allows the former to pass, the evidence does not establish a very clear case of negligence against appellant.” (Y6 Hun, 181, 182.)

And it was then held that evidence of the local custom was improperly admitted upon the trial, and the judgment was reversed and a new trial granted, which resulted in the judgment now here for review.

Upon careful examination of the evidence in this case I fail to-find sufficient evidence of negligence on the part of the appellant t<5 sustain the judgment.

It seems to me that the accident in question resulted from the effort of the Baker to pass the Cook and its tow in a place where it is dangerous to make any such attempt.

The navigation rules offered in evidence provide that every vessel overtaking another vessel shall keep out of the way of the last-named vessel, and that the last-named vessel shall keep her course subject to the qualifications of rule 21; the qualifications of rule 24 are that, in construing and obeying the previous rules, due regard must be had to the dangers of navigation, and to any special circumstances which may exist in any particular case, rendering departure from them necessary in order to avoid immediate danger.

The only special circumstance in this case was, that the channel was somewhat narrow, and the tugboat Cook, instead of keeping her course as provided for by rule 23, departed therefrom to the right or east side of the lake, thereby giving the Baker more room to pass upon the left as she desired to do. The Book went as far as possible to the east; she could go no further without running aground; there is no evidence that she was going at an undue rate of speed; there is nothing in the law which required her to stop in order to let the Baker pass, neither was there any obligation resting upon her to do so.

• If, when Maple Bend was reached, she had then stopped, the testimony shows that such stoppage would have resulted in a collision. She did not run into the plaintiff’s boat; the plaintiff’s vessel was run into her hawser by the Baker; the Book could not avoid it except by running ashore or endangering her own line of boats; it was not bound to do either.

Upon the whole case I fail to find any evidence of negligence upon the part of the appellant.

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

PutNAM and FuksmaN, JJ., concurred.

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


author: HerrioK, J.:

text:
    Georgiana Longyear, Appellant, v. Charles H. Carter, Respondent.

      Attorney’s liens at common law — under the Gode a defendant's attorney has no statutory lien unless a counterclaim is interposed.

    At common law parties could settle actions -without regard to the claims of their attorneys, except in cases where the settlement was collusive and intended to defraud attorneys of their costs, and under section 66 of the Code of Civil Procedure, as amended by chapter 542 of the Laws of 1879, a defendant’s attorney has no lien which prevents a settlement by the client to the detriment of the attorney, unless it appears that the answer contains a counterclaim.
    Appeal by the plaintiff, Georgiana Longyear, from an order of the County Court of Ulster county, entered in the office of the clerk of Ulster county on the 16th day of April, 1895, granting defendant’s motion to vacate an order entered in said clerk’s office on the 1st day of February, 1895, which dismissed the defendant’s appeal herein.
    George Yan Etten had been employed by the defendant as attorney to take an appeal from a judgment rendered against the defendant in a Justice’s Court. After the appeal was taken the plaintiff’s atttorney obtained ex parte the order entered February 1, 1895, dismissing the appeal; the defendant’s attorney, claiming that this was an attempt to defraud him of his costs, then moved to vacate the order of February, 1, 1895, and his motion was granted.

      A. 8. JYewcomb, for the appellant.

      George Van Etten, for the respondent.
   HerrioK, J.:

We are of the opinion that no lien exists in this case in favor of defendant’s attorney that prevents a settlement between the parties.

.By chapter 542 of the Laws of 1879 section 66 of the Code of Civil Procedure was so amended as to give attorneys a lien upon their clients’ causes of action which could not be affected by any settlement between the parties before or after judgment. (Laws of 1879, p. 617.)

To bring liimself within this section the defendant’s attorney-should have shown that the defendant had set forth a cause of action by way of a counterclaim in her answer to the plaintiff’s complaint; that is the only thing that would give him a lieii before judgment. It is incumbent upon him to allege and prove those matters which entitle him to a lien. None having been set forth in the motion papers herein we must assume that no counterclaim was alleged in the defendant’s answer, and that, therefore, there was nothing to which the defendant’s attorney’s lien could attach before judgment. His claim, therefore, must rest upon the liens of attorneys as they existed at the common law'. (Pierson v. Safford, 30 Hun, 521; Levis v. Burke, 51 id. 71; Bevins v. Albro, 86 id. 590.)

At common law an attorney had no lien before judgment and the parties were at liberty to settle between themselves, and such settlement would not be disturbed unless it was shown that it was made collusively and for the purpose of defrauding the attorneys out of their costs. (Randall v. Van Wagenen, 115 N. Y. 521.)

There is nothing in the record before us to show that there was any fraud or collusion between the parties for the purpose of defrauding the attorneys, or. either of them, out of their costs.

In passing it may be well to observe that the case of Randall v. Van Wagenen (supra) was decided upon an alleged cause of action that arose in 1811, prior to the amendment of the Code herein referred to, which extended the liens of attorneys, and the decision of the court in relation thereto is, therefore, not an interpretation of the Code as it has existed since 1879, and, consequently, such decision is not in conflict with anything herein set forth as to the extent of an attorney’s lien.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Mayham, P. J., and PutNam, J., concurred.

Order appealed from reversed, with ten- dollars costs and disbursements.