text:
    The People of the State of New York ex rel. Roswell W. Keene, Appellant, v. The Board of Supervisors of Queens County, Respondent, Impleaded with the Board of Supervisors of Kings County.

      Construction of bridges overt streams on county lines — action of boards of super-visas — mandamus.

    Under the statutes of the State of New York (Chapter 830 of the Laws of 1880, amending subdivision 5 of section 1 of chapter 483 of the Laws of 1875) the duty of constructing bridges across streams which form the dividing line of counties is not imposed upon boards of supervisors as a positive obligation, but rests in the discretion of such boards, and such construction is dependent upon the authorization of the board of supervisors of each of the counties concerned.
    The determination by a board of supervisors as to whether the construction of such a bridge shall be authorized involves the exercise of judgment and discretion, and a mandamus will not issue to compel the exercise of such discretion in a particular or specified manner.

      So held, on an application to compel the boards of supervisors of Kings and Queens counties to construct a bridge over Newtown creek, in the manner specified in chapter 390 of the Laws of 1891, authorizing the construction of such bridge by the boards of supervisors of those counties, where the board of supervisors of Queens county had adopted a resolution for the construction of the bridge, conditioned upon the appropriation of an equal amount, for its construction by Bangs county, but no reciprocal resolution had been adopted by the board of supervisors of Kings county.
    Appeal by tbe relator, Roswell W. Keene, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Kings county on the 3d day of February, 1893, sustaining the demurrer of the defendant, the board of supervisors of Queens county, to the alternative ■ writ of mandamus herein, and from a judgment entered in accordance with said order in the said clerk’s office on the 21st day of February, 1893.
    This was an application for a mandamus, to be directed to the respective boards of supervisors of Kings and Queens counties, “requiring them to construct, build, maintain and operate-over and across Newtown creek, at Maspeth avenue, a bridge which shall be at least thirty feet wide, with a good and sufficient railing thereon, with a draw thereon of at least fifty feet wide, at a cost not exceeding fifty thousand dollars, and to complete the same within one year and to divide the cost equally between the counties of Kings and Queens, to be apportioned between the towns and cities of each county as the respective boards of supervisors may determine.”
    Chapter 290 of the Laws of 1891 provides as follows.: “ The boards of supervisors of the counties of Kings and Queens are hereby authorized and empowered to construct and build over and across Newtown creek, at Maspeth avenue, a bridge which shall be at least thirty feet wide, with a good and sufficient railing thereon, with a draw thereon of at least fifty feet wide, at a cost not exceeding fifty thousand dollars, and to be completed within one year from the making of the contract for the construction of said bridge. The said sum of fifty thousand dollars to be equally divided between the counties of Kings and Queens, and to be apportioned between the towns and cities of each county as the respective boards of supervisors may determine.”

      Roswell- W. Keene, relator, in person.

      Francis II. Van Vechten, for the supervisors of Queens county.
   Dykman, J.:

This is an appeal from a judgment and order sustaining a demurrer to the petition and alternative writ of mandamus.

The relator in the petition upon which the alternative writ of mandamus was granted, states that Newtown creek is a navigable stream of water forming the boundary lines of Kings and Queens counties, and that the tide waters of the Atlantic ocean flow in and out of the creek the whole length thereof, and a considerable commerce is carried on by vessels of various kinds.

He then alleges as a matter of law, that the boards of supervisors' of Kings and Queens counties have jointly sole and exclusive jurisdiction over the construction, repair and maintenance of bridges for highways crossing Newtown creek.

He states that Maspeth avenue is a public highway, extending into the counties of Kings and Queens, and that a petition has been presented to the respective boards of supervisors of those counties, praying for the construction of the bridge over Newtown creek, at Maspeth avenue.

The enactment of the law by the State Legislature, authorizing the construction of such bridge, and the fact that the board of supervisors of Queens county has adopted a resolution for the construction of such bridge, conditioned upon the appropriation of an equal amount by Kings county for such construction, and that the board of supervisors of Kings county has not adopted a reciprocal resolution.

The rule of the common law of England, which charged the duty of constructing and repairing bridges upon the counties, has never been adopted in this State. (Hill v. Supervisors, 12 N. Y. 52.)

Consonant with the history and traditions of this country, which have ever been in favor of the localization of power, our system of construction and reparation of both highways and bridges is based upon the primary responsibility of the towns in respect thereto.

Section 18 of article 3 of the Constitution of this State prohibits the Legislature from passing any local or private bill, “ laying out, opening, altering, working or discontinuing roads or highways.” But the Legislature may enact general laws conferring upon boards of supervisors powders of local legislation which are deemed expedient. Section 23 of article 3. Under this last provision of the Constitution, the Legislature may invest the boards of supervisors in this State with power to lay out and open highways. (People ex rel. Morrill v. Supervisors, 112 N. Y. 588.)

Chapter 320 of the Laws of 1880, which amended subdivision 5 of section 1 of chapter 482 of the Laws of 1875, which confers power upon the boards of supervisors to provide for the maintenance of bridges crossing streams which form the dividing line of counties, closes with this important proviso: But no such bridge shall be constructed, unless the same is authorized by a resolution adopted by a majority of the board of supervisors in each of such counties.”

Taken in its entire scope and meaning, this statute does not enjoin upon the boards of supervisors of the State the duty to construct bridges across streams which form the dividing line of counties as a positive obligation, but leaves the question open for the determination of such boards.

It, therefore, rests with such boards of supervisors to determine whether the construction of such a bridge shall be authorized, and such declaration involves the exercise of judgment and discretion.

The resolution of the board of supervisors of Queens county was inoperative until the board of supervisors of Kings county appropriated an equal sum for the construction of the bridge, and as that never was done the resolution has no validity or force.

While there may be cases where a mandamus will issue to coerce the exercise of a discretionary power (People ex rel. Osterhout v. Perry, 13 Barb. 206), this is not such a case.

It is the office of a writ of mandamus in general to compel the performance of ministerial acts, and it will never be sent to compel an act by a public officer in respect to which he may exercise judgment and discretion. (People ex rel. Hammond v. Leonard, 74 N. Y. 443.)

Moreover, while it may go to compel the exercise of their discretion by subordinate bodies and tribunals, it never requires a decision in any specified manner. (People ex rel. Francis v. Common, Council, 78 N. Y. 39.)

It is to be noticed in this case that the relator does not seek to compel the boards of supervisors to act in the exercise of the power conferred by the statute. He requires them to build and maintain the bridge in a specified manner, and such compulsion cannot, as we have seen, be executed by a mandamus.

It comes to this, therefore, at last. The statute enjoins no duty upon the boards of supervisors in relation to the bridge until a majority of the board in each of the counties adopts a resolution authorizing its construction.

The view we have taken renders it unnecessary to determine the effect of the failure to obtain the approval of the Secretary of War of the plan and location of the bridge.

Newtown creek, at tlie place where the bridge is desired, is a navigable stream of tide water and subject to the control of the United States in relation to its navigation.

By a law of Congress, the Secretary of War is clothed with power and authority to approve the plans of bridges over navigable waters of the United States, and by the same law it is rendered unlawful to commence the construction of any such bridge which shall impair navigation, commerce or anchorage, until the location and plan of such bridge shall be approved by the Secretary. A serious question will arise if the bridge is built without such approval, but as its decision here is unnecessary, we leave it undetermined.

The relator, therefore, failed to establish any right to the relief demanded, and the issuance of the writ was properly refused at the Special Term, and the order and judgment should be affirmed, •with costs.

Barnard, P. J., and Pratt, J., concurred.

Order sustaining demurrer of defendant to alternative writ of mandamus and judgment thereon affirmed.


source: Caselaw Access Project

author: Dykman, J. :

license: Public Domain

text:
    Charles S. Higgins Company, Appellant, v. Higgins Soap Company, Respondent.

      Trade mande — Higgins soap — use of a family name by a, corporation — differences in labels.

    Charles S. Higgins and another, who composed a firm engaged in the manufacture and sale of soap known as “Higgins soap,” transferred the property, business, trade marks, names, devices and processes of the firm to a domestic corporation, Charles S. Higgins Company, by a bill of sale which provided that so long as Higgins was employed by the company he would not make or sell soap in Brooklyn except for the company. Thpreafter Higgins ceased to be employed by the company, and he, together with members of his family and others, incorporated the Higgins Soap Company, in Hew Jersey, for the manufacture and sale of soap, and opened a place of sale in Brooklyn. Each company called its product Higgins soap.
    The Charles S. Higgins Company sought to enjoin the Higgins Soap Company from using that name in the business of manufacturing and selling soap, claiming such use to be an infringement of the former’s right in the nature of a trade mark to the name.

      Held, that the right of Charles S. Higgins to carry on the soap business in Brooklyn, except upon the condition of his employment by the plaintiff, was necessarily implied in the bill of sale to the plaintiff;
    That the use of the name of Higgins by the family of Charles S. Higgins, in connection with himself and others, of itself gave no right of action;
    That the labels on the articles manufactured by the two companies being entirely different, there would be, under the proof, apart from the use of the word “Higgins” in the corporate name and stamped on the manufactured product, no cause of complaint either that the business of the parties was liable to lead to confusion among purchasers or that it was carried on to deceive the public;
    And, hence, that no case for an injunction was made out.

      Appeal by the plaintiff, Charles S. Higgins Company, from a judgment of the Supreme Court dismissing the complaint upon the merits, entered in the office of the clerk of Kings county on the 31st day of January, 1893, upon the decision of the court, rendered after a trial by the court at the Kings County Special Term,
    The action was brought by the Charles S. Higgins Company to perpetually restrain the defendant, the Higgins Soa|i Company, from manufacturing or selling soap or like products within the State of New York under said name of Higgins Soap Company, or using said name within the State of New York in connection with such business; from using in the business of manufacturing or selling soap or like products within the State of New York any name or style similar to said name, of Higgins Soap Company, or any imitation of the name of Charles S. Higgins Company; and from in any manner representing, within the State of New York, that it is the plaintiff, or making any representations liable to lead the public to believe that the defendant company is the plaintiff company.

      II. Arlington, for the appellant.

      Jesse Jolmson, for the respondent.
   Dykman, J. :

William B. Higgins started a business of mamifacturing -soap in 1846. Charles S. Higgins, his -son, became subsequently a partner with his father in the business. After the death of the elder Higgins the business was acquired by Charles S. Higgins and John J. Morgan. They continued such owners until December, 1891, when the plaintiff was organized as a domestic corporation for the manufacturing and selling soap. The proprietors, Higgins and Morgan, then assigned the property used in the manufacture of soap by them, real and personal, with the good will of the business, with the trade marks and all names and devices employed in distinguishing the manufactured product, and the right to all secret processes used by the-grantors during the life of Charles S. Higgins. The paper provided that as long as Higgins was allowed a salary of $15,000 a year he would instruct persons acting for the company in the firm methods of manufacture. The paper further provided that so long as Higgins was employed at this salary he would not make or sell soap in the city of Brooklyn except for the plaintiff company. Higgins ceased to be employed in 1891, and he, with his wife and son and two other persons, procured the incorporation of the defendant in the State of New Jersey. The defendant opened a place of sale in Brooklyn. The old private firm had manufactured soap sold under different names, but the principal article was known as “Chas. S. Higgins German Laundry Soap.” The defendant marks his soap on the label “ Higgins Soap Co., Original Laundry Soap, Chas. S. Higgins, Prest.,” and on one side of the bar of soap, inclosed within the labels, “ Higgins Soap Company, Chas. S. Higgins, Prest.,” and on the other side of the bar, “ Original-Laundry.” The soap of the private firm and of the plaintiff was well known in the market as “Higgins Soap,” and the plaintiffs more or less known as the “ Higgins Soap Company.” The basis of this action is such as is involved in trade-mark cases. The use of the name of Higgins by the family of Charles S. Higgins, in connection. with himself and others, of itself, gives no right of action. (Meneely v. Meneely, 62 N. Y. 427.)

The evidence is to the right to relief for the use of a trade mark and to prevent fraud and imposition. The name of Higgins was in the corporate description of both companies and both companies do business in Brooklyn city. Each company manufactures soap and each calls its product Higgins soap. There was no covenant by Charles S. Higgins that he would not carry on a soap business in Brooklyn except upon the condition of his employment by the plaintiff, and his right to so carry on the soap-making business was necessarily implied in the bill of sale. Charles S. Higgins has very little interest in the defendant corporation, one-twelfth only. The labels on the manufactured articles are entirely different. One is bright yellow and the other is blue. The distinctive word “ German,” which the plaintiff has the right to use as indicating its product, is absent from the defendant’s label. The plaintiff’s label has a German recbmmendation for a soap which will not destroy the fabric washed. The defendant’s has a recommendation in four different languages that the defendant’s soap is made of the very best materials and without adulteration, and wdll not injure the fabric. The place of manufacture of defendant’s soap is printed plainly on the labels used. The plaintiff’s label contains no place of manufacture. Apart from tlie use of the word Higgins ” in the corporate name, and stamped on the manufactured product, there would be no cause of complaint, either that the business of the parties was liable to confusion among purchasers, or that it was carried on to deceive the public. No case was made out for an injunction under this proof. (Munro v. Tousey, 129 N. Y. 38.)

The judgment should, therefore, be affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    Miriam J. Quinby, Appellant, v. The New York Life Insurance Company, Respondent.

      I/ife insurance— delivery and possession of the policy — presumption as to payment of the first premium — waiver of payment.

    The acknowledgment- in an insurance policy of the actual payment of the first premium is only prima facie evidence of its payment.
    In an action on a life insurance policy a presumption of payment of the first premium is not raised hy the mere fact of the policy’s being in the possession of the plaintiff when the policy, instead of containing an acknowledgment of such payment, merely states that it is issued in consideration of a certain sum “to be paid in advance.”
    The waiver of payment of the first premium on a life insurance policy is not to be inferred from the mere fact of the delivery of the policy without payment of the premium, when the circumstances attendant upon the delivery show that the policy was not in force, or intended to be in force, until the first premium was paid.
    Appeal by the plaintiff, Miriam J. Quinby, from a judgment of the Supreme Court dismissing the complaint upon the merits, entered in the office of the clerk of Kings county on the 26th day of January, 1893, upon a verdict in favor of the defendant rendered by direction of the court at the Kings County Circuit, and from an order denying the plaintiff’s motion for a new trial made upon the minutes.

      A. Simis, Jr., for the appellant.

      William, B. lloniblower and Ja/rnes Byrne, for the respondent.
   Dykman, J.:

This is an appeal from a judgment and order denying a motion for a new trial.

The action is upon a policy of insurance upon the life of William D. Quinby, the husband of the plaintiff. The complaint alleges that on or about the 22d day of June, 1892, William D. Quinby insured his life in the defendant company; that by the policy of insurance issued by the company, it promised and agreed to pay to the plaintiff the sum of $5,000, upon receipt of proofs of the death of the insured during the continuance of the policy; that the insured died on the 16th day of August, 1892; that proofs of death were served, and the defendant refused to pay the amount of the policy to the plaintiff.

The answer of the defendant denies that any policy of insurance in favor of the plaintiff on the life of her husband was ever issued to him, and denies that he ever insured his life for the benefit of the plaintiff. The answer sets up other defenses, to which attention may be given later on.

The action was tried at the Circuit before a jury, and at the close of the case a verdict was directed in favor of the defendant. There is no substantial dispute about the facts.

Upon the trial, the plaintiff produced the policy of insurance, and testified that she received it from her husband, and admitted that she had never paid any premium upon it.

The defendant then put in the testimony of the agent, William O. B. Clifford, who wrote -the application of Mr. Quinby. He testified that the first premium had never been paid, and further that he delivered the policy to his brother for delivery to Mr. Quinby, and gave his brother a receipt to QuiDby, provided he paid the money.

The defendant called the brother, F. W. Clifford, as a witness, and he testified that he was a clerk for William O. B. Clifford; that his brother handed him the policy at the office; that he delivered it to Quinby, and that Quinby read the policy through, and asked him numerous questions as he proceeded, and then said that he hadn’t the money at present, but that if Clifford would call after the first of July, he would have the money for him. Clifford then told Quinby that he was instructed by his brother to leave the policy for inspection, and that the policy was not in force until the first premium was paid. Although he went many times to see Quinby, he was unable to obtain the policy from him or procure payment of the first premium.

It was conceded also upon the trial in order to obviate the necessity of an adjournment, that a witness, a clerk in the home office of the defendant would testify that no payment had been received of the first premium at the home office of the company.

A letter from the agent, Clifford, to Quinby was put in evidence by the defendant, in which he says, “ You will greatly oblige me by mailing check for the amount agreed upon, or, if such is impossible, return the policy at once.”

It seems to have been the reliance of the plaintiff, that the possession of the policy was prima facie proof that the first premium had been paid. It is ordinarily true that the production by the plaintiff of a policy of insurance is prima facie evidence of the payment of the first premium, for the reason that the policy which is in the assured’s possession contains an admission of such payment, as ordinarily a policy reads, in consideration of the sum of blank dollars to-them in hand paid at the office of the company, and such a statement in the body of the policy is as- good as a similar statement contained in a separate paper which constitutes a receipt for the first premium.

In this case, however, the corresponding clause in the policy is as follows: “ In further consideration of the sum of $67.50 to be paid in advance.” So that the language here does not constitute an admission that the premium has been paid.

In this State the acknowledgment in the policy of the actual payment of the first premium is only prima facie evidence of its payment.

In the case of Sheldon v. The Atlantic Fire & Marine Insurance Company (26 N. Y. 460), it is said, In any case, the delivery and possession of a policy, containing a receipt for the premium, affords evidence of its payment, or of a waiver of its prepayment, but is not conclusive.”

This shows that it is not the mere possession of a policy, but the possession of a policy containing the receipt for the premium, upon which the courts rely for the presumption. Plainly, therefore, there in a substantial distinction between the phrase in the old policy forms and the phrase in the policy in the case at bar. And the mere fact that the policy in the new form is in the hands of the plaintiff is no evidence that the first premium has been paid. But even if the possession of the policy in this action did raise the presumption that the first premium had been paid, the presumption has been mot and overcome by conclusive evidence.

There is no necessity for resort to presumptions to ascertain the true nature of the transaction concerning the issuance of the policy in this case. The testimony of the agent shows that the policy never had any inception as an active policy of insurance; that it never was delivered with the expectation that it was in operation or would be so, or would be effectual as a valid operative policy until the first premium had been paid.

It is to be said further, that there is no evidence tending tó show that the payment of the first premium had ever been waived.

The reliance of the plaintiff is solely upon the fact that the policy was delivered to Clifford, and from that alone she argues that the payment of the first premium was waived, but, as we have seen, the circumstances attendant upon the delivery show plainly that the policy was not in force, or intended so to be, until the first premium was paid.

If under these circumstances the case had been submitted to the jury, and a verdict had been found in favor of the plaintiff, it would have been the duty of the trial judge to have set it aside.

There have been decisions in this State to the effect that the delivery of a policy of insurance, without receiving payment of the premium, is a waiver of the possession therein, but, as we have already seen, that class of cases can have no application to this case. The policy was never delivered with any expectation that it would become effectual, and, therefore, never had any legal inception.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Charles Erickson, Respondent, v. The Twenty-third Street Railway Company, Appellant.

      Contributory negligence — evidence warranting a submission to the jury.

    A verdict in favor of the plaintiff, in an action brought to recover damages for a personal injury claimed to have been caused by the defendant’s negligence, is not to be interfered with on the ground that the evidence disclosed contributory negligence on the part of the plaintiff so plainly that it became a question of law for the trial judge and that the case was erroneously submitted to the jury, where the evidence of contributory negligence was not so plain but that reasonable men might reach adverse conclusions upon the subject.
    Appeal by the defendant, the Twenty-third Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Kings county on the 10th day of January, 1893, upon a verdict rendered at the Kings County Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.'

      Edmund Randolph Robinson, for the appellant.

      J. Edward Swamtrom, for the respondent.
   Dykman, J.:

This is an appeal from a judgment in favor of the plaintiff against the defendant, and from an order denying a motion for a new trial upon the minutes of the court.

The action was for the recovery of damages for injuries sustained by reason of the carelessness of one of the drivers of the defendant’s cars, and the insistence of the defendant upon this appeal is that the evidence disclosed the contributory negligence of the plaintiff so plainly that it became a question of law for the determination of the trial judge, and that it was erroneously submitted to the wy-

Upon consideration of all the facts and circumstances surrounding the action we find ourselves unable to adopt that view.

We do not think the evidence of the contributory negligence was so plain that reasonable men might not reach adverse conclusions upon the subject.

Such being our view, we cannot interfere witli the verdict, and the judgment and order should be affirmed, with costs.

BakNaed, P. J., concurred; Pbatt, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


text:
    Mary Featherston, Respondent, v. The President, Directors and Company of the Newburgh and Cochecton Turnpike Road, Appellant.

      Personal injury caused by an obstruction in a highway — a judgment against the plaintiff, in an action against the wrongdoer, is a bar to am, action against the turnpike company.

    A judgment in favor of tlie defendant upon the merits, on the ground of contributory negligence on the part of the plaintiff, entered in an action, brought against the party who has placed an obstruction in a highway which a turnpike company is hound to maintain, to recover damages for a personal injury caused by such obstruction (the turnpike company not being a joint wrongdoer), is a bar and available as a defense to a subsequent action brought by the same plaintiff against the turnpike company for the same cause of action.
    Appeal by the defendant, the President, Directors and Company of the Newburgh and Cochecton Turnpike Road, from an order of the Supreme Court, made at the Orange County Special Term on the 25th day of March, 1893, and entered in the office of the clerk of Orange county, sustaining the plaintiff’s demurrer to a part of the defendant’s answer.

      F. A. Brewster, for the appellant.'

      A. H. F. Seeger, for the respondent.
   Dykman, J.:

This is an appeal from the order sustaining a demurrer by plaintiff to one of the separate defenses set up in the answer of the defendant. The action was for the recovery of damages for personal injuries sustained by the plaintiff upon the defendant’s road caused by an obstruction which was permitted to remain there by the defendant. . After stating that the defendant was a turnpike corporation, organized under a special act of the Legislature of the State, and that the road was a public highway, and that it was the duty of the defendant to keep and maintain the same reasonably free from obstructions, the complaint proceeds to allege that while she was walking upon the road or highway of the defendant opposite and near the premises of one Daniel A. Shafer, in the village of Montgomery, in the county of Orange, she fell over a log of wood lying upon a stone wall built upon such highway, bounding an area or passageway over the highway to the basement of the barn or stable upon the premises of Shafer, which log, stone wall and area or passageway were carelessly and negligently allowed and permitted by the defendant to be open and to obstruct defendant’s said highway, in consequence of which negligent act of the defendant the plaintiff was precipitated over the said log and into the said area or passageway upon the defendant’s road and sustained the injuries complained of in the complaint.

In the answer to the complaint, the defendants set up a separate defense in the following words: “ For a further answer and defense, the defendant states that the alleged obstructions over which the plaintiff alleges that she tripped and fell, were placed and maintained where they were by one Daniel A. Shafer, and if the plaintiff should recover damages against these defendants in this action, they wduld have a right of recovery over against said Shafer for the same, if such right of recovery had not been destroyed by the judgment in the action hereinafter mentioned, bxit the plaintiff cannot maintain the present action, because on March 22, 1892, she brought her action in this coui’t against said Daniel A. Shafer, to recover her damages sustained by means of the same identical injuries alleged in the complaint in this action. Said Shafer put in his answer to said complaint, alleging, among other things, that such injuries were caused by the contributory negligence of the plaintiff. Said action was duly tried, and decided on its merits, in favor of the defendant, and judgment in said action was duly entered in the Orange County Clerk’s office, November 21, 1892, in favor of defendant Shafer, against the plaintiff, and this defendant claims and insists that such judgment is a bar to the present action, because it is an adjudication against the plaintiff’s right to recover for said alleged injuries, and also because it deprives these defendants of the right of recovery over against said Shafer.

“The defendants, therefore, claim that the complaint in this action be dismissed, with costs.”

To this portion .of the answer of the defendants the plaintiff interposed a demurrer, which was tried at Special Term and sustained, and the defendant has appealed to this court.

The statement in the answer shows that Shafer was the wrongdoer, and that his act was the cause of the injury sustained by the plaintiff. So it seems to follow that if Shafer was not liable for creating and maintaining the obstruction, the defendant cannot be liable for the failure to remove them.

If Shafer was not liable because the plaintiff’s own negligence produced the injuries of which she complains, the defendant is not liable for the same reason. Shafer and the defendant wei-e not joint wrongdoers, and the rule that one wrongdoer cannot recover against, or compel contribution bjr another, does not apply.

The relation between Shafer and the defendant was analogous to that of principal and agent, .or principal and surety, or master and servant, and the rule in such cases is that a judgment in favor of the principal or the surety upon a ground equally applicable to both, should be accepted as conclusive against the plaintiff’s right of action. (Herman on Estoppels, 169; Castle v. Noyes, 14 N. Y. 329.)

Tt is now settled in this State that where a person has negligently or wrongfully created an obstruction or defect in a street, and a municipal corporation is compelled to pay a judgment for damages sustained by an individual, caused by such obstruction or defect, the municipality has an action over against the person creating or maintaining such obstruction or defects. (The Village of Port Jervis v. The First National Bank of Port Jervis, 96 N. Y. 550.)

Under this rule of law, the turnpike company would be entitled to recover from Shafer any amount the plaintiff might recover against it. Such right would rest upon the principles of subrogation. The turnpike company would be entitled to be subrogated to plaintiff’s right of action against Shafer, but the judgment on the merits in Shafer’s favor in the plaintiff’s suit against him, relieves him of all liability to the plaintiff, or any person claiming under her, for the same cause of action.

Tbe plaintiff:, therefore, by being barred by the judgment in Shafer’s favor, is equally barred from any action against the company under the rule that whatever discharges the principal discharges the surety. As she had no cause of action against Shafer, she can have no cause of action against the defendant, and, therefore, the portion of the answer to which the demurrer relates does set up, in our judgment, a valid defense to the action, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the defendant should have judgment upon the demurrer, with costs.

BabNAbd, P. J., concurred.

Order sustaining demurrer to part of answer reversed, with ten dollars costs and disbursements, and demurrer sustained, with costs.


author: Dykman, J.: Pratt, J.:

text:
    Mary Thorn, as Executrix, etc., of William I. Thorn, Deceased, Respondent, v. Oliver T. Beard, Appellant (Peter B. Hayt, Respondent).

      Action upon a claim assigned as collateral security — liability for costs.

    An assignment of a cause of action, merely as collateral security to an indebtedness of tlie assignor to the assignee, is not such a transfer as makes the assignee liable, under section 3347 of the Code of Civil Procedure, for costs in an action, to which he is not a party, brought upon such cause of action by his assignor.
    A person who merely holds a cause of action as collateral security for the payment of a debt is not “ beneficially interested therein,” within the meaning of those words in section 3347.
    Appeal by the defendant, Oliver T. Beard, from an order made at a Special Term of the Supreme Court, and entered in the office of the clerk of Dutchess county on the Ith day of March, 1893, denying the defendant’s motion to charge Peter B, Hayt with the costs and disbursements of the action.

      Oliver T. Bea/rd, appellant, in person.

      Hackett <& Williams, for Peter B. Hayt, respondent.
   Dykman, J.:

William I. Thorn was a lawyer in the city of Poughkeepsie, and. died on the 1st day of March, 1890.

Having performed professional services for the defendant, he assigned his claim therefor to Peter B. Hayt on the 3d day of January, 1888, as collateral security for an indebtedness to Hayt, and for certain contingent liability as indorser of notes.

In May, 1889, Thorn commenced this action against the defendant to recover such claim. He obtained a judgment against Beard, which was affirmed at the General Term, but reversed in the Court .of Appeals. Mary Thorn was substituted as the plaintiff.

Upon the new trial after the reversal by the Court of Appeals, the defendant obtained a judgment for costs, and thereafter made- a motion at the Special Term to compel Mr. Hayt to pay the costs, upon the ground that he was the party in interest for whose benefit the action had been prosecuted. The motion was denied and the defendant has appealed from the order of denial.

The appeal cannot prevail for the reason that an assignment of a cause of action as collateral security to an indebtedness of the assignor to the assignee is not such a transfer as makes the assignee liable for costs. (Peck v. Yorks, 15 N. Y. 421.) The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J.:

Motion to make an assignee of a claim in suit pay costs.

It was held in the case of Peck v. Yorks (75 N. Y. 421), that an assignment of a cause of action made simply as collateral to an indebtedness of the assignor to the assignee is not such a transfer as makes the assignee liable for costs under the provisions of the old Code of Practice,, section 321, and this rule has been adhered to ever since.

It is true the Code was re-enacted and amended by substituting section 3241 of the new Code of Procedure in place of section 321 of the old Code, yet in respect to this matter the latter section is not materially varied from the former.

This is so stated in the notes to section 3241 of the new Code. (See Banks Brothers’ Annotated Code.)

The words “ beneficially interested therein ” mean one who takes the absolute title therein as transferee, and not a person who merely holds it as collateral security for the payment of a debt.

In this case it appears that Hoyt, the person against whom the relief was sought, was a holder of the claim in suit as collateral security for a debt due him from the plaintiff and in no other way was interested in said suit.

Order affirmed, with costs and disbursements.


author:
Dykman, J.:
      Pbatt, J., Babnabd, P. J.: Baenaed, P. J.:

text:
    James O’Neill, Appellant, v. Brooklyn Heights Railroad Company, Respondent. Edward O’Neill, Appellant, v. The Same, Respondent.

      Negligence — nominal da/mages— question of the inadequacy cf the 'verdict.

    In an action brought to recover damages for a personal injury alleged to have been suffered by the plaintiff through the negligence of the defendant, a street ■ railroad company, in operating a cable car, by which a horse which the plaintiff was riding was struck and the plaintiff thrown, the jury rendered a verdict in favor of the plaintiff for six cents, and on appeal by the plaintiff, the question presented was whether the General Term should interfere with the judgment on the ground of the inadequacy of the damages.

      Held, that as the testimony did not show that the plaintiff’s injuries were severe, and there was evidence from which the jury might have found them to be slight, the verdict was not so palpably inadequate as to justify an interference with the judgment.
    In an action brought against the same railroad company by the owner of the horse, to recover damages for the injuries sustained by the horse, tried with the above-mentioned action, the jury also rendered a verdict in favor of the plaintiff for six cents. It appeared that the evidence of the plaintiff and of the rider of the horse, as to the extent of the injuries, if credited, would call for a substantial verdict, but the case showed that the plaintiff had applied to a veterinary surgeon, within a few days after the accident, who did not discover the injury to be as claimed by the plaintiff.

      Held, that the jury had abundant reason for placing the injury at a nominal sum in case they discredited the plaintiff and the rider of the horse, and that the judgment should be affirmed. (Dykman, J., dissenting.)
    Appeals by the respective plaintiffs, James O’Neill and Edward O’Neill, from judgments of the Supreme Court, entered in the office of the clerk of Kings county on the 8th day of February, 1893, in favor of the defendant for costs, npon a verdict in favor of tbe respective plaintiffs for six cents damages each, rendered at the Kings Circuit, and from orders denying the plaintiffs’ motions for a new trial made upon the minutes of the court.

      James P. Niemann, for the appellants.

      Henry D. HotehMss and William Maddox, for the respondent.
   Dykman, J.:

Both of these actions are based upon negligence, and as the cause of action grew out of the same accident, they were both tried together at the Circuit before a jury, and both plaintiffs recovered a verdict for six cents damages.

Both have appealed from the judgment entered upon the verdict, and from the order denying a motion for a new trial upon the minutes of the court.

The facts are substantially these: The plaintiffs are brothers. Edward was in the employ of his brother James, who was the owner of a horse. While Edward was riding the horse down Montague street in the city of Brooklyn, it was struck by one of the cable cars of the defendant and thrown down, and Edward went off. Both horse and man received injuries, and these actions are for the recovery of damages resulting therefrom.

As we have stated, the verdict was in favor of the plaintiffs in both cases, and so it must be assumed that the jury found all the facts in favor of the plaintiffs, and the question is whether we should interfere with the judgment by reason of the inadequacy of the damages.

In relation to the plaintiff Edw'ard, the testimony did not show his injuries to be severe, and there was evidence from which the jury might find them to be slight. In his case, therefore, the verdict was not so palpably inadequate as to justify our interference with the verdict.

In relation to James O’Neill, however, we cannot take the same view. There was no evidence to justify a nominal verdict in his case. The horse was shown to be a fine young horse of the value of $500 or $600 previous to his injuries, and after that to be worth no more than $100.

That testimony was uncontradicted, and there was no dispute about his injuries. His hip was knocked out of place and he was injured otherwise. Under such proof there was no justification for a nominal verdict, and it should have been for substantial damages.

The size of the verdict shows that it was the result of mistake or passion or prejudice. It is unjust and should not be permitted to stand. It finds that the defendant has negligently inflicted serious injuries to a valuable horse belonging to the plaintiff without his fault or the fault of his servant, and then assessed his damages at six cents.

"With full knowledge and appreciation of the peculiar province of the jury in the determination of the amount of damages to be allowed in actions sounding in tort, and the reluctance with which appellate courts interfere with verdicts upon questions of amount only, we yet recognize the rule which permits such interference in a proper case.

Juries cannot be permitted to do injustice to suitors. Inadequate and excessive verdicts stand upon the same ground, and where they are so large or so small as to be palpably unjust, and the result either of an objectionable compromise, passion or prejudice, improper influence or disregard of law, it is the duty of the courts, in the exercise of the supervisory power with which they are clothed, to review the evidence and grant a new trial, where the ends of justice require it. (McDonald v. Walter, 40 N. Y. 551; Platz v. City of Cohoes, 8 Abb. N. C. 392; Cowles v. Watson, 14 Hun, 41.)

This question comes legitimately before us on the appeal from the order denying the motion for a new trial on the minutes of the court. The trial judge may now grant a new trial because the verdict is. for excessive or insufficient damages (Code Civ. Proc. § 999), and one of the grounds of the motion for a new trial upon the minutes, in this case was the insufficiency of the damages. (See, also, Cowles v. Watson, 14 Hun, 42.)

The judgment and order denying the motion for a new trial in the case of Edward O’Neill should be affirmed, with costs, but the judgment and .order denying the motion for a new trial in the case of James O’Neill should be reversed and a new trial granted, with, costs to abide the event.

Pbatt, J.,

concurs in so far as it affirms judgment in the case of Edward O’Neill, and dissents to reversal of verdict in the case of James O’Neill.

Babnabd, P. J.:

I am for affirming both judgments.

Baenaed, P. J.:

The extent of the injury to the horse alleged to have been caused by the accident, depended very much, if not entirely, on the testimony of the plaintiff and his brother Edward, who was riding the horse when he was injured. It is true that these witnesses, if credited, would call for a substantial verdict, but the case shows that the plaintiff applied to a veterinary physician to pronounce the horse sound within a few days after the accident. The plaintiff says that he was requested to have this examination made by the physician at the request of one McCoy, who knew of the injury the horse sustained, and wanted to buy him. The doctor did not discover the extent of the injury as claimed by the plaintiff. He said the horse was lame, but he discovered no dislocated hip. The jury had abundant reason for placing the injury at a nominal sum in case they discredited these two witnesses.

The judgment should be affirmed, with costs.

Pbatt, J., concurred; DyKMAN, J., dissented.

Judgment and order denying new trial'affirmed, with costs.


author: BabNaed, P. J.:

text:
    The Mutual Life Insurance Company of New York, Appellant, v. Annie Voorhis and Others, Respondents.

      Land under water — grant of, by the State, to the owner of the adjacent mortgaged upland — not covered by the mortgage, nor by a foreclosure sale.

    A grant from the State of New York of land under water to the owner of the adjacent upland, subsequent to the execution by him of a mortgage upon the upland only, does not subject such subsequently acquired land under water to the mortgage, and the title thereto does not pass by a sale had under a judgment of foreclosure of such mortgage.

      Semble, that if any right in respect to the land under water is obtained by a sale on foreclosure of a mortgage upon the adjacent upland, as against the mortgagor, it is a right to sue for damages for an injury to the right of the owner of the upland of access to the water.
    Appeal by the plaintiff, the Mutual Life Insurance Company of New York, from a judgment of the Supreme Court dismissing the complaint, entered in the office of the clerk of Rockland county on the 12th day of February, 1892, upon a decision of the court, rendered after a trial by the court at the Rockland Special Term.
    The action was brought to have certain land under the waters of the Hudson river, which had been granted by the People of the State of New York to Peter Yoorhis, adjudged to be subject to the lien of a mortgage upon the adjacent uplands, made by Peter Yoorhis and wife to the plaintiff, and that the grant from the State be adjudged to inure to the plaintiff.

      Merritt E. Sawyer, for the appellant.

      Arthur T. Hoffman, for the respondents Annie Yoorhis and Garrett E. Green.

      John M. Eider, for the respondents M. Louise Salisbury, Jessie F. Salisbury and Alphina Y. Salisbury, infants.
   BabNaed, P. J.:

Peter Yoorhis owned a lot of land in Nyack, Rockland county, bounded on the east by the Hudson river. On the 25th of April, 1872 he executed a mortgage, in which his wife joined, to the plaintiff to secure a loan of $40,000. This mortgage was foreclosed, and on the 9th of November, 1880, the premises mortgaged, except the portion previously selected, were sold under a decree in the foreclosure action. The plaintiff bought in the property for $10,000, and duly entered a judgment for the deficiency, which was $32,853.40, on the 9th of December, 1880. On the 30th day of November, 1872, Peter Yoorhis applied to the Commissioners of the Land Office for a grant of land under water adjacent to this mortgaged property and also in front of two other pieces he owned adjoining the same. The grant was made upon the petition of Yoorhis, that he was the owner of the upland and in occupation of the same, and that the grant was needed for the beneficial enjoyment of the adjoining uplands for shipping stone (parried on the uplands, and that the petitioner intended to build a dock lor public steamboat uses and general purposes. Upon due publication of the notice of application the People of the State of New York granted the lands under water for the purpose of promoting the commerce of our said State or for the beneficial enjoyment of the adjacent owner,,J on the 23d of July, 1873. Peter Yoorhis died in the next year. The defendants are the heirs at law of the deceased. The question is what interest the facts gave the plaintiff in the lands under water in front of the mortgaged upland. A grant to any other person than the upland owner is void. (Chap. 283, Laws of 1850.)

The appellant, Voorhis, was the owner of the land up to the sale under foreclosure. Before that time the mortgage was simply a security. He had no other interest in the land than to be paid out of it. (Morris v. Mowatt, 2 Paige, 586 ; Waring v. Smyth, 2 Barb. Ch. 119; Astor v. Miller, 2 Paige, 68; Astor v. Hoyt, 5 Wend. 603 ; Gardner v. Heartt, 3 Den. 232; Calkins v. Calkins, 3 Barb. S. C. Rep. 305.) The description in the mortgage did not include the lands under water. When it was given Yoorhis the mortgagor had no interest in it. The lands belonged to the State. (People v. Canal Appraisers, 33 N. Y. 461; Ledyard v. Ten Eyck, 36 Barb. 102.)

The Court of Appeals, in Gould v. H. R. R. R. Co. (6 N. Y. 522), held that the owner of the upland had no other right than all others in the lands under water, and while this principle is questioned in Rumsey v. New York & New England R. R. Co. (133 N. Y. 79), no question is made as to the title being in the People as to lands between high-water mark and under water. (Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y. 423 ; People v. New York & S. I. Ferry Co., 68 id. 71; Blakslee M. Co. v. B. S. Works, 129 id. 155.)

The foreclosure sale did not, therefore, extend a title in lands not covered by it. The mortgaged lands were not extended by the mortgage, being on tide water, as the lands under water then belonged to the sovereign. The title Voorhis took was absolute and unconditional. (Abbott v. Curran, 98 N. Y. 665.)

The patentee being the owner of the upland thereof, got a good title, and if any right was obtained by the foreclosure sale it was a light to sue for damages for an injury to the right of the upland to go to the river. This right was destroyed by the upland owner himself and the mortgagee got the land covered by the mortgage.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


author: Barnard, P. J.:

text:
    In the Matter of the Judicial Settlement of the Account of Mary C. Rogers, as Administratrix, etc., of Guy C. Goss, Deceased. Benjamin Tuthill, a Judgment Creditor, etc., Petitioner, Appellant ; Mary C. Rogers, Administratrix, etc., and Mary R. Goss, Respondents.

      Creditor’s claim against a decedent's estate ■ — • assets of the estate — life insurance for benefit of wife.

    Upon a proceeding "before a surrogate, on the petition of a judgment creditor of a decedent for a settlement of the accounts of the decedent’s administratrix and for the payment of the ¡mtitioner’s judgment, in which the administratrix had answered that there was no property, it appeared that the decedent was an agent for a certain company, and had a bank account kept by him as agent, out of the deposit in which he was entitled to some $300 for services. The creditor claimed that this sum should be held to be assets in the hands of the adminis-tratrix. The surrogate found that the expenses of the decedent’s last sickness' and funeral consumed this amount.

      Held, that this sum was not to be deemed assets.
    The deceased had earned a commission from a certain ship-building company, but payment thereof was not due at the time of his death. Shortly before his death, he received a letter from the company acknowledging the indebtedness, which letter he gave to his wife, with directions to collect the amount, and with it to pay certain premium notes which he had given on policies of insurance on his life for the benefit of his wife. The wife collected the commission after the decedent’s death, and kept it, having allowed the notes out of the amount payable on policies. It was not found that the letter was the subject of a gift inter vivos or causa mortis.

      Held, that if the power to collect after death existed, it must be because the title to the commission in some way passed to the wife; that the proof did not establish this; and, hence, that in the present state of the case this amount should be deemed assets.
    The creditor also claimed that premiums in excess of §500 in one year, under chapter 277 of the Laws of 1870, upon three insurance policies which the decedent had procured on his life, should he held to he assets. It appeared that two of the policies were payable to the decedent’s wife, and that the third was payable to the personal representative of the decedent, hut had been assigned by the decedent -to his wife.

      Held, that as the assignment of the latter policy was found to have been made in good faith and without fraud, and as the proof failed to show that !?500 had been paid for premiums in any one year out of the funds of the decedent, it appearing that his wife had a separate estate out of which she contributed to the premiums, no case was made out to charge the administratrix on this account.
    Ai peal by the petitioner, Benjamin Tuthill, a judgment creditor of Guy C. Goss, deceased, from a decree of the Surrogate’s Court of Richmond county, entered on the 13th day of March, 1893, adjudicating that the administratrix of the said decedent is not accountable for any money or property whatever.

      Thos. J. Bitch, Jr., for Benjamin Tuthill, judgment creditor, appellant.

      Sidney F. Rrnoson and Galvin JD. Van Name, for Mary C. Goss (now Mary C. Rogers), administratrix, etc., of Guy C. Goss and Mary R. Goss, respondents.
   Barnard, P. J.:

Letters of administration were issued to Mary C. Rogers, a daughter of Guy C. Goss, by the surrogate of Richmond county, on the 11th of June, 1890. The petitioner, Benjamin Tuthill, had recovered a judgment against the deceased, Guy C. Goss, in his lifetime, which remains unpaid. He petitions as a creditor for a settlement of the accounts of the administratrix, and that he be paid his judgment and claim. The administratrix answered that there was no property. Upon the trial before the surrogate the controversy was confined to three items which the petitioner claimed should be held to be assets in the administratrix’s hands. The deceased was an agent for the Donpart Company. He had a deposit as agent in the Seaboard Bank. He had a right to some $300 for his services out of this banlc account. The expenses of the last sickness of deceased and his funeral expenses consumed this amount, and this fact is so found by the surrogate.

The deceased had, in his lifetime, procured a vessel contract for the New England Ship Building Company, of Bath, Maine. The payment for the commission on this contract was not due at the death of Goss. He had been unable to pay the premiums on three life insurance policies for the benefit of his wife, and gave his notes for the premiums due in the early part of the year 1890. A few weeks before he became sick he received a letter from the company acknowledging the indebtedness. He gave this letter to his wife, with directions to collect the amount and with it to pay the premium notes then given. The wife did collect the $500 after his death and allowed the notes out of the policy, and kept the $500. A power of attorney could not last after death, and it is not found that the letter was the subject of a gift inter vwos or eaum mortis. If the power to collect after death existed it must be because the title to the account in some way passed to the wife, and the collection after death can be supported by the title in the wife. As the case stands it is not clear. The proof is confined to the testimony of Mrs. Goss. As the testimony is returned the item of $500 should be deemed assets, and the decree should be modified accordingly.

The third and remaining item is for a claim for premiums on life policies in excess of $500 in one year under chapter 277,' Laws of 1870. The deceased had procured three policies, each for $10,000. Two were made pa^yable to his wife and one was payable to the personal representative of Goss. This last policy was assigned to the wife in May, 1885. This assignment is found to have been made in good faith and without fraud. The proof fails to show that $500 was paid for premiums in any one year out of the funds of the deceased. The wife had a separate estate, and she contributed to the premiums yearly out of her separate estate and property. These payments were never returned to her, and she never received any benefit from them except from the policies she received after her husband’s death. It seems probable that after the assignment in 1885, he paid nothing. He then became involved and gave up all his property to his creditors. No case is made in respect to this $10,000 assigned policy which should charge the administratrix with the amount of it. It was paid to the wife under a valid authority as between the widow and the company, and there is nothing in the case which would justify the administratrix in assailing the transfer.

The decree of the surrogate should, therefore, be affirmed, except as to tbe $500, and as to that it should be modified by directing a new trial so that proof may be taken whether the claim was transferred to the wife, and if there be no such proof given, then the administratrix should be directed to account for it. as an asset. No costs to either party on this appeal.

Peatt, J., concurred.

Decree modified so as to give a new trial as to the $500 collected after testator’s death and unless proof be given that the claim was. transferred to his wife, that it be decreed assets, no costs of appeal.


author: Barnard, P. J.: Pkatt, J.

text:
    The People of the State of New York, Respondent, v. George Albow, Appellant.

      Section 527 of the Penal Code — offering paper money for sale — the “green goods scheme.”

    Section 527 of the Penal Code, which makes it a felony to circulate or distribute any letter offering for sale any counterfeit coin, paper money or what purports to he counterfeit coin, paper money or other token of value, whether called “green articles ” or by any other name, etc., is not aimed solely at “ counterfeit” paper money, but covers a nefarious business the persons engaged in which advertise for sale what purports to be good paper money. (Peatt, J., dissenting.)
    An indictment, purporting to be drawn under section 527 of the Penal Code, held sufficient to support a conviction under that section, although it did not allege in terms that the act done had any relation to counterfeit coin or counterfeit paper money, but charged the defendant with assisting in “a scheme of' offering or purporting to offer for sale and exchange green goods so called, being paper money or pretending so to be paper money,” etc. (Peatt, J., dissenting.)
    Appeal by the defendant, G-eorge Albow, from a judgment of conviction of the Court of Sessions of Dutchess county, rendered on the 25th day of April, 1893, upon a verdict of guilty, on the trial of an indictment for assisting in what is known as the “ green goods scheme,” under section 527 of the Penal Code.
    The indictment in question was as follows :

      “ The grand jury of Dutchess county, by this indictment, accuses George Albow of aiding, abetting and assisting in a scheme of offering or purporting to offer for sale and exchange green goods, so called, being paper money, or pretending so to be paper money, by means of circular and letters and telegrams addressed and sent to one Epliraim Cassell at East Eork Post Office, in State of North Carolina, in the months of December, 1892, and January, 1893, and by which the said Ephraim Cassell and Ira Hogshead were induced to come to the city of Poughkeepsie, in the county of Dutchess and State of New York, to deal with him, said George Albow, therefor, and for that the said George Albow, on the 12th day of February, 1892, at the city of Poughkeepsie in this county, did state to one Ephraim Cassell, that he would take him, said Cassell, and one Hogshead then and there being to an old gentleman in the city of New York, who had one hundred thousand dollars of goods like a one ■dollar greenback so called, being a treasury note issued by the government of the United States of America, and then and there said Albow showed said Cassell said one dollar treasury note as aforesaid, when he, said Ephraim Cassell, could with said, old gentleman exchange one hundred dollars of his, Cassell’s, money for one thousand dollars of said old gentleman’s money, which said Albow then and there said to said Cassell at said city of Poughkeepsie, on said 12th day of February, 1893, was as good as said one dollar bill which he, said Albow, showed to said Ephraim Cassell, and asked .said Cassell to go with him at once to said city of New York, and .also one Ira Hogshead to get the said money of the old gentleman, which said money said Albow called and designated as ‘ goods,’ and which offer and statements by said George Albow were to carry out the scheme of selling or pretending to sell to said Cassell and said Hogshead £ paper money ’ or ‘ goods,’ or what was claimed to be •such, contrary to section 527 of the Code of the Penal Code, and contrary to the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity.”

      Dcmiel O' Gonnéll and A. J. Hose, for the appellant.

      Horace D. Hufout, District Attorney, for the respondent.
   Barnard, P. J.:

The section of the Penal Code under which this indictment is framed is not aimed solely at counterfeit paper money. The section was designed to meet a nefarious business which, may include counterfeit money, but the persons engaged in it were generally careful to advertise good money which would be sold at much less than the face value. The transaction sometimes resulted in a sudden snatching of the money of the proposed buyer and a flight with it by the-seller or his agent. Sometimes the good money of the buyer was. obtained by a package so made up as to represent a package of money, and before its examination the seller would disappear. The. evil which the Legislature intended to prevent is shown- in the present case. Someone writes a letter to one Cassell in South Carolina,, under the name of Charles Mansfield, 283 St. Nicholas avenue, N.. Y. This letter contains an offer to sell goods so that Cassell «could make money. The price is stated to be $3,000 for $300, and larger sums for smaller prices. The place of meeting between buyer and seller was Poughkeepsie, N. Y., where the buyer was to register under an assumed name at a specified hotel there. Cassell was to send a message by telegram, and this telegraphic message was to be produced by the seller at Poughkeepsie. There was a long and artfully-prepared communication to the effect that by the neglect of the officials of the general government there was a fraudulent issue, of government paper money. That it seemed to the writer of this, communication that duplicate articles were in the possession of New York parties, and that the work of the government could not be detected from the work of “ those people in New York.” Cassell accepted, and was met in Poughkeepsie by the defendant at the place designated and admitted himself to be the proposed seller who had arranged the meeting. The indictment fairly tells this story. That, the defendant, by means of circular letters addressed to Cassell, offered him paper money, or what was pretended to be paper money. That by means of this letter and circular and contents, Cassell was. induced to come to Poughkeepsie to buy of George Albow, the defendant, money, or pretended money, and that there he showed a good $100 government bill and offered to take Cassell to New York to an old man who would sell to him bills like the one shown at the rate of $1,000 for $100 -of Cassell’s money. These bills he called goods.

By section 527 of the Penal Code, it is made a felony to aid or abet a scheme to defraud by means of circulars, offering for sale paper money, informing anyone where it could be obtained. The statute in question is strictly followed in and by the indictment.

“ A person who * * * circulates or distributes * * * any letter * * * offering * * * for sale * * * any counterfeit coin, paper money, * * * or what purports to be counterfeit coin, paper money, * * * or other token of value, whether called ‘ green articles,’ £ queer coin,’ paper goods,’ £ bills ’ spurious treasury notes,’ £ United States goods,’ £ green paper goods,’ £ business that is not legitimate,’ cigars,’ £ green cigars,’ or by any other name or title, or any other device of a similar character, shall be guilty of a felony.”

"The telegraphic messages were properly received. The defendant, in his conversation with Cassell, admitted that he had sent them.

The conviction should, therefore, be affirmed.

DyKMAN, J., concurred.

Pkatt, J.

(dissenting):

The conviction in this case must be justified, if at all, under section 527 of the Penal Code, which requires the following elements to constitute a crime: the printing, circulation or distribution of a letter, circular, card, pamphlet, handbill, or any other written or printed matter which shall offer, or purport to offer, for sale, exchange, or as a gift, counterfeit coin or paper money, or which shall give, or purport to give, information where counterfeit coin or paper money can be procured, with the intent to defraud, etc.

The indictment contains no allegation that the acts charged were with intent to defraud. It does not say that any act charged had any relation to cmmterfeit coin or counterfeit paper money. The nearest approach to a charge of anything counterfeit, is that the offer related to ££ green goods, so called, being paper money, or pretending so to be paper money,” * * * that the goods were like a one dollar greenback, so called, being a treasury note issued by the government of the United States,” etc. The allegation seems to be that the stuff was money, being paper money,” being ££ a treasury note,” etc. This is rather an allegation of the genuineness than the counterfeit character of the stuff.

We are sorry to feel forced to hold that this indictment did not charge a crime, for the evidence strongly tends to show that the defendant ought to have been punished under the section in question.

We, therefore, reverse this conviction; but instead of discharging defendant, will order a new trial, thinking that perhaps something may yet be devised to promote justice in the premises.

Conviction affirmed.


text:
    Ellen M. Cowhill, as Administratrix of John Cowhill, Deceased, Appellant, v. Percival Roberts, Respondent.

      Master and servant — dangerous employment — defective appliance — constructing an elevated railroad — the servant’s knowledge of the danger.

    Where a servant enters upon an employment which from its nature is necessarily hazardous, he assumes the usual risks and perils of the service, and also those that are known to him, and which are apparent to ordinary observation.
    In an action by a servant against his master to recover damages occasioned by defective appliances or machinery, the plaintiff must establish that the machine or appliance was defective, that the master had knowledge or notice thereof, or ought to have known it, and that the servant did not know, and had not equal means with the master of knowing thereof.
    The usual and necessary method of the erection of the columns and girders, in constructing an elevated railroad, cannot be considered defective as a matter of law, in the absence of evidence that there was any other usual or even practical method of erection by which an accident suffered by a workman in connection therewith might have been avoided, or the risk of it diminished.
    A workman in the employ of the builder of an elevated railroad, which was being constructed, in the usual manner, of columns and girders put in place by the use of a traveling derrick, for his own convenience, and when not required by his work to do so, climbed to the top of the structure by the lattice work on a column, no ladder being provided, and fell by reason of his fingers slipping from an icy brace on a temporary girder, and was lulled. His legal representative brought an action for damages against the employer, claiming that • he was responsible for negligence, first, in allowing the brace to be used, and, second, in not providing a ladder. It appeared that the deceased had been accustomed to climb the lattice work on the columns, as the other workmen did, and that the braces on the girders were entirely apparent and had been in position for several days, during which time the deceased had been working where they were, so that he could have seen them.

      Held, that the facts showed the absence of negligence on the part of the employer and the presence of carelessness on the part of the deceased, which prevented a recovery.

      Appeal by the plaintiff, Ellen M. Cowliill, as administratrix of John Cowbill, deceased, from a judgment of tlie Supreme Court, entered in the office of the clerk of Kings county .on the 8th day of February, 1893, upon a direction of the court dismissing the complaint upon the merits at the Kings County Circuit, and from an order denying the plaintiff’s motion for a new trial made upon the minutes.

      Horace M. Hitehmgs, for the appellant.

      Geo. W. Wi/ngate, for the respondent.
   Dykman, J.:

This is an appeal from a judgment and order denying a motion for a new trial.

The action was for the recovery of damages resulting to the plaintiff by the death of her intestate, John Cowliill, deceased, which is claimed to have been caused by the negligence of the defendant.

The deceased was in the employment of the defendant, who was engaged in the construction of an elevated railroad in Myrtle avenue, in the city of Brooklyn. The railroad was constructed by placing iron columns fifty feet apart on the curb line of the street, and the columns were connected by transverse girders, upon which were placed four longitudinal girders which supported the track. These girders were hoisted into place by a moving derrick called a traveler, which was placed upon the top of the structure, and was moved along as the work progressed. Upon the sides of the column were lattice work, and each girder had a broad flange at its top and bottom. The girders at this point were five feet high. The deceased man had been working upon this road for the defendant for about two months. The work was of a dangerous character, and required active men. As there was to be a station at the point of the accident one of the iron girders could not be put in until the traveler had passed, and its place was supplied by a temporary wooden girder which was braced by wooden braces six by three inches and eight to ten feet long, extending to the ends of the’ girder, where they were fastened into the flanges, and wedged by a wooden block. This was the method which had been pursued at another station on which the plaintiff had worked, and the bracing was the customary one and was necessary.

To go upon the structure the workmen climbed up the lattice work of the columns and then put one arm around the girder, and the other on top of it, and climbed up in that way. The woodwork had been up there for two or three days before the accident. The deceased was working upon the ground at this time, and the workmen who worked on the ground kept their coats in a box on the sidewalk.

The morning of the accident was a cold, frosty morning, and the structure was covered with ice. The deceased was a little late and climbed up one of the columns to leave his overcoat and lunch and put on his overalls, five minutes before seven, the time at which he was required to be at his work.

It is claimed by the plaintiff’s counsel that when the deceased reached around the girder to catch hold of the flange he struck it against the block which held one of the braces, from which his finger slipped, and that the defendant is responsible for negligence, first, in allowing the brace to be used, and, second, in not providing a ladder.

The testimony is that the ladder had not been used upon this work; that the bracing was such as had been used on the work before, and was customary and necessary to support the weight of the traveler.

The witnesses on the part of the plaintiff testified that the wooden brace, which it is claimed was the cause of the accident, was usual and necessary in the progress of the construction of the road ; that they had been up for several days, during which the deceased worked around them, and had the same opportunity of knowing of their existence as the other workmen.

The brother of the deceased man testified that his brother had not commenced work on that morning previous to the accident; that he had his overcoat on, and that it was a cold, frosty morning; that there was ice on the work, and that when water fell it was frozen, and being a few minutes late he was going up with his overcoat on.

Michael Gordon, a witness on the part of the plaintiff, testified as follows : “ John’s work was with the raising gang; they had a traveler putting up the columns and cross-girders ; his work was on the ground.; be was one of the gang who worked ahead of the traveler on the ground, and when a pillar or column was swung into position the nearest man climbed up there and adjusted the cross-girder; he was engaged at this time around the traveler: he was working on the ground; when he went up there he went up for no other purpose than to leave his coat and lunch and put on his overalls; that was before he reported for duty, five minutes before seven; we were required to go to work at seven o’clock a. m.”

It may be remarked here in passing that the testimony shows that the deceased did not climb this column for any purpose of the defendant; that he had not commenced work on that day, but went up the column for his own purpose and convenience to put his overcoat and lunch on the top of the structure, and put on his overalls; that the prosecution of the work in which he was engaged at that time did not require him to climb the column.

The failure to provide a ladder cannot be assigned for negligence in this action, first, because the deceased was not at that time required to ascend the structure, and, second, because the deceased had been climbing the structure by the lattice work on the columns as the other workmen did, and the risk of such climbing was entirely apparent, and was a hazard of his employment which he assumed and perfectly understood.

The fact that there was no ladder was apparent to the deceased, not only before he climbed this column, but during his .term of employment for some time previous.

It is important to note that there was no imperfection in any of the appliances used; that nothing gave way, and it seems a fair deduction from the facts and circumstances that the fall of the deceased was caused by his failure to grasp the girder in his attempt to ascend the structure.

It has come to be settled in this State that “ where, however, a servant enters upon an employment from its nature necessarily hazardous, he assumes the usual risks and perils of the service, and also those that are known to him or which are apparent to ordinary observation.” (Williams v. D., L. & W. R. R. Co., 39 Hun, 432.)

In Kennedy v. The Manhattan Elevated Ry. Co. (33 Hun, 457), it was held that an elevated railroad was not liable for a failure to provide a footwalk for watchmen on the structure, and that if one was struck by a train through the engineer’s carelessness, the company was not liable.

In that case, the court said the defendant was not bound to secure protection of the person employed against such risks of injuries as are incident to the employment itself. Where the nature of the servant’s “ employment recpiires him to make use of the instru-mentalities as they had been located in that vicinity, it was all clearly and evidently before his eyes, and within his comprehension, he must have understood that in the discharge of his duties he subjected himself to the risk of just such an accident as was encountered by him, and as that was clearly indicated by the situation and the circumstances under which he was obliged to act, that was one of the risks incident to 1ns employment.”

While this rule may not be applicable in all cases of casualties resulting from the use of complex machinery, it is applicable to this case, where the risk was as apparent to an ordinary workman as to an expert.

In the case of Gibson v. The Erie Railroad (63 N. Y. 449), it was said by the court: When the deceased entered the employment of the defendant, he assumed the usual risks and perils of the service, and also the risks and perils incident to the use of the machinery and property of the defendant, ás it then was, so far as such risks were apparent.

“ Accepting service with a knowledge of the character and position of the structures, from which the employee might be liable to receive injury, he could not call upon the defendant to make alterations to secure greater safety, or in case of injury from risks which were apparent, he could not call upon his employer for indemnity.”

If the defects in the machinery or other appliances are as well known to the servant as to the master, the servant must be regarded as voluntarily incurring the risk resulting from its use, unless the master urging on the servant, contributes to the injury.

“ A servant who has accepted service with knowledge of the character and position of structures from which he may be liable to injury, in case of injury resulting therefrom, cannot maintain an action against his employer for indemnity. He assumes apparent risk, and cannot call upon his employer to make alterations to secure greater safety.” (DeForest v. Jewett, 88 N. Y. 264.)

“ The law also implies a contract on the part of the employee that he will assume the ordinary risks which are incident to the business in which he is employed. One of these risks is that structures or appliances may turn out to be defective notwithstanding the exercise of due care by the employer to provide such as are safe and proper, for the purpose for which they are designed. In this State the rule stated is well settled.” (Devlin v. Smith, 25 Hun, 208; 89 N. Y. 476.)

It may now be assumed as settled, that in an action by a servant against a master to recover damages occasioned from defective appliances or machinery, the plaintiff must establish first, that the machine or appliance was defective, that the master had knowledge or notice, or ought to have known it, and that the servant did not know, and had not equal means of knowing with the master. None of these conditions have been established in this case.

The usual and necessary method of erection clearly cannot be considered defective, as a matter of law, in the" absence of evidence that there was any other usual or even practical method of erection from which an accident like this might be avoided, or the risk of it diminished.

It is shown the deceased had the same means of knowing of the existence of the braces and the exact condition of the affairs as the employer; in fact, he had better means of knowledge, as he could see, on the morning of the accident, that the structure was covered with ice so as to make it dangerous to climb up the column, where there was no time or opportunity for the employer to become aware of such state of facts.

The braces and the manner of their attachment had been in position for days, during which the deceased had been working Where they were so that he could have seen them.

There is no foundation for the contention that the deceased should have been instructed in respect to their existence, as they were plainly visible to the eye.

We have, then, the case of a man working on and around this structure for about two months, and who was shown to have been a first-class workman, entirely familiar with the method of erection, and accustomed to going up these columns, and to hold the defendant liable for injuries under such circumstances would be equivalent to making a master an insurer of the lives of his workmen. This view seems to be sufficient to show the absence of negligence on the part of the defendant and the presence of carelessness, on the part of the deceased.

At the very least, it fails to make a case which, under the settled rule of law in this State, entitles the plaintiff to a recovery. The judgment and order appealed from should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


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    Hugo Weil, Appellant, v. Charles A. Hill, Defendant. (Action No. 1.) Embree Hill, Respondent, v. Charles A. Hill, Defendant. (Action No. 2.)

      Judgment by confession — essentials of the defendants statement.

    The defendant’s statement of the facts out of which the debt for which a money judgment is confessed arose, required by section 1274 of the Code of Civil Procedure as the basis for such a judgment by confession, should furnish sufficient facts to enable any party interested to investigate the transaction and ascertain the truth and accuracy of the statement.
    Appeal by the plaintiff in action No. 1, Hugo Weil, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Westchester county on the 19 th day of April, 1893, denying the appellant’s motion to have a confession of judgment entered in favor of the plaintiff in action No. 2 set aside.

      Alex. FineUte, for plaintiff and appellant in action No. 1.

      Henry G. Henderson, for plaintiff and respondent in action No. 2.
   Dykman, J.:

The plaintiff in action No. 2 obtained a judgment by confession against the defendant in that action on the 6th day of October, 1892, for the sum of $8,016.50.

The plaintiff in action No. 1 obtained a judgment in that action against the defendant on the 22d day of November, 1892, for the sum of $192.18.

The plaintiff in action No. 1 made a motion to set aside the judgment in action No. 2 on the ground of tlie insufficiency of the statement upon which it was entered.

That motion was denied, and this appeal is from that order of denial.

The question upon this appeal, therefore, is whether the statement is a sufficient compliance with the provision of the Code under which it was made.

So far as this case is concerned, the judgment being for money due, the requirement of the statute in respect to the written statement is this: “ It must state the sum for which judgment may be entered and authorize the entry of judgment therefor. If the judgment to be confessed is for money duo or to become due, it must state concisely the facts out of which the debt arose, and must show that the sum confessed therefor is justly due or to become due.” (Code. Civ. Proc. §1274:.)

This section of the statute has remained substantially unchanged and in its present form since the adoption of the,Code, in 1848. Such" alterations as it has received have been made to avoid repetition and secure grammatical accuracy. (Note to §1274.)

The language has not been free from obscurity, and in the early days of the first Code the section came many times before the courts for construction, and the adjudicated cases in which the statute came under review are authority now, because, as we have already said, it has remained substantially unchanged.

The rule established by the reported cases seems to be that “ the concise statement of facts out of which the indebtedness arose is required, so that any party interested may be able to investigate the matters and thus ascertain whether the confession of judgment was accurate, honest and Iona fide. It may also be supposed that it was the purpose of the Legislature that the statement of facts should be so definite that the affiant would be exposed to punishment for perjury in case of any misstatement.” (Wood v. Mitchell, 117 N. Y. 441.)

Turning now to the statement in this case we may examine it in the light of this rule. The statement is as follows:

I do hereby confess judgment in this action in favor of Embree Hill for the sum of eight thousand dollars, and authorize judgment to be entered therefor against me.
“ This confession of judgment is for a debt justly incurred and now due to the plaintiff, arising upon the following facts: That at the time I began business as a producer of milk and farmer the plaintiff furnished me with cows, horses, wagons and other articles, and utensils required in the business, and hired a farm for me, paying the rent therefor, and has since that time advanced me moneys to enable me to conduct said business and to support my family, down to the present time, which said money so advanced and the horses, cattle, wagons and utensils furnished as aforesaid, were worth upwards of eight thousand dollars.”

The statement was signed and verified by the defendant in the manner required by the statute.

Thus we have a statement that the amount for which the judgment is confessed is due for cattle, horses, wagons and agricultural implements, rent of a farm paid by the plaintiff iind money advanced for the conduct of the business and support of the defendant’s family, and although no dates are given, the advancement of money in the business continued to the time of the confession of judgment.

It is easily inferred that the farming by the defendant had been continuous, and so the indebtedness had been incurred from time to time for a year or more previous to October, 1892.

The statement is as particular and full as the statements in the cases of Neusbaum, v. Keim (24 N. Y. 329); Lanning v. Carpenter (20 id. 447), and Freligh v. Brink (22 id. 418), and all those statements received the approbation of the Court of Appeals.

It furnished sufficient facts to enable any party interested to investigate the transactions and ascertain the truth and accuracy of the statement.

It would be easily ascertained whether the defendant hired a farm and engaged in the milk business, and whether the plaintiff paid the rent therefor. Also whether stock and implements were furnished by the plaintiff to the defendant, and the time of all those transactions.

Our conclusion is that the statement is sufficient, and that. the order should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with costs and disbursements.


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    Abel Crook, Respondent, v. George E. Hamlin and Others, Appellants, Impleaded with the Traders and Travelers’ Accident Company of New York.

      Testimony taken in the absence of, and not considered by, the trial judge — not a mistrial, there being no dispute as to the facts.

    A judgment in a civil action tried by the court without a jury, will not be vacated on motion on the ground that there has been a mistrial, for the reason that the trial judge did not hear or read all the testimony, it not having been written out by the stenographer, where it appears tliat the testimony taken in the absence of the judge was so taken before the stenographer by agreement and was undisputed; that when the case was argued, each counsel stated the facts upon which he relied, and there being no dispute about the facts, the judge found it unnecessary to have the testimony written out, there being no necessity for a reference thereto, and the judge found the undisputed facts, and decided the questions of law upon them.
    Appeal by the defendants, George E. Hamlin, Charles Stuart Somerville and Gustav G. Lansing, from an order made at the Special Term of the Supreme Court, and entered in the office of the clerk of Kings county on the 8th day of April, 1893, denying the said defendants’ motion to vacate or set aside the judgment entered in this action on the 14th day of January, 1893, upon the ground of alleged irregularities.

      Henry Thompson, for the appellants.

      John L. Hill, for the respondent.
   Dykman, J.:

This is an appeal from an order denying a motion to vacate the judgment in this action, entered upon the decision of a judge after a trial before him at Special Term without a jury.

The motion was made by the defendants against whom the judgment was entered, and was based upon the allegation that the trial judge did not hear all the testimony, and did not read it all because it was not written out by the stenographer by whom it was taken.

The material facts seem to be these : The trial of the action commenced on the 19th day of December, 1892, and testimony was introduced before the judge until recess. The judge did not appear after the recess, and the parties proceeded to take testimony before the stenographer by agreement during the afternoon and again the next day in the absence of the judge.

The trial was then adjourned by consent until the 30th day of December, 1892, and on that day the judge was present; some further testimony was then taken and the trial was closed; at that time the testimony taken in the absence of the judge was undisputed, to say the least, if it was not agreed upon.

The case was argued before the judge, and it appears that each counsel stated the facts upon which he relied, but there was no dispute about the facts, and the judge found it unnecessary to cause the testimony to be written out as there was no necessity for a reference thereto.

This motion was not based upon errors committed during the trial, because such questions will be examined upon the appeal from the judgment. The claim seems to be that there has been a mistrial or rather no trial according to legal requirements.

Ve cannot coincide with that view. The trial judge gathered the facts from the concession of the counsel upon the argument, and found the facts undisputed, and decided the questions of law upon that theory.

If there has been error it will be detected and decided upon tile appeal, but the motion to vacate the judgment was properly denied, and the order should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with costs and disbursements.


author: Pratt, J.:

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    Alice Nearing, Respondent, v. Frank Van Fleet, Appellant.

      Breach of pi'omise of marriage — cm'roboration of the plaintiff — amount of damages' — postponement of the wedding day — variance in the proof as to the date of-the promise.

    It is not essential to a recovery in an action brought for a breach of a promise of marriage that the testimony of the plaintiff as to the making of the verbal promise should be corroborated by another witness; but sufficient corroboration may be derived from the conduct of the parties.

      A verdict for 85,000, rendered in an action brought for the recovery of damages for a breach of a promise of marriage, aggravated by seduction, held, not to be excessive.
    The mere consent, by one party to an engagement of marriage, to a postponement of the wedding- day, does not relieve the other party from his promise to marry.
    The complaint in an action brought to recover damages for a breach of a promise of marriage alleged that the promise was made in August of a certain year, but there was evidence that marriage had been spoken of on several occasions.

      Held, that the exact time was not material, and that if the promise was made the last of July or the first of September, there was not a material variance in the proof from the complaint.
    Appeal by tbe defendant, Frank Van Fleet, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Orange county on the 22d day of June, 1892, upon a verdict rendered at the Orange Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    The amount of the verdict was $5,000.

      levñs E. Carr, for the appellant.

      William II. Creme, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon a verdict, and also from an order denying a motion for a new trial.

The action is for damages for a breach of promise of marriage alleged to have been made during the month of August, 1888, .aggravated by an alleged seduction.

The first point made by the appellant is that there was not sufficient corroboration of the plaintiff to warrant the submission of the case to the jury. We do not see the case in that light. There was evidence of his own admissions that he frequently called on her and took her out riding; also evidence of others as to the attentions he paid her, and that during all the time she received no other male company.

Again, the declaration of defendant to the doctor who attended the plaintiff shows a knowledge upon the part of the defendant not consistent with his testimony upon the trial.

The defendant seems to feel aggrieved because there was no witness except the plaintiff heard him make the promise of marriage. We do not think it unusual or strange that the engagement was not made in the presence of third parties. The conduct of the parties was not only consistent with such an assumption, but furnishes a high degree of proof of such fact. It is difficult to see how, upon the proof, the jury could have reached any other conclusion.

The damages were not excessive. In fact a much larger sum might have been justly awarded.

It seems there were several promises made to marry. One in the fall of 1888, just prior, to the seduction of the plaintiff, and again some time after the miscarriage. Now, because the plaintiff consented to wait two years, that did not relieve the defendant from his promise to marry, but it was a mere postponement of the wedding day, and it is not that contract that is sued upon.

Neither do we think the exception to the refusal of the judge to charge that if the jury believed the contract was not made in August, 1888, they must find for the defendant, was error.

It is true the allegation in the complaint was that the promise was made in August, but the exact time was not material, but the conclusive answer to the proposition is that there was evidence that marriage had' been spoken of on several occasions, and if it was made the last of July or the first of September, it was not a material variance.

The judgment must be affirmed, with costs.

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

Order denying new trial affirmed, with costs.