text:
    Michael Rogers, Respondent, v. Peter G. Straub, Appellant, Impleaded, etc.

      "Equity — waiver of trial by jury — oral evidence as to the meaning of a contract — competency of testimony — injunction.

    The answer in an action in equity contained, no allegation to the effect that the plaintiff had an adequate remedy at law, and the defendant went to.trial before a Special Term without raising any question as to its power to hear and determine the case, proceeded with the trial to its close and submitted requests to find, and then in such requests for the first time made the claim that he was entitled to a trial by jury.

      Held, that such claim was made too late; that if the defendant had a right to a trial by jury, he had waived it.
    Under the provisions of a contract a person agreed to pay eleven dollars per canal boat load for dimension stone and six dollars per canal boat load for stone suitable for concrete.
    Upon the trial of .an action brought to recover the agreed price of such stone, a question having arisen as to whether the stone furnished was dimension stone or stone for concrete, the plaintiff offered to show what the words “dimension stone” meant, as they appeared in the contract, and the court, under objection, permitted the witness to stale what was said by the parties in reference to the meaning of the words at the time the contract was made.

      Held, that as the parties differed as to the meaning of the term, such testimony, as showing their understanding of the term, was competent.
    Though a trial court might properly have withheld an injunction, yet if the granting thereof does the plaintiff no good and.the defendant no harm, the fact that the trial court granted the same does not require a reversal upon appeal.
    Where testimony objectionable when offered is not objected to, it should not be stricken out on motion where it has subsequently been made competent.
    Appeal by the defendant, Peter G. Straub, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Niagara on the 28th day of February, 1893, upon the decision of the court after a trial at the Niagara Special Term, enjoining and restraining the defendant from prosecuting operations in certain stone quarries and from interfering with certain agricultural lands of the plaintiff, and awarding to the plaintiff $1,098.49 damages and costs.

      George W. Oothran, for the appellant.

      Edward 0. Hart, for the respondent.
   Haight, J.:

This action was brought to recover pay for a quantity of stone which the defendant had taken and carried away from the plaintiff’s premises, the annulment of two contracts and an injunction restraining the defendant from certain alleged trespasses on the lands of the plaintiff. The judgment awards damages for the stone taken and an injunction restraining the defendant from in any way exercising or attempting to exercise any of the powers or privileges granted in and by the contracts, or either of them, and from in any manner interfering with the agricultural lands of the plaintiff.

It is now claimed tliat the Special Term, sitting as a court of equity, bad no jurisdiction to bear and determine tbis action, but that it should have been tried in a court of law before a jury. The complaint, among other things, sets forth two contracts, the latter being a modification of the former, made between the plaintiff and defendant Straub, by which the stone upon the plaintiff’s farm east of Hitchins’ bridge, abutting upon the Erie canal, was sold to the defendant, and an option given to him as to the stone lying west of such bridge ; that he had taken and carried away a large quantity of stone and had not paid therefor; that the defendant had not performed the contract on his part; that he had committed numerous trespasses, and had deposited crushed stone upon the plaintiff’s agricultural lands, permanently injuring the same. The plaintiff' demanded judgment for the stone taken, that the contracts be decreed abrogated, and that the defendant be enjomed from thereafter prosecuting operations thereunder. The complaint was evidently prepared for the purpose of obtaining equitable relief, and some of the allegations are of an equitable nature, but whether they are sufficient we do not think we are called upon to determine. The allegations of the complaint are sufficient ,to authorize the recovery of a judgment for the contract price of the stone sold and delivered. The answer contains no allegation to the effect that the plaintiff' had an adequate remedy at law. So far as the case shows, the defendant went to trial before the Special Term without raising any question as to the power of that court to hear and determine the same, proceeded with the trial to its close, submitted requests to find, and then in such requests, for the first time made the claim that he was entitled to a trial by jury. We think this was too late; that if he had a right to such a trial he had waived the same. (The Town of Mentz v. Cook, 108 N.Y. 504, 508; Ostrander v. Weber, 114 id. 95, 102; Weaver v. Haviland, 68 Hun, 376, 381.)

Upon the trial the plaintiff offered to show what the words dimension stone ” meant as it appears in the contract. The court, under objection of the defendant, permitted the witness to answer as to what was said by the parties in reference to the meaning of such term at the time the contract was made. It is claimed that this evidence tended to vary the contract, but we do not so understand it. Under the provisions of the contract the defendant was to-pay eleven dollars per canal boat load for dimension stone, and six dollars per canal boat load for stone suitable for concrete west of the Hitchins’ bridge. A question had arisen as to whether the stones taken were dimension stones or stones for concrete. The parties differed as to the meaning of the term, and it appears to us that their statement as to such meaning at the time the contract was ■entered into as showing their understanding of the term, was competent. ,

Upon the cross-examination of the defendant he was required to state the amount he received per cord for such stone in the city of Buffalo, and also the amount that he received for crushed stone. This, doubtless, would have been incompetent had the defendant not previously shown upon his direct examination what the same was worth.

Again, it is claimed that the court should have found that the dimension stones were stones of a suitable size and quality to be cut so as to be used as first-class building stone, but upon this question we understand the evidence to be conflicting, that of the plaintiff differing from that of the defendant. It is claimed that the testimony of the defendant upon that subject is corroborated. But the first contract entered into ‘ between the parties contains the expression of the larger sizes or dimension stone.” Here we have the term “ larger sizes ” used synonymously with the term “ dimension stone,” one term meaning the same as the other. This supports the plaintiff’s contention, and we do not think it is weakened by the later contract, where the term “ dimension stone ” alone is used.

The witness Mahoney testified to his keeping an account of the stone taken by the defendant, and of reporting the same to the plaintiff; that on one occasion the defendant asked him to report but two boat loads to every three taken. This evidence was given without objection, but a motion was subsequently made to strike it out, which was refused. If the testimony at the time it was given was objectionable, it was subsequently made competent when the defendant was sworn as a witness in his own behalf.

It appears from the exhibits in the case that at the time of the trial the defendant had transferred all his interests under the contracts with the plaintiff to the Buffalo Stone Company, and that that company had transferred its interest to the German Rock Asphalt and Cement Company (Limited) of the city of Buffalo, and that that company had entered into a new agreement with the plaintiff. Perhaps, under the circumstances, the trial court might properly have withheld the injunction, but we are unable to see how it does the plaintiff any good or the defendant any harm.

We think, therefore, that the judgment should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concurred.

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: TIaight, J.:

license: Public Domain

text:
    Walter L. Sessions, Appellant, v. Washington Palmeter and Another, Respondents.

      Attorney and, client — when an attorney's services a/re substantially performed — compensation ■ — • when oral evidence of the contents of letter's is admissible, after a demand to produce them.

    An attorney, employed for the purpose of contesting the probate of a will, appeared before a surrogate whose practice it was to prepare and record his own decrees.

      Held, that after the submission of the evidence to the surrogate, and before his decision was rendered and a decree was made, the services of the attorney were substantially performed.
    Assuming the rule to be that an attorney who is retained generally to conduct a legal proceeding enters into a contract to conduct the proceeding to its termination, and that he cannot abandon the service of his client without justifiable cause and reasonable notice, it does not follow that he is not entitled to compensation from time to time for the services rendered, in the absence of an agreement fixing a definite sum as his compensation for conducting the proceedings to their termination.
    Where a notice was served upon an attorney, who appeared before a justice of the peace and swore that he was authorized to appear for the defendants in an action, giving him notice to produce a certain letter upon the trial thereof, and upon such trial the production of such letter was demanded and refused, the party demanding the production of such letter is, under the circumstances, authorized to give oral evidence as to its contents.
    Appeal by the plaintiff, Walter L. Sessions, from a judgment of the County Court of Chautauqua county in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 23d day of August, 1893, reversing the judgment of a justice of the peace.

      Walter L. Sessions, appellant, in person.

      A. ffaseltvne, for the respondents.
   TIaight, J.:

The defendant Jane Palmeter was a sister and heir at law of Alice Gr. Bentley, deceased, and as such contested the admission of her will to probate before the surrogate of Chautauqua county. The plaintiff was employed by defendants to conduct such .contest.

The evidence tends to show that he was employed by both of the defendants, who are husband and wife, and a case was prepared, tried and submitted to the surrogate upon written briefs. Thereupon the plaintiff rendered a bill for his services, in which he charged them $125, and inclosed a note for that amount which he requested them to sign and return, stating that they could get the note extended if they so desired; that they did not return the note or afterwards call upon him until a weelc before this action was brought, at which time Mrs. Palmeter called upon him at his office and said that she did not wish to give a note; that he thereupon said to her that he should be in his office on Thursday of the next week, and that he wanted her to come in and ñx the matter up at that time; that she found no fault with the amount of the claim, but didn’t come at the time fixed, and that no portion of his claim has been paid.

The defense was that the claim was not due and that the plaintiff had agreed to charge nothing in case the contest was not successful. The surrogate had not, at the time of the trial, rendered his decision, and no decree upon the contest had been entered by him. The jury rendered a verdict in favor of the plaintiff for the sum of $100, thus disposing of the controverted question of fact in the case.

The County Court reversed the judgment upon. the ground that the plaintiff’s employment was not terminated until the decision of the surrogate and the decree was entered thereon. It was the duty of the surrogate to make and file in his office his decision, in writing, in which he must state separately the facts found and the conclusions of law. (Code Civ. Proc. § 2545.) He is also required to keep a book in his office in which he must record his decrees. (§ 2498.) It is the usual practice for him to prepare and record his own decrees. The plaintiff’s services were, therefore, substantially performed at the time he rendered his bill.

But assuming tbe rule to be that an attorney wlio is retained generally to conduct a legal proceeding enters into a contract to conduct tbe proceeding to its termination, that be cannot abandon tbe service of his client without justifiable cause and reasonable notice, it does not follow that he is not entitled to compensation from time to time for the services rendered, unless, by the agreement a sum has been fixed for conducting the proceedings to the termination. In Tenny v. Berger (93 N. Y. 524-529) Earl, J., in delivering the opinion of the court, says: If the client refuses to advance money to pay the expenses of the litigation, or if he unreasonably refuses to advance money during the progress of a long litigation to liis attorney to apply upon his compensation, sufficient cause may thus be furnished to justify the attorney in withdrawing from the service of his client.”

The plaintiff’s claim is upon quamttim meruit and is prosecuted upon the theory that no express agreement was made as to the compensation that should be paid for his services. There was no evidence that he had abandoned his client’s case. He had performed all the services he could render down to the time of the entering of the decree. He had rendered his bill for such services and no objection had been made thereto as to the amount or to the effect that it was not due at the time the action was brought. We think, therefore, that under the circumstances his judgment should have been permitted to stand.

Hpon the trial an exception was taken as to the admission of oral evidence of the contents of the letter sent to the defendants in which he rendered his bill. It appears that Mr. Hazeltine appeared for the defendants before the justice and made oath that be was authorized to appear for them; that thereupon notice whs served upon him to. produce the letter upon the trial. Hpon the trial the plaintiff demanded the production of this letter, which was refused. • We think that this was sufficient to authorize the giving of oral evidence as to its contents.

The judgment of the County Court should be reversed, with costs, and that of the justice affirmed.

Dwioht, P. J., Lewis and Bbadley, JJ., concurred.

Judgment of the County Court of Chautauqua county appealed from reversed, with costs, and that of the Justice’s Court affirmed.


author: Haight, J.:

text:
    Mary Hogan, as Executrix, etc., Respondent, v. The Mutual Aid and Accident Association, Appellant.

      Evidence admitted — its retention, after it is found, to be incompetent, is discretionary —■ hearsay evidence as to the age of a decedent.

    Wlien evidence is admitted upon a trial by jury without objection, or is at the time properly admitted under objection, which, for reasons subsequently appearing, should not be considered by the jury, its retention is discretionary with the court, and it is not error to refuse to strike it out. The remedy of the party is to ask the court to instruct the jury to disregard it.
    The evidence of two brothers of a decedent as to his age, on the trial of an action brought upon a life insurance policy, is competent although it was shown that they were respectively small children at the time of their brother’s birth, and could not, independently of the statements of their father and of what had always been said and understood in the family, recollect the date of the birth of the decedent, although they remembered him from their infancy and knew about their own ages, and grew up with him.
    Appeal by tbe defendant, The Mutual Aid and Accident Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 21st day of February, 1893, upon the verdict of a jury for $2,133.33, after a trial at the Niagara County Circuit, and also from an order entered in the said clerk’s office on the same day, denying the defendant’s motion for a new trial, made upon the minutes.

      Henry M. Hill, for the appellant.

      P. F. Eim,g, for the respondent.
   Haight, J.:

This action was brought to recover the sum of $2,000 upon a policy of insurance, issued by the defendant upon the life of Hugh O’Haire, the plaintiff’s testator.

The defense was that the deceased, in his application for insurance, had falsely represented his age to be but forty-seven, when in fact he was much older, and that in his application he had agreed that his representations shojild form the basis of his contract with the defendant.

Upon the trial the plaintiff called as witnesses Patrick and John O’Haire, elder brothers of the deceased, who testified that he was born in County Louth, Ireland, in the year 1838. Patrick was born in 1830 and John in 1833, so that one was eight years and the other five years older than the deceased. On the cross-examination they conceded that they could not recollect the circumstances of the birth of Hugh or the year, independent of the statements of their father and the general talk in the family, but Patrick recollected him as an infant in the cradle, and John as a boy running around when lie, the witness, was seven or eight years of age.

No objection was made to the reception of this evidence. After it had been taken the defendant moved to strike it out. The court refused and an exception was taken. This presents the only question which we are requested to consider upon this review.

We think that the ruling of the trial court was correct. When evidence is admitted upon a trial by jury, without objection, or properly under objection, which for reasons subsequently appearing should not be considered by the jury, its retention is discretionary with the court, and it is not error to refuse to strike it out. The remedy of the party is to ask the court to instruct the jury to disregard it. (Marks v. King, 64 N. Y. 628; Platner v. Platner, 78 id. 90 ; Holmes v. Moffat, 120 id. 159-163; Pontius v. People, etc., 82 id. 339.)

But in this case the court could not properly, in its discretion, strike out the evidence or instruct the jury to disregard it. The testimony of the witnesses was but partially impaired by their cross-examination. They were small children and could not, independently of the statements of their father and what had always been talked and understood in the family, recollect the year of the birth of Hugh, but they remembered him from infancy, knew about their own ages, grew up with him, etc., pertinent facts bearing upon the age of Hugh and which enabled the witnesses to know and testify nearly, if not, to the exact year of his birth.

The judgment and order should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment and order appealed from affirmed.


author: IIaigixt, J.:

text:
    Julia Fuller, Respondent, v. Jamestown Street Railway Company, Appellant.

      Exceptions not available to the appellant — evidence in an action for a personal injury — res gestee — withdrawal of a letter — refusal to find an abstract-proposition.

    Upon an appeal exceptions taken by tbe appellant, to evidence received in a branch of the case upon which the decision was in its favor, will not be considered.
    In an action brought to recover the damages resulting from personal injuries sustained by reason of the alleged negligence of a street railway company, the plaintiff was permitted to testify in regard to the act of the driver in suddenly starting the car when she was attempting to alight from it, her alleged injury having been sustained when she entered the car. An exception was taken to the admission of this testimony, which was offered specially for the purpose of establishing “ the incompctoncy of” tire driver.

      Held, that as it was claimed that the injury resulted from the negligent manner in which the driver operated the car, and that he was an incompetent person, evidence of his acts and conduct on the occasion of the plaintiff leaving it, was admissible as bearing upon his competency.
    The actions, and to some extent the declarations, of a person immediately after an injury are competent' evidence as part of the res gestee, and if a person who claims to have received an injury makes no complaint in reference thereto, that fact becomes pertinent upon the question of fact; and, where that evidence is resorted to for the purpose of showing that the accident did not occur, evidence that a complaint was made becomes pertinent in rebuttal.
    In examining a witness upon the trial of an action, the fact that the plaintiff had written him a letter’ was drawn out by the defendant’s counsel. Thereupon the plaintiff was allowed to read the letter in evidence, to which exception was. taken. After reflection, by permission of the referee before whom the action was being tried, the plaintiff’s attorney withdrew such letter from the evidence.

      Held, that this was permissible.
    The defendant requested the referee to find that a street railway company was not bound to exercise more than ordinary care and diligence, such care and diligence as a man of ordinary prudence and capacity might be expected to exercise under the same circumstances. This request was refused.

      Held, that even if the rule was as stated, if the facts found by the referee supported his conclusion, such a request to And being in regard to an abstract proposition of law which the referee could not be compelled to rule upon, his refusal to so find would not justify a reversal of the judgment.
    Appeal by tlie defendant, Jamestown Street Railway Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 16th day of February, 1893, upon the report of a referee.

      G. P. Lockwood, for the appellant.

      A. G. Pickard, for the respondent.
   IIaigixt, J.:

This action was brought to recover damages for a personal injury. The plaintiff claims that about five o’clock in the afternoon of the 12th day of January, 1890, she undertook to board one of the defendant’s cars in Windsor street, in the city of Jamestown, opposite the house of Mrs. Geer; that her little giil accompanied her; that she had an umbrella in her left hand, with which she signalled to the driver of the car to stop ; that he stopped the car, and she thereupon lifted the little girl upon the platform, and then took hold of the grab handle upon the corner of the car with her left hand, in which was the umbrella, and of the grab handle upon the dash with her right hand, and placed her right foot upon the step, and was in the act of raising her body up when the car suddenly started with a jerk, breaking her left hand loose from the grab handle and causing her body to swung around back of the dash, striking her shoulder against some obstacle and causing the injury to recover for which this action was brought. She states that she clung to the grab handle with her right hand, and that her light foot remained upon the step as she swung around. It further appears from her testimony that the car stopped and she got aboard, and as she entered the car it again started suddenly, throwing her into the seat with some force; that us she arrived at her ¡dace of destination the car ivas stopped and she started to get opt, and as she placed one foot upon the step the car suddenly started, and she returned into the car, rang the bell and spoke to the driver, who then stopped again and she alighted. On arriving home she told Mrs. Sonthwdck of the accident, and the next day called upon Dr. Peterson. Tie examined her shoulder, found a red spot which was tender and prescribed for her from time to time thereafter. In the course of two or three weeks an abscess formed, which he lanced two or three times, and at the time of the trial her shoulder had become deformed, being one and a half or two inches higher than the other, and the movement of her right arm at the shoulder was impaired.

It is claimed on behalf of the defendant that no accident of the. character described by the plaintiff occurred, and that the injuries she claimed to have suffered were feigned. But these questions, we think, were properly disposed of by the referee. At least the evidence is of such a character that under review we could not well say that the findings of the referee were against the evidence or the weight thereof. It is claimed that it was not possible for her to swing around against the rear of the car in the manner described, with her right foot remaining upon the step. It is not always possible for a person, when suddenly surprised by an accident, to describe accurately how it occurred, but Ave discover nothing in her detail of the circumstances which we regard as extraordinary or impossible. Her left hand had broken loose from the grab upon the corner of the ear. She still clung to the grab upon the dash with her right hand. The motion of the car forward Avould naturally throw her body around in the rear. If her right foot, resting upon the step, turned with her body, the knee joint would bend around the end of the dash and alloAv her body to swing around against the brake. Experiments were made by several of the witnesses, some of whom were women, who have testified that it could be done in the manner described. It is also claimed that after the alleged injury she Avas seen by a number of Avitnesses using her injured arm as freely, in and about her work, as she did the other, from Avliich it is urged that she was feigning. But the undispu table'facts remain that a red spot was discovered by the physician upon the shoulder the next day, which was tender and sore, and that within the usual time thereafter an abscess developed, and that a deformity in the shoulder folloAved. It is also contended that prior to the injury in question she on one occasion fell from the step of her stoop and was injured, and that one Dr.' Loop of N orth East reduced a partial dislocation of her shoulder; but on rebuttal it Avas sliOAvn that the treatment of Dr. Loop was after the accident in question, and was in reference to the injuries received on that occasion.

■ Numerous exceptions were taken upon the trial to the admission and exclusion of evidence, but there are few, however, Avhich require consideration.

Many exceptions were taken to tlie admission of evidence bearing upon the question of damages to tlie plaintiff’s separate business, but tlie referee found and held that the defendant was not indebted to the plaintiff for any injury received by her to her separate business, or for labor or services outside of her own family, and he confined her recovery to the damages she had sustained by reason of the injury to her person, her suffering and pain. Upon this branch of the case tlie finding was in favor of the defendant, and, therefore, its exceptions to the evidence are rendered unavailing.

As we have seen, the plaintiff was permitted to testify as to the conduct of the driver in suddenly starting the car while she was attempting to alight therefrom. An exception was taken to the admission of this evidence. It was offered, however, specially for tlie purpose of showing the manner in which the driver operated the car on that occasion; in other words, his conduct. It was upon the same trip on which she had received her injury. It was claimed that the injury resulted from the negligent manner in which the driver operated the car; that he was an incompetent person; and as bearing upon his competency, we think his acts and conduct on the occasion were permissible.

An exception was also taken to the testimony of the plaintiff to the effect that on arriving home she told Mrs. Soutliwick of the accident. The propriety of this evidence at the time it was taken was perhaps doubtful, but the theory of the defense was that the accident as described had not occurred, and upon the plaintiff’s cross-examination she was asked if, after entering the car, she spoke with the driver about the accident, or as to whether she told the women that subsequently got into the car about it, or as to whether she spoke to any person in the car about it. . The action, conduct and, to some extent, the declarations of a person immediately after an injury are competent as a part of the res gestae. If the person who claims to have received an injury makes no complaint in reference thereto, that fact becomes pertinent upon the question of fact, and where that evidence is resorted to for the purpose of showing that the accident did not occur, evidence that a complaint was made becomes pertinent in rebuttal. We think, therefore, that, in view of the character of the cross-examination alluded to, error cannot be founded upon the exception.

The testimony of Dr. Peterson as given on a former trial was read under a stipulation, he having died previous to this trial.- It is quite’ possible that, under the provisions of the Code, the same should have been taken subject to any legal objection to the questions put to the witness upon the former trial. We have, therefore, carefully examined the evidence given and the exceptions taken thereto, and whilst we do not wish to be understood as sustaining the reasons given by the referee for his rulings, we have failed to discover any evidence which was improperly received. The witness was a physician in charge of the patient. He was shown to be an expert, and as such it was competent for him to give his opinion in answer to the questions propounded.

In taking the testimony of' Dr. Loop, the defendant’s counsel drew out the fact that the plaintiff had written him a letter. • Thereupon the plaintiff was allowed to read the letter in evidence. Exception was taken, however, and after reflection the plaintiff’s attorney, with permission of the referee, withdrew it from the evidence. We think this was permissible.

The defendant requested the referee to find that 8the defendant ivas not bound to the exercise of greater than ordinary care and diligence, no greater care or diligence than a man of ordinary prudence and capacity might be expected to exercise under the same circumstances. This was refused. Rut we regard it as an abstract proposition of law, which the referee could not be compelled to rule upon. He found the facts in the case, and upon those facts his conclusions of law are based. We are satisfied that the facts ’as found support the referee’s conclusions, even if the rule is as stated by the appellant in liis request.

The judgment apjiealed from should be affirmed.

Dwight, P. J., Lewis and Headley, JJ., concurred.

Judgment appealed from affirmed.


text:
    The People of the State of New York ex rel. William Gunn, Respondent, v. Charles A. Webster as Superintendent of the Penitentiary of the County of Monroe, Appellant.

      Unlawful Tiding on can's — form of commitment — necessity of issuing a warrant — - jurisdiction of the magistrate — habeas corpus — a/rrest without a wa/i'rant under the direction of another officer.

    When the charge against a prisoner, as specified in the commitment, is that of unlawfully and willfully riding on the cars of a railroad without permission from the proper authorities, or of the person in charge of such train, at a specified time and place, the charge is sufficiently explicit to bring the offense charged within the provisions of subdivision 1 of section 436 of the Penal Code.
    It is not essential for a commitment to state whether the prisoner was brought before the proper authorities upon a warrant, or by an officer who had arrested him without a warrant.
    The office of a warrant is to bring the person charged before the magistrate, and when that has been done its duty ends. The magistrate acquires jurisdiction of a person when the person is placed in his custody charged with a crime. It then becomes his duty to act.
    The contention that it is the duty of a magistrate, even though a person is delivered into his custody charged with a crime, to then issue a warrant and have the prisoner again arrested upon the warrant, or to enter upon a preliminary examination to determine whether he was properly arrested without a warrant before he can acquire jurisdiction, is not sustained by authority.
    A court or judge upon the return of a writ of habeas corpus may not inquire into the legality or justice of any mandate, judgment, decree or final order.
    Where an officer who actually took a prisoner in charge, without a warrant for his arrest, did not see him in the act of committing the offense, but acted under the orders and direction of another officer who did see the prisoner commit the offense, the act of the officer making the arrest, in taking the prisoner in charge, may be treated as the act of the officer under whose direction the arrest was made.
    Appeal by the defendant, Charles A. Webster, as superintendent of the penitentiary of the county of Monroe, from an order made by the special county judge of the county of Monroe and entered in the office of the clerk of the county of Monroe on the 12th day of July, 1893, discharging the relator from the custody of the defendant.

      Howard H. Widener, Assistcmt Dist/rict Attorney, for the appellant.

      C. I. McDowell, for the respondent.
   Haight, J.:

It appears that the relator was imprisoned in the Monroe County Penitentiary, in the custody of Charles A. Webster, as superintendent; that he petitioned the special county judge for a writ of habeas corpus to the end that he might be bailed or discharged from custody; that upon the petition the writ was allowed, and on the return day therein mentioned the superintendent of the penitentiary produced the body of the relator before the special county judge, as he was commanded to do, and made return thereto to the effect that the relator was in his custody; and detained by him as superintendent of the penitentiary of Monroe county under and by virtue of a commitment issued by Charles B. Ernst, Esc]., police justice of the city of Rochester, N. Y., on the 10th day of June, 1893, which . recited a conviction had in a Court of Special Sessions held by the police justice aforesaid, for the crime of unlawfully and willfully riding on the cars of the New York Central and Hudson River railroad without permission from the proper authorities or the person in charge thereof. A copy of the commitment is attached, signed by the police justice, which is in the form prescribed by-the statute. The superintendent further returned, upon information and belief, that the relator was arrested by an officer when in the actual commission of the offense specified in the commitment, and brought before the police justice, where proceedings were iawfully and regularly had, the relator upon such charge duly and lawfully tried, and upon such trial duly convicted, and that the commitment was issued upon such conviction. The relator traversed this portion of the return, and thereupon the special county judge entered upon a hearing of the case, taking the oral testimony of the relator and his witnesses, and after the taking of such testimony ordered the relator .discharged, upon the ground, as stated by the court, that the relator was arrested upon a charge of vagrancy; that it appears from what he states and from the evidence of other witnesses that the relator was tried and convicted for unlawfully riding on railroad cars ;■ that no information was laid or warrant issued by the police justice upon this charge, and that, therefore, the police justice of the city of Rochester, sitting as a Court of Special Sessions, acquired no jurisdiction of the case; and also, that it does not appear by the commitment returned .by the Superintendent of the Penitentiary, that tlie relator is detained for tlie commission of a crime described in tlie statute.”

Section 426 of the Penal Code provides that: “1. A person who, Rides on any engine or any freight or wood car of any railway company without authority or permission of the proper officers of the company or the person in charge of the car or engine; or, 2, Who gets on any car or train while in motion for the purpose of obtaining transportation thereon as a passenger; or, 3, Who willfully obstructs, hinders or delays the passage of any car lawfully running upon any steam or horse or street railway; Is guilty of a misdemeanor.” The charge as specified in the commitment is, as we have seen, “ with unlawfully and willfully riding on the cars of the New York Central & Hudson River Railroad without permission from the proper authorities or of the person in charge of the train, at Rochester, on tlie 9th day of June, 1893.” It appears to ns that this is sufficiently explicit to bring tlie offense charged within the first subdivision of the section of the Penal Code quoted.

The special comity judge says that the relator was arrested upon a charge of vagrancy, but such fact, if fact it be, does not appear from the return of the superintendent. The commitment states that William. Gunn, the relator, was brought before a Court of Special Sessions held by C. B. Ernst, Esq., police justice of the city of Rochester, charged with unlawfully and willfully riding on the cars, etc. It says nothing about his being arrested upon a charge of vagrancy, and we do not understand this portion of the return to have been traversed. The special county judge further states that it appears from what the relator states, and from the evidence of the other witnesses, that he was tried and convicted for unlawfully riding on railroad ears; that no information was laid or warrant issued by the police justice upon this charge; and that, therefore, the police justice, sitting as a Court of Special Sessions, acquired no jurisdiction in the case.

As to the conviction for unlawfully riding upon railroad cars, the fact appears not only from the statement of the relator and his witnesses, but also from the commitment. As we have seen, the commitment recites that he was brought before the Court of Special Sessions, and this charge was made against him. As to whether he was brought upon a warrant or by an officer who had arrested him without a warrant, the commitment is silent; and we have been unable to find any provision of the statute which requires this fact to he specified in the commitment. Section 168 of the Code of Criminal Procedure provides that an arrest may be, 1, by a peace officer, under a warrant; 2, by a' peace officer, without a warrant ; or, 3, by a private person. Provisions are made in the Code for the issuing of warrants upon information laid before a magistrate. Such warrants command the peace officer to whom they are directed to forthwith arrest the person named therein and bring him before the magistrate. (§§ 148, 151.)

Provisions are also made for arrests without a warrant in certain cases by peace officers and private persons. (§§ 177, 183.)

When an arrest is made the person arrested must at once he taken before a magistrate. The office of a warrant is to bring the person charged before the magistrate. When that has been done its office is at an end. The magistrate acquires jurisdiction of the person when the person is placed in his custody charged with a crime. It then becomes his duty to act. Hence, the provisions of section 188, which provide that “ when the defendant is brought before a magistrate upon an arrest, either with or without warrant, on a charge of having committed a crime, the magistrate must immediately inform him of the charge against him and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had.” If we understand the position of the respondent correctly, it is the duty of a magistrate, even though a person is delivered into his custody charged with a crime, to then issue a warrant and have the prisoner agaiu arrested upon the warrant, or to enter upon a preliminary examination to determine whether he was properly arrested without a warrant before he can acquire jurisdiction. Our attention has been called to no case which sustains this contention.

It is provided that a court or judge upon the return of a writ of habeas corpus shall not inquire into the legality or justice of any mandate, judgment, decree or final order. (Code Civ. Proc. § 2034.)

Here we have the relator brought before a magistrate sitting as a Court of Special Sessions. He is charged with unlawfully and willfully riding on the cars of the New York Central and Hudson River railroad without permission from the proper authorities or the person ■ in charge of -the train, which, under the provision of the statute, is a misdemeanor. Upon this charge he was tried and convicted and sentenced to be imprisoned in the Monroe Oounty Penitentiary for the term of two months. The facts set forth in the commitment are not controverted, and the special county judge had no power to inquire into the legality or justice of the judgment.

But assume, for the purposes of this case, that the siiecial county judge had the power to go outside of the record and take oral testimony upon the controverted questions. It then appears that one La Pointe was an officer in charge of the New York Central and Hudson River railroad yards; that he went to the police office in the city of Rochester and asked for a- detail of detectives ; that several were furnished him, and they together made a descent upon the yards of the railroad company; that there they found a number of boys, whom they arrested, among whom was the relator; it appears that the relator was taken into custody by Officer Dukelow, but that Officer .La Pointe told Dukelow .to arrest him. This, the relator concedes • in his testimony. That they took the persons arrested to the station house; and that there Dukelow first entered the charge of vagrancy against the relator; but when he was taken before the jmlice justice, La Pointe appeared against him with the charge of unlawfully riding upon railroad cars, as specified in the commitment. The evidence taken before the Court of Special Sessions is not returned. It has no place upon a hearing upon a writ of habeas corpus, but the relator admits in his testimony that Officer La Pointe was sworn upon the trial and testified that he, the relator, had been riding upon freight cars; that he was jumping on freights all the time. La Pointe could not well have testified to this without having seen him; so, that upon the respondent’s theory of the case, the magistrate had evidence before him tending to show the legality of the arrest. True, Dnkelqw, whofactually took the relator in charge, did not see him in the act of committing an offense, but Dukelow acted under the orders and directions of La Pointe, who did see him. La Pointe was the officer in charge there present making the arrests. He had the right to call To his. aid the other officers, and whatever they did under his' direction may be treated as his act. .

The order appealed from should be reversed, and the relator remanded to the custody of the superintendent of the Monroe County Penitentiary.

Dwight, P. J., and Lewis, J., concurred.

Order of the special county judge of Monroe county appealed from reversed, and the relator remanded to the custody of the defendant.


text:
    Ida M. Cobb, Plaintiff, v. H. Eugene Welcher et al., Defendants.

      Negligence — 1890, chapter 398 — the proprietor of a factory not an insurer, of Ms-employees — extraorclincsry accident.

    Chapter 398 of the Laws of 1890 does not make the proprietor of a factory an. insurer of the safety of his employees, nor does it require him to guard against extraordinary accidents which a careful and prudent man could not foresee or anticipate as liable to occur. His duty is fully performed when he furnishes a cover or guard for machinery sufficient to protect his employees against accidents which may reasonably be apprehended as likely to occur.
    MotioN by the plaintiff, Ida M. Cobb, for a new trial on a case-containing exceptions ordered to be heard at the General Term in the -first instance, after a judgment of nonsuit rendered at the Monroe County Circuit on the 14th day of February, 1893.

      Walter 8. Ihtbbell, for the plaintiff.

      Myron T. Bh/, for the-defendants.
   Haight, J.:

This action was brought to recover damages resulting from a personal injury. The defendants were operating a factory in the city of Rochester. There was a long table extending through the factory, upon which sewing machines were placed. The table was two feet six inches high. Underneath the table, at the center thereof, was a line of shafting extending .the length of the table, twenty inches above the floor, one end of which projected about 'three and three-quarter inches beyond the table. The sewing-machines were operated by means of belts around the shafting. At the end of the table where the shaft projected, a box was con-stractecl, tliree inches wide and three and three-quarter inches deep, witli a cover on the upper end. The box ivas toe-nailed to the floor and to the top of the table so as to inclose the projecting end of the shaft.

The plaintiff had been previously in the employ of the defendants for some time as forewoman, but at her own request had been given a machine to operate at the table. Her machine ivas next to the end of the table. On the day in question she had loosened her hair in consequence of a headache; when- she was about to leave the factory she stepped to the end of the table and allowed her hair to fall loose, straightened it out, and then bent over, took her hair in her hand, threw it around over her head, in the act of coiling it, and as she did so it flew around underneath the table, back of the box covering the shaft, was caught by the shaft and wound around it, tearing the scalp from her head.

It is claimed that she is entitled to recover upon the ground that the defendants were chargeable with negligence in not having properly guarded the shafting at the end of the table, under the Laws of 1890 (Chap. 398, § 12), which provide that “all yats, pans, saws, planers, cogs, gearing ..and machinery of every, description therein shall be properly guarded.” This statute, and the duty of factory owners thereunder, has been considered and discussed by us in the case of Knisley v. Pratt, and we shall not attempt to repeat-here what we have said in that case. The box was in position over the end of the shaft at the time the accident occurred, and we think it satisfactorily appears that it was nailed to the table. The question is, therefore, whether it was a compliance with the statute. It was surely a covering to the shafting sufficient to prevent the clothing of the employees from coming in contact therewith. We do not understand the statute to make the factory man an insurer of the safety of his employees, or that it requires him to guard against extraordinary accidents which careful and prudent men could not foresee or anticipate as liable to occur. As we understand it, his duty is fully performed when he furnishes a cover, or guard, sufficient to protect against accidents which may be reasonably apprehended or liable to occur. (Stringham v. Hilton, 111 N. Y. 188; Pauley v. Steam Gauge & L. Co., 131 id. 90.).

Ve regard the accident to the plaintiff as extraordinary, and one that conld not well have been foreseen or anticipated.

It follows that the motion for a new trial should be denied and judgment ordered for the defendants upon the nonsuit.

Dwight, P. J., and Lewis, J., concurred; Beadley, J., not sitting.

Plaintiff’s motion for a new trial denied and judgment ordered for the defendants upon the nonsuit.

       Rep. post, 323.


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    Emma J. Chapman, Respondent, v. Laura M. Wackerman, as Executrix, etc., of Sarah R. Torkington, Deceased, Appellant.

      Bill of pa/rticulars as to delivery, etc., of a promissoiy note — an order denying a motion for, is reviewable upon appeal —when it should be reversed.

    Although the granting or withholding of an order to furnish a hill of particulars rests in the sound discretion of the court, such discretion is reviewahle upon appeal.
    The circumstances considered which necessitate the reversal of an order denying the defendant’s motion for a hill of particulars in an action brought upon a promissory note, and the granting of the motion therefor requiring the plaintiff to disclose the name of the payee of the note in suit or the person to whom it was first delivered, together with the time and place of such delivery, and his-place of residence.
    Appeal by the defendant, Laura M. ’Wackerman, as executrix, etc., of Sarah R. Torkington, deceased, from an order of the Supreme-Court, made at the Monroe County Special Term and entered in the office of the clerk of the county of Monroe on the 31st day of August, 1893, denying the defendant’s motion for a bill of particulars.

      George A. Ocornghcm, for the appellant.

      Fanning <& Williams, for the respondent.
   Haight, J.:

This action was brought upon a promissory note alleged to have been made by Mrs. S. R. Torkington, the defendant’s testatrix. The note is for the sum of $12,000, dated at Rochester, New Tork, July 6, 1889, and is payable *on demand to bearer at the office of George Rumble, Chicago, Illinois, or at Rochester, New York, with interest at six per cent per annum after date until paid.

Tbe defendant, in her moving affidavit, states that sbe did not know of tlie existence of the note until tbe same wras presented to ber as executrix after tbe will of ber testatrix bad been admitted to-probate, and sbe asks for a bill of particulars setting forth : First, tbe particular time and place where tbe note set forth in tbe complaint was delivered to tbe payee thereof; second, the name and place of residence of said payee; third, tbe particular time and place, when and where said note was delivered or transferred to C. D. Bush; foiorth, a particular statement of tbe consideration for the transfer of said note by the payee thereof to said C. D. Bush.

As we have seen, tbe note is payable to bearer and does not name a payee. Tbe complaint does not disclose the name of tbe payee, but alleges that the note, at the time of tbe making thereof, was then and • there duly delivered to the payee therein named, who after-wards duly transferred the same for value to one C. D. Bush, and that C. D. Bush, prior to tbe commencement of this action, duly transferred tbe same to the plaintiff. It appears to us that under tbe facts presented tbe name of tbe payee, or tbe person to whom tbe note was delivered upon tbe making thereof, should be disclosed. It is undoubtedly true that tbe granting or withholding of tbe order to furnish a bill of particulars rests in the sound discretion of the court, but that discretion is reviewable here. The maker of the note is dead. The existence of the note was unknown to the defendant until it was presented as a claim against the estate of the deceased. The amount of the note is for more than the entire value of the real and personal property left by the testatrix, and it appears to us that tbe defendant should be given a reasonable opportunity to investigate the circumstances under which it was made in order to enable her to prepare ber defense. She cannot well have such an opportunity without knowing tbe name of tbe payee. (Matthews v. Hubbard, 47 N. Y. 428; Witkowski v. Paramore, 93 id. 467 ; Tilton v. Beecher, 59 id. 176; Childs v. Tuttle, 48 Hun, 228; Ball v. The Evening Post Publishing Co., 38 id. 11; Klock v. Brennan, 35 N. Y. St. Repr. 745; Smith v. Johnston, 22 id. 593.)

The order appealed from should be reversed, with- ten dollars costs and disbursements, and the motion for a bill of particulars requiring the plaintiff to disclose the name of the payee of the note, or tbe person to whom it ivas first delivered, together with the time and place of such delivery and his place of residence, should be granted.

Dwight, P. J., and Lewis, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion for a bill of particulars granted, requiring the plaintiff to disclose the name and place of residence of the payee of the note, or the person to whom it was first delivered, together with the time and place of such delivery.


text:
    Mary A. Knope, Appellant, v. Joseph Nunn, Respondent.

      Compulsory reference — an affidavit alleging a long account must state facts.

    An affidavit stating that the trial of an action would involve the examination of a long account, embracing upwards of 150 items, is, in the absence of facts stated, by which such conclusion appears to be supported, insufficient to support an order of compulsory reference.
    Appeal by the plaintiff, Mary A. ICnope, from an order of the County Court of Monroe county, entered in the office of the clerk of the coiinty of Monroe on the 15th day of July, 1893, appointing a referee to hear, try and determine the issues in the action, as amended by a further order of said court, entered in said clerk’s office on the 31st day of July, 1893.

      John A. Bernhard, for the appellant.

      Patrick McIntyre, for the respondent.
   Haight, J.:

The Code of Civil Procedure (§ 1013) provides that “ the court may, of its own motion, or upon the application of either party, without the consent of tbe other, direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law.”

The question raised for review is as to whether or not the trial will require the examination of a long account.

The complaint in substance alleges that the plaintiff and defendant were the owners of a tract of land in the city of Rochester, and were in possession thereof as tenants in common; that the plaintiff owned an undivided one-third thereof, and the defendant the other two-thirds; that they sold the same to one Hirschfield for the sum of $5,000, which sum was paid to the defendant; that he thereby became indebted to the plaintiff in the sum of $1,(560.0(1, no part of which has been paid to the plaintiff, except the sum of $1,250, and judgment was demanded for the balance, $416.66, together with the interest which had accrued thereon.

The answer denied that the defendant had received from Hirsch-field $5,000 in payment for the land sold to him, and alleged that but $1,000 thereof was paid in cash at the time of the delivery of the deed, and that the balance, $4,000, was secured by a mortgage upon the premises, payable in four years thereafter; that at the time this action was brought there was still due and owing upon the mortgage the sum of $3,000 and interest, and that the amount, if any, going to the plaintiff, was not yet due and payable, and, as a counterclaim, alleged that whilst the plaintiff and defendant were the owners and tenants in common of the land described in the complaint, the plaintiff collected the rents upon the premises, amounting to $1,275 ; that the defendant had paid for taxes, repairs and insurance upon the same the sum of $116.40, and that the plaintiff was indebted to him in consequence thereof in the sum of $850.

The plaintiff in her reply to the defendant’s counterclaim denied that she had collected rents to the amount alleged, or that she was indebted to the defendant in the sum of $850, and alleged that all of the rents collected by her were by the direction of the defendant paid out for the support and maintenance of Mary A. Nunn, the mother of both the plaintiff and defendant in the action, and in the taxes levied and assessed against the premises, and she further alleged that the defendant had collected rents upon the jaremises to the amount of $189.

It is apparent that the only issue raised in reference to the matter alleged in the complaint is as to whether the sum claimed had become due and payable, and that the only account which will require examination arises tinder the counterclaim set up in the answer as to tbe amount of rent collected by the plaintiff and the disposition made thereof by her.

It is alleged that the rent was collected between July 24, 1884, and July It, 1889. Plaintiff concedes that she collected rents, but does not admit that they amounted to the sum stated, alleging that the defendant collected the sum of $189. She alleges that she paid the taxes and expended the balance in the support of her mother, under the direction of the defendant.

We do not understand that these allegations constitute a long account within the meaning of the section of the Code referred to. (Randall v. Sherman, 131 N. Y. 669 ; Spence v. Simis, 131 id. 616 ; Cassidy v. McFarland, 139 id. 201.)

It is true that the respondent in his moving affidavit states that the trial of this action will involve the examination of a long account, embracing, as I verily believe, upwards of one hundred and fifty items,” but no fact is stated from which this conclusion appears to be supported. "We do not understand such an affidavit to be sufficient to support an order of compulsory reference. (Cornell v. United States Illuminating Company, 16 N. Y. Supp. 306 ; Thayer v. McNaughton, 117 N. Y. 111.)

The respondent in his brief states that it was agreed by the parties in open court that the case was a proper one for reference, but no such statement appears in the appeal book; on the contrary, the order entered contains the recital that the motion was opposed.

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

Dwight, P. J., and Lewis, J., concurred.

Order of Monroe County Court appealed from reversed, with ten dollars costs and disbursements.


author: Dwight, P. J.:

text:
    Charles H. Clark and Another, Respondents, v. William Wilcklow and Mary A. Fry, Appellants, Impleaded with Francis M. McDowell.

      Examination of defendamts before trial — to discover whether a company name represents a corporation oí' a co-partnership, and who are the members of the latter.

    When, in an action brought upon a written agreement alleged to have been executed on the part of the defendants under a companj' name signed by one of the defendants, the complaint states, on information and belief, that the defendants were partners in business, under the company name, as a firm name, and the answer denies the co-partnership and that certain of the defendants had any interest in the business or contract mentioned, a proper case for an order for the examination of the defendants before trial as to what the company is and of whom it consists, is presented by an affidavit of the plaintiff which contains the formal requirements of section 872 of the Code of Civil Procedure, and states that the plaintiff has no knowledge on the subject of the desired examination, and no information other than a statement of the Secretary of State that no articles of association of such a company were on file in his office, and the statement of one of the defendants that at one time the company consisted of the defendants as co-partners.
    Appeal by tlie defendants, William Wilcldow and Mary, A. Fry, from an order of tlie Supreme Court, made at Special Term and entered in the office of tlie clerk of Monroe county on the 25th day of September, 1893, denying a motion to vacate an order for defendants’ examination before trial, theretofore granted by a justice of the Supreme Court upon the application of the plaintiffs.

      J. H. Bw'hite, for the appellants.

      W. W. Armstrong, for the respondents.
   Dwight, P. J.:

The action was on a written agreement which the complaint alleges was executed on the part of the defendants, in the name of “The Sanitas Soap Vase Co., by William Wilcklow, manager,” for services to be performed by the plaintiffs for the defendants; and, on information and belief, that the defendants were partners in business under the firm name of “The Sanitas Soap Vase Co.” The answer denies the co-partnership and denies tliat tbe two defendants other than Wilcklow had any interest in the business or in the contract mentioned.

The affidavit upon which the order in question was obtained, after the formal averments required by section 872 of the Code of Civil Procedure, states that the plaintiffs have no knowledge of what the defendant company is or of whom it consists, and no information on the subject other than the statement of the Secretary of State to the effect that no articles of association of such company were on file in his office, and the statement at one time of the defendant Wilcklow, that it consisted of the defendants in this action, as co-partners. The affidavit also states that the facts bearing upon the question above mentioned are within the personal knowledge of the defendants alone, and that the plaintiffs know of no other source from which those facts can be obtained ; that it will be necessary for the plaintiffs to establish those facts upon the trial of the action, and they desire the testimony of the defendants in relation thereto in advance in order to prevent surprise on the trial.

We think the case made was a peculiarly proper one for the order in question, which confined the examination of the defendants to the matters above stated in the affidavit. The plaintiffs have no other means of proving the fact of which they have been informed by one of the defendants, than by the defendants themselves. The declaration of Wilcklow is not evidence against the other defendants, and the fact, so far as the plaintiffs know, is locked in their breasts. Must the plaintiffs await the day of trial and submit to the surprise and defeat which there await them in case the defendants deny the co-partnership, or may they avail themselves of the process furnished by the Code and ascertain beforehand whether the fact can be established as they believe it to be ? If not, they have the opportunity to withdraw from the litigation and save the further useless expenditure of time and money, to the defendants as well as to themselves.

We perceive no respect in which the case made by the affidavit falls short of the requirements of the statute (§ 872, supra), which, among other things, expressly provides that, in case of the proposed examination of a party to the action, the affidavit need not state any of the facts tending to show that his testimony cannot probably be procured at the trial. (Subd. 5, last clause.)

¥e think tlie order was properly made by tlie judge at Chambers and that the order of Special Term denying the motion to vacate it must be affirmed.

Lewis and IIaight, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Lewis, J.:

text:
    Daniel E. Bartlett, Appellant, v. James W. Mudgett, Respondent.

      Justices Court — jurisdiction, not obtained by consent — evidence that the a/mount in controversy exceeded $400 — amount involved reviewed on appeal — distinction between actions in tori and on contract.

    A justice of the peace has no authority to dismiss an action on the ground that the amount in dispute exceeds $400, until it is made to appear to him "by proof that the amount in dispute exceeds a sum of which he has jurisdiction. He is not ousted of jurisdiction because the amount claimed in the pleadings may exceed that amount.
    The complaint in an action brought in a Justice’s Court alleged the indebtedness of the defendant to the plantiff for services in the amount $490, of which amount but $300 had been paid, and for goods, wares and merchandise sold to the amount of $39.02, upon which $40 had been paid, and judgment was demanded for $185.04.
    The answer admitted that the plaintiff had performed services for the defendant, but alleged that such services did not amount to $490 in value, and that the defendant had paid on account thereof the sum of $340, and further alleged that by reason of mutual dealings between the parties the plaintiff was indebted to the defendant in the sum of $110, which was pleaded as a counterclaim, and judgment for $110 was demanded.

      Held, that the pleadings did not show that the sum total of the accounts of both parties exceeded $400.
    Upon an appeal from a judgment of a Justice’s Court, if a new trial is not demanded in the notice of appeal, the case is reviewable upon questions of law only. But if a new trial be demanded, then all questions of law and fact are before the appellate court'for consideration.
    Upon the joining of issue before a justice of the peace a judgment was rendered fpr the defendant dismissing the action upon the ground that the amount involved was beyond his jurisdiction. The plaintiff appealed to the County Court, and demanded in his notice of appeal a new trial. A motion was thereupon made by the defendant to dismiss the appeal on the ground that the justice had no jurisdiction, and could not take cognizance of the action, for the reason that the sum total of the accounts of both parties proved to the satisfaction of the justice exceeded $400. The motion was granted, and the plaintiff appealed therefrom.

      Held, that the granting of such order was erroneous.

      Quiere, whether the question as to the amount involved could he properly-reviewed by the County Court upon such appeal.
    In an action brought before a justice of the peace to recover damages for an assault and battery, libel or slander, the justice has no jurisdiction of the subject-matter, but in an action brought upon a contract the justice has jurisdiction until it is proven upon the trial that the accounts in dispute exceed $400 in amount.
    If a justice of the peace has not jurisdiction of an action the consent of the parties thereto will not give him jurisdiction thereof.
    Appeal by tlie plaintiff, Daniel E. Bartlett, from an order of tbe Cattaraugus County Court, entered in the office of the clerk of the county of Cattaraugus on the 22d day of August, 1893, dismissing the plaintiff’s appeal from a judgment of a justice of the peace of the town of Ellicottsville, Cattaraugus county, in favor of the defendant.

      JE. D. dVorthnop, for the appellant.

      Q. M. Rider. for the respondent.
   Lewis, J.:

The plaintiff brought his action in the Justice’s Court in Catta-raugus county, and claimed in his complaint as his first cause of action that the defendant was indebted to him for work and services in pressing into bales 280 tons of hay, at the agreed price of $1.75 a ton, and that there became due to him therefor $490; that the defendant had not paid any part thereof, except the sum of $300, and that there remained due on account thereof the sum of $190. For his second cause of action he alleged that the defendant ivas indebted to him in the sum of $39.02 for goods, wares and merchandise sold and delivered to the defendant, and that the defendant had paid thereon the sum of $40, thereby slightly overpaying the same. lie. demanded judgment against the defendant for $185.04, with interest thereon from the 1st day of December, 1892. The defendant interposed an answer admitting that the plaintiff pressed a quantity of hay for him at the price stated in the complaint, but that the amount w'as less than 280 tons, and that he had paid the plaintiff, to apply thereon, divers sums of money, amounting in all to $340, and, for a further answer, alleged that the plaintiff was justly indebted to him for goods furnished, and upon mutual dealings between the parties, in the sum of $110, which was pleaded as a counterclaim, and demanded judgment against the plaintiff for $110. The issue being thus joined the defendant thereupon moved for a discontinuance of the action on the ground that it appeared from the pleadings that the sum total of the accounts and demands of both parties in dispute exceeded the sum of $400, and the justice, against the objections of the plaintiff, granted the motion and dismissed the case, and entered judgment against the plaintiff for costs. The plaintiff served a notice of appeal from the justice’s judgment to the County Court of Cattaraugus county, and in said notice demanded a new trial in that court. The defendant thereupon moved the County Court for an order dismissing the appeal on the ground that the justice before whom the action was commenced had no jurisdiction, and could not take cognizance of the same for the reason that the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400.” The motion was - granted and an order entered dismissing the appeal, and from such order the plaintiff appealed to this court. The justice unquestionably erred in dismissing the action, as it will be seen by an examination of the pleadings that the sum total of the accounts of both parties in dispute did not exceed $400; they, in fact, amounted to just $293.04. The justice had no authority to dismiss the action until it was made to appear to him by proof that the amounts in dispute exceeded his jurisdiction.

It is provided by subdivision 4 of section 2863 of the Code of Civil Procedure, that “ where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400.00,” the justice cannot take cognizance of the action. He is not ousted of jurisdiction, because the amount claimed in the pleadings may exceed that amount. If that were the case the defendant in every case could oust the justice of jurisdiction by setting up in his answer a claim for more than $400, no matter how fictitious the claim might he. The Code requires, before he shall dismiss the action, that he shall be satisfied by evidence. (Parker v. Eaton, 25 Barb. 122; Glackin v. Zeller, 52 id. 147 ; Bailey v. Stone, 41 How. 349.) In the absence of any proof in the case, the defendant’s counsel succeeded in inducing the justice to dismiss the action, solely upon what he claimed appeared upon the face of the pleadings, and, as we have seen, the pleadings failed to show that the amount involved was beyond the jurisdiction of the justice.

The defendant’s counsel contends that the justice, having rendered a judgment of discontinuance, it is conclusive upon the question of the amount involved until it is reversed, and that the only manner provided by the Code for reviewing it is by appeal upon questions of law only.' "Whether he is right in this contention depends upon the construction which shall be given to provisions of the Code. Section 2950 provides that, where, upon the trial of an action, the sum total of the accounts of both parties proved to the satisfaction of the justice exceeds $400.00, judgment of discontinuance must be rendered against the plaintiff, with costs.”

Section 3068 provides, where an issue of fact or an issue of law was joined before the justice, and the sum for which judgment was demanded by either party in his pleadings exceeds $50.00 * * * the appellant may, in his notice of appeal, demand a new trial in the appellate court, and thereupon lie is entitled thereto.” Here, as we have seen, each party did demand judgment for a smn exceeding fifty dollars, so that the case falls within the letter of this section. If a new trial is not demanded in the notice of appeal, then the case is reviewed upon questions of law only. But if a new trial be demanded, then all questions of law and fact are before the ap]3el-late court for consideration, and we see no good reason why any embarrassment should arise upon a new trial in the County Court in this case, as it will be quite apparent when the trial comes on from an inspection of the pleadings that the justice, in fact, had jurisdiction of the action.

Had the justice proceeded with the trial and decided upon conflicting evidence that the amount involved did not exceed the limit of • his jurisdiction, the defendant unquestionably would have had the right to appeal to the County Court and there try the question over again. If, as contended by defendant’s counsel, the justice’s judgment can only be reviewed upon an appeal upon questions of law, it follows that there must be in this case four hearings before the litigation is ended, two in the J ustice’s Court and two in the County Court. There does not seem to be any occasion for pursuing such a course. The question here presented should not be confounded with a civil action in a Justice’s Court to recover damages for an assault and battery, libel or slander, for in that class of actions the justice has no jurisdiction of the snbject-matter. Here he had jurisdiction until it was jwoven upon the trial that the accounts in dispute exceeded the limit mentioned. It does not, therefore, follow because a new trial can be had in the appellate court in this case that a new trial could be had in the other class of actions. In the one case the question of jurisdiction depends, as we have seen, upon the evidence. Not so in the other cases. We are not referred to any case where the precise question here presented has been adjudicated.

In Crannell v. Comstock (12 Hun, 293) the action was commenced in the Justice’s Court, the plaintiff’s complaint was for work and materials and the amount claimed by him was $115.50. The defendant pleaded a set-off for goods sold and delivered to the plaintiff to the value of $3,000, for which sum he claimed judgment. Both parties introduced evidence before the justice in support of their respective claims; the defendant recovered a verdict for forty-three dollars and sixty-five cents. An appeal was taken to the County Court for a new trial, and the respondent’s counsel, in that court, raised the question as to the jurisdiction of the justice because the total of the accounts exceeded $100. It was held, on an appeal to this court, that the County Court had nothing to do with the question whether the justice erred in holding that he had jurisdiction ; that the appeal, not being upon questions of law, it did not bring up the testimony taken before the justice, and that the County Court had no means of determining whether the accounts proved before the justice exceeded $400, and, further, that the appeal brought up the issues of fact joined in the court below to be tried anew in the County Court, and that the jurisdiction of that court, for all purposes of the trial and judgment, was the same as if the action had been commenced in that court originally. The respondent’s counsel claims that this is not an authority against him for the reason that the question of jurisdiction was not raised in that case in the Justice’s Court, and for that reason cannot be considered in the appellate court. There is nothing in this contention, for if the justice did not have jurisdiction the consent of the parties would not have given it to him. (Oakley v. Aspinwall, 3 Comst. 552: Clyde & Rose Plank Road Company v. Parker, 22 Barb. 323.)

The case of Kirk v. Blashfield (6 Thomp. & Cook, 509) is not an authority to the contrary. There the justice dismissed the action upon the same ground as in the case at bar, but no appeal was taken from his judgment. The plaintiff commenced a new action in the Supreme Court, and recovering less than fifty dollars, he demanded and was allowed full costs, the court holding that the justice’s judgment, not having been reversed, was conclusive upon the question of the jurisdiction of the parties.

We think that the County Court was in error in granting the order appealed from; it should be reversed, with ten dollars costs and disbursements.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Order of the County Court of Cattaraugus county appealed from reversed, with ten dollars costs and disbursements.


text:
    The Bradford National Bank, Appellant, v. Hascal L. Taylor, Respondent.

      Action on a note —fraudulent alteration — liability of an indorser in blanlc — evidence.

    If the legal liability of the maker of commercial paper is changed in a material respect by a fraudulent alteration of his obligation, such alteration vitiates the instrument, and the question whether it is a material alteration or not is one of law for the court.
    IL' the maker of a note fails to carry out his understanding in regard to the same with the indorser thereof in blank, as between the innocent holder of the note for value and the indorser the latter must suffer.
    It. is a general rule that an indorsement on a blank note, without sum or date or time of payment, will bind the indorser for any sum payable at any time which the person to whom the indorser intrusts it chooses to insert.

      Upon the trial of an action brought upon a promissory note against the indorsin’ thereof, the plaintiff offered to show that a certain mortgage given by the maker thereof to the indorser was sufficient to amply indemnify him for his indorsement, and further offered to show that the mailer’s- financial condition had changed for the worse during the time the indorser had in his possession two other notes to take up which the note in suit was given. Such evidence was excluded.
    Held, that the evidence was material as bearing upon the defendant’s right to repudiate his indorsement and as tending to show a good consideration for the note, and should have been admitted.
    Appeal by the plaintiff, The Bradford National Bank, from an order of the Supreme Court, made at the Genesee County Special Term and entered.in the office of the clerk of the county of Erie on the 4th day of April, 1893, denying the plaintiff’s motion for a new trial made upon a ease and exceptions as settled.

      Charles F. Tabor, for the appellant.

      John G. MiZburn, for the respondent.
   Lewis, J.:

The defendant, in the spring or summer of 1888, at the request and for the accommodation of a Mr. B. F. Smith, the maker, indorsed in blank two promissory notes of $1,000 each, and delivered them to Smith. The indorsements were made in Bradford, Pa., and the notes were made payable at the plaintiff’s bank in that city. Printed blanks were used in preparing the notes. The figures 188 ” were printed in the blanks for the year, and at the time of indorsing the notes, the figure “ 8 ” was added, so that the year read “ 1888.” There were blank places in the notes for the day and month and for the time the notes were to run. These were left unfilled when the defendant indorsed the notes and delivered them to Smith. Smith was a personal and business friend of the defendant. He stated to the defendant that he intended to use the notes in the purchase of some oil wells, but he did not wish to use them just then, but would in the course of two or three months, and for that reason did not wish to date the notes then, but desired the defendant’s indorsement then, as he was at the time in the city of Bradford and intended shortly to return to his home in Buffalo. The defendant assented to all this, and indorsed the notes and delivered them to Smith with the understanding that when Smith wished to use them he should be at liberty to fill in the blanks and procure the discount of the notes by the plaintiff. Smith, not haying occasion to use the notes sooner, retained them until the 9th day of September, 1890, when he filled up the blanks in one of the notes with the words and figures “ September 9th,” and changed the' figures 1888 ” to 1890,” and made the note payable four months after date at the plaintiffs bank. The plaintiff, at Smith’s request, thereupon discounted the note and paid the proceeds of the discount to Smith. Smith retained possession of the other note till the 16th day of October, 1890, when he in like manner filled in the blanks with the words and figures, “ October 16th, 1890,’-’ changing the figures “ 88 ” to 90,” and made the note payable in three months from date at the plaintiff’s bank, and the plaintiff thereupon discounted it for Smith and paid him the proceeds thereof. "When the notes were about maturing, Smith, not being able to take them up, wrote the defendant, under date of January 3, 1891, as follows: have demanded them long ago. I supposed they had been used and destroyed, or destroyed at least, long before now. Your using them at so late a date without notice to me is clearly a sufficient reason for my declining to go any further in this matter*. I return the notes inclosed in your letter.”

“ H. L. Tayloh, Esq., Buffalo, N. Y.:
“ Deae Sir — Some time ago you indorsed two notes of $1,000 each for me. I told you I would only use them in case of necessity. I did not use them until September last. They will be due this 12th and 19th. The indorsement I asked you for when I was in Buffalo, last month, was for the purpose of lifting these notes and to margin my oil to forty cents. I have gotten along all right so far, but these notes (owing to the continued tightness in money) are bothering me, and I should like very much to get them renewed, and with this in view I inclose you two new notes which if you feel that you can I should like very much to have you indorse, and I will send you the others on the dates they are due. Please return the inclosed notes, indorsed or not, in the inclosed envelope. I don’t think you would be running great risk, as I own twenty wells, against which there is only $1,T00. I am sorry to bother you, and in any event will try not to do so again.”
To which Mr. Taylor replied, under date of January J, 1891:
“ B. F. Smith :
“ Dear Sir— I have your letter of January 3rd. I was not aware that you had my notes for $2,000. Had 1 been I should

The following correspondence followed between Smith, the bank and the defendant:

Bradford, Pa., January 9th, 1891.
“ H. L. Taylor, Esq. :
“Dear Sir— Yours of the 7th inst. at hand. There was no limit placed upon the time in which I was to use the notes referred to, and I had no reason to think that your confidence in my honesty had been lessened in any way. I expect to be able after a little to clear up my matters so that you will be entirely released. However, I will be unable to attend to it at their maturity January 12th and 19th, and would ask you to write the Bradford National Bank waiving protest on same. I will have the matter cleared up just as soon as possible. I am negotiating the sale of a lease I am interested in in Forest county, which if successful will enable me to do so very soon.
“ Very truly,
“B. F. SMITH.”
Buffalo, N. Y., January 10th, 1891.
“ B. F. Smith, Esq.:
“ Sir — -I have your letter of yesterday, and in reply will say that I had confidence in your honesty but not in your operations on the market. I loaned you my name at the time wholly for your accommodation to be used, you said, in the purchase of some wells, not for one or two years afterwards, but at that time, or very soon. The keeping of these notes and using them so long afterwards to speculate in oil, without consent or notice, is a fraud on me to which I will not consent. If these notes are not paid the day they are due I cannot answer for the consequences to you. Not having indorsed these notes for use at the time they were used, I shall not waive notices. I do not think I am holden for payment.
“H. L. TAYLOR.”
“ Bradfoed, Pa., March, 23, 1891.
“H. I,. Taylor, Esq.:
“ Dear Sir — Please let me bear from yon in regard to two notes of B. F. Smith indorsed by you, which are past due and remain unpaid.
“ One was protested January 12th and the other January 19th.
“Yours respectfully,
“ S. P. KENNEDY,
“ Cashier.”
“ Buffalo, N. Y, March 24, 1891.
“S. P. Kennedy, Cashier:
“ Dear Sir ■— I have your favor of date yesterday. I supposed these notes had been paid or extended by Smith. He wrote me Jan. 3, saying he would arrange for them soon, and that he had twenty wells against which there was only $1,700. On Jan. 9 he wrote me again saying he would have the matter cleared up, that he was negotiating the sale of a lease in which he was interested in Forest county. I wish you would get him to secure these notes on his wells or something else, as it is in your line of business and you are there to attend to it. I will send you the money when you want I should pay it, and wish you would take the matter in hand and kindly look after the ultimate collection of the debt for me. I have 110 doubt Smith will, make all the papers necessary and pay all the costs necessary if, as he says, he has the property he tells me about.

“ I remain, very truly yours,

“ H. L. TAYLOR.”

“ Bradford, Pa., Sept. 10, 1891.
“ H. L. Taylor, Esq., Buffalo, N. Y.:
“ Dear Sir — I expected to have been able to take up those two notes for $1,000 each at the Bradford National Bank, but the sale of property I was negotiating fell through owing to the decline in oil, and I had bought the royalty in my wells and have had that to pay for, and on these low prices that was all I could do. I dislike very much to ask you to renew them, but I have no other way left on this low market. I am ready now or at any time to secure the payment of these notes by a mortgage on my one-half interest in fourteen wells that I bought from P. T. Kennedy two years ago for $4,600 (for lialf), and on which there is $1,500 still owing, and that is all there is against it. There are three boilers, fourteen engines, and everything in first-class condition. . I feel in hopes that three months will tide us through to better prices-and that I can sell some property and pay the notes. I have always ¡^aid 100 cents on the dollar and will pay these notes.
“ Yours truly,
“B. F. SMITH.”
“ Bradford, Pa., Sept. 11, 1891.
“ H. L. Taylor, Esq.:
“ Dear Sir — Mr. B. F. Smith has not got his matter in shape yet and would like three months more. We told him to write you and if satisfactory to you it would be to us, as undoubtedly you prefer to have us carry it a short time longer than to take it up yourself.
“ If satisfactory please indorse note and return to us and we will cancel the others. W e believe that he had explained his matters to you to show you how he stands, and is perfectly willing to give you a mortgage at any time. We know of one piece that he bought of Mr. P. T. Kennedy for $4,600 on which he only owes $1,500, and his other statements we have always found correct.
“ Yours truly,
“ S. P. KENNEDY,
Cashier.”
“ Buffalo, Sept. 12, 1891.
“ S. P. KENNEDY, Cashier:
“Dear Sir — I have your very kind letter of yesterday with inclosure of note, which I have indorsed and return in this. I have written Mr. Smith and have asked him to make a leasehold mortgage on the property mentioned to you and him, to you or to me, for you to hold for payment.
“ Yery truly yours,
“ II. L. TAYLOR.
“ P. S. Will you kindly return to me the notes given, with your stamp upon them.
“H. L. T.”

The note so indorsed was the one in suit, which was made by Smith bearing date September, 1891, for $2,000, payable to defend' ant’s order three months after date at plaintiff’s bank ; it was sent to the plaintiff to take up the two $1,000 notes aforesaid, which were canceled and mailed to the defendant by the plaintiff, and Smith executed and sent to the defendant the mortgage on his oil property as agreed. On receiving the notes thus returned the defendant discovered the alteration in the figures “ 1888.” He shortly thereafter returned the mortgage to Smith. He retained the canceled notes for about three months, and after taking advice of his lawyers as to his liability upon the note in suit, he offered to return the two $1,000 notes to plaintiff, and repudiated his liability as indorser of the note in suit. These are all the facts which it is deemed necessary to state.

The court, among other things, charged the jury as follows: “ As I have already suggested, if Mr. Taylor’s version is the true one, that this note was dated in 1888, and thereafter, in the year 1890, Mr. Smith, without the consent and concurrence of Mr. Taylor, changed the date of the year 1888 to the year 1890, that would constitute such an alteration of that instrument as would relieve Mr. Taylor from the obligation of the promise contained in and imposed by his indorsement upon these two promissory notes,” to which charge plaintiff’s counsel duly excepted, and this exception presents' one of the questions for our decision.

If the legal liability of the maker of commercial paper is changed in a material respect by a fraudulent alteration of his obligation, such alteration vitiates the instrument, and the question whether it is-a material alteration or not is one of law for the court. (Crawford v. West Side Bank, 100 N. Y. 56.)

If the defendant has brought his defense within this rule of law he is entitled to hold his verdict. When he indorsed the note in suit he was fully aware of the time when the two $1,000 notes had been made payable by Smith; they were not made payable, with interest.

There is nowhere in the record an intimation that there was any restriction upon Smith as to the time he should make the notes payable. Had Smith dated them at any time within two or three months after the indorsements were made, and fixed the time they were to run so that they would fall due respectively on the days in January, 1891, mentioned, and procured plaintiff to discount them, Taylor’s liability on them as indorser would not be questioned. How was the date then material to the defendant ? Except to fix the .times they were to fall due, it was not material whether they bore any date. The question in which he was interested was the time of payment, and that, as we have seen, he left entirely with Smith. He undoubtedly supposed that they would be dated and used some time along during the summer of 1888, but, as we have seen, he delivered his indorsement to Smith without fixing the time when the notes should be used, and if Smith failed to carry out an understanding in that regard, as between an innocent holder of the notes for value and the defendant, the latter must suffer. It is the general rule that an indorsement on a blank note, without sum or date or time of payment, will bind the indorser for any sum, payable at any time, which the person to which the indorser intrusts it chooses to insert.” (Page v. Morrell, 3 Keyes, 118; Weyerhauser v. Dun, 100 N. Y. 154.)

The court correctly charged the jury as follows: “ If you find the notes had been changed, and that Taylor, at the time he indorsed this last note, knew of it, the plaintiff is entitled to recover. Or if lie did not have actual knowledge of it, if lie had knowledge of such a state of facts as would put him upon inquiry, then the plaintiff is entitled to recover.” The evidence, we think, established beyond any reasonable question that the defendant, when he indorsed the note in suit, was aware of every material fact touching the filling of the blanks by Smith. lie had information as to about the time they bore date, for, as we have seen, Smith wrote him that he used them in September, 1890, and that they would fall due on the 12th and 19th of January, 1891. It is true he did not know of the changes of the figures “ 88 ” to “ 90.” It must be assumed that he was sufficiently familiar with the rules of banking to know that the bank would probably require that the notes should bear some date before purchasing them, and the only reasonable inference a business man would draw who had loaned his indorsement as the defendant did in this case, would be that the maker would date the paper at or about the time he desired to use it; and the defendant’s letter to Smith, under date of January 10, 1891, in which he says: “ I loaned you my name at the time wholly for your accommodation, to be used, you said, in the purchase of some wells, not for one or two years afterwards, but at that time, or very soon. Tbe keeping of these notes and using them so long afterwards to speculate in oil, without consent or notice, is a fraud on me. to which I will not consent,” shows that he so understood it. Tie must be held to have known that Smith had either dated the notes at the time he used them or had left the figures “ 1888 ” in the notes and had so filled the blanks as to make them payable in January, 1891. Being thus advised, he indorsed the note in suit and received in exchange for it from the plaintiff bank the two $1,000 notes stamped paid, and also received from Smith the collateral mortgage mentioned. All this is entirely uncontradicted, and yet the jury found that he indorsed the last note without being aware of the situation and without having sufficient information to put him upon inquiry to ascertain the real facts. Such finding was against the undisputed evidence of the defendant himself. After being informed of every material circumstance relating to the alteration of the notes, the defendant consented to indorse the note in suit, delivered it to the plaintiff, required the return of the two notes canceled, and retained them for three months, and all this after he was informed of the use of the notes by Smith two years and more after the time he made the indorsements.

The plaintiff offered to show upon the trial that the mortgage referred to was ample indemnity for the defendant’s indorsement, and further offered to show that Smith’s financial condition had changed for the worse during the time the defendant held the two $1,000 notes. This evidence was excluded and plaintiff duly excepted. This evidence would seem to have been material as bearing upon the defendant’s right to repudiate his indorsement. It tended to show a good consideration for the note in suit. While he held these notes the right of the plaintiff to proceed against Smith to collect the same was susnended. (Place v. McIlvain, 38 N. Y. 99.)

For the reasons stated the order appealed from should be reversed and the verdict set aside and a new trial granted, with costs to abide the event.

Dwight, P. J., concurred ; Haight, J., not voting.

Order denying plaintiff’s motion for a new trial, appealed from, reversed and new trial granted, costs to abide the event.


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    Asa Razey, Respondent, v. Christian Whittick, Appellant.

      Action of conversion — finding of the jury not disturbed.

    When, in an action of conversion, it was shown that the defendant purchased the property in suit at an auction sale, under an execution, and paid the sheriff for the same, and the plaintiff failed to establish a satisfactory title to such property, the most that can he claimed in his behalf is that the case presented questions of fact which were proper for the determination of a jury, and its finding against him will not be disturbed upon appeal.
    Appeal by the defendant, Christian Whittick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 2d day of August, 1893, reversing the judgment of a justice of the peace of the town of Hornellsville, Steuben county, in favor of the defendant.

      George D. Reed, for the appellant.

      Mwrwy E. Page, for the respondent.
   Lewis, J.:

This action was originally tried in a Justice’s Court in Steuben county before a jury. The defendant was successful in that court, and an appeal was taken from the justice’s judgment to the County Court of Steuben county.

The judge of that court being disqualified to hear the appeal, so certified, and it was transferred into the Supreme Court and was heard at a Special Term thereof and the justice’s judgment was reversed, and from that judgment an appeal was taken to this court.

The action was brought against the defendant for wrongfully converting a rowboat of the value of ten dollars. The plaintiff claimed title to it as a purchaser at a sale upon the foreclosure of a chattel mortgage given by one Mr. Lovell; the defendant claimed title to the boat as a purchaser at a sheriff’s sale upon an execution issued upon a judgment in favor of the Rochester Distilling Company against Lovell.

The case was tried in the Justice’s Court in a careless and unsatisfactory manner. It was not made to appear upon the trial when the mortgage under which plaintiff claimed was given, or what property it covered, except as it may be claimed to have inferentially appeared from the testimony of the plaintiff that he bought the boat at a chattel mortgage sale. It was not shown that the mortgage had ever been filed.

Lovell, the mortgagor, testified that he took the mortgage to get it filed, but when and where it was filed was not made to appear, or that he in fact ever filed it. Lovell was a son-in-law of the plaintiff.

The record shows that the mortgage was received in evidence, but it is not printed in the case.

The plaintiff testified: I bought the boat at mortgage sale at Loon Lake, Page’s mortgage sale; chattel mortgage sale; Mr. Page, I supjiose, made the sale; he sold the property; don’t know as the boat was included in the mortgage; can’t tell the day the mortgage sale took place; Mr. Green, the deputy sheriff, present at sale; * * * Mr. Green, I think, objected to the sale; * * * did not know that there was going to be a sale until day of sale.”

It was not made to appear what plaintiff paid for the boat.

The evidence was conflicting as to whether the plaintiff ever had possession of the boat; he testified that he did at one time, but did not tell when. The boat was manufactured for Lovell in the spring of 1890. There was evidence tending to show that he had possession of it from the time it was built until its sale to the defendant under the execution aforesaid, which sale took place on the 16th day of August, 1890.

The defendant purchased the boat at an auction sale under an execution, and paid the sheriff for it. The plaintiff failed to establish a satisfactory title to the boat. The most that can be claimed is that .questions of fact were presented which were proper for the determination of the jury. They found against plaintiff, and their verdict should not have been disturbed.

The judgment appealed from should be reversed and that of the justice affirmed, with costs of the appeal in this court and of the Special Term.

Dwight, P. L, and Haight, J., concurred.

Judgment appealed from reversed, and that of the Justice’s Court affirmed, with costs in this court and that of the Special Term, the ease having been certified to the Supreme Court by the county judge of Steuben county.