text:
    Edward W. Hatch, Respondent, v. George E. Matthews and Another, Appellants.

      Sufficiency of a complaint demurred to — when a publication is libelous per se, though no crime is cha/rged.

    In determining the sufficiency of a complaint, upon the argument .of a demurrer interposed thereto, in an action brought to recover damages for an alleged libel, it must be assumed that the facts stated therein, as well as such facts as may by reasonable and fair intendment be implied from the allegations made therein, are true.
    If an article published in a newspaper contains statements which tend to hold a person up to scorn and ridicule, or which tend to degrade or disgrace him in the estimation of others, or if it imputes to such person dishonesty or unfair dealing or unjust conduct, it is libelous per se.

    A person was not charged in a published article with having violated any criminal law, but it was alleged that he was a member of a gang which had entered into a scheme or arrangement to seize what could not be obtained peacefully and by proper means, the persons composing such gang having entered into an arrangement with a bank to rob the owners of a newspaper of their property, which was charged therein to have been a high-handed outrage.

      Reid, that the word “gang” was used in its common sense, viz., to describe a body of men banded together for improper and unlawful purposes ; that such conduct would be considered as improper and unbecoming a good citizen, and to charge a person with having been guilty of such conduct would tend to disgrace and depreciate him in the estimation of his acquaintances, and would be libelous.
    Appeal by the defendants, George E. Matthews and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 4th day of September, 1894, upon the decision of the court rendered at the Erie Special Term overruling the defendants’ demurrer to the complaint.

      Oharles ,B. Wheeler, for the appellants.

      Simon Fleisohmcmn, for the respondent.
   Lewis, J.:

This is an action of libel brought against the defendants as proprietors and publishers of the Buffalo Morning Express, a newspaper published in the city of Buffalo, for publishing an article in their paper of and concerning the plaintiff. The demurrer was taken upon the ground that the complaint failed to state a cause of action. The article complained of is set forth in full in the complaint.

In determining the sufficiency of this complaint it must be assumed that the facts stated therein, as well as such as may, by reasonable and fair intendment, be implied from the allegations made therein, are true. (Milliken v. W. U. Tel. Co., 110 N. Y. 403.)

The article was headed: “ Hatched out. Why that New Paper Died A-borning. Enpivvrer not for sale, at least not on the terms Bill Sirret offered. The Gang Enters Into an Alleged Arrangement With the Queen City Bank to Seize What it Could Not Get Peacefully — In Telling the Story Editor Kingsley Uses Words as Hot as Tabasco Sauce — The Bank’s Denial.” And then follows a statement that rumors of the proposition of certain Platt Republicans and disgruntled politicians to start another Republican newspaper in the city of Buffalo continue to be circulated, but that the eager disclaimers of some of the men whose names have been connected with the scheme have tended to dull public interest in the project. It continues : “ The latest reports, however, are far more interesting to the community than anything that has thus far been said regarding the scheme. It is now reported, that Judge Edward "W. Hatch, his brother, Charles S. Hatch, William B. Sirret, and others, who are credited with the ambition to win glory and renown as the publishers of a Republican newspaper which shall be the salvation of the party, and of Thomas O. Platt in particular, as well as a means of boosting their own political aspirations, have realized that it is impossible for them to obtain an original news franchise, and that, in their extremity, they have entered into an arrangement with the Queen City Bank to obtain possession of the Buffalo Enquirer.”

And then follow statements that the Queen City Bank had obtained a judgment of $13,000 against a former owner of the Enquirer, and that a reporter of the Express had interviewed Mr. Inglehart, the attorney for the bank; that Mr. Inglehart admitted that they had levied upon the Enquirer’s plant, and intended to sell it, but that he denied that there had been any conspiring to obtain the Enquirer’s plant. The article then states that the paper’s reporter called upon Mr. Charles E. Kingsley, the editor and manager of the Enquirer, and then proceeds to give Kingsley’s version of the case given by him to the reporter for the Express. The material part is as follows:

“ The attempt of the Queen City Bank to rob the present owners of the Enquirer of their property is a high-handed outrage, and cannot be too -strongly condemned. The knowledge of what that corporation has attempted to do is sufficient to convince all fair-minded men that it has lent itself to a most despicable conspiracy. Some time ago William B. Sirret came to me and asked the price 'upon the Enquirer newspaper and plant. When he found out that the paper could not be bought for any such sum as he mentioned, he remarked that the Queen City Bank had a judgment against a former owner of the Enquirer, whicli several of the persons interested with him in starting a new Republican paper believed would hold good against the present owners. * * * About noon of Wednesday, April 11th, I was informed by a prominent city official that John E. McGee and Aid. William K. Williams had said that our price for the Enquirer newspaper and, plant was altogether too high and that a scheme was on foot to get possession of it in some other manner than by direct purchase. He said that he had been told by "Williams and McGee that Sirret had called upon W. F. Creed, of the Queen City Bank, and had entered into an arrangement with that individual to have the bank seize the plant of the Enquvrer on a judgment obtained against one of its former owners, many days after it had passed out of her possession, and sell the same at sheriffs sale. In other words, Creed was to seize our property and ruin our business in disregard of the fact that we were in peaceful and undisturbed possession and had been for months. For committing this outrage Creed was to get the face of the judgment which he held against a former owner of the Enquirer, and the Platt clique was to get a newspaper by bidding it in at the face of the judgment. * * * "We have evidence in our possession which leads us to believe that the Queen City Bank, through Creed, has entered into an arrangement to commit the outrage which is charged. * * * Either this is persecution of the most flagrant nature or it is an organized attempt at highway robbery. If it is true, as I believe, that the Queen City Bank has entered into a deal with the Platt Republicans to ruin our business, then this is the principal offender, and it deserves the condemnation of the community more than the cheap politicians who are in the scheme, because it is a business- institution and should adhere to reputable business methods.”

If this article contains statements which tend to hold the plaintiff up to scorn or ridicule, or which tend to degrade or disgrace him in the estimation of others, it is libelous per se. (Bergmann v. Jones, 94 N. Y. 51.) If it imputes to the plaintiff dishonesty or unfair dealing, or unjust conduct, it is libelous. (Holmes v. Jones, 121 N. Y. 467.)

"While the plaintiff was not charged in the article with having violated the criminal law, he is charged with being a member of a gang which had entered into a scheme or arrangement to seize what could not be obtained peacefully and by proper means. The word “ gang ” is sometimes used to describe a body of men associated together for purposes entirely proper, as a gang of laborers, etc., but it is more commonly used to describe a body of men banded together for improper or unlawful purposes, like a gang of thieves, or a gang of robbers. It was in the latter sense that it was used in this article. It was alleged that the persons composing the gang had entered into an arrangement with the bank to rob the owners of the JEnqtower of their property, which was charged to have been a high-handed outrage. Such conduct would be considered as improper and unbecoming a good citizen, and to charge a person with having been guilty of such conduct would tend to disgrace and depreciate him in the estimation of his acquaintances. There does not seem to be much room for doubt that the article was libelous. It, therefore, follows that the complaint stated a cause of action.

The judgment appealed from should be affirmed, with costs, but with leave to the defendants, on payment of the costs of the demurrer and of this appeal, to withdraw their demurrer and answer over within twenty days after service of notice of the entry of the order of affirmance.

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

Interlocutory judgment appealed from affirmed, with costs, with leave to the defendants to withdraw the demurrer and answer over within twenty days on payment of the costs of demurrer and of this appeal.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Fred F. Remmel, Respondent, v. Martha L. Townsend, Appellant.

      Action by a creditor against an agent — an estoppel in favoi' of the principal only when done with knowledge of the latter's liability.
    If a creditor, after discovery of the principal, elects to hold the agent who purchased goods from him without disclosing his agency, he is bound by the election and cannot thereafter pursue the principal.
    The act of electing between two remedies presupposes such knowledge on the part of the one performing the act that he has an opportunity of choosing which of two or more courses he will pursue; and if he understands that there is but one course that he can take, he cannot be said -to have made a choice by taking such course.
    Where a person brings an action against a husband for goods sold and delivered, under the supposition that his claim exists against him only, the judgment recovered in such, action will not bar a subsequent action brought by such creditor against the wife, where the creditor has, in the meantime, discovered that the husband acted as his wife’s agent in the purchase of the goods, to recover the value of which the original action was brought.
    Appeal by tlie defendant, Martha L. Townsend, from a judgment of tbe County Court of Monroe county in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Monroe on the 9th day of July, 1894, upon the decision of the court affirming the judgment of tbe Municipal Court of the city of Rochester.
    The plaintiff, a retail dealer .in groceries, brought this action to recover an unpaid balance for goods sold and delivered to tbe defendant’s husband. The goods were charged to the husband, and, not being paid for, an action was brought against him and prosecuted to judgment in tbe Municipal Court of the city of Rochester. Execution was issued upon the judgment and returned unsatisfied. The defendant and her husband were examined in proceedings supplementary to execution upon said judgment. They testified that the ■defendant’s husband, in purchasing the goods, acted as agent for the defendant, which fact was not disclosed to the plaintiff at the time .the purchase was made. The plaintiff testified upon the trial of this action that the first be knew that the defendant was the real principal, and not her husband, was upon such examination. The judgment against tbe husband was pleaded in bar of this action.

      F. A. Mann, for the appellant.

      II. B. Ilalloolc, for tbe respondent.
   Lewis, J.:

It is a well-settled rule of law that if a creditor, after the discovery of the principal, elect to hold the agent who purchased goods without disclosing bis agency, be is bound by the election and cannot pursue the principal.

It is the contention of the appellant that the same rule applies if the creditor prosecutes the agent to judgment in ignorance that he purchased as an agent, upon the theory that lie having once elected to sue the agent he is estopped from pursuing the principal. It is difficult to see upon what theory a creditor can be said to have made an election in such a case, when he was not aware that there was an opportunity to make a choice. In the case at bar tbe plaintiff supposed when he brought the action against the husband that his claim Avas against him only; there was, so far as he then knew, but one thing for him to do, and that was, to bring his action against the person who he then supposed and understood purchased the goods as principal. Had he known the true situation he would then have been in a position to hare made a choice. The act of electing between two remedies presupposes such knowledge on the part of the one performing the act that he has an opportunity of choosing between two or more courses to pursue. If he understands there is but one thing for him to obtain, or' but one course that he can take, he cannot be said to have made a choice. The like rule regarding the selection of remedies obtains where the vendor has been induced to part with his property by the fraud of the vendee. He is, in such a case, at liberty to waive the fraud and affirm the contract and sue for the value of the goods sold or replevy the goods. If, with full knowledge of all the facts, he pursues the first course, he is thereafter estopped from disaffirming the contract and pursuing the goods. If the prosecution of an action for the value of the. goods to judgment in such a case, in ignorance of the fraud, does not estop the creditor from maintaining an action to recover the possession of the goods upon discovery of the fraud, there is no reason apparent why he should be estopped under the circumstances of this case.

In the case of The Rochester Distilling Co. v. Devendorf (12 Hun, 428) the plaintiff had sold a bill of goods to the defendant’s husband. An action was brought against the husband and a judgment recovered for the purchase price of 'the goods. Upon examination in proceedings supplementary to execution, the plaintiff learned for the first time that the goods were fraudulently purchased by Devendorf, and that Devendorf had, after purchasing the goods, transferred them to his wife, the defendant in the action, without any consideration being paid therefor, and thereupon he commenced an action in replevin for the goods, making the wife the defendant. The judgment against the husband was pleaded in bar of the action. We held that the creditor was at liberty, notwithstanding the judgment, to prosecute the action for the recovery of the property, for the reason 'that he prosecuted the former action in ignorance of the fraud. If the judgment there was not a bar why should it be in this case ? A distinction is sought to be made between the two cases by the appellant’s counsel; be suggests that a claim arising upon a contract for the purchase price of goods sold and one arising out of fraud in the purchase of goods are of a very different nature. While that is so, it does not occur to us that it has any bearing upon the question here. If the vendor, with knowledge of the fraudulent sale of goods, elects to waive the fraud and affirm the sale, and brings an action for the purchase price of the goods, the judgment would be a bar to an action to recover possession of the property. He cannot thereafter elect to disaffirm the sale. It is an election he made with knowledge of the facts which estops him, and so, if after sale of goods to an agent for an undisclosed principal, the creditor, with knowledge of the facts, elects to proceed against the agent, he is bound by his election. It is the election, with knowledge of the facts, that estops him in both cases.

The appellant relies upon the case of Priestly v. Fernie (3 Hurl. & C. 977). There an action had been prosecuted to judgment against the master of a vessel for supplies, and thereafter an action was brought against the owner for the same account. It was held by Bkamwell, B., that the former judgment was a bar to the action. The action in that case was against the defendant as master of the vessel acting for its owner. It does not appear from the opinion whether, at the time of furnishing the supplies, the creditor was informed as to who owned the vessel, but the supplies having been purchased by the master as such, the presumption was that he was acting for an owner and not as the owner.

There will be found in the text books and in the opinions of the courts statements which would seem to sustain the appellant’s contention, but, we think, upon examination, it will be found that the current of authority in this country and in England is not in conflict with our conclusions. In most of-the cases to which our attention is called, the election to sue was made with full knowledge of the facts; in other cases it does not appear whether the election was made or not in ignorance of all facts.

The judgment appealed from should be affirmed, with costs.

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

Judgment of the County Court of Monroe county appealed from affirmed.


text:
    Frank C. Chesley, Appellant, v. William B. Hughes, as Sheriff of the County of Cattaraugus, Respondent.

      Order granting a new trial —reversed on appeal only for abuse of discretion.

    While an order, setting aside the verdict of a jury and granting a new trial of an action on the ground that the verdict is against the weight of the evidence, is appealable under the provisions of section 1842 of the Code of Civil Procedure, an appellate court will not he justified in reversing the action of the trial court unless it appears that the discretion vested in the trial court has been abused.
    The granting of motions to set aside verdicts as contrary to the evidence rests in the discretion of the court, and depends in a great degree upon the peculiar circumstances of each case.
    Appeal by tbe plaintiff, Frank C. Cbesley, from an order of tbe Supreme Court, made at tbe Cattaraugus Circuit and entered in tbe office of tbe clerk of tbe county of Cattaraugus on tbe 31st day of May, 1893, granting tbe defendant’s motion for a new trial made upon tbe minutes.

      James II. Waring, for tbe appellant. .

      Charles 8. Gary, for the respondent.
   Lewis, J.:

This action was brought to recover tbe value of a stock of furniture alleged to have been converted by the defendant as sheriff of Cattaraugus county. The linn of George E. Howland & Co., composed of George E. Howland and Daniel W. Pierce, in tbe latter part of December, 1891, purchased a stock of furniture of-different dealers, amounting in value to about tbe sum of $4,000. They opened a store in Olean tbe 1st of January, 1892, and continued in business until tbe fore part of March of that year, and then transferred their entire stock to tbe plaintiff for a consideration of $2,400. Twelve hundred dollars of tbe purchase price was applied upon an alleged indebtedness of tbe firm to tbe plaintiff for money which it was claimed tbe plaintiff bad loaned them from time to time, and for goods sold to them after they opened their store and before tbe transfer, amounting in all to tbe sum of $1,200, and for tbe balance of the purchase price of the stock the plaintiff gaye Ms two promissory notes for $600 each, one coming due eighteen months from its date, and the other two year's. The creditors of the firm caused attachments to be issued and delivered to the sheriff, and he, by virtue thereof, took possession of the stock of goods.

The plaintiff recovered a verdict against the sheriff for the sum of $2,200, which was set aside by the court upon the ground that’ the verdict was against the weight of evidence. The evidence tended to show that neither Howland nor Piei’ce had any means with which to engage in business, neither had they any credit except such as was manufactured by the statement of the plaintiff to the salesmen of the various dealers who sold them goods. The evidence tended very strongly to show that the members of the firm and the plaintiff entered into a fraudulent scheme to obtain possession of the stock of goods with the intention of disposing of it, and thereby defrauding the firm’s creditors. There was evidence tending to show that the salesmen of the creditors were induced to sell goods to the firm upon the representation of the plaintiff that they were responsible, and that it would be safe to sell them goods. The evidence tended to show that the plaintiff was aware that Mr. How-land, who was his father-in-law, was at the time the representations were made, entirely irresponsible pecuniarily.

The plaintiff testified that when Howland informed him that he was going into the furniture business at Olean he laughed at him, and said How is that, how are you going into business ? ’ and that Howland replied: I have got that all fixed ; ’ I says, How ? ’ He said: ‘ Mr. Pierce’s people are going to furnish the stuff.’ ” The plaintiff testified that he had no knowledge as to the responsibility of Mr. Pierce, and yet he represented the firm to be responsible and worthy of credit, and thereby induced the dealers to sell the. firm goods to the value of $4,000, which they about three months thereafter transferred to him at the price of $2,400.

Without rehearsing all of the evidence, we are satisfied from an examination of it that the trial court was justified in granting the order appealed from. While such an order is appealable under Code of Civil Procedure, section 1342, an appellate court would not be justified in reversing the action of the trial court unless it was made to appear that the discretion vested in that court had been abused. (McKeever v. Weyer, 11 N. Y. Wkly. Dig. 258 ; Young v. Stone, 28 N. Y. Supp. 881.)

The granting of motions to set aside verdicts as contrary to evidence, as well as motions for new trials upon the ground of newly-discovered evidence is, as a rule, addressed to the discretion of the court, and depends in a great degree upon the peculiar circumstances of the case. The justice presiding at the trial has advantages and opportunities to judge of the propriety of the verdict not possessed by the appellate court. He is permitted to listen to the witnesses while giving their evidence, and observe their manner and conduct upon the trial, and when he exercises a discretion in such a case the appellate court will not reverse his decision unless it pretty clearly appears that he has abused his discretion. (Barrett v. Railway Co., 45 N. Y. 628, 632.) '

An examination of this case has satisfied us that it was a very proper case for granting the order.

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

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

Order granting a new trial appealed from affirmed, with costs.


author: Dwight, P. J.:

text:
    Henry S. Danolds, Appellant, v. James H. Lord, Respondent.

      Set profits of a business — the cost and depreciation of materials, tools, etc., are to be considered.

    To ascertain tlie net profits of a business, in order to determine the compensation of an employee, which it had been agreed should be a certain proportion of the net profits, it is necessary to charge to the business the cost of the materials consumed, and of the tools and implements worn out, and, also, the depreciation by wear and tear or other necessary causes, of such of the tools, implements and appliances as were not rendered absolutely worthless, but were only depreciated in value.
    Appeal by the plaintiff, Henry S. Danolds, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of the county of Monroe on the l'Ltli day of May, 1892, upon the report of a referee dismissing the plaintiffs complaint upon the merits.

      II. II. Woodwwrd, for the appellant.

      C. J. Church, for the respondent.
   Dwight, P. J.:

This was an action to recover what was alleged to be due to the plaintiff for his share of the profits of a business undertaken and carried on for a little over two months under the following agreement:

“ Agreement made this 26th day of May, 1891, by and between James IT. Lord and Henry S. Danolds, as follows : The parties hereto are to carry on the business of painting roofs under the name of Flour City Roofing Company, of which said <¡Tames H. Lord shall be the sole proprietor and owner. Each of the parties hereto agree to give their whole time and attention to said business. Books of account shall be kept, which shall be accessible to both parties, and as often as twice each year an account of said business shall be taken, and the profits ascertained, and one-half of such net profits shall be paid to and received by said Henry S. Danolds as full compensation for his services rendered in the carrying on of the business aforesaid. This agreement shall continue for one year from this date.”

The business was terminated by the mutual consent of the parties early in August of the same year, and the parties having failed to reach a settlement of their matters which was mutually satisfactory, the plaintiff brought this action, claiming a balance of profits of the business due to him. The trial necessarily involved an accounting, which was had before a most careful and capable referee, and the result was a finding that the plaintiff had received his full share of the net profits of the business, and his complaint was dismissed.

The only question of any moment presented by this appeal is whether the referee properly included in the accounting certain personal property, purchased by the defendant for use in the business, and which at its termination was sold and the proceeds accounted for. "We think the referee was quite right in his disposition of this question. All agree that the relation of the parties was not that of a co-partnership, and there has been no attempt to charge him, the plaintiff, with any losses in the business. ' There was no loss; the result was a net gain, but it was plainly necessary, in order to ascertain what the net gain was, to charge to the business the cost of the materials consumed, of the tools and implements worn out, and, equally, of the depreciation by wear and tear, or other necessary causes, of such tools, implements and appliances which were not rendered absolutely worthless, but only depreciated in value.

The phrase employed in the contract, “ of which said James H. Lord shall be sole proprietor and owner,” does not affect the question of the form of the accounting necessary to arrive at the net profits of the business. The reference in that phrase is to the business of which Lord should be sole proprietor and owner, and especially, no doubt, to the good will of the business; but even if it were to be regarded as applying to the property used in the business, it would be necessary to take an account of all such property purchased, consumed, worn out or depreciated in value, in order to ascertain what was the net profit realized in" the business during its continuation.

The case of Emery v. Wilson (79 N. Y. 78-83), from the opinion in which counsel quote an isolated expression of DaNfoeth, J., is not at all in point here. That was the case of a co-partnership, and the learned judge who had said, as quoted, “Nor did the referee err in refusing to deduct from the profits so ascertained the amount of the depreciation in value which the property of the firm had undergone,” also s$id, “The arrangement between Emery and Wilson did not contemplate a final winding up of settlement of the affairs of the firm of John T. Wilson & Oo. before payment to Emery should be made, but only that the profits of the business of the firm for the year should be ascertained or stated in the manner before referred to.”

In the case at bar the final conclusion of the business was reached; the arrangement was, to all intents and purposes, a co-partnership, except in respect to liability for losses; and for the purpose of ascei-taining the amount of net profits, an accounting substantially as in case of a co-partnership seems to have been necessary and proper.

Such, an accounting was taken by the referee with careful attention to the rights of the plaintiff, and the result reached by him seems to have been fully justified.

The judgment should be affirmed.

Lewis, Haight and Beadley, JJ., concurred.

Judgment appealed from affirmed, with costs.


author: Haight, J.:

text:
    Seneca H. Gage, Appellant, v. Tirzah M. Gage and Another, Respondents.

      Statute of üses and Trusts — title taken, in the name of one person and the consideration paid by another• — -the statute may not be invoked to cover a fraud.

    The provisions of section 51 of the Statute of Uses and Trusts, 1 Revised Statutes, 728, have no application to a case where an express trust has been created, or where equities have arisen by the agreement of parties ; it only applies to a case in which there exists no express trust or equities, other than the payment of the consideration for the sale of real estate hy a person who does not take the title thereto.
    A complaint alleged that the plaintiff and one of the defendants were husband and wife, and that they purchased certain real estate, the title to which was-taken in the name of the wife, under the express agreement that they should live thereon, work the same, and together pay the purchase price thereof, and after the same had been fully paid, that the wife should deed to her husband, the plaintiff, an undivided one-half interest therein; that pursuant to such agreement the title to such real estate was taken in the naijie of the wife; that the plaintiff had fully performed such agreement upon his part in working the farm and paying therefor, and that the wife, in pursuance of a conspiracy to deprive the plaintiff of his rights and interests therein, conveyed the real estate to the other defendant, without consideration;

      Held, that the complaint stated a good cause of action;
    That to permit the wife, after full performance on the part of the plaintiff, to violate her agreement, and deprive him of his interest in the land, would be to permit her to invoke the Statute of Uses and Trusts to cover her fraud.
    Appeal by tbe plaintiff, Seneca H. Gage, from a judgment of tbe Supreme Court in favor of tbe defendants, entered in tbe office-of tbe clerk of tbe county of Chautauqua on tbe 5th day of August, 1894, upon tbe decision of tbe court rendered at tbe Chautauqua-Special Term dismissing tbe plaintiff’s complaint.

      George E. Towne, for the appellant.

      J. G. Record and O. A. Rolson, for the respondents.
   Haight, J.:

This action was brought to set aside a conveyance of real estate executed by the defendant Tirzah M. Gage to the defendant Esther C. Sawyer, and for a conveyance of an undivided one-half interest therein to the plaintiff.

The complaint, in substance, alleges that the plaintiff and defendant Tirzah M. Gage were husband and wife; that on the 10th day of January, 1883, they purchased the real estate in question, the title of which was taken in the name of the defendant Tirzah M. under the express agreement that the two should live upon the farm, work the same and together pay the purchase price thereof, and after the same had been fully paid for, the defendant Tirzah H. should deed to the plaintiff an undivided one-hálf interest therein; that, pursuant to such agreement, the title was taken in the name _ of Tirzah M., and that the plaintiff had fully performed the agreement upon his part in working the farm and paying therefor; that after it was paid for the defendants conspired together to defeat the plaintiff of his rights and interest.in the farm, and in order to do so the defendant Tirzah kl. conveyed the same to the defendant Sawyer without any consideration whatever.

The trial court appears to have been of the opinion that the complaint failed to state a cause of action.

Our examination of the case leads to a different conclusion. Section SI of the Statute of Uses and Trusts (1K. S. J28) provides that “ where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made ; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.” The next section has reference to creditors and has no bearing upon the question under consideration. "We do not understand the provisions of this statute to have any application to a case where an express trust has been created or where equities have arisen by the agreement of parties, but that it only has reference to a case in which there exists no express trust or equities other than the payment of tbe consideration by a person other than the one who takes the title. No trust shall result from that act alone. Bearing in mind this distinction no great conflict will be found in the authorities.

In Robbins v. Robbins (89 N. Y. 251) it was held that the statute to which we have referred cannot be invoked to cover a fraud; that when the alienee, in accordance with his agreement to hold title to the land for the use and benefit of the real owner, sells the land, as directed by such owner, the trust assumed by the alienee is executed and his duty as trustee is discharged 'and the purchase money vests at once in the real owner.

In Carr v. Carr (52 N. Y. 251-261) AlleN, <1., in delivering the opinion of the court, referring to the statute under consideration, says : This statute can no more be used to perpetrate a fraud or defeat actual equities than can the Statute of Frauds. They both stand, in this respect, upon the same footing. It is true that the purchase money was, in substance and effect, paid by Daniel D. Carr, and tlie conveyance was made, with his assent, to the plaintiff. ITad the case stopped here the plaintiff’s claim would be valid, but a part of the purchase money wks borrowed of the plaintiff, and the grant was made to him to secure the repayment of that advance, and under cun agreement that upon its repayment the property should be conveyed to the rightful owner, and tlie agreement has been acted upon and partially performed by Daniel D. Carr, and it would be a gross fraud to permit the plaintiff now to take shelter behind the Statute of Hses and Trusts and deprive the confiding owner of his just rights. There is something more than a naked grant to one upon the payment of a consideration by another. The claim of the defendant is not of a resulting trust within the statute, but depends upon other and extrinsic equities.”

In Robertson v. Sayre (53 Hun, 490 ; 25 N. Y. St. Repr. 449; S. C., 134 N. Y. 97); Garfield v. Hatmaker (15 id. 475), and Everett v. Everett (48 id. 218), there does not appear to have been any agreement between tlie parties creating an actual trust or other equities aside from tlie bare payment of the consideration money.

The case of Gould v. Gould (20 N. Y. St. Repr. 674) may be in apparent conflict, but in that case the distinction here pointed out does not appear to have been called to the attention of the court or considered by it. Here, as we have seen, the complaint alleges that the payment of tbe consideration money was made by the plaintiff under an express agreement that an undivided one-half of the premises should be conveyed to him as soon as the purchase price was paid, and that it was under this arrangement and agreement that the plaintiff consented to the deeding of the premises to the defendant Tirzah M., and to permit her now, after full performance on the part of plaintiff, to violate her agreement and deprive him of his interest would, in the language of the authority cited, be permitting her to invoice the statute to cover her fraud.

The judgment 'should be reversed and a new trial ordered, the costs to abide the final award of costs.

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

Judgment reversed and new trial ordered, costs to abide the final award of costs.


author: ITaight, J. :

text:
    Lotila Herrington, as Administratrix, etc., of Wallace Herrington, Deceased, Plaintiff, v. The Lake Shore and Michigan Southern Railway Company, Defendant.

      An employer is not liable for a Heath resulting from the negligence of a co-employee.

    Where, upon the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant, it is shown that the accident which caused the death of the plaintiff's intestate was the result of negligence on the part of a co-employee of the plaintiff’s intestate, damages- therefor cannot be recovered from the employer.
    MotioN by the plaintiff, Lotila Herrington, as administratrix, etc., ,of "Wallace Herrington, deceased, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury, in favor of the defendant, rendei’ed by direction of the court, after a trial at the Erie Circuit, on the 21st day of December, 1894.

      George M. Osgooclby, for the plaintiff.

      James Fraser Gluek, for the defendant.
   ITaight, J. :

This action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate.

It appears that Wallace Herrington, the deceased, in his lifetime was in the employ of the defendant as a fireman; that on the occasion of the accident in question he was acting as fireman on train No. 51, which was known as a fast freight train running on schedule time. It left Buffalo at two o’clock a. m., February third, for Erie, and consisted of twenty-four cars. It arrived at Ripley at six-two a. M., and was due in Erie at six-fifteen.

The seventh section of train 43 left Buffalo the evening before at eight-fifty, bound for Erie. It arrived at Angola at twelve-fifteen a. M., where it left a number of cars and then proceeded on its way as section 6 of train 43. It was run as an irregular on extra time. It arrived at Westfield at fivé-twenty-five A. m., and was delayed fifteen minutes. It reached Ripley at five-fifty a. m., at which place it was ordered to allow 51 to passv The conductor then proceeded to run his train west of the station to a switch, and was in the act of backing his train upon the branch track when 51 approached, striking the second car from the engine, causing the death of the plaintiff’s intestate. The collision occurred at six-two, twelve minutes after the arrival of train 43 at the station. Six minutes were occupied by the conductor in receiving and answering the dispatch. He then had but six minutes to switch his train from the main track on to the branch track, in order to allow 51 to pass in safety. No flagman was sent out by him in the rear to warn 51.

It appears there were but two brakemen upon train 51, and it is contended, on the part of the plaintiff, that the defendant was negligent in not providing more brakemen. We think, however, that the cause of the accident is not attributable to the want of brakemen on train No. 51, for it appears from the plaintiff’s own showing that but an instant occurred after the engineer of No. 51 discovered that the tracks were blocked before the crash came. The engineer saw the cars on the main track as the headlight shone upon them, sounded the whistle and jumped from the train just as.the collision occurred. The conductor tells us that the whistle sounded and the collision occurred almost immediately; there was not time enough to think between it hardly; ” that there was not time for anybody to do anything,” so that it is apparent that had there been twenty brakemen upon the train they would have been powerless and unable to prevent the accident.

Again, it is contended that the defendant was negligent in not providing more servants upon train 43, but the plaintiff has neglected to furnish us with any evidence showing the number of servants engaged in operating that train. We are, consequently, left without evidence upon which this question can be determined.

It is further contended that the train dispatcher of the defendant was negligent in not having informed the conductor of train 51 that 43 was ahead of him and to be passed at Ripley.

It appears, as we have seen, that train 51 left Buffalo at two o’clock and received its first order at 'Washburn, wherein the conductor and engineer were directed to pass all trains they might overtake, and run to Erie ahead of them. This was at three-thirty-three o’clock. By this dispatch the conductor and engineer were warned that there were trains ahead which should be looked out for and passed. A second dispatch to the conductor and engineer of train 51 was sent to Washburn, in which they were directed to u approach Dunkirk carefully.” At Dunkirk they were again communicated with and directed to “ look out for freights ahead. Pass them at Brocton. Do your best to get in on time.” It appears that they passed two freight trains at Brocton, and then proceeded on without further instructions until they collided with No. 43 at Ripley. It also appears that 43 was delayed at Westfield, a station between Brocton and Ripley, for a space of fifteen minutes; that a dispatch was sent to the conductor and engineer of 43 at Ripley to let 51 pass. This dispatch arrived at Ripley at five-thirty-three, nearly half an hour before 51 was due. Had it not been for the delay of 43 at Westfield, it would have been at Ripley within two or three minutes after the arrival of the dispatch, and would have had twenty-five or twenty-six minutes in which to take the siding and clear the main track. It apjiears to us that the orders were ample and proper, and had it not been for causes over which the train dispatcher had no control, no accident would have occurred. But, as we have seen, 43 was delayed fifteen minutes at Westfield, and when it reached Ripley had but twelve minutes left in which to take the siding. The conductor, knowing of this delay, and that he was being followed by a train running on schedule time, should have sent out a warning to the approaching train, so as to have avoided the collision. In this he was negligent, and it is quite evident that this negligence was the cause of the accident. ' He was a co-employee of the plaintiff’s intestate, and it consequently follows that the verdict was proper.

Plaintiff’s motion for a new trial must be denied, and judgment ordered for the defendant upon the verdict.

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

Plaintiff’s motion for a new trial denied, and judgment ordered for the defendant upon the verdict.


text:
    Bridget Tehan, Respondent, v. William H. Tehan, as Executor, etc., of James Deering, Deceased, and Others, Defendants; James DeeriNg, Jr., and Another, Appellants.

      Sale of a testator’s real property for the payment of Ms debts — refusal of a widow to accept a provision in lieu of dower —■ a specific devisee compelled to pay for a release of dower, entitled to reimbursement from the residuary estate.

    It is the duty of an executor to devote the personal property of his testator to the payment of his debts, and if the personal property he insufficient for that purpose to procure an order for the sale of so much of the testators real estate as is necessary to pay the balance thereof. "
    In ordering a sale of a testator’s real estate for the payment of his debts it is the duty of the court to first order that real estate sold which has not been specifically devised, and if that be sufficient, to save from the sale the real estate specifically devised in order to carry out the intentions of the testator.
    The refusal of a widow to accept the provisions made for her in the will of her husband in lieu of dower does not change the rights of the parties interested in the estate in reference to the testator’s debts.
    If the widow of a testator refuses to accept the provisions contained in his will in her favor, in lieu of dower, and brings an action for the admeasurement thereof, recovering a certain sum from a specific devisee of certain real estate of the testator, such specific devisee is entitled to have the amount so paid to her by him refunded from the residuary portion of the testator’s estate, where the provisions renounced by the "widow exceed the amount which the specific devisee was compelled to pay the.widow to secure the release of her dower right in the premises specifically devised to such legatee.

      Appeal by the defendants, James Deering, Jr., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 21st day of May, 189é, upon the decision of the court rendered after a trial at the Cayuga Special Term adjudging, among other things, that the plaintiff is entitled to be paid from the assets in the hands of the executor of the estate of James Deering, deceased, a certain sum of money to be paid out of such assets prior to the payment of the legacies given to the defendants under the last will of the decedent.

      J. JRosecrcms, for th.e appellants.

      Kurlbut & Kerr, for the respondent.
   Haight, J.:

This action was brought to recover the amount the plaintiff was compelled to pay in order to discharge the real estate specifically devised to her under the will of her father from the dower of his widow.

There is no material conflict as to the facts, and they are substantially as follows : James Deering died at the city of Auburn, February 2,1892, possessed of certain real and personal estate, and leaving a last will and testament and codicil thereto, which have been duly admitted to probate. By the provisions of the will the testator made several bequests of money to the defendants, together with provisions for his wife, which he declared to be in lieu of dower, and specifically devised to the plaintiff a parcel of real estate in the city of Auburn, and then devised the residue and remainder of his estate to-his sons, the defendants Bichard, James and Patrick Deering. By the eighth clause of his will his executor was authorized and directed at any time within two years after his death to sell all the real property of which he died seized, except that specifically devised to the plaintiff, and out of the proceeds of such sales, the rents and profits of said real property and the proceeds of his personal property, to pay the bequests and legacies provided for. After the death of the testator his widow refused to accept the provisions made for her in the will in lieu of dower, and commenced an action in the Supreme Court to have her dower admeasured, and obtained an interlocutory decree to that effect, under which the plaintiff was compelled to pay a gross sum amounting to $884.66, together with one-third of the rents which had accrued since the death of the testator, amounting to $237.48, and costs in the action amounting to $154.27, amounting in the aggregate to $1,276.41.

It further appears that when the widow elected to take her dower or statutory interest in the estate she relinquished the legacies and bequests to which she was entitled under the terms of the will, amounting to $1,600 and upwards, which inured to the benefit of the estate, and that the executor has in his hands, after paying all the debts of the estate, the sum of $1,450. By the judgment the executor was required to render an account, deduct his legal commissions and expenses, and out of the balance remaining pay the plaintiff’s claim.

It appears that the personal property left by the testator was not sufficient to pay his debts and that some portion of his real property had to be devoted to that purj>ose. It is now contended that the plaintiff should pay her proportionate share of such indebtedness, but such does not appear to have been the intent of the testator. The premises in Auburn were specifically devised to the jolaintiff and the residuary estate was devised and bequeathed to the testator’s three sons. The widow, having refused to accept the provisions made for her in the will, released to the estate and for the benefit of the residuary devisees and legatees the provisions made for her in the will. It was the duty of the executor to devote the personal property to the payment of the debts, and, if insufficient, procure an order for a sale of so much of the real estate as would be necessary to pay the balance. In ordering a sale of the real estate for the payment of the debts, it would be the duty of the court to first order that sold which had not been specifically devised, and if sufficient, save that specifically devised to carry out the intentions of the testator. We do not understand that the refusal of the widow to accept the provisions made for her in the will changes the rights of the parties in reference to the debts. The testator evidently contemplated the payment of his debts and cast that burden upon his residuary estate.

We are thus brought to a. consideration of the question as to whether the plaintiff is entitled to be reimbursed out of the residue of tbe estate. As we have shown, the amount surrendered by the widow more than equals that which the plaintiff was compelled to pay, and we think, upon principles of equity, she is entitled to be reimbursed. The authorities in this State are somewhat meager, but the question appears to have been carefully considered by Ia.we.bNob, J.,. in Sarles v. Sarles (19 Abb. N. C. 322) and by the author in his. note thereunder. In Pennsylvania the question has received more attention.

In Gallagher’s Appeal (87 Penn. St. 200) the testator devised certain lands to his sister, and after making provisions for his widow left the remainder of his estate to nephews and nieces. The widow refused to take under the will, and it was held that the sister was entitled to have the assets marshalled and a sufficient amount set apart to relieve the land devised to her from the burden of the widow’s dower.

In Sandoe’s Appeal (65 Penn. St. 314) the widow refused to take under the will. It was held that a court of equity would sequester the devises and bequests intended for her to secure compensation to those whom her election disappointed. (See, also, McCallister v. Brand, 11 B. Mon. [Ky.] 370 ; Firth v. Denny, 2 Allen [Mass.], 468; McReynolds v. Counts, 9 Gratt. [Va.] 242; Dean v. Hart, 62 Ala. 308; Worth v. Atkins, 4 Jones Eq. [N. C.] 272; Story’s Eq. Juris. [13th ed.] 415, 465 ; Pom. Eq. Juris. § 1083, and 2 Jarman on Wills, 683.)

The judgment appealed from should be affirmed, with costs.

Lewis and Beadlby, JJ., concurred; Dwight, P. J., taking no part.

Judgment appealed from affirmed, with costs.


author: Haight, J. :

text:
    Minnie Wheadon, Respondent, v. Edward Huntington, Appellant.

      Action in tort — what proof of fraud must he made.

    To entitle tlie plaintiff to recovery, in an action based upon contract, in procuring wbicli it is alleged that the defendant was guilty of a fraud, the plaintiff must prove all the elements of fraud which are material, viz., representations, falsity, scienter, deception and damage.

      The plaintiff must still prove not only that the representations alleged in his complaint were made; that they were false; that the person making them knew them to be false; that they operated to deceive the plaintiff, but also that he suffered injury in consequence of such representations, and if any one of these essential elements is omitted, the proof of the fraud alleged is not complete, and the plaintiff is not entitled to recover.
    Appeal by tbe defendant, Edward Huntington, from an order of tbe Supreme Court, made at tbe Cayuga Circuit and -entered in tbe office of tbe cleric of tbe county of Cayuga on tbe 3d day of May, 1894, granting the plaintiff’s motion for a new trial made upon the minutes.

      Williwm S. Moore, for tbe appellant.

      Oobwrn-& Hunter, for tbe respondent.
   Haight, J. :

Tbe complaint alleges that on tbe 23d day of January, 1893, tbe defendant executed and delivered to tbe plaintiff bis promissory note for fifty dollars; that prior to tbe giving of the note, and for tbe purpose of obtaining credit with tbe plaintiff, as she is informed and believes, tbe defendant willfully and falsely represented that he had valuable property consisting of unincumbered real estate and other property in tbe village of Geneva, N. Y., belonging to him, and that be was perfectly solvent and pecuniarily responsible ; that she relied upon and believed tbe representations made to be true, and gave him credit in consequence thereof, and that said representations were false.

Upon tbe trial tbe plaintiff gave .evidence tending to show that at tbe time of tbe giving of tbe note tbe defendant stated that he owned the dwelling bouse where be lived, also the block in which bis business was located, a portion of which was occupied by tbe express company and a steam bakery, also a lot used in tbe winter for a skating rink, and some personal property, and that it was free from incumbrances. Tbe plaintiff then called the defendant as a witness, who was sworn in her behalf, and be testified that be did not own tbe bouse and lot where be lived; that that was owned by bis wife, but that be did own tbe block where tbe ste'am bakery and express office were kept, and that be also owned the lot which was used as a skating rink in the rear thereof; that tbe skating rink property was unincumbered at the time; that he also owned a number of knitting machines, which were in the block, of the value of between $3,000 and $4,000, and that they were unincumbered; that the block owned by him, occupied in part by the express company and the bakery, was incumbered for $8,000, hut that it was of the value of $12,000 over and above the incumbrance. He further testified that he had no indebtedness besides the incumbrance mentioned upon the real property.

When the plaintiff rested, the defendant moved for a nonsuit upon the ground that the plaintiff had not proved the cause cf action alleged by her, and the motion was granted. The trial court, in granting the motion for a new trial, says: That “ the nonsuit was directed in this action upon the theory that in order to establish the fraud alleged in the complaint it was necessary for plaintiff to prove all the elements of fraud which are material to recovery in an action sounding in tort. In such cases it is well settled that the essential requisites are representations, falsity, scienter, deception and damage. (Brackett v. Griswold, 112 N. Y. 454; N. Y. L. Imp. Co. v. Chapman, 118 id. 288 ; Hotchkin v. T. N. Bk., 127 id. 329.) There was sufficient evidence of the presence of all these elements, save the last one, to warrant a submission of the case to the jury, but I thought upon the trial, and I am still of the opinion, that there was no evidence whatever of any damage resulting to the plaintiff from the representations made by the defendant at the time he gave the note in suit, and consequently, although for the purpose of the motion it was to be assumed that such representations were false and were made with intent to deceive, it seemed proper to take the case from the jury.” The learned justice then proceeds with an argument attempting to show that he was in error in granting the nonsuit, for the reason that the action was upon contract, and that in such an action it was not necessary-to show damages resulting from the fraud, citing as his authority Hoboken B. Co., Id., v. Loeffel (4 N. Y. Supp. 798). In this view we are unable to concur.

Subdivision 4 of section 549 of the Code of Civil Procedure provides that the defendant may be arrested “in an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, * * * but where such allegation is made tbe plaintiff cannot recover unless lie proves the fraud on the trial of the action, and a judgment for the defendant is not a bar to a new action to recover upon the contract only.”

It will be observed, upon an examination of this statute, that whilst the action may be based upon a contract, the plaintiff may allege that the defendant was guilty of a fraud in procuring it, and where such an allegation is made the fraud must be proved upon the1 trial. To our mind this does not change the rule that existed before the adoption of this provision. The fraud must be proved in all of its essential elements, not only that the representations were made; that they were false; that the person making them knew them to be false; that they operated to deceive the plaintiff, but also that he suffered injury in consequence of such representations. If any one of these essential elements is omitted, the proof of the fraud alleged was not complete, and, therefore, the plaintiff was not entitled to recover.

By again referring to the evidence, we see that it affirmatively appears frota the plaintiff’s own showing that the defendant had unincumbered real estate and personal property out of which the plaintiff could have made good any execution that should be issued upon her judgment. It consequently does not appear that the defendant was insolvent at that time, or that he has since become insolvent. It, therefore, follows that the representations were harmless, and that the learned trial justice was correct in granting the nonsuit.

The order appealed from should be reversed.

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

Order appealed from reversed, and judgment ordered for the defendant on the nonsuit.


text:
    The People of the State of New York ex rel. Victoria A. Green, Appellant, v. Ira W. Hall and Others, Assessors of the Village of Canisteo, Steuben County, N. Y., and Another, Respondents.

      Assessment for taxation — application to reduce — burden of proof — duty of assessors— extent of the examination of the applicant.

    The burden is upon a petitioner, attempting to obtain from assessors a review of their determination fixing the amount of her assessment for personal property, to make it appear that the relief sought should be granted by the assessors.
    The duty of assessors, in fixing and determining the amount of the personal property of an individual subject to taxation, is judicial in character, and in its exercise the assessors are not to act capriciously or arbitrarily, nor are they to be controlled by suspicion or belief founded' on hearsay, or on their views derived therefrom, but they should be governed by evidence.
    There may, however, be cases where the value of an individual’s personal property is ascertained upon an assumed basis of estimate, and then, in determining ' whether the conclusion of value is correctly represented by the evidence, the assessors may properly, and should, exercise their knowledge and judgment upon the subject.
    Upon the examination of a person before assessors for the purpose of reducing the amount of her taxable personal property, as fixed by the assessors, inquiry is pertinent as to the disposition she has made of the proceeds of personal property iireviously owned by her as bearing upon the value of her assessable personal property at the time of the assessment, and if such applicant refuses to answer any question asked her, touching the value or amount of her personal property, with a view to ascertaining the assessable value thereof, the assessors are permitted to treat her evidence as insufficient to require the reduction of her assessment; freedom of inquiry is allowable, and the extent of it must mainly be left to the judgment and discretion of the assessors, and the circumstances which justify the extension of such an examination, beyond ordinary inquiries, are for them, acting in good faith, to determine.
    It is the duty of persons assessed to submit to the assessment of their assessable property and to pay their due proportion of the taxes for the support of the institutions governmental and educational.
    Appeal by tbe relator, Victoria A. Green, from an order of tbe Supreme Court, made at the Monroe Special Term and entered in tbe office of tbe clerk of tbe county of Steuben on tbe 29th day of June, 1894, quashing tbe writ of certiorari theretofore granted to the relator.

      EU Soule, for the appellant.

      A. M. JSwrrell and Frank H. JRobmson, for the respondents.
   Haight, J.:

In May, 1894, the relator was by the defendants assessed for real estate $2,075, and for personal property $2,000. Her alleged grievance relates to the assessment for personal property. She appeared before the assessors May twenty-ninth, and claimed that she was not assessable for such property, and subscribed and verified by her oath answers to a list of questions furnished to her by them. Her statement so made was to the effect that she had no assessable personal property exceeding three dollars. This ivas not satisfactory to the assessors, and pursuant to their request she came before them again on May thirty-first, and was further examined on oath as to what disposition she had made of the proceeds of some mortgages which she had owned some years before, and, amongst other things, she answered: “I can’t or I won’t answer where I invested money received on mortgages.” In her petition she states that she soon thereafter examined her papers, refreshed her recollection about the past transactions, and on June fourth caused application to be made to the assessors for a further hearing, which was denied. The reason given for the declination in their return to the writ is, that they had completed their duties, “ and the petitioner had had a full and ample hearing.”

It is ui’ged on the part of the relator :

(1) That the prayer of the petitioner should have been granted.

(2) That, at all events, the writ should not have been quashed. The statute provides that when a person shall apply for the reduction of his assessment it shall be the duty of the assessors to examine him under oath touching the value of his property and thereupon fix the value thereof at such sum as they may deem just, and if he shall refuse to answer any question as to the value of his property or the amount thereof, or to present sufficient supplementary evidence under oath to justify reduction, the assessors shall not reduce the value. (Laws 1857, chap. 53G, § 5.)

The burden is with the petitioner to make it appear that the relief sought should be granted by the assessors. (People ex rel. Osgood v. Comrs., 99 N. Y. 154.)

Tlie duty of making a determination of this kind is judicial in character, and in its exercise the assessors are not to act capriciously or arbitrarily, nor to be controlled by suspicion or belief founded on hearsay, or their views. derived from it, but should be governed by the evidence. (People ex rel. Raplee v. Reddy, 43 Barb. 539; People ex rel. Douglas v. Dykes, 45 N. Y. St. Repr. 621; 19 N. Y. Supp. 78; People ex rel. Am. L. T. Co. v. Howland, 61 Barb. 273; People ex rel. Glens Falls Ins. Co. v. Ferguson, 38 N. Y. 89, 92; People ex rel. Manan v. Peterson, 16 Wkly. Dig. 70.) There may, however, be cases where the value is ascertained upon an assumed basis of estimate. Then, in determining whether the conclusion of value is correctly represented by the evidence, the assessors may properly and should exercise their knowledge and judgment upon the subject. (People ex rel. W. F. I. Co. v. Davenport, 91 N. Y. 574; People ex rel. A. C. & D. Co. v. Wemple, 129 id. 558.) This case, in its nature, is such that it is not supposed that they had any-actual knowledge of the extent or amount of the personal property owned by the relator at the time in question.

And if they had accepted without further examination the proof furnished by her on the first day of her appearance before them the assessors would have fairly been required to reduce the assessment -of the relator’s personal property. (Matter of Corwin, 135 N. Y. 245.) But when she again appeared at their request they sought to further examine her under oath as to the disposition she had made of the proceeds of personal property previously owned by her.

This was pertinent only as it might bear upon the value of her assessable personal property at the time of the assessment. For that purpose they were justified in making reasonable inquiry on the subject. This evidently was one object in view, and intended by the statute before mentioned as amended in 1857. And by it, as it has been observed, it -was provided that if the applicant for reduction refuses to answer any question as to the value or amount of his property, the assessors shall not reduce it. The value there referred to is the assessable value. And with a view to ascertaining it some freedom of inquiry is allowable, and the extent of it must mainly be left to the judgment and discretion of the assessors. (Vose v. Willard, 47 Barb. 320; People ex rel. Mercer v. Maynard, 58 N. Y. St. Repr. 546 ; 28 N. Y. Supp. 141; 7 Misc. Rep. 295.)

It is the duty of persons to submit to the assessment of their assessable property, and to pay their due proportion of the taxes for the support of the institutions governmental and educational. It is by that means that the system for public protection of persons and property is provided and sustained. And while the assessors cannot be permitted to exercise inquisitorial power to gratify curiosity, or to serve a purpose not legitimately in view, the circumstances which may justify the extension of an examination beyond the ordinary inquiries are for them, acting in good faith, to determine. It cannot well be said that in their examination of the relator they exceeded the bounds of propriety, and as she refused to'answer a question asked her touching the value or amount of her personal estate, the assessors were permitted to treat her evidence as insufficient to require the reduction of the assessment. But the inference is permitted that she was unable to answer such questions, and as she sought the opportunity to make a further statement and supply the-omission in her examination, and it was denied to her by the assessors for the reason stated in their return to the writ, tlie relator may by the court properly have been permitted to add further evidence on the hearing. (Laws 1880, chap. 269, § 4; People ex rel. U. & D. R. R. Co. v. Smith, 24 Hun, 66.) It is very likely that such direction may have been given by the court if it had been asked for. But as it does not appear by the record that any such request was. there made, the court on this review is not deemed called upon to award a rehearing at the Special Term for such purpose. The quashing of the writ added nothing substantial to the denial of the prayer of the petitioner.

The order should be affirmed, without costs of this appeal to either party.

Dwight, P. J\, Lewis and Bradley, JJ., concurred.

Order appealed from affirmed, without costs of this appeal to-either party.


text:
    Thomas B. Van Allen, Respondent, v. John H. Gordon, Appellant.

      Physician’s services — his testimony inadmissible under section 834 of the Oode qf Oivil Procedure — what is not a wcdver of the objection.

    Tie defendant in an action brought against him to recover the value of a physician’s professional.services, rendered in treating him for a disease, by interposing an answer containing a general denial, does not waive the provisions of section 834 of the Code of Civil Procedure, and the physician will not be allowed to describe the disease, with which his patient was afflicted, disclosed to him by the patient.
    Appeal by the defendant, John H. Gordon, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of July, 1894, upon the report of a referee.

      Foote <& Hm.ens, for the appellant.

      Fred. H. Baker, for the respondent.
   Haight, J.:

This action was brought to recover the value of professional services rendered by Robert A. Yan Allen as a physician and surgeon for the defendant. The claim was assigned to the plaintiff. Upon the trial Robert A. Yan Allen was sworn as a witness for the plaintiff, and after testifying that he was a physician and surgeon, and as such was called upon by the defendant to treat him, was asked to state what the defendant said to him- about his physical affliction. This -was objected to as incompetent and immaterial upon the ground that the defendant in making the statements to the witness made them to-him as a practicing physician in his professional capacity, and that they were necessary to enable the physician to act in that capacity, etc. The objection was overruled and the witness was permitted to answer, giving an account of a secret disease disclosed by the defendant to him which he subsequently treated.

Section 834 of the Code of Civil Procedure provides that “ A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity.”

¥e see no escape from the provisions of this section. We do not understand that the defendant had in any manner waived its provisions. He was sued and was brought into court without his consent and compelled to litigate a claim made against him for services rendered.

It may be claimed that he was guilty of a breach of contract in refusing to pay the physician for his services, but that question can only be determined by a trial. If the physician made exorbitant charges the defendant was not obliged to pay. And the same may be said with reference to the defendant’s answer putting in issue the allegations of the complaint; whether or not he properly interposed his defense can only be determined by the trial. It is not apparent to us that either of these acts amounted to a waiver of the statute.

Had the defendant himself brought an action • against the physician, alleging misconduct or malpractice, he doubtless would be deemed to have waived the statute. But we think the interposing of a general denial in an action brought against him cannot be so treated.

Our attention has been called to a statement in 18 American and English Encyclopaedia of Law, 438, which is in apparent conflict with the views herein expressed. We have carefully examined the citation of authorities made thereunder, but have been unable to find any that supports the statement. ,

It is urged that if the physician is not permitted to describe the disease with which liis patient was afflicted he cannot show the value of his services, and that consequently it could not have been the intention to have the statute apply to a case like this. But we think such a result does not necessarily follow. The physician can still testify to his employment, to the number of visits made, to the examinations, prescriptions and operations, and if the defendant objects to his describing them the physician may then testify as to the value. It may be that the plaintiff would be unable to corroborate the physician’s testimony as to the value of the services for the reason that he would not be permitted to disclose to other physicians the character of the services rendered, but the defendant would meet the same embarrassment when he undertook to dispute the value of such services.

The judgment should be reversed and a new trial ordered in the County Court of Monroe county, with costs to abide the event.

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

Judgment of the County Court of Monroe county appealed from reversed and a new trial granted, with costs to abide the event.


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    Walter G. Smith, as Assignee, etc., of William A. Gardner, Appellant, v. George R. C. Smith, Respondent.

      Covenants — •when they are dependent and when independent.

    The question as to whether covenants contained in an instrument are dependent or independent commonly resolves itself into one of construction of the contract, viz., as to whether the acts, each of which constitute the consideration of the other, are intended to be concurrent, or whether either is intended to precede, and its performance to be a condition precedent of the other. In the former case the promises are mutually dependent, and neither party can maintain an action thereon without alleging and proving a tender of performance on his part. In the latter case it is only the party charged with the first act that must perform, or tender performance, before he can enforce the obligation of the other party.
    An action was brought by a vendor to recover the second installment of the purchase price of lands sold under a contract, which provided: “When the second payment of said purchase money, to wit, three thousand five hundred (88,500) dollars, to be paid on or before November 1, 1893, is paid, then the party of the first part is to execute a deed of said premises, and the remainder of said purchase money is to be secured as hereinbefore mentioned.”

      Held, that such contract, by its terms, imported that the promised payment of the second installment and the delivery of the deed were intended to be concurrent acts;
    That the covenants, one for the payment of the second installment and the other for the delivery of the deed, were concurrent and mutually dependent, and neither could be enforced without performance, or tender of performance, of the other; '
    That if the complaint in such action failed to allege the tender of the deed of such premises, it was demurrable.
    Appeal by the plaintiff, Walter G. Smith, as assignee, etc., of William A. Gardner, from an order and interlocutory judgment of tbe Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Erie on the 10th day of March, 1894, upon the decision of the court, rendered at the Erie Special Term, sustaining the defendant’s demurrer to the amended complaint.

      Geo. O. Scrnyer, for the appellant.

      Gluwles O. Tayypm, for the respondent.
   Dwight, P. J.:

The action was to recover the second installment of the purchase price of lands sold by the plaintiff’s assignor to the defendant, by a contract in writing which is set out in the complaint. The contract price was $22,000, of which the first installment of $500 was paid down, and the second installment of $3,500, for which the action was brought, was to be paid “ on or before the 1st day of November, 1893.” The contract then stipulates the mode of payment and security for the payment of the balance of the purchase price, and further provides as follows: When the second payment of said purchase money, to wit, three thousand five hundred ($3,500) dollars, to be paid on or before November 1st, 1893, is paid, then the party of the first part is to execute a deed of said premises, and the remainder of said purchase money is to be secured as hereinbefore mentioned.”

The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action, and the demurrer was allowed on • the ground that it was necessary, under the contract set out in the complaint, to allege the tender of a deed before action brought. We think the holding was correct, and that the demurrer was well taken.

There has been a good deal of discussion by the courts, and some not altogether consistent expositions of the doctrine of dependent and independent covenants; but the question commonly resolves itself into one of construction of the contract, viz., as to whether the acts which constitute each the consideration of the other, are intended to be concurrent, or whether either is intended to precede and its performance to be a condition precedent of the other. In the former ease the promises are mutually dependent, and neither' party can maintain an action thereon without alleging and proving tender of performance on his part; in the latter case it is only the party charged with the first act that must perform or tender performance before he can enforce the obligation of the other party. (Morris v. Sliter, 1 Den. 59 ; Kirtz v. Peck, 113 N. Y. 222.)

In this case we think the contract by its terms plainly imports that the promised payment of the second installment and the delivery of the deed were intended to be concurrent acts. The language is : “ When the second payment * * * is paid then the party of the first part is to execute a deed,” etc. We think that the word “ when ” in this case means, at the time when, and that the payment and delivery of the deéd were intended to be concurrent acts. But there is more of the provision; it is also provided that at the same time the security agreed to be given for the payment of the remainder of the purchase money shall be given to the plaintiff. * These provisions seem to us to indicate the intention of the parties that at one time, viz., at the time of the payment of the second installment of the purchase money, the whole matter resting in contract should be closed up, the deed should be given on the one hand, and the securities executed or transferred on the other hand, and that the contract should then and there be fully performed. If such is not the import of the agreement, then no time whatever is fixed for the important transactions which remained, except an indefinite time after payment of the second installment.

In the case of Beecher v. Conradt (13 N. Y. 108) the covenant to convey was upon the express condition that the party of the second part do well and faithfully perform the covenants hereinafter mentioned and to be performed on his part, which were to pay the purchase price of the land in five equal annual payment with interest annually. It was held (opinion by Gardner, J.) that these covenants were originally independent and that the plaintiff’s vendor might have brought the action for either installment, as it became due, without alleging tender of a deed, but that having waited until the whole purchase price was due, the covenants became mutual conditions, and that no part of the purchase price could be recovered without tender of the deed. The defendant, if he would obtain his deed, must pay all, and the plaintiff, if he would recover, must show such performance as would entitle him to all the unpaid consideration.

The principle of this case was applied in the case of Eddy et al. v. Davis (116 N. Y. 247), where the purchase price of $1,600 was to be paid in annual installments and the plaintiff was to give a deed “ on receiving the sum of $800 at the times and in the manner above mentioned.” In that case an action was brought to recover certain unpaid installments after the whole of the $800 had become due, and, consequently, after the time when, if the whole of that sum had been paid, the defendant would have been entitled to his deed. It was held in accordance with the doctrine of Beecher v. Conradt (supra), that, while plaintiff might have maintained his action to recover any one or more, less than all, of the installments making up the $800, as they fell- due, without alleging tender of a deed — having waited until the whole $800 was due, on payment of which the deed was to be delivered, he could not maintain his action for that sum without tender of the deed.

We think the principle involved in those cases applies to the case in hand. Here the deed was to be given when the $3,500 was paid, and the action necessarily could not be brought until after the time when the defendant, if he paid the installment, was entitled to -his deed. The two covenants were, therefore, concurrent and mutually dependent, and neither could be enforced without performance or tender of performance of the other.

¥e think the demurrer was properly allowed and that the interlocutory judgment must be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Interlocutory judgment appealed from affirmed with costs, and final judgment ordered thereon for the defendant unless the plaintiff within twenty days serve an amended complaint and pay the costs of the demurrer and of this appeal.


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    Edward R. Foreman, Respondent, v. The Union and Advertiser Company, Appellant.

      Perjury — boa/rd of civil service examiners appointed under chapter 354 of the Lams of 1883, as amended by chapter 410 of the Laws of 1884 — promulgation of rules thereby under section 843 of the Code of Civil Procedure.

    The board of civil service examiners appointed by the mayor of a city to examine candidates for municipal offices, under the provisions of chapter 354 of the Laws of 1883, as amended by chapter 410 o^ the Laws of 1884, is empowered, under the provisions of section 843 of the Code of Civil Procedure, to promulgate rules requiring the verification of all applications for office, and the oath .attached to such application by the applicant is not extra judicial and if false justifies a conviction of perjury.
    Appeal by tbe defendant, Tbe Union and Advertiser Company, from a judgment of tlie Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 2d day of March, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 29th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Nathaniel Foote, for the appellant.

      Eugene Van Voorhis, for the respondent.
   Lewis, J.:

The defendant is a corporation and is the publisher of a newspaper in the city of Rochester, known as the Union cmd Advertiser This action was brought against the defendant to.recover damages for publishing an alleged libelous art'icL of and concerning the plaintiff.

The mayor of the city of Rochester, after the passage of chapter 354 of the Laws of 1883, entitled “An act to régulate and improve the civil service of the State of New. York,” as amended by chapter 410 of the Laws of 1884, appointed a board of examiners of applicants for admission into the civil service of the city, and he promulgated rules and regulations for the government of such examinations, with a view of ascertaining the fitness and qualifications of applicants for admission into such service. The plaintiff was an applicant for the position of investigating clerk in the city attorney’s department of said city. The position was one coming within the civil service rules, and, with the view of being permitted to take such examination, the plaintiff made a written apjffication to the said board in the form and manner prescribed in such cases, which he duly verified before a commissioner of deeds of said city. He, among other things, stated in the application that he resided in the city of Rochester, and had resided in that city continuously for over four years, and that he had never been arrested upon a criminal charge. He was, examined by the board and was duly certified to be qualified to enter the service, and he was thereafter appointed to the position of investigating clerk.

A reporter upon the defendant’s paper, after making a careful examination as to the truthfulness of the statements in plaintiff’s application, and being satisfied that they were untrue, prepared the article in question, and it was published by the defendant. The article was headed: “ Foreman in Lima — An unenviable record in his native town — ’Affidavits by the town officials — The perjury before the civil service examiners — Still retained in the city’s law ■department, although not eligible.” The article goes on to give a ■copy of the plaintiff’s verified application, and also what purported to be copies of a number of affidavits made by residents of the village of Lima, tending to show that the plaintiff had been a resident of that village during most of the year prior to his making the application, and then charges that statements in the application were false, and that “The grand jury also can scarcely avoid giving the matter its consideration,” and adds: “ Affidavits establishing a second falsehood in the sworn application to the civil service examiners may be produced, if necessary, as readily as those given above.”

\ This action was thereupon commenced. It was alleged in the complaint that the defendant intended, by the article, to charge the plaintiff with the crime of perjury, fraud, and other- crimes and offenses in his application.

The defendant interposed an answer, setting up the truth of the article in justification of the publication, and alleging that it was not true that the plaÍ2itiff had resided in the city of Rochester continually for over four years, and that it was not true that he had never been arrested upon a criminal charge, and charged that he had theretofore been arrested upon a criminal charge, tried and convicted, and that the allegations in the application to the contrary were false, and known to the plaintiff to be false at the time they were made; and for a further defense, and in mitigation of any damage, it was alleged that the publication was made in good faith and without malice, and in the public interest, and in the belief on the part of the defendant and publishers that the same was true, and that they had reasonable and probable cause for believing the same to be true.

There was evidence tending to show that the application of the plaintiff in the respects mentioned was untrue, and known to him to be false at the time it was made. The trial court held that there was no provision in the Civil Service Law authorizing the mayor to make rules requiring that such applications should be verified ; that the plaintiff’s oath was, therefore, extra judicial, and that lienee the charge of perjury could not be predicated upon it, and that the only question for the consideration of the jury was one of damages. The correctness of this ruling was duly challenged by a proper exception, and presents the important question in the case.

The article, in effect, charged the plaintiff with having committed the crime of perjury in verifying the application. If neither the mayor nor the board of examiners had the power to require that the’application should be verified, then the oath was extra judicial, and a charge of perjury would not be predicated upon it.

By section 8 of chapter 410 of the Laws of 1884 it is provided that “ The mayor of each city in this State is authorized and is hereby directed to prescribe such regulations for the admission of persons into the civil service of such city as may best promote the efficiency thereof and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose he shall, from time to time, employ suitable persons to conduct such inquiries and make examinations, and shall prescribe their duties and establish regulations for the conduct of persons who may receive appointments in the said service.”

After the passage of the acts referred to, the mayor of the city of Rochester prescribed certain rules and regulations for the admission of persons in the public service of the city ; among other things the regulations required that the application for a position like the. one sought for by the plaintiff should be in writing and should be duly verified by the oath of the applicant, addressed to the examining board. As stated, the act does not in terms provide that the civil service board or the mayor may examine the applicants upon oath, neither does it in terms empower the mayor to make it a condition of the examination that the written application papers shall be sworn to. It does, however, require the mayor of each city to prescribe proper rules and regulations for the government of such examinations, with a view of promoting the efficiency of the civil service and ascertaining the fitness of such candidates with respect to character, knowledge and ability for the service which they seek to enter. It is the contention of the appellant that the power so conferred upon the mayor was sufficient to authorize him to require that such applications be made under oath. It is important that the examining boards should be informed as to moral character as well as the intellectual qualifications of candidates for positions in the civil service of their cities. It would probably aid them in arriving at the facts as to the character of the applicants, if they would be subjected to the ordeal of a verification of their written applications by their oaths.

Section 96 of the Penal Code provides that “A person who swears * * * that any * * * declaration, * * * certificate, affidavit, or other writing by him subscribed is true, * * * upon any hearing or inquiry, or on any occasion where an oath is required by law, or is necessary * * * for the ends of public justice, * * * and who, * * * on such hearing, inquiry or other occasion willfully and knowingly testifies, declares, deposes or certifies falsely in any material matter, or states in his testimony, declaration, deposition, affidavit or certificate, any material matter to be true which he knows to be false, is guilty of perjury.” If this section does not reach the case, does section 843 of the Code of Civil Procedure, which is as follows: “ "Where an officer, person, board or committee has been heretofore, or is hereafter authorized by law to take or hear testimony, or to hear or receive an affidavit, or to take a deposition in relation to a matter concerning which he or it has a duty to perform, the officer, or person, or a member of the board or committee may administer an oath for that purpose. Where an officer, person, board or committee to whom, or to which application is made to do an act in an official capacity requires information or proof to enable Mm or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose.”

The examiners were a board to whom the plaintiff made application to do an official act. It was necessary that they should have information as to plaintiff’s character to enable them to decide upon the propriety of certifying him to be eligible to enter the civil service of the city. The rules and regulations promulgated by the mayor required the application to be made under oath; we assume that if the plaintiff had presented an unverified application he would not have been permitted by the board to be examined.

He presented a sworn application which the board received and acted upon. We incline to the opinion that the board of examiners was empowered, by the latter clause of the section'last quoted, to require, as a condition of the plaintiff’s taking the examination, that he should verify his application under oath, and if so the oath was not extra judicial. The evidence tending to prove the truth of the allegations of the answer should have been submitted to the jury.

The plaintiff’s verdict was for $1,150; the defendant’s counsel contends that it was, in any event, excessive and should be set aside for that reason. It was, in view of all the facts, a large verdict, but not so excessive as to justify us in setting it aside for that reason.

We put our decision upon the ground of the error in excluding from the consideration of the jury the defense of justification.

The judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

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

Judgment and order appealed from reversed and new trial granted, with costs to abide the event.


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    Lewis Richards, Appellant, v. Lewis B. Ross, Respondent.

      Establishing a sale to the defendant of goods delivered to a third person.

    If it be shown, upon the trial of an action brought to recover the purchase price of a set of harness, that the defendant selected the harness, ascertained the price thereof, ordered it changed so as to fit a team, and after the harness was deliv-1 ered to a third person said that it was all right and that the vendor would get his pay, there is sufficient evidence to establish a sale of the harness to the defendant. . .
    Appeal by the plaintiff, Lewis Richards, from a judgment of the County Court of Ontario county in favor of the defendant, entered' in the office of the clerk of the county of Ontario on the 9th day of August, 1894, upon the decision of the court reversing the judgment of a justice of the peace of the town of Geneva, Ontario county, in favor of the plaintiff.

      W. /S. Moore, for the appellant.

      George L. Bachman, for the respondent.
   Haight, J.:

This action was brought to recover the sum of twenty-four dollars, the purchase price of a harness alleged to have been sold by the plaintiff to the defendant. The justice rendered judgment for the plaintiff, but the County Court reversed upon the ground that the evidence submitted by the plaintiff was not sufficient to sustain the judgment.

The question thus presented involves a careful examination of the evidence. The plaintiff testified that about the eighteenth of November last “ Mr. Ross came into my store, and said he had sold a big team of horses to Mr. Hemingway, and he had to have a set of harness for them. He looked at two or three different sets of harness and said, ‘ This one would do if I would change it, and fix it up a little it would be all right.’ I had the bill charged to Mr. Ross. I didn’t know this stranger. Q. What further was said, if anything, at that time % A. On the 24th this stranger came along, and I let him have the harness. On the 17th or 18th of November, when Mr. Ross was there, I told him I had charged the harness to him. Q. What did you do there at that time about this harness ? A. I showed it to him. He said that will do. That is all right. Some of it had to be changed, made larger, and I fixed them. Q. What further was said, if anything? A. I told him I charged the harness to him. Q. Was anything said about the price ? A. $24, yes, sir. Q. Have you now stated all that you remember of that conversation at that time ? A. At that time, yes, sir. Q. Was anything said about the time the harness would be ready, or when he would come for it ? A. About a week. Q. What did you do about it afterwards ? A. I changed the main strap 3 or 4 inches, it had to be made a little larger. Q. Did any one afterwards come after the harness ; if so, when was it ? A. It was on the 24th; this stranger, Mr. Hemingway, came. He was alone. Q. What did he do with it ? A- Carried the harness over to the public sheds, Mr. William Earon’s sheds. Q. Is that all ? A. That is all. Q. Did you after-wards have a conversation with Mr. Ross about the payment for the harness ? A. Tes, Mr. Ross came into my store about 6 or 8 days after the 24th; and said the harness was all right, and I would get my pay. Q. Has this harness ever been paid for ? A. No, sir.”

It appears to us that this evidence was sufficient to establish a sale. The defendant selected the harness, ascertained the price, ordered it changed so as to fit the team, and after the harness was delivered said that it was all right, and that the plaintiff would get his pay.

The learned county judge characterized this testimony as “absurd to suppose that the defendant would be buying harnesses for horses he had sold.” We do not think that this conclusion necessarily follows. The defendant said that he had sold his big team of horses to Hemingway, and had to have a set of harness for them. We think the inference that the harness was included in the sale with the horses is permissible.

It further appeared that the defendant had not sold his horses to Hemingway; that the sale was not completed, and the horses never left the possession of the defendant; that when Hemingway took the harness from the plaintiff’s shop he took it to the defendant’s residence, where it ever since has remained. True, the defendant’s son, who still resides at home with his father, claims to have purchased the harness from Hemingway, but the justice evidently did not believe this. This son had testified that he was with Hemingway when Hemingway purchased the harness; that they went into the plaintiff’s place together; that the jfiaintiff took down several harnesses and showed Hemingway until he came to one that suited him ; that he then said he would fix the harness so that it would be all right and have it ready within a week, and that nothing was said about the price. This was positively denied by the plaintiff.

The defendant Ross was sworn as a witness in his own behalf, but he carefully avoids denying the essential statements made by the plaintiff. He starts in his testimony by stating that he was not in the plaintiff’s store on or about the seventeenth or eighteenth of November last .with one Hemingway. The plaintiff did not state that the defendant was in his store with Hemingway. The defendant then skips over that which was detailed by the plaintiff in reference to the selecting of the harness and the ordering of it, and next speaks of the bringing of the harness by Hemingway to his place. He does not deny the conversation in which the plaintiff told him that he had charged the harness to him, and that he said it was all right. He only denies that he said he would pay for the harness, or that the plaintiff would get his pay therefor. It is, therefore, apparent that the justice had good reason for believing the testimony of the plaintiff to be correct.

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

Dwight, P. J"., Lewis and Bradley, JJ., concurred.

Judgment of the County Court of Ontario county appealed from reversed and that of the justice affirmed, with costs in this and the County Court.