text:
    AMBROSE W. ADAMS, as Constable, etc., Respondent, v. JOHN H. TATOR, Appellant.

      ■ Confession of judgment in a Justice? s Court — for a contingent liability — a principal is not indebted to a surety who has simply signed his note — not men if the surety has agreed to pay it.

    A confession of judgment in a Justice’s Court to one who is simply a surety for the judgment-debtor upon certain notes that have been given by him, where the confession states no facts, and does not show for what cause of action the judgment is to be entered, is invalid.
    'The principal is not indebted to his surety until the surety has paid the debt of the principal; and it cannot be said that a principal is indebted to his surety for notes signed by the latter, although the surety, in consideration of the confession of judgment for the amount thereof, has agreed to pay such notes.
    ' The language required by subdivision 3 of section 3011 of the Code of Civil Procedure, requiring an affidavit, m case of such confession, “stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein,” etc., does not comprehend such an arrangement.
    'The absence of any special provision for the entry of judgments on confession in Justices’ Courts for contingent liabilities, and the requirements of the affidavit, specified in section 3011 of the Code of Civil Procedure, show that no such confessions for contingent liabilities were contemplated by the statute.
    Appeal by the defendant John H. Tator from a judgment of the Supreme Court, entered in the office of the clerk of the county of ■ Schoharie on the 4th day of December, 1888, with notice of an intention to bring up for review upon such appeal the judgment, • exceptions, findings and rulings of the court upon the trial of the action, and also the order denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.
    The action was brought to trial at the Schoharie Circuit, before the court and a jury, on October 8, 1888, where a verdict was rendered for the plaintiff for $698.05.

      N. G. Moah, for the appellant.

      Hobart Krum, for the respondent.
   Learned, P. J.:

This is an action to recover damages for taking personal property. The plaintiff recovered and defendant appeals. The plaintiff was in possession of the property by virtue of executions issued on two judgments recovered by one Mickle against one King on confession March 10, 1885, before a justice of the peace — one for $500, the other for $200. The defendant took the' property by virtue of a chattel mortgage, executed to him by King December 30, 1884, and not filed until March 14, 1885. On the first trial it was urged that plaintiff was not a constable. That point was disposed of when the case was here before (42 Hun, 384), and will not be again considered. The principal questions now are as to the validity of the judgments and the regularity of the executions. It is urged that the confessions of judgment were, in fact, fraudulent, and also that, the justice had no authority to take a confession of judgment, given, in fact, to secure contingent liabilities. In form the confessions authorize a judgment, but they state no facts of any kind, and show no cause of action. It is further claimed by the defendant that the affidavit attached to each confession is defective. On the trial it appeared that the alleged indebtedness for which these judgments were confessed was made up as follows:

1. A joint and several note made by King and Mickle, dated October 30, 1884, for $400 at one year, held by a bank at Middle-burgh, when the confession was given. As between the parties Mickle was surety for King, who received the avails.

2. A promissory note made by King and Mickle, dated March 14, 1884, for forty-nine dollars and interest, at one year, held by George D. Brayman, on which Mickle was, in fact, surety.

3. A promissory note made by King and Mickle, dated March 13, 1884, for sixty-eight dollars and forty cents and interest, at ten months, held by Mrs. Boland, on which also Mickle was, in fact, surety.

4. An indebtedness on book account of about $64.37, and perhaps borrowed money $130.

There is evidence to the effect that just before the confessions Mickle and King looked over their affairs, and that there were found liabilities to over $700, including these notes; that they agreed to call the amount $700; that Mickle agreed to pay the notes if King would give the security, and that on this arrangement the judgments were confessed.

It is evident that the notes above mentioned formed the principal part of the indebtedness for which the judgments were confessed. The learned justice who tried the case expressed some doubt on the question of the confession of these judgments for a contingent liability, but decided to hold the judgments good in that respect.

Section 2864 gives a justice of the peace jurisdiction to enter confession of judgments as prescribed in title 6 of chapter 19.

Sections 3010 and 3011 prescribe the mode, and are substantially like the provisions of the Revised Statutes. The third subdivision of the latter section requires that when the judgment exceeds fifty dollars there must be an affidavit of the parties “ stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein, over and above all just demands which the defendant has against the plaintiff. The argument of the defendant is that King was not indebted to Mickle at the time of the confession upon the notes, nor even upon Mickle’s agreement to pay them, though he might become so indebted when Mickle paid. It is worthy of notice, in considering this question, that in regard to confessions in courts of record the Code is precise and clear. It gives express authority to confess for a contingent liability and requires a verified statement of the facts constituting such liability. (Secs. 1273, 1274; see Flour City National Bank v. Doty, 41 Hun, 76.) And some inference may be drawn therefrom that if confessions of judgment in Justice’s Court were authorized for contingent liability, a similar provision would have been made for a statement of facts. In the present case the confession states no facts whatever. It does not show for what cause of action the judgment is to be entered, whether for assault and battery, for damages in taking a chattel, for money loaned, for goods sold. It only authorizes a judgment for a certain amount on no cause of action whatever. We have doubts whether such is the proceeding authorized by the Code. A “ confession” means ordinarily the acknowledgment of some fact, and it is reasonable that facts should be stated, at least as fully as would be done in a complaint in the same court. This might be quite important m order to show the nature of the execution to be issued. (Sec. 3026.)

But, passing this, we come to the question as to the contingent liability. It is certain that at the time of the entry of the judgments King was indebted on the notes, not to Mickle, but to the holders. A principal is not indebted to the surety until the surety has paid the debt. Even though Mickle, in consideration of the giving of these judgments, had agreed to pay the debt, still it could not be said that King was indebted to Mickle for these notes at the time when the judgments were given. Whether Mickle would pay them or not was uncertain. If he paid them, King would owe him; if he did not, King would not owe him. All was contingent. This is not saying that it would not be a lawful arrangement for King to secure Mickle on receiving such a promise. We are only examining whether the language required in the affidavit, viz., that the defendant is justly and honestly indebted to plaintiff in the sum specified, can be construed to comprehend such an arrangement. Mickle was already liable on these notes. He assumed no new obligations; he simply obtained a judgment against King before paying the notes, which he would have been able to recover after paying them. Only after he had paid them King would have become indebted to him; before, King was not. When, then, the Code requires such an affidavit, it shows that there must be an existing debt to the plaintiff. Probably the debt need not be yet payable. For that case a stay of execution is provided. (Sec. 3010.) But the defendant must owe the plaintiff. Debitum in prmenti solvendxim in futuro. Debt existed in the present case, but not to this plaintiff, that is, as to the three notes. (Smith v. Krauskopf 13 Hun, 526, and cases cited.)

But the plaintiff insists that, by the effect of the agreement between Mickle and King just prior to the confessions, $100 was due and owing by King to Mickle without any contingency. Very probably the agreement, based on the promise by King to confess judgment, might have been valid. But the agreement was nothing more than making Mickle the principal debtor and King the surety on the notes, as between themselves. And it could not be said that King was indebted to Mickle in that amount over and above all just demands.

The plaintiff urges that judgment may be confessed for a tort, and that a tort is not a debt. That may be true. But when the parties have settled and agreed on the damages which are to be paid in compensation for a tort, it might not be a forced construction to say, in such an affidavit, that the defendant was indebted in that amount.’ Whether, however, a case of tort is within these sections we need not decide.

It is true that in this case Mickle did subsequently pay these notes. But we tliink that the learned justice correctly held that such payment was immaterial as to the point now considered. In confessions of judgment in courts of record, there is a special provision for the issue of execution when the debt is not all due; .the word “ due” there meaning payable. (Section 1277; see Jaffray v. Saussman, 52 Hun, 561, and National Park Bank v. Salomon, 23 N. Y. St. Rep., 566.) In section 3026-it is provided that executions on justices’ judgments must specify the sum recovered and the sum actually due. Now, whatever the meaning of the word due ” in this section, as the executions were issued the same day with the judgments, it is plain that, as to the amount of the notes, nothing was due in either meaning. And the executions, in fact, did not state that any amount was due, a defect which may be a mere irregularity.

Ye think, then, that the absence of any special provision for the entry of judgment on confession in Justices’ Courts for contingent liabilities, with the requirement of the affidavit above referred to, shows that no such confessions were contemplated by the statute. There is reason for this, because proceedings in Justices’ Courts are simple and adapted to plain cases. And it would seem strange, if judgments on contingent debts had been contemplated, that provisions similar .to those of section 1274 were not added.

The plaintiff urges that the judgments are good, at- least, to the extent not given to secure the notes. We do not see how, in regard to these justices’ judgments, we can hold this.

There is a slight variation in the form of affidavits from that required by the Code, section 3011, subdivision 3. The affidavits follow the language of 2 Revised Statutes (m. p. 245, § 114, sub. 3). We do not think the variation is fatal.

We think, therefore, that these judgments on confession cannot be sustained, and that the judgment and order appealed from must be reversed and a new trial granted, costs to abide event. •

LaNdoN, J., concurred; Mayham, J., not acting.

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


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    NATIONAL HUDSON RIVER BANK, Respondent, v. LUCY A. REYNOLDS, Appellant, Impleaded, etc.

      Indorser of a note — when the offer of a renewal note constitutes a waiver of notice of protest — mortgage given by way of collateral — enforcement of — res adjudicata.
    A mortgage was given by one Lucy A. Reynolds, as security “for any and all indorsements now made by tbe said Lucy A. Reynolds, or that she may hereafter mate of note or notes or other paper of * * * R. Reynolds’ Sons, * * * an¿ which, shall be owned and held by the said National Hudson River Bank,” and “ to be a lien and security to said amount for the payment of any 'and all notes, drafts or engagements indorsed by the said Lucy A. Reynolds, now held by said bank, or which may hereafter be held and owned by said bank.”
    R. Reynolds’ Sons made a note for $5,000, dated November 25, 1887, to the order of Lucy A. Reynolds, payable in three months at the National Hudson River Bank. This note was indorsed as follows:
    “I hereby pledge my separate estate, both real and personal, for the payment of this note. “ LUOy A> REYNOLDS.”
    This note was discounted before, and was held by, the bank at the time of its maturity, on which latter day, according to a custom which had existed between the plaintiff and R. Reynolds’ Sons, there was sent to the bank a similar note of that date, of the same amount and with like signature and indorsement, in renewal of the former note. In this case the renewal note was held for some days until the meeting of the board of directors of the bank, who decided not to accept it.

      Held, that, under the circumstances of this case, there was a waiver by the indorser, Lucy A. Reynolds, of notice of the non-payment of the note of November 25, 1887.
    That while Lucy A. Reynolds might have had no intention of expressing a waiver of the right to have notice of non-payment, yet the bank might still have understood from her act that she knew that the note was not to be paid, and that, therefore, the bank need not give to her notice of what she already knew.
    That the use in the mortgage of the word “engagements” would comprehend within its scope any contract upon which Lucy A. Reynolds might be liable; under which construction of the guaranty the notice required in the case of negotiable paper would not be necessary.
    In a foreclosure action with a claim for deficiency against several defendants a waiver of claim therefor as to all but one defendant is, as to those defendants embraced within such waiver, in effect, an amendment of the complaint, and the judgment in such action is not an adjudication on the question as to the personal liability of such defendants.
    Appeal by the defendant Lucy A. Reynolds from a judgment of foreclosure and sale, entered in the office of the clerk of the county of Columbia on April 7, 1890, after a trial at a Special Term held in the county of Columbia.

      George B. Wellington, for the appellant.

      John Oadman, for the respondent.
   Learned, P. J.:

This is an action to foreclose a mortgage given by Lucy A. Reynolds in 1883 to the plaintiff. It was given as security “for any and all indorsements now made by the said Lucy A. Reynolds or that she may hereafter 'make of note or notes or other paper of * * * R. Reynolds’ Sons * * * and which shall be owned and held by the said National Hudson River Bank.” And “ to be a lien and security to said amount for the payment of any and all notes, drafts or engagements, indorsed by the said Lucy A. Reynolds, now held by said bank or which may hereafter be held and owned by said bank.”

R. Reynolds’ Sons made a note for $5,000 to the order of Lucy A. Reynolds, dated November 25, 1887, payable in three months at. the National Hudson River Bank. This note had the following indorsement:

I hereby pledge my separate estate, both real and personal, for the payment of this note. “ LUCY A. REYNOLDS.”

This was the last in a series of renewals of a note for the same amount held by plaintiff at the time of the execution of the mortgage,, similar in form and indorsement to that above described. The note-of November 25, 1887, -was discounted by plaintiff before it was-•payable, and was held by plaintiff at maturity.

On the morning of February 18, 1888, the' date on which said note became payable, there was sent to plaintiff a similar note of that date, of the same amount, with like signature and indorsement. There was also sent with the same about forty-eight dollars in money and a letter from R. Reynolds’ Sons, in substance stating that the note and checks were to take up the old note due that day.

The cashier of the plaintiff held said note, subject to the action of the board of directors at their next meeting, which would regularly have been in a week. The next meeting at which there was a quorum was April seventh, and at that, meeting the board decided not to accept the renewal note. No notice of non-payment of the note which came due February twenty-eighth was given to Lucy A. Reynolds.

It had been the custom, between plaintiff and R. Reynolds’ Sons, for plaintiff to accept renewal notes which would be discounted by the cashier on the day of their receipt and the amount credited to R. Reynolds’ Sons. The maturing note would be paid by a check of R. Reynolds’ Sons and the note thus paid would be stamped “paid” by the bank and given up.

The principal question is, whether, under the circumstance, there was a waiver by Lucy A. Reynolds of notice of non-payment, and whether she became liable on the note due February twenty-eighth.

The note being payable at plaintiff’s counter, and being held by plaintiff at maturity, was duly presented for payment. But it was not paid, and notice of non-payment was not given to the indorser. There is no doubt that an indorser may waive such notice, and may do this without consideration. It is evident that the defendant indorsed the note of February twenty-eighth for the purpose of renewing the note due that day. She, therefore, must have known that the maker would not pay the old note at its maturity, for she provided him with the means of renewing it; and if paid it would, of course, not need to be renewed. As in the case of Sheldon v. Horton (13 N. Y., 93), where the plaintiff told the indorser that the maker wanted the note to remain another year, and the indorser said he was willing; so here. The indorser’s willingness that the debt should be extended or renewed removed the necessity of notifying the indorser of non-payment. The object of such notice is that the indorser may protect himself from loss. But when he consents to a renewal he evidently knows that the maker will not pay, and can protect himself if he so desires.

It is said by the defendant that the bank refused to accept the proposed renewal, and did not notify her, of the refusal. It is not an actual extension or renewal which is relied on as a waiver, but the indorser’s knowledge that the note would not be paid, and the communication of such knowledge to the bank. In the case last mentioned it did not appear that there was a valid agreement or any consideration between the maker and the holder that the note should be extended; and the case states that it did not appear whether any time had been given the maker. The waiver, therefore, did not rest on a valid extension, but on the act of the indorser, implying knowledge that the note was not to be paid at maturity.

We must take the act of defendant in regard to the note in question in connection with similar acts in regard to f ormer renewals of the same liability, and in connection with the mortgage now in suit. And, as said in Cady v. Bradshaw (116 N. Y., 188), “It (the waiver) may result from implication and usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver is intended.” That case was one where the indorser, when an extension was proposed, said he would let his name remain on the note. (See, also, Leary v. Miller, 61 N. Y., 490.)

It may not be safe to assert that Lucy A. Reynolds had any distinct intention of expressing a waiver of the right to have notice of non-payment. But it may well be said that the bank could understand from her act that she knew that the note was not to be paid, and, therefore, that the bank needed not to give her notice of what she knew.

But there is a further view. There are several clauses in the mortgage stating its object. One is as follows: “ This mortgage is given and is to remain a good and continuing security to the said National Hudson River Bank to the amount of $5,000, and to be a lien and security to said amount for the payment of any and all notes, drafts, or engagements indorsed by said Lucy A. Reynolds, now held by the said bank, or which may hereafter be held or owned by said bank.” Here is a clause making this mortgage security for the payment of any notes indorsed by defendant. The mortgage is not simply to secure her liability as indorser, but it is to secure the payment of any notes indorsed by her. And the language includes not only notes and drafts, but “ engagements.” Now, the word “engagements” is not descriptive of commercial paper, to which alone the peculiar liability of indorsers applies. It is a word which might describe any contract. And if a contract, other than negotiable paper, were held by the bank, and Lucy A. Reynolds had “ indorsed ” it, the parties to this mortgage could not have expected that such a contract would be protested. We must, therefore, take the words “ indorsed by the said Lucy A. Reynolds ” as merely descriptive of the “ notes, drafts or engagements,” the payment of which was secured by the mortgage, and not as limiting the lien of the mortgage to that commercial paper on which she should be legally charged as indorser. There is another clause which speaks of security for indorsements, but that does not limit the clause above cited. If the mortgage had expressed that it was to secure the payment of the $5,000 note made by R. Reynolds’ Sons, and then held by the bank, it would not have been necessary, under the mortgage, to give notice of the nonpayment, even if Lucy A. Reynolds had been an indorser thereon. So, now, the bank has a note indorsed by Lucy A. Reynolds. This mortgage is security for the payment of that note. Its indorsement simply identifies it as one of the notes which the mortgage secures.

The defendant raises a point that there had been a former adjm dication in favor of Lucy A. Reynolds, which was a bar to this action. That was a foreclosure action to which she was a party. The mortgage, like this, was to secure notes of R. Reynolds’ Sons. There was a demand for judgment for deficiency against several defendants, including her. She answered and denied that she was liable. On the trial plaintiff waived all claim for deficiency against any party except Gordon B. Reynolds, and on such waiver the learned judge who tried the case stated in his findings that the liability or non-liability of the other defendants was not tried before him, and dismissed the complaint as to them for any deficiency, and Lucy A. Reynolds recovered costs.

The defendant urges that the plaintiff in that action should have amended his complaint; that as he did not amend he might have there tried the question of the liability of Lucy A. Reynolds, and is, therefore, bound by the decision, and cannot now assert her liability.

' In the view last taken of this case, that judgment is immaterial. Nor do we think that prior decision is an adjudication on the personal liability of Lucy A. Reynolds. The waiver of the plaintiff, set forth in the judge’s decision, was equivalent, in effect, to an amendment of the complaint. The defendant’s counsel quotes a sentence from Pray v. Hegeman (98 N. Y., 358). But the following sentence explains the rule : “ Whatever is necessarily implied in the former decision is for the purpose of the estoppel deemed to have been actually decided.” Neither Lucy A. Reynolds’ personal liability nor her non-liability was necessarily implied in tlie former decision. It was not comprehended or involved therein. The foreclosure could, and did, proceed without any decision on that point. The former decision is no bar here. Whether or not, then, the court below in this case found that the alleged claim for deficiency in the former action was based on the note in question is of no consequence.

The judgment is affirmed, with costs.

Landon, J., concurred; Mayham, J., not acting.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE MOUNT MAGDALEN SCHOOL OF INDUSTRY AND REFORMATORY OF THE GOOD SHEPHERD, Respondent, v. THOMAS DICKSON, as Treasurer of Rensselaer County, Appellant.

      Oha/rtiable institutions — right to compel by mandamus the payment of an audit for hom'd of children committed to them — effect of irregula/rities in the commitments.

    Where a claim lias been presented by a charitable institution, incorporated under chapter 319 of the Laws of 1848, and having the approval of the State board of charities under chapter 446 of the Laws of 1883, for the board and maintenance of certain girls committed to said institution by a committing magistrate, and the hoard of supervisors has audited the bill, the county treasurer will be compelled by mandmnus to pay it, although, by reason of defects and irregularities in the commitments, the children might have had a right to be discharged from custody upon an application made therefor.
    While a committing magistrate may not have authority, without the approval of the board of supervisors, to send such children to any institution he may select of the character named, yet where the selection of the institution has been ratified by the board of supervisors an objection cannot be taken by the county treasurer to the audit of the bill for the support of such children.
    The institutions referred to in section 713 of the Penal Code, as amended, are not those alone which were in existence when chapter 240 of the Laws of 1879 was passed.
    Appeal by the defendant from a final order directing that a peremptory writ of mandamus issue to compel the defendant to pay -to the relator the amount of its bill, as audited by the board of supervisors of Rensselaer county, together with the costs of the proceedings, which said order was entered in the office of the clerk of Rensselaer county on the 25th day of March, 1890, after a hearing before the court at the Rensselaer Circuit, at which a jury was impanneled; and the relator having proved all the facts in his petition .and writ, and having rested his case, and the jury having been discharged by the consent of counsel, there being no question of fact for said jury to decide, the court found that the plaintiff was entitled to, and that a peremptory writ of mandamus forthwith issue in the above-entitled proceedings to the defendant and his successors in office, requiring and commanding them to pay the audit of the board of supervisors of Rensselaer county, amounting to the sum of $4,015.86, with interest.

      George B. Wellington, for the appellant.

      James H. Ryan, for the respondent.
   Learned, P. J.:

This is an appeal from a final judgment, after a trial, awarding a peremptory writ of mandamus. The relator is a charitable institution incorporated under chapter 319, Laws of 1848, and having the .approval of the State Board of Charities under chapter 446, Laws •of 1883. During the year 1889, down to October first, the relator had had in its charge certain girls committed to it by certain committing magistrates. It rendered to the board of supervisors a bill, duly verified, for the board and maintenance of these girls. The board audited the bill December 16, 1889, at $4,015.86. The county treasurer refuses to pay it, and the mandamus was granted to compel him to pay. His position is that the claim is not a county charge, and that the auditing was unauthorized.

The question here is, not whether any or all of the children committed by the magistrate to the relator might not have obtained a •discharge from custody by habeas corpus on the ground of imperfections and errors in the commitments. That would be a very different question, and one which would arise between the children respectively and the present relator, as in People ex rel. Day v. Mount Magdalen School (28 N. Y. St. Rep., 254).

In the case now before us the relator has received and cared for these children under commitments made by magistrates, and has duly rendered its bill to the board of supervisors, and that bill has been audited. The county treasurer refuses to pay, and he places his refusal on the ground that the bill is not a county charge.

Chapter 240, Laws of 1879, provides that children under sixteen, convicted as vagrant, truant or disorderly, must be sent to some reformatory or other institution as provided for in the case of juvenile delinquents. And the act requires boards of supervisors to take such action in the matter as may be necessary to carry out the provisions of this act.

Section 713, Penal Code, as amended, requires that a child under sixteen, committed for misdemeanor under any of the provisions of that Code, must be committed to some reformatory, charitable or other institution authorized by law to receive such child.

Subdivision 5, section 291 of the same Code, as amended by chapter 46, Laws of 1884, and by chapter 145, Laws of 1888, declares that a child, actually or apparently under sixteen, found doing certain acts described in the jn’eceding subdivisions or coming within the descriptions in section 292, may be committed to any incorporated charitable reformatory. Subdivision 6 authorizes a similar temporary commitment for trial and a similar commitment of a child held as a witness, and provides that the institution shall be entitled to like compensation proportionally as on a final charge.

Now, these provisions plainly show that, under these statutes, the institution to which children are thus committed is to receive compensation. The institution, as to these children, is placed in the position of the jail or the poor-house, as the case may be. The law makes a wise and humane substitution of a charitable and reformatory institution for the prison to which an adult, convicted or detained, would be sent; and for the poor-house to which an adult pauper would be sent. And where provisions of this nature are made by the statute it is evident that it is not intended, as the respondent seems to claim, that these children thus committed are to be kept without compensation, when the board of supervisors have allowed and audited the bill for such compensation.

It will be seen that section 713, above referred to, is imperative. And, although it does not use the words “ Juvenile delinquents,” yet a child under sixteen committed for a misdemeanor is plainly a. juvenile delinquent. Now chapter 240 of’ the Laws of 1879 is. general. It is not necessarily limited in its effect to institutions, then existing. It directs that vagrant, etc., children be sent to the same kind of institution to which juvenile delinquents are to be-sent. And that kind is defined in section 713 of the Penal Code above cited.

It is not necessary for us to decide whether, without the approval’ of the board of supervisors, the committing magistrates may send to any institution, of the character named, which they may select. It is enough in this case that the selection has been ratified by the-board. And we cannot think that the institutions intended by these-sections of the Penal Code are necessarily such as were in existence-when chapter 240.of the Laws of 1879 was passed.

That an institution to which children are thus committed for vagrancy, etc., is to receive compensation, is further shown by subdivision 6 of section 291, above cited, which speaks of the compensation for temporary commitments and for the detention of witnesses as proportional to that on final commitments. The saméis also shown by section 921, Code of Criminal Procedure, which, in cases of a commitment of a child to an institution under the Penal Code, authorizes a magistrate to order the father to pay a sum for the child’s support which is to be credited by the institution to-the city, town or county against any sum due for maintenance.

It is further urged by the respondent that this bill should not be-paid by reason of the imperfection or, as alleged, invalidity of the-commitments. We have already remarked that this litigation is-not between the persons committed and the Institution. Questions-which might be very important on a habeas corpus do not necessarily arise here. The children made no question as to the legality of their commitment. They acquiesced in it. The relator accepted their custody and oared for them. If under commitments of a-similar character as to their alleged irregularity an adult had been, confined in jail, and the board of supervisors had allowed the sheriff’s bill for maintenance, could the county treasurer lawfully refuse to pay ?

We may notice here that chapter 145, Laws of 188.8, passed. April eighteenth, would seem, as to many of these commitments at-least, to make them sufficient. And chapter 220 of the same year, .amending section 888 of the Code of Criminal Procedure, expressly .authorizes in certain cases the commitment of a vagrant child ■described in subdivision 8, section 887, Code of Criminal Procedure, .as provided in section 291 of the Penal Code.

We think, then, that as between the relator and the board of ¡supervisors the custody of these children was such that the board might allow it as a county charge. (Osterhoudt v. Rigney, 98 N. Y., 232.) The respondent relies for his objection solely on the commitment. No proof was given as to any record, other than the commitment, of the trials of these children. (People ex rel. Trainor v. Baker, 89 N. Y., 466.) Now, while we need not deny that a commitment could be made so entirely beyond the power of the magistrate •on its face that an institution like the relator could not lawfully be paid for the custody of a child thereunder, even after the audit by the board, we do not think that such a case is here. And though the ■form of the commitments is not as perfect as it might be, yet as between the relator and the county treasurer we are of the opinion ■.that he should pay the audited bill.

The judgment is affirmed, with costs.

Landon, J., concurred.

Judgment affirmed, with costs.


text:
    JAMES THOMPSON and CHARLES THOMPSON, Respondents, v. CHARLES W. DATER and JOSEPH H. KNIGHT, Appellants.

      Attachment — a wrongful act or intent essential to its issuing.

    ^Evidence that debtors are, and for some months have been, insolvent; that they have ineffectually tried to sell out their property and business; that they owe largely certain banks; that they expected to sell their property; that they refused to say what they would do as to the plaintiffs’ claim; that they were not ready to say what steps they would take in the disposition of their property among their creditors, except to state that they would not pay their debts pro rata, does not justify a creditor in obtaining an attachment on the ground that the debtors have assigned, or are about to assign, their property with intent to defraud their creditors.
    Attachments are not to be granted on beliefs and suspicions; 'they operate to give an advantage to one creditor over .others, and some wrongful act, or the evident ■intent to do some wrongful act, must be shown to justify them.
    Appeal by the defendants from an order of the Rensselaer County Court, entered in the office of the clerk of Rensselaer county on the 21st day of April, 1890, denying the defendants’ motion to vacate certain warrants of attachment upon the same papers upon whieh said warrants were granted.

      Lfelson Daveryport, for the appellants.

      James Lansing, for the respondents.
   Learned, P. J.:

This is an appeal from an order refusing to vacate on the original, papers an attachment against the property of defendants. The grounds recited in the attachment are that a cause of action exists on breach of contract for sale of goods and on a promissory note, and that defendants have assigned, disposed of and secreted their property with intent, etc., and are about to assign, etc., with like intent. The action, therefore, is not for injury to property, but for breach of contract in not paying a debt.

The question on the appeal is whether there was evidence justifying the holding that defendants had assigned, etc., or were about to assign, etc., with intent, etc. One of defendants on the 14th of February, 1890, said that they were hopelessly insolvent, owing $20,000 and having assets about $10,000; that they had been insolvent for six or eight months and had known their insolvency since October first previous; that defendants then owed the Manufacturers’ Bank $8,000 and the ' Mutual Bank $2,500; that defendants were trying to sell their property to one Patton, expecting to receive about $10,000 ; that they had no proposition to make as to plaintiffs’ debt. Said defendant refused to pay plaintiffs’ debt or secure it, or to promise to pay it from the sale to Patton, and stated that they would not apply their property to their debts pro rata.

The affidavit avers that Knight, one of the defendants, had been a partner of another firm until a short time before the commencement of this action, when he assigned all his interest therein to his wife. That defendants had tried to sell their property and business to one •Cleveland, but could not, for reasons immaterial on this motion.

An affidavit of one Stickney states that he was, until June 1, 1889, in the employment of defendants; that while he was with them the average stock in manufactory and lands was about $5,000 or $6,000 worth; that lie* examined their stock about February 14, 1890, and found less than $2,000 worth. From these statements of Stickney the plaintiffs believe there has been a great and sudden change in the amount of stock. The plaintiffs’ affidavit states that he is informed by said Stickney that this change from $5,000 to $2,000 was within two weeks prior to February fourteenth. Stickney’s affidavit, on the contrary, shows that it occurred between June first and February fourteenth, eight months and a half. This shows the difference between hearsay and sworn statements.

There is nothing in the least suspicious in the diminution of a stock from $6,000 to $2,000, during a period of over eight months, in a concern which is not successful in business. Such a circumstance, standing alone, in no way tends to sustain an allegation that the defendants have disposed of property with intent to defraud.

There is no other evidence of any transfer of defendants’ property, except that it is stated that one of the defendants had sold his interest in another firm to his wife. "What such interest was worth is not .stated; what he received is not stated; whether there was any value whatever in his interest after payment of the debts of that firm is not stated. There is no evidence that that transfer was fraudulent. Therefore, the allegation that defendants had assigned their property with intent to defraud fails entirely. There is no evidence that defendants were about to assign with intent to defraud. The defendants had been negotiating for a sale of their business, but had not been successful. One defendant declined to pay plaintiffs, .and thus to give them a preference over -other creditors; he declined to promise to pay them out of the avails if they should sell; he ■declined to make a general assignment fro rata. In all this there was no evidence of intent to defraud. Defendants had a right within the statutory limit to make preferences. It was not fraudulent for one of the defendants to refuse to promise to assign fro rata.

The plain case is this: The defendants were badly embarrassed. They had ineffectually tried to sell out their business. They owed largely certain banks in Troy. They were not ready to say what steps they would take in disposing of their property among their creditors. The plaintiffs wished to get a preference and they sought to do this by entangling defendants in their talk; by asking for promises and for payment; by sending a former employee of defendants to estimate the stock; and then by making an affidavit as to their own beliefs and suspicions. Attachments are not to be granted on beliefs and suspicions. They operate to give an advantage to one creditor over others. And some wrongful act, or the evident intent to do some wrongful act, must be shown to justify them. We must not overlook the phrase “with intent to defraud his creditors.” That is the gist of the allegation; and this intent must be shown by evidence. We see nothing in these papers which shows any such intent in regard to transfers made, or transfers about to be made. In fact, the only transfer in prospect was one to Patton for $10,000, and there is not the slightest allegation that this was not a fair price, or that Patton was not responsible. If the defendant had promised to pay plaintiffs their debt of over $7,000 out of this $10,000 (as they asked him) he would have been promising a preference beyond that allowed on a general assignment.

Of course, it is natural that the plaintiffs should wish to be paid, and that they should desire, if they can, to get a preference over other creditors. But when such preference can only be had by showing an actual or expected transfer with intent to defraud creditors, courts should be careful to see that the evidence clearly shows that such fraudulent intent really existed in the mind of the defendants, and not merely in the ingenuity of the plaintiffs.

A point is made that this order is not appealable because it is said to be ex pa/rte. This is a mistake. The oi’der was made on defendants’ motion, and on hearing plaintiffs’ counsel in opposition. It is of no consequence on this appeal whether the parties appeared voluntarily or on a formal notice. Indeed, it does not affirmatively appear on the papers that there was not a regular notice. Nor was. it necessary that this should appear on the papers. It is enough that the order shows that both parties were heard on the motion to vacate the attachment. As that was the case, the order denying, the motion was not ex pa/rte, and is appealable.

W"e have examined the affidavits carefully, though we have not set forth all the allegations at length, and we are satisfied that there was not such evidence as justified the attachment.

Order reversed, with ten dollars costs and printing disbursements, and motion to vacate granted, with ten dollars costs.

Landon and Mayham, JJ., concurred.

So ordered.


author: Learned, P. J.: Matiiam, J.

text:
    SARAH J. BURKE and MARY F. BURKE, Respondents, v. WILLIAM H. JACKSON, Appellant.

      Purchase-money mortgage — description therein of the la/nd — not competent in evidence in an ejectment suit as being part of the transaction of purchase, or as a declamation of the purchaser while in possession.

    A piece of land was conveyed, bounded entirely by adjoining streets and premises, the purchaser gave back a purchase-money mortgage, which contained a similar description, and also stated the width of the premises covered thereby.
    In an action of ejectment, involving the question of the width of the premises, the purchaser offered in evidence the mortgage which had been given by him, which it was claimed was competent evidence, first, as being a part of the same transaction with the deed; and, second, as a declaration by the party in possession as to the extent and claim of his possession.

      Held, that the mortgage was not competent upon either ground. (Mayham, J., dissenting.)
    Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Montgomery on the 3d day of July, 1889, with notice of an intention to bring up for review, upon such appeal, an order, entered in said office on the 27th day of June, 1889, denying a motion, made by the defendant upon the minutes of the court before which the action was tried, to' set aside the verdict of the jury and for a new trial.
    The action was brought to trial before the court and a jury at a Montgomery Circuit on the lltli day of June, 1889, and involved the question as to the line of division between the lands of the plaintiffs and of the defendant.

      P. J. Lewis, for the appellant.

      Z. 8. Westbrook, for the respondents.
   Learned, P. J.:

This is an action of ejectment to recover a strip of land about one foot wide and about ninety-six feet long. The question is how wide the lot of plaintiffs really is. The plaintiffs claim under a deed from French to their ancestor, which describes the lot as bounded: “ Northerly by Grove street; easterly by Daniel Leffert’s lot; southerly by Waterman Sweet’s lot, and westerly by a lane,” giving no other description and no dimensions.

Burke, the grantee, the same day gave a mortgage to French, described as a purchase-money mortgage, describing the land mortgaged as bounded: “Northerly by Grove street; easterly by Daniel Lefferts’ lot; southerly by Waterman Sweet’s lot, and westerly by a lot of the party of the second part ” (viz., French), and further stating that the lot thereby conveyed was “ fifty-one feet wide on Grove street.”

This mortgage the plaintiffs gave in evidence on the trial, against defendant’s objection, in order to sustain the plaintiffs’ claim that their lot was fifty-one feet wide on Grove street. The defendant’s lot lies on the easterly side of plaintiffs’ lot. The plaintiffs claim that this mortgage, executed by their ancestor to French, is competent. 1st. As being part of the transaction with the deed. 2d. As a declaration by a party in possession as to the extent and claim of his possession.

It does not appear that defendant derived title either from French or from Burke. Therefore, the transaction between them was not binding on him. The giving back a purchase-money mortgage by Burke could not increase the title which he had received from French, especially as against a stranger.

The deed bounded the land easterly by Lefferts, westerly by a lane. The mortgage described the western boundary differently, yet it might mean the same, thing. The doctrine that a deed and the purchase-money mortgage are to be construed together as one act does not apply. That doctrine only indicates the simultaneous character of the transactions, showing that no outside rights can come between. Bat the doctrine does not mean that the mortgage can in any way increase or diminish, as against a third party, the amount of land conveyed by the deed. A mortgagor may be very willing to mortgage land twice as large as that described in the deed to Mm, but the mortgagee on foreclosure would get no more than the deed had conveyed.

Declarations of former owners have been admitted to show the nature of their claim, or to show its extent, or to show where boundaries were. But it does not seem to us that this mortgage comes within the rule. At the best this is only an assertion by Burke that the description in a deed to him embraced fifty-one feet. How that can be evidence against the defendant we do not see. Burke might as well have said that the lot mortgaged was 100 feet on Grove street, which would have taken all of defendant’s lot, and would have been an easy way of getting title to another’s property.

"We have examined-the cases cited by the plaintiffs to sustain the admission of the mortgage. They seem to us clearly distinguishable from the present case. The doctrine here asserted is that one, by executing a mortgage on another’s land to a third party, can acquire title thereto, or at least can show, as against such owner, a possession thereof. If authority is needed to the contrary, it may be found in Armstrong v. Du Bois (90 N. Y., 95, at 104).

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

Landon, J., concurred.

Matiiam, J.

(dissenting):

This is an appeal from a judgment, entered upon a verdict for the plaintiffs in an action of ejectment, and from an order denying a motion for a new trial on the minutes.

The action was to recover the possession of a triangular piece of land in the city of Amsterdam, one foot wide, fronting on Grove street, and extending southerly about ninety-six feet to a point in the division line between plaintiffs and defendant.

The complaint alleged, in substance, that the defendant unlawfully removed the division fence, so as to take in this triangular piece of land, and thereby wrongfully got possession of the triangular piece of land, and retained possession of the same and withholds the possession from the plaintiffs. The answer denies the allegation of the complaint, alleges ownership of the land, and sets up adverse possession and practical location of the line in dispute.

The case shows that, on the 8th day of March, 1848, John L. Crane and others conveyed by deed to Benjamin C. French land in Amsterdam village, bounded as follows : Northerly by Grove street, easterly by lot conveyed to Daniel Lefferts, southerly by lots owned by Waterman Sweet, and west by lands of Benjamin C. French, 200 feet deep from center of Grove street and fifty-three and a half feet wide on said street.

On the 28th day of February, 1851, Daniel C. French conveyed by deed to Bichard Burke land in Amsterdam, bounded as follows : Northerly by Grove street, easterly by Daniel Lefferts’ lot, southerly by Waterman Sweet’s lot, and westerly by a lane ; on the same day Richard Burke executed' and delivered to French a mortgage, containing a recital that it was for a part of the purchase-money of said premises, describing the premises as situate in the village of Amsterdam, and bounded as follows: Northerly by Grove street, easterly by Daniel Lefferts’ lot, southerly by Waterman Sweet’s lot, and westerly by a lot of the party of the second part. The lot hereby conveyed is 200 feet deep from center of Grove street, and fifty-one feet wide on said street.

Burke died intestate in 1864, and in 18Y8 his children and heirs-at-law conveyed the premises to his widow, Margaret Burke, with the following description: Northerly by Grove street; easterly by a lot formerly owned by Daniel Lefferts; southerly by land formerly owned by Waterman Sweet, and westerly by a lane. Margaret Burke died in 1888, and by her will devised these lands to the plaintiffs, who, at the time of her death, were in possession of the land devised.

The defendant derived his title from Richard G. Snell by deed dated April 1,1856, who derived his title from George Sanford and wife by deed dated February'28, 1839.

The land in the deed from Snell to defendant was bound northerly by Grove street; easterly by James W. Kline’s lot; southerly by a stone wall, and westerly by Burke’s lot, as the same was inclosed.

In 18Y9 Margaret Burke, the plaintiff’s testatrix, erected a new house on her premises, and in that year or the next erected a fence on what is claimed by the plaintiffs as the true line.

In 1886 the defendant constructed a new fence between him and the plaintiffs, and the plaintiffs claim that fence was placed on their land so as to inclose on the defendant’s side the triangular piece in dispute.

The line fence between the parties had been divided, the northerly end from Grove street, southerly along the line in dispute, was maintained by the defendant, and the southerly end by the plaintiffs and those through whom they derive title.

Most of the testimony in the case was directed to the question of the true location of the line between the parties, and upon that subject resort was had to oral and documentary evidence, and the principal questions of law arising on this appeal grow out of the ruling of the learned justice in the receipt and rejection of evidence.

There was a sharp conflict of evidence over the question of the original location of the fence between the parties, and over the disputed question of the removal of the same from its original position at the time the defendant erected the new fence in 1886? and this court is urged by the defendant to reverse the determination of the jury upon the disputed question, on the ground of the alleged preponderance of evidence in favor of the defendant upon that subject, and reference is made to certain fixed, permanent and visible monuments, such as an elm tree, and the location of the old fence, in reference to it, which is urged as unmistakable evidence that the new fence was placed in the same position as the old one,, which it is urged has been there for more than twenty years. But the evidence upon this j)oint is not quite clear from conflict; and on the part of the plaintiffs it is urged, as evidence of the change of the location of the fence, that the defendant in erecting the new one-removed a wall located by plaintiffs on their lands to retain the earth in position on their lot, and located the fence on the location of the same. On the whole, we think the evidence too conflicting to justify an interference with the verdict of the jury upon this disputed question of fact, as there is some evidence to support their finding, unless some well-settled principle of law was violated in the admission or rejection of evidence.

It is insisted, on the part of the appellant, that it was error to receive in evidence, under the defendant’s objection, the mortgage given by Bichard Burke to Benjamin S. French at the time of the conveyance by French to Burke. The mortgage was given to secure the purchase-money of the land described in and conveyed by the deed, arid wasfco expressed on the face of the instrument, and bore even date with the same. The deed gave the names of the adjoining owners to the land conveyed, but did not give the extent or distance on Grove street.

The mortgage gave the same abutting owners, and, therefore, necessarily described the same premises and contained the additional description of the extent of the line on Grove street. The mortgage was an instrument executed at the same time as the deed, and between the same parties, and under certain circumstances would, as between the parties to both instruments, operate as a defeasance of the grantee’s title under the deed.

The question raised here on the admissibility of this mortgage as evidence is unlike that in Armstrong v. Du Bois (90 N. Y., 103), referred to by the learned counsel for the defendant. In that case it was sought to extend the provisions of a deed, explicit in its terms, which expressly excluded the lands described in the lease, which was sought to be read as a part of the deed, and the court says: The language of the deed is clear and needs no interpretation; the deed is susceptible of no construction which will carry the premises in controversy; ” and for these and other reasons not existing in the case at bar, the lease in that case was held inadequate and inadmissible. In this case the identity of the land covered by the deed and mortgage admit of no doubt. In that case the court says: “ The lease is susceptible of a reasonable construction which will exclude the premises in controversy, and the deed is not susceptible of a construction which will include them.”

In Craig v. Wells (11 N. Y., 315), also relied upon by the defendant on this point, the court says : “ The deed, therefore, from Moses Phillips to his son William, upon which the questions in this case arise, is to be construed by itself; although the circumstances under which it was executed, and among them the simultaneous execution of the other deed and bonds; may no doubt be resorted to, for the purpose of aiding in its construction, so far as there may seem to be anything equivocal in its provisions.”

The only thing equivocal in the deed in the case at bar is its failure to give the distance on Grove street, and the mortgage was offered to remove the doubt on that point. In Dusenbury v. Hulbert (59 N. Y., 544) it was expressly held that a deed conveying the title to land and a mortgage given for thepurchaifc-inoney at the same time must be taken as one instrument and read together as one act, and the court says: “ The deed and Bowen mortgage executed at the same time are to be construed together as one instrument. They constitute an indivisible act.”

Again, it is urged by the plaintiff that the mortgage was competent evidence as a declaration of Burke, the mortgagor in possession, and through whom the plaintiffs claim, as characterizing his title and actual occupancy under it. The declarations of the owner of real property in possession are competent as characterizing the extent of the possession. (Abeel v. Van Gelder, 36 N. Y., 516.)

It was no error, therefore, under the circumstances of this case, to allow the mortgage in evidence. “ The rule is that declarations on this subject are admissible if made while the party so declaring is in possession of the premises in dispute,” and it is not essential that they should have been made on the land. (Swettenham v. Leary, 18 Hun, 286; Smith v. McNamara, 4 Lans., 169.) Nor do we see any legal objection to the evidence of conversations between Sarah J. Burke and plaintiffs with Jackson, the defendant. It is quite true that such conversations could not be substituted for deeds in proof of title to land, nor could they establish title in one party or the other, but as they related to the location of the line in dispute between them while they were respectively in the ¡possession of the lands, we think them competent as bearing, slightly perhaps, upon the location of the line.

On the whole case, I do not see that any substantial error was committed in the admission or rejection of evidence, and the jury having disposed óf the disputed question of fact, there is no ground for interference by this court.

It follows that I cannot concur in the opinion of my brethren for a reversal in this case.

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


author: Landon, J.:

text:
    GEORGE W. COONLEY, Appellant, v. THE CITY OF ALBANY, Respondent.

      Municipal ordinance — the city is not liable for the damage resulting from its not being enfoi'ced by the city officers cha/rged with, the execution thereof — ultra vires.
    In an action brought to compel the city of Albany to pay the damages alleged to have resulted from its failure to remove a sunken boat from the Hudson river, in front of one of the piers of the city, it appeared that by the charter of the city the common council were made commissioners of highways, with power to make ordinances “ in relation to the construction, repairs, care and use of the markets, docks, wharves, piers, slips and squares of the city,” and also to prevent all obstructions in the river, near or opposite thereto; and that an ordinance had been passed by the city directing that “whenever any vessel, loaded or empty, shall, by accident or otherwise, be sunk at any dock, wharf or slip, or anywhere in the Hudson river opposite to the city of Albany,” the street commissioner should give notice to the owner, or, in case the owner was unknown, in one of the city newspapers, directing the removal of said vessel. If such notice was not complied with he was to take possession of the vessel, remove the same and sell it, or so much of the loading thereof as would pay the expense of such removal.

      Meld, that the fact that the city did not enforce its own ordinance did not render it liable to one who was damaged by reason of its failure to remove a sunken boat from the bed of the river in front of his private dock.
    That the provision of the ordinance, so far as it authorized a sale of the boat, was ultra vires, as the city was only authorized 'to enforce its ordinances by ordaining penalties for their violation.
    Appeal by the plaintiff, George "W. Coonley, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 22d day of January, 1890, with notice of an intention to bring up for review, upon such appeal, an order, entered in said clerk’s office on the same day sustaining a demurrer to the plaintiff’s complaint and ordering final judgment thereon.
    The action was tried before the court at a Special Term thereof held in the county of Albany on the 29th day of October, 1889, upon an issue raised by the demurrer interposed by the defendant to the plaintiff’s complaint. The demurrer was sustained and the complaint was dismissed, with costs.
    The complaint alleges that the plaintiff was the owner of a dock upon the Hudson river, within the city of Albany, adapted to and valuable for the lading, unlading and storage of merchandise from vessels; that on the 26th day of September, 1888, a canal-boat loaded with iron, while navigating the river sunk at the said dock, and thereby obstructed its use to plaintiff’s damage ; that the defendant assumed the duty of keeping the river free from obstructions by section 10, chapter 42 of the ordinances of the city of Albany, which reads as follows:
    “ "Whenever any vessel, loaded or empty, shall, by accident or otherwise, be sunk at any dock, wharf or slip, or anywhere in the Hudson river opposite to the city of Albany, an£ within jurisdiction thereof, it shall be the duty of the street commissioner, under the direction of the mayor, to give notice to the owner, proprietor or any person sailing such vessel, to remove the same within twenty-four hours; and in case the owner or proprietor is unknown, and there is no one that sails the same, to give notice in one of the newspapers printed in the city of Albany at least one week, directing the removal of such vessel as aforesaid; and if the said notice is not complied with, then it shall be lawful for the street commissioner to take possession of such vessel, craft, boat or flat, and to remove the same, and at public auction to sell such vessel, or so much of the loading thereof as will pay the expenses of such removal.”
    That on the 28th and 29th days of September, 1888, written notices of such facts, stating the name and owner of the boat, and requesting the removal of the same, were served upon the street commissioner and the mayor, a copy of which notice is annexed to the complaint. That on the 29th day of September, 1888, the mayor gave the street commissioner written directions to remove said boat; that said street commissioner took the preliminary steps, as provided by the city ordinance, to accomplish that result, and notified the owner to remove the boat, but finally, on or about the 26th day of October, 1888, declined to remove the same, or to do anything more towards that end; that thereupon plaintiff employed the firm of Payne & Co. to remove the said boat, and paid them for the work $314.79, besides having suffered other damage to the amount of $1,000, by reason of said sunken boat not being removed by said street commissioner within a reasonable time.
    By reason of said facts plaintiff asked for judgment against the city <of Albany for $1,414.79.

      The defendant demurred upon the ground that the facts stated ■did not constitute a cause of action.

      Ward & Oameron, for the appellant.
    ■ jD. O. Herrick, for the respondent.
   Landon, J.:

The fact that the defendant has adopted an ordinance, providing .a method for the removal of vessels sunken at any of the docks of the city, does not charge it with the duty of enforcing the ordinance nor make it liable for its non-enforcement. Section 44 of title 3 of its charter, chapter 298, Laws of 1883, reads as follows: “Nothing contained in this act shall be so construed as to render the city of Albany, or any of its officers, liable in damages or otherwise to any person or persons or corporation for any omission to pass any ordinance, regulation or resolution pursuant to the provisions hereof, or for a failure to enforce the same.” That a city does not enforce its ■own ordinance does not render it liable. Its liability must arise from its failure of duty with respect to the subject-matter in question. (Stillwell v. Mayor, 17 J. & S., 360; S. C., 96 N. Y., 649.)

The present charter of the city, chapter 298, Laws of 1883, title 3, .section 14, subdivision 27, makes the common council commissioners of highways for said city with power to make ordinances “in relation to the construction, repairs, care and use of the markets, docks,wharves, piers, slips and squares of the city.” Obstructions in the river itself are not here embraced. But the learned counsel for the appellant cites chapter 185, Laws of 1826, section 15, which declares that the common council are constituted commissioners of highways with power to pass ordinances “ To prevent all obstructions in the river near or opposite to such wharves, docks or slips,” and alleges that it ns still in force. Assuming this claim to be true, it will be observed that the act of 1826 does not require the city of Albany to keep the navigable waters within the city free from obstructions, but vests it with the legislative power to enact an ordinance to that end. Winpenny v. Philadelphia (65 Penn. St., 135) is cited. There the statute required the city to keep the navigable waters within its limits free from obstruction, and the city was held liable for injuries consequent upon its neglect to observe the requirement. In Hart v. Mayor, etc., of Albany (9 Wend., 571) an ordinance like the one in question was held void, for the reason, among others, that the power given to the city to enforce its ordinances was limited to a penalty upon the violators not exceeding twenty-five dollars; whereas the ordinance then, like the ordinance now, provided for the removal and sale of the sunken boat, that is, its confiscation. The present charter confers no power to authorize or direct the sale of the boat, but does confer power upon the city to enforce its ordinances by ordaining penalties for each and every violation, not exceeding $100. (Chap. 298 of 1883, tit. 3, § 14.)

An ordinance in excess of the legislative power of the common council is void. This ordinance, so far as it directs the sale of private property, is, therefore, void. It is urged that the sunken canal-boat was a nuisance in that it obstructed navigation. No doubt it was, and if there was no other practicable way to abate it except by its destruction, it might have been destroyed. But whoever undertook to act for the public and to destroy it must be prepared to show that he did it under the requirement of a great and overruling public necessity. (Hicks v. Dorn, 42 N. Y., 47.) So far as the case shows, the necessity for its destruction was rather private than public. It injured the business usually coming to the plaintiffs’ dock. The People v. Corporation of Albany (11 Wend., 539), is cited. It was there held that the city was indictable for not abating a public nuisance, injurious to the public health, caused bv the accumulation in the Albany basin of noxious substances. The court cited the act of 1826 and held that the city had the power to cleanse the basin, and it was, therefore, its duty to do it, if that act was necessary to protect the public health. But the court held that the city had no power to destroy a bulk-head which was private property, but which by its situation caused the noxious materials to settle in the basin instead of. being carried along by the current. The bulk-head was no nuisance though the cause of one. In such a case it is obvious that if the public authorities do not abate the nuisance, it will remain unabated. There is a plain difference between the protection of the public health and the protection of the plaintiff’s business from accidental obstruction; it may be the duty of the government to provide for one and of the plaintiff to provide for the other. But in the case of a public nuisance, injurious to health, we do not think that an individual whose health becomes thereby impaired can maintain an action against the city for the medical expenses he incurs and the loss of business he sustains in consequence of his impaired health, or if he should choose to abate the nuisance, for the expense which he incurs in so doing. If the city is liable, it is liable for the direct, and not. the remote and contingent, consequences of its negligence. The city had no agency in sinking the boat. If liable at all, its liability would be limited to the damages naturally consequent upon its failure to remove it. The expenses incurred by the plaintiff would not be thus incurred. They would be incurred or not at the plaintiff’s, election. Damage to his business or impairment of the value of his. property might naturally follow. We find nothing in any statute requiring the city to relieve the plaintiff from the burden of protecting his own business and property from loss occasioned by the obstruction and burden caused by the act or omission of third parties. Besides, the Hudson river within the city of Albany is part of the highway for State, interstate and foreign commerce, and is subject to regulation and improvement by congress. The State may exercise such control as does not interfere with the power vested in congress, and may require the, city of Albany to provide such control with respect to the portion of the river within its limits. (Mobile v. Kimball, 102 U. S., 691.) So far as the State has. authorized the city to aid its commerce by removal of obstructions in the river, the authority is in the nature of a privilege, which,, under its charter, the city ought to exercise for the general corporate welfare, but not to relieve private owners of docks from proper private expense. The river is not a highway of the city. (Seaman v. Mayor, 80 N. Y., 239.)

The judgment is affirmed, with costs.

Learned, P. J., and Mayham, L, concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN SNAITH and Others, Appellants.

      Order of arrest — the existence of a right of action must he shown — conspiracy— what facts alleged, in the complaint afford evidence of it.

    ■Where the right to an order of arrest depends upon the nature of an action, it must appear by affidavit that the cause of action stated in the complaint actually exists, and the positive affidavits of parties having knowledge of the facts should be produced, or if not produced, the failure to do so must be satisfactorily explained.
    'The plaintiff must prove the facts or show that proof of the necessary facts can be procured by him.
    It is not enough merely to state a cause of action.
    In an action charging a conspiracy as the ground of the cause of action, the specifications of the acts done, so far as they set forth separate causes of action against one or another of the defendants, cannot be regarded, in support of the charge of conspiracy, upon an application for an order of arrest.
    Appeal by tbe defendants John Snaith and Charles B. Andrews from an order denying an application to vacate an order of arrest in the above-entitled action, which order was entered in the office of the clerk of Oneida county on the 15th day of November, 1889, and after the change of the place of trial of this action the said order was entered in the office of the clerk of the county of Albany on the 18th day of December, 1889.
    The action was brought to recover damages alleged to have resulted to the State through an alleged unlawful and fraudulent conspiracy and agreement entered into by and between the defendants, to obtain, receive and convert the State moneys to their own use. The defendant Charles P. Andrews was alleged in the complaint to have been the superintendent of public buildings of the State of New York, and the defendants John Snaith and Timothy J. Sullivan were contractors.
    It was further alleged that a committee of the legislature entered into a contract with the said Snaith & Sullivan for certain work to be done at the capitol, in the city of Albany, and it was in reference to the manner of securing this contract, and the execution of the work thereunder, that the charges of conspiracy were made.

      Matthew Hale, for the appellants.

      John W. Hogan, deputy attorney-general, for the respondent.
   Landon, J.:

We think this order must be reversed, for the reason that it does, not appear by the affidavits presented that the cause of action stated in the complaint against the defendants actually exists. The right, to the order of arrest in this case depends upon the nature of the. action, and the Code requires that it must appear by affidavit that, the cause of action also exists. (§ 557.) The cause of action must not only be stated, but its existence must be made to appear by affidavit. The arrest of the defendant in a civil action, founded upon an alleged wrongful act, is a provisional and extraordinary remedy, is allowed before final judgment, and, therefore, before it can be. definitely known whether the plaintiff can maintain his case. The provision of the Code that, before the order can be granted, it must appear by affidavit that such a sufficient cause of action exists against, the defendant, is the only positive safeguard of his personal liberty which the law affords to a defendant against whom such a cause of action is stated.

In this case affidavits are. submitted, but in none of them is it stated that the affiants knew that the cause of action actually exists; nor do-the statements made by the several affiants, taken together, show that all the facts constituting the cause of action are known among-them. In a legal sense, a cause of action exists when the facts constituting it are provable, and, failing more exact proof, the plaintiff can make out his case for an arrest by showing that the proof of the necessary facts is within his procurement. Many of the material facts are here stated upon information and belief. Such a statement is evidence of the good faith of the affiant, but it is worthless as. evidence of the material facts constituting the cause of action, unless, the affiant also states such other facts within his own knowledge as tend to show, with satisfactory certainty, that the material facts are. within the knowledge of others, and provable by them. In the-latter case it is obvious that the affidavits of such other persons should be produced if it is reasonably practicable to do it, for when they are not produced there is danger that the court will be misled by over-statements induced by the zeal of parties and counsel. The non-production of the affidavits of persons whose knowledge of the facts is relied upon should be satisfactorily excused. When the plaintiff resorts to methods most liable to mistakes he should take the more care to guard against them.

It is believed that these views are supported by a great weight of authority, and are as liberal to the plaintiff as can well consist with .a proper regard for the right of personal liberty. (Martin v. Gross, 22 N. Y. St. Rep., 439; Thompson v. Best, 21 id., 103; Crandall v. Bryan, 15 How. Pr., 48; Whitlock v. Roth, 5 id., 143; De Nierth v. Sidner, 25 id., 419; Roderigas v. East River Savings Inst., 76 N. Y., 316, 323; Bennett v. Edwards, 27 Hun, 352; Hallock v. Van Camp, 55 id., 1.)

The cause of action stated in the complaint is that the defendants ■fraudulently conspired together to defraud the State of money and property by means amounting to a cheat (Penal Code, § 168), and that, in furtherance of such conspiracy and in pursuance of it, the defendants did the several acts set forth in the complaint whereby they did cheat and defraud the State of large sums of money.

In the view which we take of the complaint, and which is professedly the theory of the pleader, the conspiracy is the gravamen ■of the charge; the specifications of the acts done are specifications in support of the charge of the conspiracy, and although manifestly «orne of the specifications might have been so pleaded as to set forth .separate causes of actions against one or more of the defendants, yet, so far as the order of arrest is concerned, we cannot regard them as so pleaded. The plaintiff, therefore, must show, within the rules already stated, that the cause of action for a conspiracy, as ■stated, exists, not necessarily in every part and detail of all the ■charges, but in every material part necessary to constitute the conspiracy, and in every material part of some one of the sufficient ■specifications under such charge of conspiracy.

The complaint charges that the defendants unlawfully conspired ■together to cheat and defraud the State of large sums of money •substantially in this wise:

1. To procure the passage of chapter 582, Laws of 1888, being an ■act for the removal of the old ceiling of the assembly chamber in the capitol, and its replacement by a new one.

2. To procure the commission authorized by the said act to make contracts for such work in behalf of the State, to award the contract therefor to the defendant Snaith, and enter into a contract therefor with him in such fraudulent, deceptive and imperfect form us would permit him, with the co-operation of the defendant Andrews, to do the work in such second-class form and style as would enable them to take as large profits under it as they should venture to take the risk of.

3. To obtain payments as for work properly done, when, in fact, not done, and in excess of what would be due if properly done.

4. To substitute different and inferior plans and specifications for those approved by the commission so as to make it appear that the contract embraced the substituted plans and specifications.

The complaint then charges the acts done in execution of the conspiracy, with the net result of defrauding the State of $250,563.09. It is not charged in the complaint that the conspiracy to procure the passage of the act was followed by any overt act in furtherance of its purpose. The existence of such a conspiracy is not shown to be provable. Respecting the conspiracy to procure the award of the contract to Snaith, it undoubtedly is provable that he was the lowest bidder; that one of the other competing bids was made at his instance; that the contract was awarded to him; that such contract was based upon plans which had been prepared by an architect employed by Andrews, in his capacity as superintendent of public buildings, assuming to act under the authority conferred by the act of 1888 referred to; that such plans and specifications were approved by the commission acting in behalf of the State; that the said contract and the plans and specifications, except the drawings accompanying them, or which were to accompany them, are as set forth in the complaint.

There can be no doubt that the contract was sufficient for the proper performance of the work if the plans and specifications were properly prepared. The act of 1888 provides that the committee “ shall have power to employ an architect to make plans and specifications, and all repairs and alterations shall be made in accordance with such plans and specifications after the same shall be approved by said committee, or a majority of them, in writing, and said plans and specifications, when so approved, shall not be changed except upon the written consent of a majority of said committee.”

The plaintiffs must repel the presumption of sufficiency which arises from the official preparation and approval of these plans and specifications, and show their ability to prove, not only that they were insufficient, but that they were so made or left in pursuance of the fraudulent conspiracy of the defendants.

For the reasons stated above and in the opinion of the court below, we reject as unreliable all the conjectures and inferences drawn by the affiants from alleged documents and testimony, no part of which the plaintiffs have deemed it important to place upon the record; also the conversations of persons who, refusing to verify their statements, have been execused from verifying them.

The affidavit upon which the plaintiffs must mainly rely to show that they can prove this part of their case is made by A. Russell. Mr. Russell was one of the committee of architects appointed by the assembly to examine the assembly ceiling and make report thereon. This report is presented with Mr. Russell’s affidavit. The report states that the specifications are general in character; that they are not adequate unless accompanied by complete, clear and carefully prepared drawings; that twenty-seven drawings were first submitted to these experts, and twenty-four additional drawings later. Upon the testimony or proofs presented to the committee of experts, they report that only nine of the fifty-one drawings existed prior to the award of the contract. These nine, the committee report, are so vague and incomplete as to render any competitive bids upon them useless as estimates of the value of the work. The committee, therefore, express doubt of the lona fides of such bids. The committee do not say that the nine drawings, taken in connection with the specifications, do not indicate the nature, character and extent of the work, but they do say that they do not do so adequately. The committee, however, do find them sufficiently specific and clear to enable them to report five substantial subsequent departures from them in the subsequent performance of the work. The committee do not report upon the effect of the forty-two other drawings which they assume were made subsequently to the award of the contract. They report that twenty-four of them were apparently used in the construction of the work, and they maintain a silence as to the other eighteen, except that most of them were made in pencil, without date, unsigned and without title.

A Mr. Rowe, as it elsewhere appears, was the chief draftsman and architect. His name was unknown to the committee of expert architects as an expert name. Mr. Russell states in his affidavit that all the facts stated in said report are true.” This language is equivocal in form, but we do not think any equivocation was intended. "What the experts mean to express is, that, upon the conclusions of fact which they inferred to be true from the evidence and appearances before them, the specifications were, in their opinion, at the time the award was made, inadequate to indicate as fully as was necessary, the extent, details and quality of the work required. Their opinion upon established architectural facts is, without doubt, entitled to confidence, but their assumption that the facts, -which they assumed as the basis of their opinion, were established, in no wise tends to establish them. Looking into the other affidavits in the case we fail to find that of the fifty-one drawings in the case only nine were in existence at the time the award was made. But assuming that the plans and specifications were imperfect, we still need something more than conjecture to show that the imperfection is due to a criminal conspiracy.

The complaint is so framed as to suggest the idea that the people may fail upon this part of their case, and if so, that they may charge the conspiracy as beginning after the award and execution of the contract, and as embracing the fraudulent departure from it as made, and the substitution of inferior and less expensive work, and the procurement of over-payment for that. The papers presented do show that the plaintiffs will be able to prove that Snaith did not perform the contract as made, and in many respects substituted an inferior and different work for that which he had agreed to perform, and that he obtained payment beyond what was his due.

It also appears that the defendant Andrews approved the bills upon which payments were made to Snaith. This, however, does not show that a conspiracy between Andrews and Snaith is provable. Facts must be presented tending to show that Andrews’ approval was collusive and in pursuance of the conspiracy. The fact is shown that Mrs. Andrews has acquired some property which may have been given to her by or through Snaith, but such gift does not appear to be provable. That Andrews and Snaith were friendly and intimate is probably provable. If there were evidence of collusion and eonfederacy, such, evidence would tend to confirm it, but it does not of itself tend to show it.

There is a charge that Andrews obtained $7,500 for alleged expenses of the commission upon his promise to produce the vouchers, which promise he did not fulfill. There may be a separate cause of action against Andrews for this sum, as there may be against Snaith for defrauding the State.

But, as before remarked, the order of arrest must fail with the failure to show that the charge of conspiracy is provable. It cannot be sustained by showing separate causes of action against the defendants severally; since, in such case, the order would be granted for one purpose and perverted to another, to the subversion of the right' of personal liberty. We do not mean to say that the people may not be able to maintain the cause of action they have stated; what we do say is, they do not now show their ability to prove it with that clearness which can justify an order depriving the defendants of their liberty. Undoubtedly, great labor must be performed, and great difficulties surmounted, to make a clear presentation of ability to prove such a case. Possibly this fact, and the gravity of the wrong charged and the indignation it would naturally excite, may have induced some reliance upon a judicial presumption against the defendants. Be this as it may, we must take care lest we trench upon the safeguards of liberty itself.

The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Learned, P. J., and IVIayham, J., concurred.

Order reversed, with ten dollar’s costs and printing disbursements, and motion to vacate granted, with ten dollars costs.


text:
    JOHN HEAVEY, Appellant, v. THE HUDSON RIVER WATER POWER AND PAPER COMPANY, Respondent.

      Master and servant — neglect of the former to furnish a safe place of labor and proper appliances — contributoi'y negligence.

    In an action to recover damages sustained by an employee, through the alleged negligence of his master, by falling into a vat of hot liquor while he was engaged in his employment, it was claimed that the master had neglected to give to the servant a safe place of labor and to furnish him with proper appliances,'and that in consequence of this neglect the injury had occurred. The plaintiff, who was fifteen years of age, was engaged in defendant’s pulp manufactory in pushing, with a wooden pole which he held in his hand, an iron pipe eight feet long and seven inches in diameter, which moved horizontally upon a joint over a series of vats discharging hot liquor into them successively. The end of the wooden pole was placed against a flat flange upon the end of the pipe, in moving which the whole weight of the plaintiff’s body rested upon the pole. While plaintiff was standing upon certain pipes which extended over these vats, his pole, the end of which had become spongy and saturated with liquor, slipped and he fell forward into a vat over which he stood and sustained serious injury.

      Held, that the plaintiff assumed all the risks incident to his employment, except those which the reasonable care of the defendant could protect him against.
    That the plaintiff did not, however, assume these risks which his master should have protected him from, unless he was guilty of negligence in accepting the place of labor which his master assigned him.
    That it was proper to submit to the jury the question whether the plaintiff’s risk of falling into the vat, in case he should fall at all, was not one for which the defendant was responsible.
    That the fact that the plaintiff knew that the end of his pole had become soft and spongy did not justify the trial court in holding that his further use of it constituted negligence which contributed to his injury, and that consequently he could not recover the damages resulting therefrom That while a servant would ordinarily be expected to know when his tools needed repair, yet in the absence of experience and instruction a lad fifteen years of age could not be expected to know intuitively, or as fully as his experienced master, in regard to these matters, and it was reasonable that he should be warned in regard to such deterioration of the tool as endangered his safety, especially when it was of such a nature as required instruction in order to arrest his attention.
    Appeal by tbe plaintiff from a judgment of tbe Supreme Court, dismissing bis complaint, entered in the office of 'the clerk of tbe county of Saratoga on tbe 29th day of January, 1890, and from an order directing a nonsuit made on tbe 21st day of January, 1890.

      The action was tried before the court and a jury at the Saratoga Circuit, and at the close of plaintiff’s case a nonsuit was directed and judgment was entered for the defendant.
    The action ivas brought to recover for injuries sustained by the plaintiff, an employee of defendant, by falling into a vat of hot liquor while he was engaged in its employment. The plaintiff charged that the defendant neglected to assign him to a safe place of labor, and to furnish him with proper appliances, and that he sustained his injuries in consequence of this neglect of the defendant.
    On the 31st day of March, 1885, the plaintiff, then fifteen years of age, was engaged in defendant’s paper pulp manufactory; his duty was to guide, by pushing with a wooden pole which he held in his hands, an iron pipe, eight feet long and seven inches in diameter, which, moving horizontally upon a joint over a series of vats, discharged hot liquor into them successively, as the plaintiff pushed it, so that its orifice of discharge rested above whichever vat he needed to supply with the liquor. This iron pipe, movable horizontally upon its hinge, was very heavy; it was about two feet above the level of the top of the vats, its discharging end curved downwards; the plaintiff pushed it from vat to vat by placing the end of his wooden pole against a flat flange or band upon the end of the pipe, resting that end of the pole upon a hook or iron loop or rest, which was attached to the end of the pipe, and then pushing upon the pole with the whole weight of his body. While pushing this pipe he had to stand upon other iron pipes which lay upon the top of the vats, near one side of them. There were nine vats standing side by side in the pit room; the center vat received the liquor from the pipes which lay upon the top of the adjacent vats; from the center vat the liquor was distributed through two pipes, one on the right and the other on the left, to the vats upon either side.
    There were four vats on each side of the center vat; these vats were each twelve feet by eight, and six feet deep. The movable pipe in question was the terminal part of the pipe leading from the central vat. The vats were uncovered except by the pipes leading to the central vat. While the plaintiff was standing upon these pipes pushing the movable pipe, his pole slipped from the flange, or end of the movable pipe, causing him to lose his balance and fall forward into the vat over which lie stood. lie was soon extricated, but sustained serious injury. The end of the pole placed against the movable pipe had become soft or spongy by use and saturation in the liquors. Upon the trial its slipping was attributed to that cause. While ,^t did not clearly appear from the evidence, the evidence tended to show, that the end of the pole rested in the iron hook or loop, and for some reason the force employed in pushing the pole raised it upward out of its rest, and thus it slipped. The top of the vats was about a foot above the floor. The plaintiff had been engaged in this employment six weeks. He had had no previous experience. He was doing his work as he had been instructed by the foreman to do it. Before the plaintiff was employed, a rope had been used to pull the movable pipe from vat to vat. Why this method was abandoned does not appear. The vats had also been more effectually covered. The trial court granted the nonsuit because the plaintiff assumed the known or apparent risks of the business, and he must have known better than any one else that the end of his stick had become soft and broomy, and, therefore, he knew better than any one else that it was less fit for use. ■

      T. F. Hamilton, for the appellant.

      L. B. Pike, for the respondent.
   Landon, J.:

The plaintiff assumed all the risks incident to his employment, except those which the reasonable care of the defendant could and, therefore, should have protected him against. Grant that the pole was in good condition, and that the plaintiff’s liability to lose his balance, or slip and fall, was as common to any other place as to this, and thus far the plaintiff assumed the risk. That he should slip and fall was, independently of the place into which he should fall, too ordinary and common an experience with such a youth to be a matter of concern to his master or himself. But. if, when he should fall, he must inevitably fall into a deep vat containing scalding liquor, then the situation was different. If, by reasonable care, the master could protect him from falling into the vat, as by guard rails, or covers, or other appliances, not materially obstructive to the business, then the omission of some such protection would be the fault of the master. The plaintiff did not assume the risks which his master should have protected him from, unless he can be properly charged with negligence in accepting the place of labor, which his master assigned him. If the defendant should claim that the plaintiff was negligent in the respect last stated, all he could ask upon the evidence would be to have the jury pass upon the question. "We think, under the circumstances presented, that it was a question of fact whether the plaintiff’s risk of falling into the vat, in case he should fall at all, was not one for which the defendant was responsible, and, therefore, if the nonsuit was granted because it was clear as a matter of law that the plaintiff assumed it, it was error.

The learned trial judge, in effect, held that because the plaintiff knew that the end of his pole had become soft and spongy, he therefore knew that it had become unfit for use, and his further use of it was negligence which contributed to his injury. This proposition assumes that the facts admit of but one inference, and that against the plaintiff. We think that fair men might, with entire fairness, make a different inference. The testimony tends to show that the plaintiff faithfully followed his instructions. He was fifteen years old, without previous experience, was given this place of labor, this pole, and certain instructions as to its use. He knew, of course, that the end of the piole was becoming soft and spongy. But he might or might not suspect that it was becoming unsafe. We have no right to assume that he knew. No one had told him, and his experience had not instructed him. Why should he expect it to slip) or fear it ? The jury would not exact from this lad any more thought or care than he was able to give, nor any more knowledge than he had. We think it was for the jury, and not for the court, to determine whether the plaintiff was negligent in this respect.

If the jury should conclude that the plaintiff ought to have been instructed with respect to the proper treatment of his piole in case the end should become soft, it would follow that the failure to instruct him was an omission of duty on the piart of the defendant.

A servant may ordinarily be expected to know when his tools need repiair, but, in the absence of experience and instruction, a lad cannot be expected to know it intuitively or as fully as his experienced master; and it is reasonable that he should be warned against such deterioration of them as endangers his safety, especially when it is of such a nature as requires instruction to arrest his attention or excite his apprehension.

Every case must be governed by its own circumstances. In this case the question whether the defendant ought to have given the plaintiff further instructions seems to be involved and to bear directly upon the question of the plaintiff’s negligence and also upon the question of the defendant’s negligence. It is a question for the jury.

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

Learned, P. L, and Mayham, L, concurred.

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