text:
    Jedediah S. Kingsley, Appellant, v. Willey J. P. Kingsley, Respondent.

      Damages for libel — justification, how pleaded — the answer not controlled by the innuendo or by a general denial- — evidence of circumstances not alleged — reopening of the plaintiff' s ease— order of proof.

    In an action brought to recover damages for libel, the justification pleaded in the answer must be as broad as the charge alleged in the complaint, and facts must be specified tending to show the truth thereof. A statement, however, of the necessary facts and not of the evidence of such facts is sufficient, and when the original charge is in itself specific, the defendant need not further particularize it in his plea. ■
    In determining whether the answer in an action brought to recover damages for libel is sufficiently broad in its allegations, the statement, in the innuendo, of the character of the charge does not control, nor does the fact that there was in the answer a general denial prevent the defendant from availing himself of the defense of justification, as a defendant may put his defense upon distinct and even inconsistent grounds.
    In an action brought to recover damages for libel, the fact that the answer contained a general allegation in substance that the plaintiff did not possess sufficient skill to treat persons having the disease that he assumed to treat, does not authorize the defendant therein to show by the testimony of physicians that the plaintiff adopted an improper method of treatment; such fact can only be shown when there is a specific allegation to that effect contained in the answer.
    Where the complaint in an action brought to recover damages for libel is based in part on a letter, which the defendant admitted by his answer he wrote or caused to be written and sent, evidence as to the circumstances under which it was written, with a view of showing that there was no actual malice, is inadmissible, if such circumstances were not set up in the answer by way of mitigation of damages.

      It is competent in an action for libel for tbe plaintiff to prove express malice on the part of the defendant before he rests, and it is, therefore, discretionary with the court whether, after the defendant has rested, the plaintiff shall be allowed to give evidence tending to prove express malice.
    The plaintiff or party holding the affirmative of an issue is bound in the first instance to introduce all the evidence on his side, except that which operates merely to answer or qualify the case sought to be made out by his adversary’s proof, and rebutting testimony must be in denial of some affirmative case or fact which the defendant has endeavored to prove.
    Appeal by tbe plaintiff, Jedediah S. Kingsley, from a judgment of tbe Supreme Court in favor of the defendant, entered in tbe office of tbe cleric of tbe county of Oneida on tbe 31st day of May, 1893, upon tbe verdict of a jury rendered after a trial at tlie Oneida Circuit, with notice of an intention to bring up for review on such appeal an order entered in said cleric’s office on the 5th day of June, 1893, denying tbe plaintiff’s motion for a new trial made upon tbe minutes.
    This action was brought to recover the damages sustained by reason of an alleged libel.
    The answer contained a general denial and also set up matter by way of justification as well as of mitigation.

      Oswald P. Baehus, for the appellant.

      J. 8. Baher, for tbe respondent.
   Merwin, J.:

The main struggle in this case was over the second cause of action, which was based on an article published by tbe defendant in tbe Nome Sentinel. Tbe question whether tbe defense of justification was made out was submitted to tbe jury and they found for the defendant. It is claimed by tbe plaintiff that tbe answer, in its allegations on the subject of justification, was not sufficiently broad and definite to give tbe defendant tbe benefit of that defense.

There is no doubt about tbe general rule that tbe justification must be as broad as tbe charge. Facts must be specified tending to show its truth. (McKane v. The Brooklyn Citizen, 53 Hun, 132.) This rule, as said in Ball v. Evening Post Publishing Co. (38 Hun, 11), requires only a statement of tbe necessary facts, and not of tbe evidence of those facts. 'When tbe original charge is in itself specific, tbe defendant need not further particularize it in bis plea. (Falkard’s Starkie on Slander & Libel, § 483; Van Wyck v. Guthrie, 4 Duer, 268; affd., 17 N. Y. 190.) In Wachter v. Quenzer (29 id. 553) it is said that “the requirement that the answer should set up the matter to be relied on -was intended to prevent surprise, by informing the plaintiff of what he must expect to meet.”

In Fleischmann v. Bennett (87 N. Y. 231) it was held that an innuendo in a complaint in an action for libel does not enlarge the matter set forth in the alleged libelous words, but only explains-their application, and, where not justified by the statements to which it refers, so that rejecting it the words are not libelous, a demurrer to the complaint will lie. It would seem to follow that, in determining whether the answer in its allegations is sufficiently broad,, the statement in the innuendo of the character of the charge does-not control. Nor does the fact that there was in the answer a general denial prevent the defendant from availing himself of the-defense of justification. (Buhler v. Wentworth, 17 Barb. 649; Hollenbeck v. Clow, 9 How. Pr. 289; Code, § 507.) A defendant may put his defense upon distinct and even inconsistent grounds, (Goodwin v. Wertheimer, 99 N. Y. 150.)

In view of these principles the answer was, I think, sufficiently broad and definite to give the defendant the benefit of the defense-of justification The case is, in many respects, a peculiar one, and many of the material facts are necessarily of a general character.

The plaintiff asked the court to charge “ that the only question for the jury upon the statement that £ the nature and combination of my remedies is known only to myself, and any person claiming to-have any knowledge of them is an impostor,’ is the question of damages, because of the insufficiency of the pleading in justification.” This the court refused and the plaintiff excepted. The clause in the libelous article was: “ The nature and combination of my remedies are known only to myself, and any person claiming to have any knowledge of them or to have been my partner is an impostor.” The argument of the plaintiff’s counsel seems to be based on the-idea that there were several remedies, and that the defendant did not in his answer sufficiently specify all of them and charge that plaintiff did not know the nature and combination of any of them. There is room for the inference that the charge against the plaintiff on this subject in the libelous article, taking it all together, had ref■erence to a specific remedy for cancer which the defendant claimed that he had discovered and adopted nearly forty years ago,” “ consisting of a preparation composed of various ingredients, an .application of which would destroy cancerous growth,” and did not refer to certain incidental and comparatively unimportant remedies that were used in the course of the application of the specific remedy. It should not be said, as matter of law, as the court was, in effect, called on to say by the request, that the incidental remedies were included in the charge.

But the plaintiff claims that, assuming that the answer in form is good, evidence was admitted, on the theory of justification, that was not fairly within the allegations of the answer. Several eminent physicians were called as experts upon the question of what was the proper or recognized treatment in the profession for the removal of large cancerous growths, in August, 1891, the time of the publication in question. This evidence was objected to upon the ground, among others, that it was not admissible under the pleadings. This objection was overruled and exception taken. The testimony was that proper treatment was removal with the knife. One of the charges inferable from the libelous justification was that the plaintiff was an ignorant practitioner. It is claimed on the part of defendant that the evidence above referred to was admissible on that subject. It is alleged in the answer, in substance, that in March, 1891, the plaintiff opened an office for the treatment of cancer by local application alone, and advertised his business upon that method of treatment alone. It is argued that if the plaintiff did not adopt the proper method of treatment, he would be deemed an ignorant practitioner, and that, therefore, the evidence in question was admissible. There are in the answer allegations of facts from the existence of which the inference might be deducible that the plaintiff was an ignorant practitioner. There is, however, no allegation that the treatment of cancer by local application was not proper, or that the proper treatment of large cancerous growths was by removal with the knife. There is, in substance, an allegation, somewhat general, that the plaintiff did not possess sufficient skill to treat persons having the disease that he assumed to treat, and it is claimed that this may be shown by showing that he adopted an improper method of treatment without afty specific allegation of such fact in the answer. I think not. That is a subject that the plaintiff is entitled to have specific notice of, if it is to be litigated. It affected largely the character of his business as well as his professional standing. The evidence was, I think, erroneously admitted, and it was of such a character that it may be said with a good deal of force that it may have affected the verdict to the prejudice of the plaintiff. At least we cannot, I think, fairly say that it probably did not affect the verdict, especially in view of the fact that in some respects the case was a close one.

There is another exception in the case upon the same line, but of not so important a bearing. One of the counts of the complaint is based on a letter which the defendant in his answer admits that he wrote or caused to be written and sent to a Mrs. Brown. Evidence was admitted of the circumstances under which it was written, with a view of showing that there was no express malice, although these circumstances were not set up by way of mitigation. This would seem to be error. (Bradner v. Faulkner, 93 N. Y. 515; Daly v. Byrne, 1 Abb. N. C. 150.)

After the defendant rested, evidence was offered by the plaintiff which it was claimed would tend to show the existence of actual malice on the part of defendant. This was excluded on the ground that it was reopening. The plaintiff claims that it was competent to show actual malice in rebuttal. We are, however, referred to no case like the present where that practice was authorized. It was. competent for the plaintiff to have proved express malice as a part, of his case before he rested. (Fry v. Bennett, 28 N. Y. 324.) This being so, it would seem that it was discretionary whether he should, after the defendant rested, be allowed to give such evidence. The general rule is that the plaintiff; or party holding the affirmative, is.bound in the first instance to introduce all the evidence on his side, except that which operates merely to answer or qualify the case as it is sought to be made out by his adversary’s proof. (Hastings v. Palmer, 20 Wend. 226.) In Silverman v. Foreman (3 E. D. Smith, 323) it is said that rebutting testimony must be in denial of some affirmative case or fact which the defendant has endeavored to prove. (See, also, 2 Greenl. Ev. § 122; Abb. Tr. Ev. 674.)

We are referred to numerous other exceptions, but it is not necessary here to consider them. Upon a retrial the questions may not be important. For tbe errors above specified, and especially that relating to the expert evidence, there should, I think, be a new trial.

Hardin, P. J., and Martin, J., concurred in the result.

Judgment and order reversed on the exceptions, and a new trial •ordered, with costs to abide the event.


source: Caselaw Access Project

author: Hardin, P. J.: Martin, J.:

license: Public Domain

text:
    Mary Senecal, as Administratrix, etc., of John Senecal, Deceased, Appellant, v. The Thousand Island Steamboat Company (Limited), Respondent.

      Verdict against the evidence — damages caused by the collision of tu>o vessels — proof of previous intoxication of the person in chcvrge of one of such vessels is inadmissible.

    In order to justify a reversal of the verdict of a jury it must be clearly and positively demonstrated that it was against the weight of the evidence.
    Upon the trial of an action brought to recover damages for the death of the plaintiffs'intestate, caused by the collision of two vessels, alleged to have been occasioned by the negligence of the defendant, the owner of one of such vessels, it was contended on the part of the defense that the negligence which caused the collision was that of the owner of the second vessel on which the plaintiffs intestate was, and proof was admitted of the previous habits of intemperance of the person in charge of the second vessel at the time of the collision.

      Held, that such proof was improperly admitted..
    Appeal by the plaintiff, Mary Senecal, as administratrix, etc., of John Senecal, deceased; from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 1st day of April, 1892, upon the verdict of a jury rendered after a trial at the Jefferson Circuit, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.
    On the 17th of July, 1890, defendant’s steamer iSt. Lawrence was used in the St. Lawrence river under the laws of the United States and of the laws of the State of New York, and one Joseph Senecal was the owner, proprietor and manager of a steamer called Catherine operated on the same river, and about eleven o’clock p. m. of the day mentioned a collision took place in the vicinity of. the lighthouse known as “ Sunken Bock light ” in the county of Jefferson, when the St La/wrenoe struck the steamer Catherine, which soon thereafter filled with water and sank to the bottom of the river, and the plaintiff’s intestate was drowned, he at the time being in discharge of his duties as engineer of the Catherine.

    In the answer of the defendant it is alleged that “ the accident mentioned in the complaint, which resulted in the death of John Senecal, the plaintiff’s intestate, was caused by the carelessness of said John Senecal and of Joseph Senecal, the owner of said steamer Catherine.”

      Frederick W. Thompson, for the appellant.

      Porter & Walts, for the respondent.
   Hardin, P. J.:

Plaintiff upon the trial produced extensive evidence tending to indicate that there was negligence in the management of the defendant’s boat, and that such negligence caused the loss of life of plaintiff’s intestate. On the other hand, defendant gave extensive evidence in denial of some of the testimony of the plaintiff; in explanation of some of the circumstances relied upon by the plaintiff, and also considerable testimony tending to contradict the evidence given by the plaintiff and tending to support the theory of the defense that the accident was occasioned by the negligence of the officers in command of the Catherine. Appellant’s learned counsel has submitted an interesting and exhaustive brief upon the •evidence in his efforts to demonstrate that the verdict is wrong. After a perusal of the whole evidence the opinion is entertained that it was a question of fact for the jury to determine, under all the evidence and circumstances furnished by it, as to whether there was any negligence on the part of the defendant which caused the •collision. An investigation of the evidence indicates that the boats required only two seconds to escape the collision; and the appellant’s counsel submits an interesting argument, based upon assumptions to some extent, and puts great reliance and stress upon the surrounding fixed objects coupled with the speed of either boat, and the explanation of their respective situations just antecedent to the collision. Although his argument is quite persuasive, we think the questions involved in it were properly submitted to the jury; and we are not prepared to say that the demonstration made by the appellant upon the evidence is so clear and positive that, within the well-settled rules of this court, we should overturn the verdict of the jury as one against the weight of evidence.

In Massoth v. Delaware & Hudson Canal Co. (64 N. Y. 524) it was said that it was not sufficient to overturn a verdict that a skilled engineer could demonstrate upon certain assumptions, or upon certain established points of measurement or of speed, that it was contrary to the evidence thus given. The trial judge, in a clear and extensive charge, presented the evidence bearing upon the controverted questions of fact, clearly pointing out the province of the jury in respect thereto; and after the trial was over he entertained a motion upon the minutes and presumably reviewed the evidence, and came to the conclusion that the verdict was not against the evidence or against the weight of evidence. We áre not inclined to disturb his action in the premises on the ground that the evidence was so preponderating that it was his duty to set the verdict aside.

(2) Numerous exceptions were taken during the trial as to the admission and rejection of evidence, and our attention is called by the appellant’s points to only one exception to the charge. After an examination of the rulings in admitting and rejecting evidence and the charge, we are of the opinion that no error was presented which requires an interference with the verdict, unless it be in the rulings relating to the habits of Joseph Senecal, who was the owner and in charge of the steamer Catherine on the occasion of the accident. It seems by the evidence he was a man some seventy-two years of age; he was not called upon the trial by either party. Upon one theory put forward in the case he was chargeable with the act which led to the collision. On the other hand, that theory was disputed, and it was alleged that he was free from negligence, and in referring to those theories the court, in the course of its charge, said: The evidence on the part of the defendant, as I suggested, tends strongly to the idea that from some cause or other, we cannot tell what, because Senecal is not here to answer, for some reason or other, having by the language of the whistle indicated all along down to the very last his desire to go straight along in his course and keep the St. Lawrence on his right; that suddenly, when these boats came near together here, for some reason or other, after-this second signal, he changed his course and attempted to and did cross right in front of the St. Lawrences course. That is what the defendant claims this evidence shows. And if that is so, and if that is the sole cause of this accident, the fact that he, misunderstanding the signals or something, did that thing, he alone is to be blamed for it, and the defendant is not to be charged with any liability for his death.” The quotation already made indicates that the conduct of Joseph Seneeal on the night in question was important, and was made a prominent question for inquiry. Mary Seneeal, the plaintiff, the widow of the intestate, was called to prove some of, the formal facts relating to the condition of life of her husband and the family he left behind him, and during her cross-examination she said that her father-in-law, Joseph Seneeal, kept a boarding house and a bar in his house for the sale of liquors. This evidence was objected to as immaterial and incompetent, and the objections were overruled and an exception was taken. She then added that he had kept a bar for the sale of liquors at his boarding house ever since we were married” (she having stated that she had been married about ten years). Thereupon the following question -was propounded to her: “Q. Do you know whether Joseph Seneeal was in the habit of drinking himself ? ” This was objected to as immaterial and incompetent, and in response to the objection the court observed: “ I think I will allow it to be answered; of course, at and immediately prior to the accident. Exception for plaintiff.” Thereupon the following question w'as propounded: Q. "VYhat do you say as to whether Joseph was in the habit of drinking strong liquors ? A. I think he took it. Q. And had been during all the years that you knew him, had ho not ? A. I can’t say that he was a heavy drinker. By the Court: Q. He asks you if he had been in the habit? A. I believe so. lie had been in the habit ■ of drinking during all the years that I knew him, I believe. I never knew him to be intoxicated. I don’t know that the old gentleman occasionally drank liquors to any extent that he became intoxicated.” This was objected to on. the same grounds, and then followed this question : “ Q. Have you heard that Joseph Seneeal occasionally drank.to an extent of becoming intoxicated?” This was objected to as immaterial and incompetent, and it was received and an exception taken for the plaintiff• the witness answered: “I have heard it.” Thereupon she is further questioned by the court, to wit: “ Q. .Before his death had you heard of it — before your husband’s death ? A. I don’t know as he ever became intoxicated. Q. The question is whether, before your husband was drowned, jmu had ever heard that the old gentleman sometimes got intoxicated? A. Not while ■running his boat. Q. No, but at any time ? Tie didn’t ask you ■ about the boat. Had you heard that he did sometimes get intoxicated ? A. No, I don’t know as I ever did. Q. Do you mean you have heard of it since ? Because you answered at first that you had heard of it. Have you heard since, is that what you mean, or didn’t you ever hear of it? A. I don’t know as I ever heard of it.” Thereupon the counsel for the defendant took the -witness and put to her the following question : “ Q. Why did you answer me then that yon hoard that he drank to the extent of becoming intoxicated ? A. I said that he took a glass, or he took some ; I don’t know as I answered that he became iiitoxicated Q. Didn’t you understand my question ? A. You ask me so many questions that I don’t know how I am going to understand them all. Q. * * * Had you heard, prior to the 17th of July, 1890, that Joseph Senecal ocqasion■•ally drank to the extent of being intoxicated ? A. No, sir. Q. When you answered me that you had heard it what did you mean ? A. Well, I have heard of him drinking, but I can’t say that I know of him getting intoxicated or hurt.” From the examination which we have quoted it appears that the witness was permitted to state facts •and knowledge as to the habits of Joseph Senecal, and that his condition on the night of the accident was not the subject of inquiry. It appears the witness had no knowledge of his condition on that night, and in her answers did not in any way refer to his then condition. We are inclined to think that the trial judge allowed too great scope in the inquiry as to J oseph’s habits, and that the facts which 'she stated in the first part of her examination, although modified somewhat by what she stated later, and the testimony given by her relating to his condition at times, may have been very influential with the jury, inasmuch as the manner in which Joseph Senecal managed his boat on the occasion, by the course of the trial, is made a close and critical, as well as a very important question.

In the course of the opinion delivered in Warner v. The New York Central Railroad Company (44 N. Y. 465) it appears that an important question arose in that case in respect to the acts of a flagman at the time when the accident occurred, and, near the close of the opinion of Leonard, Com., he says, in speaking of the flagman : “ His previous habits of intemperance had nothing to do with the case. If the signal was omitted the negligence was the same, whether the flagman was drunk or sober. His neglect on a former occasion, or his former intemperate.habits, would not be sufficient to create negligence, or be any evidence of it, when this accident happened. The evidence objected to tended * * to create a prejudice in the mind of the jury and invite punitive damages not directly arising from the occurrence.” That case was referred to approvingly in Cleghorn v. The N. Y. C. R. R. Co. (56 N. Y. 44), and at page 46 Church, Ch. J., says that the decision was right, and adds: “ Previous intoxication would not tend to establish an omission to give the signal on the occasion of the accident.” The learned counsel for the respondent upon the argument attempted to break the force of the evidence thus erroneously received by calling our attention to the charge of the trial judge wherein he says there is not much question as to the contributory negligence, and that the more serious question in the case is whether the defendant is guilty of negligence.” We think that is not a complete answer. In determining whether the defendant was guilty of negligence a very important inquiry arose in respect to the conduct of the master of the Catherine, Joseph Senecal, and we are inclined to believe that the jury, in scrutinizing the conduct of the master of the Catherine, as revealed by the evidence, might be largely influenced by the testimony relating to his antecedent habits and practices. "We do not feel at liberty to say that such testimony was innocuous; on the contrary, it may have been so prejudicial as to have produced the verdict for the defendant. If the foregoing views are correct the plaintiff is entitled to a new trial.

Mkrwin, J., concurred.

Martin, J.:

I favor a reversal for the reasons stated in the opinion of Hardin, P. J.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


author: Hardin, P. J.:

text:
    The People of the State of New York ex rel. Charles F. Zeese, Appellant, v. Vincent M. Masten, as Superintendent of the State Industrial School of Rochester, Respondent.

      Commitment and sentence of a minor to a reformatory under section 713 of the Penal Code — loss by the pment of his custody and earnings.

    Where a commitment made by a police justice states the age of the delinquent to be thirteen years, showed a conviction, oí petty larceny, and contains the words “ it is adjudged that he be confined in tlie jState Industrial School in the city of Rochester, New York, under the provisions of the statute relating thereto, and he is hereby committed to the custody of the board of managers of the said industrial school until discharged by due course of law,” it is in accordance with tlie statutes and is not void for indefiniteness.
    Section 713 of the Penal Code requires a child under sixteen years of age, convicted of a crime, to be committed to some reformatory, charitable or other institution authorized by law to receive and take charge of minors, and provides that when he is so sentenced, the institution, “ until his majority or for a shorter term,” may subject him to such discipline and control " as a parent may lawfully exercise over a minor,” and where the commitment of a minor for a crime is lawful the loss by the parent of the custody and earnings of his child follows as one of the incidents, for which there is no remedy.
    Appeal by the relator, diaries E. Zeese, from an order of the Supreme Court, entered in tlie office of tlie clerk of the county of Onondaga on tlie 28th day of October, 1893, dismissing a writ of habeas corpus and remanding William Zeese, a prisoner, to custody.

      D. F. Molemian, for tlie appellant.

      George A. Gwnahan, for tlie respondent.
   Hardin, P. J.:

Chapter 113 of the Laws of 1816 authorizes the establishment of a house of refuge for juvenile delinquents. (See 3 R. S. [Ytli ed.] 2658.) In section 13 of the act the managers are directed to receive and take into die said house of refuge all male children under the age of eighteen years, and all female children under tlie age of seventeen, wlio shall be legally committed to tlie said bouse of refuge as vagrants, or on a conviction for any criminal offense by any court having authority to make such commitments; the said managers shall have power to placo the said children committed to their care, during the minority of such children, at such employ-merits, and cause them to be instructed in such branches of useful knowledge as shall be suitable to their years and capacities; * * provided that the charge and power of the said managers upon and over the said children shall not extend, in the case of females, beyond the age of eighteen years, or in the case of males, beyond the age of twenty-one years.” In section 16 of the act it was provided that courts and magistrates “ may, also, in their discretion, sentence to said house of refuge any such male or female who may be convicted before them of any petit larceny.” By chapter 593 of the Laws of 1886, page 835, section 16 of chapter 143 of the Laws of 1846 was repealed; and the same Legislature substituted in place thereof provisions found in chapter 539 of the Laws of 1886. That act changed tiro name of the Western House of Befuge to “ The State Industrial School; ” and in section 3 of the act authority is given to the board of managers of the State Industrial School to receive into said school all children “ who may hereafter be sentenced to * * * The State Industrial School, and to retain the same subject to the rules and regulations of said institution, and said board of managers shall have the right, and it shall be their duty, to receive and retain all such persons committed to their custody, and such right and duty shall not be affected, prejudiced or impaired by reason of, or in consequence of, any technical defect or clerical error in the warrant of commitment.” Authority is given to the courts to direct a confinement in a house of refuge of juvenile delinquents by section 701 of the Penal Code, and the manner in which such power shall be exercised is regulated to some extent by section 713 of the Penal Code.

By chapter 387 of the Laws of 1852 the act of 1846 was amended, and it was provided in the second section of the amendatory act that it shall be the duty of courts of criminal jurisdiction “to ascertain by such proof as may be in their power the age of every delinquent, by them respectively sentenced to the said house of refuge, and to insert such age in the order of commitment, and the age thus ascertained shall be deemed and taken to be the true age of such delinquent.” In this case the age so ascertained and stated of the delinquent, William Zeese, was thirteen years, as appears in the commitment made by Police Justice Muliiolland February 1, 1892. (See chapter 216 of the Laws of 1891.) The commitment showed a conviction of petit larceny, and it contained these words: “ It is adjudged that he be confined in the State Industrial School, in the city of Rochester, New York, under the provision of the statute relating thereto, and he is hereby committed to the custody of the board of managers of the said industrial school until discharged by due course of law.” The commitment seems to be in accordance with the statute and is not void for indefiniteness. The institution is for the reformation of delinquents, and had its origin and is maintained in a charitable spirit towards delinquents. By adjudication made by the committing magistrate the delinquent escapes from the penalty of the law and avoids the penalty prcscribed for tire crime he had committed by being sent to the charitable institution to be reformed. The Rochester Industrial School is so nearly like the house of refuge organized under chapter 126 of the Laws of 1824, that the construction of that act in People v. Degnen (54 Barb. 105) is quite applicable here and is an authority sustaining the order appealed from. Appellant calls attention to section 15 of the Penal Code and contends that it prescribes a limit of punishment to one year. In People v. Degnen (supra) it is held that the sentence is not to a penal institution and that the authority to send to such an institution “is beneficent in its effect on the individual prisoner and on society.” However, in section 15 there is a provision to the effect that the limit of one year applies only where there is no “ other statutory provision in force at the time of the conviction and sentence.” When the sentence imposed in this case was given the statutory provision to which reference has been made was in force and applicable to the industrial school, and, therefore, section 15 is not applicable to this case. Nor do we think section 13 of the Penal Code is applicable to the case before us. Nor does the case of Gross v. Rice (71 Maine, 241) apply here. In that case the power to put a prisoner, serving under a fixed term, into a dungeon and the time of such incarceration be added to the fixed term, gave a discretion as to the liberty of the convict who was serving under a penal sentence of fixed duration. Section 713 of the Penal Code seems to require a child under sixteen years of age to be committed to some reformatory, charitable or other institution authorized.by law to receive and take charge of minors, and to provide that when he is so sentenced, the institution, “until majority or for a shorter term,” may subject him to such discipline and control as a parent “may lawfully exercise over a minor.” It is insisted by the learned counsel for the appellant that the relator, the father of the infant, is entitled to the earnings, of his child, as well as to his custody, and that such rights cannot be taken from him without notice. Although the return, states that the “ father was present at the arraignment and conviction of Willie Zeese ” in such court, we may properly meet the contention of the appellant irrespective of that fact. The commission by the child of a crime is conclusively established. The statute to which reference has been made provided a mode of treatment of the child by the court and institution for the good of the public and the protection and benefit of the child. The legislative power was exercised in adopting the legislation “ to secure the general comfort, health and prosperity of the State.” (Commonwealth v. Alger, 7 Cush. 84; Slaughter House Cases, 16 Wall. 62.) Such legislation has existed for many years and received the approval of judges and courts, and we are of the opinion that it does not violate any of the provisions of the Federal or State Constitution. (Matter of Application of Jacobs, 98 N. Y. 108; The People of the State of New York v. Budd, 117 id. 1; Matter of Application of Ewer, 70 Hun, 239; S. C. affd., 141 N. Y. 129; Matter of Bayard, 25 Hun, 546; Towle v. Remsen, 70 N. Y. 321.) We think the legislation was adopted in good faith and for the purpose of protecting the public as well as for the purpose of saving such children from profligacy and crime, and that it is valid. (People v. Degnen, supra; Matter of Donohue, 1 Abb. N. C. 1; House of Refuge v. Ryan, 37 Ohio St. 197.) In State v. Ray (63 N. H. 406) it was said that, “ Where the commitment is lawful the loss by the parent of the custody of his child follows as one of the incidents for which there is no remedy.” (See, also, Matter of Ewer, 70 Hun, 239.)

We think the conviction, commitment and adjudication made by the committing magistrate were proper and valid, and that the order made by the justice of this court discharging the writ and remanding Willie Zeese to the State Industrial School at Hochester should be affirmed.

Martin and Merwin, JJ., concurred.

Order affirmed.


author: Merwin, J.:

text:
    The People of the State of New York, Respondent, v. Warren S. Bates, Appellant.

      Word ‘'willfully,’’ as used in section 50 of the Penal Oode, defined.

    Tlie word “ willfully,” as used in section 56 of the Penal Code, means something more than a voluntary act and more also than an intentional act, which, in fact, is wrongful; it includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.
    A person is not guilty of a misdemeanor under such section if he enters into a public office, to which he has not been duly elected or appointed, under a bona fide claim of right which he might reasonably believe entitled him to take possession— but in such case there must be colorable ground for such a claim.
    Appeal by the defendant, Warren S. Bates, from a judgment of the Court of Sessions held in and for the county of Tompkins, rendered on the 26th day of February, 1894, convicting the said defendant of the crime of intrusion into a public office, and also from an order entered in the office of the clerk of the county of Tompkins on the 26th day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes. •

      John A. Milne and S. J). ITulUday, for the appellant.

      J. IT. Jemiings, District Attorney, for the respondent.
   Merwin, J.:

By section 56 of the Penal Code it is provided that “a person who willfully intrudes himself into a public office, to which he has not been duly elected or appointed, or who, having been an executive or administrative officer, willfully exercises any of the functions of his office after his right to do so has ceased, is guilty of a misdemeanor.” Under this, the defendant was convicted of intruding into the office of excise commissioner in the town of Ulysses in the county of Tompkins.

In that town the excise commissioners in 1890 were J. B. Spaulding, whose term of office expired in the year 1891, L. "W. Carpenter, whose term expired in 1892, and II. C. King, whose term expired in 1893. These persons met as a board of excise on May 5, 1890, and after transacting the usual business of the year they adjourned to June 5, 1890. At this date they met and entered upon their minutes the following: “ IJpon examination of a law ■ passed by the last Legislature, the board have decided that they are not qualified to act as excise commissioners, having failed to comply with the requirements of said law.” They thereupon adjourned indefinitely and did not meet again during the year. The law which they referred to was chapter 163 of the Laws of 1890, which was passed and took effect on April 22, 1890. It provided that, within thirty days after the passage of the act, every excise commissioner should make and subscribe an oath before a proper officer “ to the effect that he is neither directly or indirectly interested in the manufacture or sale of any spirituous or malt liquors, ales, wine or beer,” and that such oath should be filed in the clerk’s office of the town. It was also provided that a failure to take such oath “ shall disqualify any one from holding, or debar any one from continuing to hold, any office or position mentioned in this act.”

At the annual town meeting in February, 1891, there were two tickets in the field for excise commissioners, each having three names on; one being stated to be for three years, one for two years and one for one year. The successful ticket was W. J. Nixon for three years, W. J. Farrington for two years, and II. C. King for one year. Those duly qualified and entered upon the discharge of the duties of the office. At the annual town meeting in February, 1892, there were two tickets in the field for excise commissioners, each having but one name on. On one was TI. C. King, and he was elected and he duly qualified and entered upon the discharge of the duties of the office. At the town meeting in February, 1893, there wrere two tickets, upon one of which there were three names : A. Y. Yan Liew for three years, "Warren S. Bates for two years and C. W. Nortlirup for one year. The other ticket had but one name, and that for three years. The ticket having the three names received a majority of the votes. Thereafter, and on May 13, 1893, Yan Liew and the defendant Bates met as a board and granted several licenses. That is the intrusion here complained of, and for which defendant was indicted.

It is claimed by the People that the office which the defendant assumed to fill, was rightfully possessed by King under his election in 1892. The defendant claims that King, having been elected in 1890 for three years, still held that office in 1892, and so was then ineligible to election to another position on the same board, and that, therefore, the election in 1892 being invalid there was in 1893 a vacancy for two years to which the defendant was properly elected.

It seems to have been conceded at the trial that the failure of the commissioners in 1890 to take the oath prescribed by the act of 1890, did not of itself vacate the offices they held. It was, however, loft to the jury as a question of fact, to say whether or not King, by what he did in 1890, and his subsequent conduct, abandoned the office he held in 1890, and the court charged that if the jury found such abandonment, then King, in 1892, was eligible, and so no vacancy in 1893 for two years for defendant to fill, and that if they did not find such abandonment, then the defendant was not guilty.

The court also charged, as to the force of the word “willful” in the statute, that its meaning “is that of intentional, not by inadvertence that “ if he (the defendant) intended to do what lie did do, then he did so willfully,” and the court refused to charge, upon the request of defendant, that if the defendant “ acted in good faith and believed he was excise commissioner in 1893, he was not guilty.” In the course of the trial the defendant offered to prove that at the time of his election he made investigation as to the question of the legality of the election, and took the advice of attorneys, and acted in good faith, believing he'was legally elected. This was excluded. _

Assuming that the question of abandonment was one for the jury to pass upon, was the court correct in its ruling on the subject of good faith, and the meaning to be given to the term “ willful ? ”

In Wass v. Stephens (128 N. Y. 123) the court says, in speaking of section 639 of the Penal Code which provides for the punishment of “ any person who willfully or maliciously displaces, removes, injures .or destroys,” among other things, any pipe or main for conducting water or gas; “ but the word willfully ’ in the statute means something more than a voluntary act, and more also than an intentional act, which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.” The same doctrine is asserted in Hewitt v. Newburger (141 N. Y. 538). In People v. Flack (125 id. 324), where the defendant was indicted under section 168 of the Penal Code for falsely instituting an action for divorce, it was held that a charge which in substance made the question of guilt to depend solely upon the intentional doing, of an unlawful act, was erroneous. It must also be found that there was a criminal intent. In People v. Stevens (109 N. Y. 159) the defendant was indicted, under section 467 of the Penal Code, for the offense of intrusion on lands. The statute does not in terms make the intent a material element of the offense. Still the court was of the opinion that if the defendant entered under a bona fide claim of right which he might reasonably believe entitled him to take possession, it would be a defense, and it was said that the existence of a criminal intent, as a necessary constituent of the offense, must be implied. It was, however, held that to sustain such a defense of entry in good faith, there must be some colorable ground for such a claim.

In the light of these authorities, we think the court erred in . excluding evidence of good faith, and in its charge upon the force to be given to the word “ willful.” In substance, the guilt of the defendant was made to depend solely upon the question of whether he was entitled to the office. The defendant was, we think, entitled to the benefit of the rule, laid down in the Stevens case, that if he entered under a bona fide claim of right which he might reasonably believe entitled him to take possession, it would be a defense. It cannot be properly said that there was no colorable ground for such a claim. King’s first term had not expired in 1892; he had not, as the court in effect held, forfeited or resigned the office, and the question of abandonment was in sufficient doubt to send it for determination to the jury. A majority of the electors evidently supposed that the position of defendant was correct.

It follows that the judgment should be reversed, and a new trial ordered.

Hardin, P. J., and Martin, J., concurred.

Judgment and order reversed and a new trial ordered, and the clerk directed to enter judgment and remit a certified copy thereof, with the return and decision of this court, to the Court of Sessions of Tompkins county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.


author: Mkrwin, J.:

text:
    Charles D. Clark, Respondent, v. James H. Costello, Appellant.

      Trover — the possession of the chattel under a pledge is a defense thereto — a delivery is necesso/ry — what delivery is sufficient — consideration for an agreement to give up a lien on a chattel.

    At tlie time of the alleged conversion of a chattel the person who it was alleged had converted the same was in the possession thereof under a valid existing pledge, and the pledgor did not offer to pay any charges arising under such pledge against the same.
    ' Held, that such possession constituted a defense to an action in trover.
    To constitute a valid pledge there must be a delivery of the chattel to the pledgee, but what will amount to a delivery depends upon the particular circumstances of each case. It is sufficient if there were any of those acts or circumstances which, in the construction of law, are deemed sufficient to pass the possession of the property, and such possession may be according to the nature of the subject.
    If the pledgee has the thing already in his possession, as by a deposit or a loan, then the very contract transfers to him, by operation of law, a virtual possession thereof as a pledge the moment the contract is entered into.
    A delivery subsequent to the contract may also be effectual, and one of the two joint owners of a chattel, both being in possession, may pledge his share to the other joint owner, and the latter, by continuing in possession and control, will have a valid pledge.
    An agreement to give up a lien on a chattel, in order to be obligatory, must be based on a legal consideration, and a lien created by contract is not discharged by permitting the general owner to take possession of the property if it may be done consistently with the contract, the course of business and the intention of the parties.
    Appeal by tlie defendant, James H. Costello, from a judgment of tbn Supreme Court in favor of tlie plaintiff, entered in the office of tlie clerk of tlie county of Oliemung on tlie 7 th day of August, 1893, upon tlie report of a referee.

      Alexander C. Eustace and Joseph P. Eustace, for the appellant.

      Reynolds, Stmvahfield (& Collin, for the respondent.
   Mkrwin, J.:

The plaintiff in his complaint in this case alleges that he was the owner and lawfully possessed of a sewer excavating machine of the value of $2,200 ; that on or about November 15,1888, at East Saginaw, Mich., the defendant wrongfully took possession of it and caused it to be conveyed to Amsterdam, N. Y., and there unlawfully converted it to his own use; that plaintiff demanded possession, which the defendant refused. In the answer, besides a general denial, it is alleged that the firm of Costello, Neagle & Co., of which defendant was a member, were in possession of the machine under a partnership arrangement between the said firm and the plaintiff in the business of. constructing a sewer at East Saginaw; that under this arrangement the plaintiff agreed to contribute to the co-partnership business the use of the machine, pay the expepse of keeping it in repair and also pay one-quarter of the loss, if any, in the business, and that the said firm should retain possession of the machine and hold it as security for the payment by plaintiff of such share of the losses and for any moneys the firm expended for repairs; that there was a loss in the business, of which plaintiff’s share was about $250,. and that the firm also, at the request of the plaintiff, made extensive repairs on the machine, none of which the plaintiff has paid, and that the machine is in their possession as security for the same.

The proof shows that the machine was used at East Saginaw in the business referred to, which was completed about November 1, 1888, at a loss of about $1,000, and that defendant’s firm paid for repairs on the machine about the sum of $141. At the close of the work the machine was, with the consent of plaintiff, removed by the defendant’s firm to Amsterdam, N. Y. While it was there and under the control of the defendant, who was there acting for his firm, the plaintiff, on the 7th of December, 1888, telegraphed to the defendant to ship the machine to him at Elmira, and the defendant replied: “ Will ship machine soon as Michigan matter is settled, not before.” This is relied on as a conversion by defendant.

The referee finds that there was an agreement between plaintiff and defendant’s firm by which the latter should have a lien upon the machine to secure to them the payment by the plaintiff of any sums which they might be obliged to expend for repairs upon the machine and of his share of any losses which might occur from the prosecution of the East Saginaw work; that there were losses, and defendant’s firm expended moneys for repairs, and that plaintiff has not paid for such repairs or his share of the losses; that by virtue of the agreement above referred to, the defendant’s firm acquired an equitable lien on the machine, but that this did not give to the defendant’s firm or to tlie defendant tlie possession or the right of possession, and that at the time of the shipping of the machine to Amsterdam and at the time of the refusal of the defendant to ship it to Elmira at the request of plaintiff, the defendant or his firm had no right to the possession. The referee, therefore, ordered judgment for the plaintiff for the full value of the machine.

If, at the time of the alleged conversion, the defendant’s firm, or the defendant on behalf of his firm, was in possession under a valid existing pledge, it would be a defense to the action of trover as the plaintiff did not offer to pay any charges. (Everett v. Coffin, 6 Wend. 603, 608; 6 Wait Act. & Def. 147.)

To constitute a valid pledge there must be a delivery of the thing pledged to the pledgee, but what will amount to a delivery depends upon the circumstances of the case. It is sufficient if there are any of those acts or circumstances which, in construction of law, are deemed sufficient to jiass the possession of the property. (Story on Bailments, § 297.) The possession may be according to the nature of the subject. (Wilson v. Little, 2 N. Y. 443.) If the pledgee has the thing already in possession, as by deposit or a loan, then the very contract transfers to him, by operation of law, a virtual possession thereof as a pledge the moment the contract is completed. (Story on Bailments, § 297; Brown v. Warren, 43 N. H. 430.) A delivery subsequent to the contract may be effectual. (Parshall v. Eggert, 54 N. Y. 18.) One of two joint owners of a chattel, both being in possession, may pledge his share to the other joint owner, and lie, by continuing in possession and control, have a valid pledge. (18 Am. & Eng. Ency. of Law, 596, citing Thoms v. Southard, 2 Dana [Ky.], 475.)

The dealings between the plaintiff and the defendant’s firm in regard to the East Saginaw -work were initiated by a written agreement, by one of the provisions of which the plaintiff leased to the defendant’s firm the machine in question, “ which machine the said firm is to use in the excavation of a certain sewer,” etc. The plaintiff agreéd to accept as full payment “ for the use of said machine as aforesaid one-quarter of the net profits accruing to said firm of Costello, Neagle & Co. from the prosecution and completion of said sewer.” If the work did not prove profitable, then plaintiff agreed to pay the firm one-quarter of the loss “ sustained by said firm” in the work. It was also agreed that the capital necessary for the prosecution of the work should be furnished three-quarters by the defendant’s firm and one-quarter by the plaintiff, the amount to be mutually agreed upon thereafter. After this agreement was made a question arose between the parties as to the repairs to the machine and the security the defendant’s' firm would have for the payment of the plaintiff’s share of the loss, and, as the referee in substance finds, the defendant’s firm, by virtue of the rights reserved to them in the last clause of their contract, refused to undertake the execution of the work unless the plaintiff would secure to them the payment of his share of any loss that might accrue. Thereupon an agreement -for a lien was made, as found by the referee. The machine was then taken to East Saginaw and the work undertaken. The business was evidently carried on in the name of the defendant’s firm. The plaintiff was there superintending the work of the machine. The defendant’s firm or their agent was also there. The referee has in effect found that the defendant’s firm was never in possession under the agreement that they should have a lien. This' finding is, I think, agaiust the weight of the evidence. Assuming the existence of the agreement for a lien, as the referee finds it, it follows almost necessarily that the possession of the defendant’s firm was in part under it. Under the written agreement, which was never abrogated, the defendant’s firm were in form lessees. This was supplemented by the arrangement for a lien, and then both agreements were carried out together. True, the plaintiff was there, but his possession, whatever it was, was subservient to the rights of the defendant’s firm. Under the evidence it should, I think, have been held that the defendant’s firm had a valid pledge.

The question then arises whether they have ever released or waived it. It is not found that they have, but there are some facts that it may be claimed look in that direction. The transfer to Amsterdam did not affect it, as that was with the assent of plaintiff. The defendant told plaintiff, while the machine was at Amsterdam, that if he, plaintiff, wanted the machine to go and get it. This, however, involved the payment by the plaintiff of the freight, and plaintiff did not accept the offer. The referee finds that the defendant promised the plaintiff to ship the machine from Amsterdam to the plaintiff at Elmira. Assuming this to be sustained by the evidence, it would not necessarily follow that there was a waiver of the lien. It has been.held that an agreement to give up a lien, in order to be obligatory, must be based on a legal consideration. (Danforth v. Pratt, 42 Maine, 50; 1 Jones on Liens, § 999.) ,80 it is said that a lien created by contract is not discharged by permitting the general owner to take possession of the property, if it may be done consistently with the contract, the course of business and the intention of the jiarties. (1 Jones on Liens, § 998.)

In Allen v. Spencer (I Edm. 117) it is said that, “ as between the owner and the holder of the lien possession is by no means essential, except when, by surrendering the possession, the claimant can be fairly understood to have surrendered his lien, and then the question is not whether he has yielded his possession, but has he voluntarily surrendered his lien.”

In the present case the possession was not in fact surrendered, and it should not, I think, be held that the defendant or his firm have waived or released their lien, or are estopped from claiming its benefit.

The foregoing considerations lead to the conclusion that the judgment against the defendant for the value of the machine was not right and should be reversed.

Hardin, P. J., and Martin, J., concurred.

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


text:
    Iva Manwarren, Respondent, v. Mary J. Mason, Appellant.

      Husband a/nd wife — alienation of the husband’s affections■ — action by the wife, when maintainable — decimations of the husband and his conversations with his wife inadmissible.

    A wife may maintain an action to recover damages against one who has enticed her husband from her, alienated his affections and deprived her of his society.
    Upon the trial of such an action the declarations of the plaintiff’s husband, and conversations between him and the plaintiff before and after the commencement of the action, are inadmissible in evidence; and if they are received in evidence over the defendant’s objection, it cannot be said that they may not have had a potential influence upon the jury in inducing it to render its verdict in favor of the plaintiff.

      Appeal by tbe defendant, Mary J. Mason, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 27th day of November, 1893, upon the verdict of a jury, rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 25th day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal said judgment and order.
    The action was brought to recover damages for the alleged alienation of the affections of the plaintiff’s husband, George W. Man-warren. The defense was a general denial.
    In the amended complaint of the plaintiff it is alleged that the defendant, “ wrongfully and unjustly intending to injure the said plaintiff, and to deprive her of the comfort, fellowship and assistance of George W. Manwarren, her husband, knowing him to be the husband of the said plaintiff, and to alienate and destroy his affections for her, the said plaintiff, heretofore and during the month of June, 1892, and at divers times prior and since said time, wrongfully, wickedly and unjustly enticed him away from the plaintiff and his then home and the home of the plaintiff, to the residence of the defendant, and has ever since then harbored him against the consent of the plaintiff,” etc. The answer also contained an admission of the plaintiff’s intermarriage with her husband July 12,1874, and a denial of the other allegations of the complaint.
    The parties resided in the village of Baldwinsville. The defendant was of the age of forty-six years and the widow of Dr. Mason, her husband having died on the 29th of February, 1891, leaving two sons, one eight and the other nineteen years of age. The husband of the plaintiff became a successor to the business carried on by the deceased husband of the defendant.

      Kennedy & Ross, for the appellant.

      James R. Shea, for the respondent.
   Hardin, P. J.:

According to the decision made by this court in Bennett v. Bennett (affd., 116 N. Y. 584), the plaintiff is entitled to maintain an action against one who has enticed her husband from her, alienated his affections and deprived her of his society.

In Jaynes v. Jaynes (39 Hun, 40) it was held “ that a wife has a right to the conjugal society of her husband, for the willful violation of which by a third person she may maintain an action in her own name.”

After a careful perusal of the evidence we are of the opinion that it was the duty of the trial judge to submit the question of fact to the jury, and that he was warranted in refusing at the close of the trial to set aside the verdict as against the evidence. Although the defendant as a witness contradicted many of the facts and circumstances which were sworn to by the plaintiff and her witnesses, we think, notwithstanding the conflict thus presented, that the trial judge was warranted in refusing to hold that the verdict was against the weight of the evidence.

(2) In Winsmore v. Greenbank (Willes, 577), decided in 1745, which was an action brought by a husband for enticing away his wife, it was held that “ the declarations of the wife not admissible in evidence ” in such an action.

In Boues v. Steffens (16 N. Y. Supp. 819), in a similar action, it was held that it was error to allow the plaintiff “ to prove that he made complaints to other parties in the absence of defendantand it was also held that the error must have been injurious to the defendant, and the verdict there rendered was set aside.

In Erben v. Lorillard (19 N. Y. 299) it was held that a declaration of the plaintiff, while carrying on a conversation in respect to the purchase of land, as to his compensation, was not admissible as part of the res gestee.

In Stickney v. Billings (30 Hun, 304) it was held that declarations made by a plaintiff to his attorney in the absence of the defendants were not admissible; they were no part of the res gestee of any transaction had then and there with the defendants.”

Upon the trial now under review the trial judge suffered the declarations of the husband of the plaintiff to be received, and conversations held by the plaintiff with him both before and after the commencement of the action. Such rulings received in evidence declarations which may have had a potential influence upon the jury in determining the critical issue arising in the progress of the trial. We are not at liberty, upon an inspection of the whole case, to say that the illegal testimony could not possibly have influenced the jury or affected the result. (Root v. Borst, 142 N. Y. 62; Stickney v. Billings, 30 Hun, 304 and cases cited in the opinion.)

(3) It may well be doubted whether the letter which was written by the plaintiff’s husband to her and offered in evidence by the plaintiff was admissible. (Hobby v. Hobby, 64 Barb. 277.) It was' a declaration made by the plaintiff’s husband in the absence o.f the defendant, and formed no part of any transaction had between the plaintiff and the defendant. ¥e think there should be a new trial.

Martin and Merwin, JJ., concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event.


author: Martin, J.:

text:
    The Farmers’ National Bank of Adams, Respondent, v. Sanford S. Thomas and Another, Appellants.

      Blanks left in a note■ — implied authority to fill in the same■ — ■extent of such authority — presumption that a transaction was varied without consent — material change in a note.

    The delivery of a note or written contract, with Wanks in it, authorizes the receiver and his transferees to fill in the blanks in the way agreed upon or contemplated by the maker. Such authority is derived wholly from the implied agency created by the maker’s delivering the paper with Wanks therein, extends only to cases where a blank has been left in the instrument, and does not include any authority to make additions.
    A person who signs and delivers a note in blank, to be used as security, authorizes the holder to fill in the blanks so far as may be essential to make the note complete. The date, the amount, the name of the payee, the time and place of payment, may all be inserted in their appropriate places where they are left blank, but such authority extends only to cases where a blank is left in the body of the note so as to indicate that something should be supplied which is necessary to make the note operate as was intended.
    In the absence of an express agreement, no authority can be implied from the delivery of a note to insert therein anything not necessary to the completion of the note in accordance with its form when delivered, and nothing can be inserted or added which would vary or alter its material terms or be repugnant to what was expressed in the instrument when delivered.

      By the delivery of a note in blank indorsed by the person delivering the same, no implied authority is given to the person to whom the same was delivered to fill in such note the words “with interest,” when there is no blank left therefor, or to write in the blank preceding the words “after date,” the words “on demand.”
    A change of a note from a time note without interest to a demand note with interest, is a material alteration therein, which, in the absence of authority in the person maidng such change to do so, will release the indorser thereof from liability thereunder.
    Where one, whose rights are to be varied by a transaction, was not present when it was consummated, it is to be presumed, in the absence of other evidence, that it was done without his consent.
    Appeal by the defendants, Sanford S. Thomas and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 24th day of January, 1893, upon the report of a referee.

      L&vi H. Brown, for appellant W. H. Seward Thomas.

      L. E. Prwyne and Watson M. Pogers, for the respondent.
   Martin, J.:

This action was brought to recover the amount secured by twelve promissory notes made by the defendant Sanford' S. Thomas, and claimed to have been indorsed by the defendant ~W. 'H. Seward Thomas, aggregating the sum of $17,000, besides interest. The principal defense was that the notes in suit were indorsed by Seward before they were either signed by Sanford, or the date, time they were to run, the name of the payee, or the amount, were inserted therein; and that* when they were delivered to the plaintiff they had been filled out by Sanford, or the plaintiff’s cashier, in a manner wholly unauthorized, .to the knowledge of the plaintiff, and, therefore, that they were void as against the defendant Seward.

Before each of the notes in suit was given, the defendant SeWard indorsed and delivered to Sanford a blank thereof, which was as follows:

$........Adams, N. Y.,........, 18...
after date,____promise to pay to the order of ..... ,............dollars at the Farmers’ National Bank, Adams, N. Y., value received.
“No....., due

These were subsequently filled out by the defendant Sanford, or the cashier of the plaintiff for him, so as to make them payable on demand, instead of at a specified time aftpr date, and by adding either the words “with use” or “with interest.” They were indorsed by Seward for the accommodation of Sanford to enable him to fill them up and procure them to be discounted at the plaintiff’s bank. They were taken by the plaintiff for a valuable consideration, but with a knowledge that Seward was an accommodation indorser, and of the change made in the form of the notes. When such indorsements were made by Seward, there was no express agreement between him and Sanford, or any direction by him to Sanford, as to when the notes should be used, the amounts for which they should be given, the time within which they should be made payable, or whether the same should be made payable on demand or with or without interest. Many times, prior to indorsing the blanks upon which the notes in suit were written, Seward had indorsed blank notes for the defendant Sanford as the notes in suit were indorsed. All of those notes had been made payable at specified times after date, usually about three months, and without interest. When the first note in suit was filled up, the plaintiff’s cashier told Sanford that the notes might be made payable on demand, if he desired, so they would not be going to protest, and that the bank would charge interest on them every three or six months. The change in the form of the notes, indorsed by the defendant Seward for the accommodation of Sanford from time notes without interest to demand notes with interest, was made without consultation with Seward and without his knowledge or consent.

The single question presented upon this branch of the case is whether Sanford had authority to change the form of tire’ notes indorsed by Seward from time notes without interest to notes payable on demand with interest. If he did not possess that authority then the plaintiff’s judgment cannot be upheld. As he had no express authority to make such change, it follows that the only authority he had was such as was to be implied from the fact that blanks were left in the form of the notes indorsed.

The leaving of blanks in a note or written contract, and delivering it, creates an agency in the receiver and his transferees to fill the blanks in the way agreed upon or contemplated by the maker. That authority is derived wholly from the implied agency, created by the maker’s delivering the paper with blanks therein, extends only to cases where a blank has been left in the instrument, and does not include any authority to make additions. The general principle seems to be that a person who signs and delivers a note in blank, to^ be used as security, authorizes the holder to fill in the blanks so far as is essential to make the note complete. The date, the amount, the name of the payee, the time and place of payment, may all be inserted in their appropriate places where they are left blank. This authority, however, extends only to cases where a blank was so left in the body of the note as to indicate that something was necessary to be supplied to make the note operate as the note for which it was intended. But in the absence of an express agreement, no authority can be implied from the delivery to insert anything not necessary to the completion of the note in accordance with the form when delivered, and nothing can be inserted or added which would vary or alter its material terms, or be repugnant to what was expressed in the instrument when delivered. (Weyerhauser v. Dun, 100 N. Y. 150; National Ulster County Bank v. Madden, 41 Hun, 113; S. C., 114 N. Y. 280; McGrath v. Clark, 56 id. 34; Reeves v. Pierson, 23 Hun, 185; Angle v. N. W. Mut. L. Ins. Co., 92 U. S. 330; Tiedeman on Com. Paper; § 283.)

In Weyerhauser v. Dun (100 N. Y. 150, 155) Finch, J., said: “ The general doctrine appears to be that one who signs and delivers a note in blank, to be used as a security, authorizes the holder to fill the blanks in respects essential to the completeness of the note as a note. The transaction implies that the indorser meant to become liable as such upon a completed and perfected note, and so far as the same is, at the time of his signature, an incomplete and imperfect instrument, he must be held to have authorized the filling of such blanks by the agent intrusted with the note for use. The date, the amount, the name of the payee and place of payment may be inserted in their appropriate blanks. (Page v. Morrell, 3 Keyes, 117; Van Duzer v. Howe, 21 N. Y. 531; Kitchen v. Place, 41 Barb. 465; Angle v. N. W. M. L. Ins. Co., 92 U. S. 339.) But in all the cases cited there was a blank so left in the body of the note as to indicate to the eye of the indorser, when it left his hand, that something needed to be supplied which was necessary to be inserted to make the instrument operate as the note for which it was intended. The form of the note in question, as signed by the indorsers, gave no indication that it was to draw interest at all, and left no blank for that purpose. At its commencement, in the place usually occupied by a date, a blank was left between the word £ Indianapolis5 and the figures £ 1875,’ which the indorser would expect and so authorize to be filled by completing the imperfect date. Another blank existed at the beginning of the note before the words £ after date.’ The length of time the note should run before maturity was here indicated and properly filled by inserting the words £ four months.’ The printed form ran on in the usual way until a remaining blank was left between the words £ to the order of ’ and the word £ dollars,’ which ended the body of the note. The words £ to the order of ’ indicated and so authorized the insertion of the name of the payee, and the word £ dollars ’ permitted the prefix in the blank of the principal sum to be paid. In that blank and between those printed words nothing else was indicated or authorized. Nothing else can be said to have been within the intention or expectation of Griggs, or within his authority, he standing as a mere accommodation indorser, and ignorant of the particular purpose or precise debt to which the completed note was to be applied. To go further than that would be to break down prudent barriers and reach beyond any reasonable inference to be derived from the presence of the blanks. In this case matter wholly foreign to the indicated words of completion, and needless for such completion, was inserted and crowded in for want of sufficient room. Such matter consisted of a special agreement that the note from and after its maturity should draw ten per cent interest. That was a material alteration of the note from its terms as authorized by the indorsement and delivery of Griggs. It was a stipulation in no manner essential or necessary to the note as a completed instrument. It altered the legal rule as to damages for a breach, looked to a new liability beyond the maturity of the contract, and imposed upon the indorser an added risk and burden, which nothing in the record shows that he ever contemplated or deemed possible. ~We think the courts below were right in saying that the alteration was material, and discharged the indorser not authorizing or ratifying it.” The Weyerhauser case was followed in National Ulster County Bank v. Madden (41 Hun, 113), and the court there said: “ The maker or indorser who delivers his note or cheek to a third party does not thereby authorize him to fill existing blanks therein unless it is obvious that such blanks must be filled to make the note or check operate as the instrument for which it was intended.” This case was reversed (114 N. Y. 280), but upon this question it was held that the alteration was a material one, and having been made after the defendant’s indorsement, and without his consent, it presumptively required the conclusion that the checks so altered were invalid as dgainst the indorser; that the presumption in such a case is that it was so made as to vitiate it, and the burden is with the party seeking to make an altered instrument the basis of recovery to relieve it from the effect of the unauthorized alteration.

In McGrath v. Clark (56 N. Y. 34) the defendant indorsed a promissory note, the blank upon which it was written being like the blanks in this case except that the place of payment was blank, and the date and amount were inserted, thus leaving the time and place of payment blank, and delivered the same to the maker, who filled the blanks and added the words “with interest.” In an action against the indorser it was held that while the delivery of the note to the maker gave him an implied authority to fill the blanks by inserting any time and place of payment he chose, it did not authorize the addition of the words “ with interest,” and that this was a material alteration which invalidated the note as against the defendant, in the absence of proof of some authority therefor aside from the delivery. The doctrine of that case was followed in Reeves v. Pierson (23 Hun, 185).

In Angle v. N. W. Mutual Life Ins. Co. (92 U. S. 330), in delivering the opinion in that case Mr. Justice Clifford said: Persons dealing with an agent are entitled to the same protection as if dealing with the principal, to the extent that the agent acts within the scope of his authority. Pursuant to that rule it is settled law that where a party to a negotiable instrument intrusts it to another for use as such, with blanks not filled up, such instrument so delivered carries on its face an implied authority to complete the same by filling up the blanks; but the authority implied from the existence of the blanks would not authorize the person intrusted with the instrument to vary or alter the material terms of the instrument by erasing what is written or printed as part of the same, nor to pervert the scope and meaning of the same by filling the blanks with stipulations repugnant to what was plainly and clearly expressed in the instrument before it was so delivered. By virtue of the implied authority such a depositary may perfect, in his discretion, what is incomplete, by filling the blanks ; but he may not make a new instrument by erasing what is written or printed, nor by filling the blanks with stipulations repugnant to the plainly expressed intention of the same as shown by its written or printed terms. (Goodman v. Simonds, 20 How. [U. S.] 361; Bank v. Neal, 22 id. 108.) ” In Tiedeman on Com. Paper, § 283, it is said : “ But in every case where the maker is held to be bound to the bona fide holder on an instrument filled up by an agent in violation of instructions, it will be found that the additions or insertions made by the agent are in conformity with the apparent character and object of tbe blank. A bona fide holder cannot recover on an instrument containing unusual provisions which conflict with the ordinary parts of like instruments, or which are repugnant to its object. Indeed, the holder of such an instrument cannot properly be called a bona fide holder; for a holder is charged with every inconsistency or defect appearing on the face of the instrument.” Where one whose rights are to be varied by a transaction was not present when it was consummated, it is to be presumed, in the absence of other evidence, that it was done without his consent. (McNulty v. Hurd, 86 N. Y. 547.)

The form of the blank notes indorsed clearly evinces that they were intended to be filled out and used as bank notes only; that the holder was authorized to insert therein a specified time after date for their payment; that they were to be used by being discounted at the bank, and that they were not to be so drawn as to become a continuing security for the debt of the maker with interest. This not only appears from the form of the note, in which there was no blank for the words “ with interest,” and in which the blank preceding the words “ after date ” plainly indicated that a specified time was to be inserted, but it also appeal's from the course of dealing between the parties which had existed for several years before the notes in suit were given. It is quite obvious that the plaintiff, through its cashier, must have known and understood when these notes were taken that such was the purpose and intent of the indorsement, and that the unusual and inconsistent form of the notes as filled out was not within the implied power's given by the delivezy of the notes in blank. I think it is manifest that, while the holder of these notes had implied authority to make them payable at any specified time or for any specified amount he saw fit, he had no authority to make them payable on demand and with interest. The indorser could not have contemplated the making of such notes when he indorsed the blanks upon which they were written, as the form was that of a time note without interest. The change of the notes from time notes without interest to demand notes with interest, was repugnant to the plain intention as expressed by the printed form of the notes.

It cannot be said that this was not a material change. In the time note the extent of the indoz’ser’s liability would he measured by the amount inserted when the note was made. It would become due at a specified time, and if not paid, the indorser would be entitled to notice of its non-payment and protest. When changed to a note payable on demand with interest, it became a continuing security for the amount of the note and interest. On such a note the indorser’s liability would be measured neither by any definite time, nor definite amount. He would remain liable until an actual demand was made. If kept alive as to the maker, it might remain unpaid, and the indorser’s liability continue until the interest equaled or even exceeded the principal debt, and the Statute of Limitations would be no bar to an action thereon. (Shutts v. Fingar, 100 N. Y. 539.) That any such added burden or i-isk was contemplated by the indorser, or that any authority to create such liability was to be implied from the indorsement of these notes in the form in which they existed, cannot, I think, be properly maintained.

I am of the opinion that neither the maker nor the holder of' these notes had any authority, either expi'ess or implied, to so alter them as to make them payable on demand with interest, and that the act of so altering or filling them out was unauthorized, and as. the facts were known to the plaintiff’s cashier, the notes were void as to the defendant Seward Thomas, and the plaintiff was not entitled to recover thereon as against him.

This conclusion renders it unnecessary to consider the other questions discussed by counsel in their briefs.

Judgment as to W. IT. Seward Thomas must be reversed and a new trial granted, witli costs to abide the event, and as to Sanford S. Thomas, judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment as to "W. H. Seward Thomas reversed and a new trial granted, with costs to abide the event, and as to Sanford S. Thomas, judgment affirmed, with costs.


text:
    James Radley, Respondent, v. Richard T. Connell, Appellant.

      Action brought for an accounting — what maybe slwwn in answer to a defense of settlement.

    In an action brought for an accounting on the theory that there is an open, unadjusted account between the parties, where a defense is interposed that there had been a valid and binding settlement of the account, the plaintiff, to avoid such settlement, is entitled to prove not only that no settlement was made, but also that the pretended settlement was fraudulent, incorrect and made under a mutual mistake, or any other fact that would show that it was invalid.
    Appeal by the defendant, Richard T. Connell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 28th day of November, 1893, upon the report of a referee.

      JV. F. Breen, for the appellant.

      Rogers <& Atwell, for the respondent.
   Martin, J.:

This was an action for an accounting between the parties. There had been dealings between them prior to November 8,1889. Upon that day they had a settlement, and the plaintiff gave the defendant his note for $1,280.32, the amount claimed by the defendant to be due hirrq and executed and delivered to him a chattel mortgage to secure tbe payment of such note. At tbe time the note and mortgage were given, the plaintiff was a tenant of the defendant, and they were given as security for the rent due from the plaintiff to the defendant at that date.

From that time until November 15, 1892, the plaintiff continued to occupy under the defendant a farm or farms, working it or them on sisares. Between November 8, 1889, and November 15, 1892, a mutual account arose between the parties. During that time the defendant advanced and paid various sums of money for, and delivered various articles of property to, the plaintiff. During the same time the plaintiff delivered to the defendant, or to others by his order, substantially all the produce raised upon such farm or farms, a large amount of hay, straw, grain and other produce which was his individual property, performed labor and services for the defendant, and made various payments to him in cash.

On January 14, 1893, the defendant obtained from the plaintiff another chattel mortgage, in which it was stated that it was given as additional security for the payment of the debt secured by the note and mortgage given November 8, 1889. At the commencement of this action the defendant was about to foreclose such mortgages and sell the property for the payment of the amount of such note and interest. The defendant claimed at that time that the whole amount of the note, with interest from its date, was still due and unpaid, while the plaintiff claimed that the amount due the defendant was much less.

Upon the trial the referee found that the note for $1,280.32 and the mortgage first mentioned were given November 8, 1889, and that a mutual account subsequently existed between the parties. He then stated the account between them, and found that there was 'due from the plaintiff to the defendant only the sum of $748.83, including the amount secured by such note and chattel mortgages. He also found that the second mortgagejjwas procured by the fraud of the defendant, was without consideration and void, and held that the plaintiff was entitled to a judgment adjudging: (1) That the amount of the plaintiff’s indebtedness to the defendant was only the sum of $748.83, with interest from December 31, 1892; (2) that the chattel mortgage of November 8, 1889, should be enforced against the plaintiff for only that amount; (3) that the other chattel mortgage was procured by fraud, was without consideration and void, and that the defendant acquired no lien upon the plaintiff’s property by reason thereof; and (4) that the plaintiff should recover costs against the defendant.

The question principally litigated on the trial was whether there was a settlement between the parties on December 31, 1892. That the parties met on that day and attempted to adjust their accounts is undisputed. The defendant insists that a settlement was perfected. He claims that there was found due him the sum of about sixty dollars over and above the amount secured by such note, and that there was an agreement between the parties that the defendant would not require the payment of the sixty dollars thus due if the plaintiff would pay the amount secured by the note, which he agreed to do, and thus settle the accounts between them.

The plaintiff, while admitting that the account existing between the parties was considered by them at that time, that the defendant on that occasion claimed to figure up the accounts between them, and said that the plaintiff owed him about sixty dollars in addition to the amount of the note and interest, yet denied that he agreed to such settlement. He insists that being unable to read writing or to figure, he could not determine the correctness of the statement made by the defendant, and that he did not agree to the correctness of the account as figured or stated by him.

Upon this question the referee found that the plaintiff and defendant attempted to settle on that day; that after a statement of the account made by the defendant at that time and set forth in the findings of the referee, the defendant informed the plaintiff that there was due and owing him more than sixty-two dollars over and above the amount due upon the note, which then amounted to $1,519.70 ; that the plaintiff demurred to this claim, expressed great surprise at the amount, and insisted that he did not owe the defendant that sum ; that at the time of such attempted settlement the parties did not stand upon an equality, as the defendant was a man of large experience in business affairs, apparently well educated, had been a party to many controversies and litigations, while the plaintiff was a man of little business experience, unable to write except his name, or read writing, possessed little or no education, and was unable to make a computation of the account; that all the figures and computations made on tlie occasion were made by tbe defendant; that the statement of the account in the defendant’s handwriting made at that time shows that the amount of the plaintiff’s indebtedness to the defendant was then only $977.38, and that the account even as made up by the defendant was incorrect; that there was actually owing by the plaintiff -to the defendant only the sum of $748.83, and that the defendant knew that the plaintiff’s indebtedness to him did not exceed the sum of $977.38. The referee likewise found that on the attempted settlement the defendant prepared and caused to be signed by the plaintiff a memorandum as follows : December 31, 1892. Settled with James Radley, due me the amount of note dated Nov. 8, 1889, to balance ac. (Signed.) James Radley;” that the plaintiff was unable to read the memorandum signed by him; that the contents were not fully explained to him by the defendant, and that the plaintiff signed the memorandum believing it to be a receipt for the vouchers and evidences of debt delivered to him by the defendant.

While there was a conflict in the evidence upon this question, still' the plaintiff’s evidence was sufficient to sustain the findings of the referee. Upon the facts as found, it is apparent that there was no binding settlement, and that there was no such, statement of the accounts as would prevent the plaintiff from having the dealings between the parties properly and correctly settled. This has been, done by the referee, and we think his findings and the judgment entered thereon should be upheld.

We have examined the various exceptions to which oirr attention has been called, to the rulings of the referee in the admission or, rejection of evidence, but have found none that require a reversal of the, judgment.

After the close of the evidence,, the plaintiff’s attorney moved to amend the complaint by setting up fraud on the part of the defendant, a mutual mistake in the attempted settlement, and by setting forth, certain erroneous charges made by the defendant on such settlement. This amendment was. objected to,'the objection was overruled, and the defendant excepted. We discover nothing in this ruling which would require us to interfere with the judgment. If it be assumed, that the amendment was not properly allowed, still, it could .in no way have injured the .defendant. The plaintiff’s action was not on an account stated, but for an accounting on the theory that there was an open and unadjusted account between the parties. The defense, so far as this question is involved, was that •there had been a valid and binding settlement between them. The plaintiff to avoid such settlement was entitled to prove that no settlement was made, and that the pretended settlement was fraudulent, incorrect, and made under a mutual mistake by the parties, or any other fact that would show that it was invalid. Hence, the evidence given was admissible under the pleadings as they stood originally, and the amendment could not have harmed the defendant.

Note. — The rest of the cases of this term will he found in the next volume (80) Hun.— [Rep.

A full and careful consideration of the evidence in the case has led us to the conclusion that the' decision of the referee is fully sustained by the proof, that there are no exceptions requiring a reversal of the judgment, and that it should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


text:
    Annie M. Keating, Respondent, v. William B. Hayes, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Jennie T. A. Wright, Appellant, v. Consolidated Savings and Loan Association, Respondent.
   Judgment appealed from affirmed.


text:
    Charles S. Lamey, Respondent, v. Rochester Railway Company, Appellant.
   Judgment appealed from affirmed, with costs, on the opinion of the referee.


text:
    John W. Leehan, an Infant, by Guardian, etc., Respondent, v. The Lake Shore and Michigan Southern Railroad Company, Appellant.
   Judgment and order appealed from affirmed.


text:
    Henry H. Messersmith, Respondent, v. The Travelers’ Insurance Company, of Hartford, Conn., Appellant.
   Judgment appealed from affirmed.


author: Lewis. J.:

text:
    Edith M. Cleghorn, Appellant, v. Jennie Cleghorn and Others, Respondents.
   Interlocutory judgment and order appealed from affirmed, with costs, with leave to amend the complaint within twenty days on payment of the costs of the demurrer and of this appeal.—

Lewis. J.:

The decision of the court sustaining the demurrers was handed to the clerk and filed by him during the sitting of the court. The plaintiff, laboring under the erroneous impression that the decision had not been made and filed within twenty days after the final adjournment of the court, made a motion for that reason for a new trial, under section 1010 of the Code of Civil Procedure. Another alleged error upon which the plaintiff relied was that the court’s decision failed to state the grounds upon which the demurrers were sustained. It was, notwithstanding such omission, in proper form. (Eaton v. Wells, 82 N. Y. 576; Wood v. Lary. 124 id. 83.) The plaintiff's motions were properly denied. She also appeals from an interlocutory judgment which was entered upon the decision of the demurrers. The complaint is quite a remarkable one. It attempts to state a cause of action for partition as against some of the defendants; as to others it is an action in ejectment; as to others for an accounting as to the rents, issues and profits of real estate. It seeks to determine the rights in real estate, as between the plaintiff and some of the defendants, and again it seeks to remove alleged clouds upon the title to the land. It is quite clear that there is an improper joinder of causes of action None of the defendants appear to be interested in all of the causes of action stated in the complaint. The demurring defendants are each severally interested in out one of the several causes of action. We are inclined to the opinion that the complaint fails to state a cause of action against any of the defendants. The judgment and order appealed from should be affirmed, with costs of the appeal, but with leave to tne plaintiff to amend the complaint within twenty days upon payment of the costs of the demurrer and of this appeal.

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


text:
    Theodore Bacon and Others, Respondents, v. Belle N. Whitney and Others, Appellants.
   Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at Special Term.

Bradley, J., not sitting.


text:
    Sophia Quigley, Respondent, v. The City of Rochester, Appellant.
   Order granting new trial appealed from affirmed, with costs of this appeal to the respondent to abide the event.


text:
    Edmund C. Whitney and August Beck, as Sheriff, etc., Appellants, v. Joseph Davis and Others, Respondents.
   Judgment appealed from affirmed on the merits, with costs.


text:
    William M. Tisdal, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from affirmed.


text:
    Ann Amelia Sykes and Another, Executors, etc., of the Last Will and Testament of James Sykes, Deceased, Respondents, v. The Silver Lake Ice Company, Appellant.
   Judgment and order appealed from affirmed.

Bradley, J., not sitting.


text:
    Alice Harmon, by Guardian, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from reversed and new trial granted, costo to abide the event, unless within twenty days the respondent stipulates to reduce the recovery of damages to §4,000, in which caso the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.


text:
    The New York Central and Hudson River Railroad Company, Appellant, v. The Trustees of the Village of Canandaigua, Respondent.
   Judgment appealed from affirmed, with costs.