text:
    BEATTIE BURT, as Administratrix, Etc., Plaintiff v. ARNOLD LUSTIG, et al., Defendants.

      Undertaking on appeal, action upon. Assignee of the judgment appealed ■ from entitled to recover thereon after the judgment is affirmed.

    In January, 1885, Frederick A. Baldwin, and two others recovered judgment against Ira E. Doying and Thomas H. Beekman impleaded with Willet Bronson for $1,978.36, and in June, 1885, this judgment passed by assignment to William A. Davis. This judgment was affirmed on appeal to the general term, and judgment of affirmance entered March 4, 1SR6, with costs. On June 6, 1887, the two judgments were assigned by Davis to Alvin Burt. On October 12, 1889, the judgments were upon further appeal affirmed by the Court of Appeals with $122.75 costs. On the appeal to the Court of Appeals the defendants executed the undertaking (which is the subject of this action) whereby they undertook that in case of affirmance they would pay the judgments with all costs and damages upon the appeal. On the 27th of January, 1890, Alvin Burt, the assignee of the judgments, died, and on March 21, 1890, letters of administration issued to his widow, the plaintiff in this action, who seeks to recover the amount of the judgments, upon the undertaking.

      Held, that Alvin Burt became the owner of the judgments and of all securities for their payment, the latter as incidents following the principal debt assigned, and thereby he became entitled to continue the action for his own benefit in the names of the original plaintiffs, and for all practical purposes became the plaintiff although not appearing on the record. The defendants by the execution of the undertaking to the Court of Appeals, stayed the action and the collection of the judgments by the owner, Mr. Burt, which was an injury to him alone and not to the nominal plaintiffs of record, and the sureties on the undertaking (the defendants in this action) were bound to pay the judgments to him only as the lawful owner thereof. The right of action on the undertaking passed to Alvin Burt as the assignee, and it vested in his administratrix after his death.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Statement of the Case by the Court.
    On January 19, 1885, Frederick A. Baldwin and two others recovered a judgment against Ira E. Doying and Thomas H. Beekman, impleaded with Willet Bronson for §1,978.36. On June 5, 1885, the judgment passed by assignment to Wm. A. Davis. The judgment was affirmed upon appeal to the general term, and judgment of affirmance entered March 4, 1886, for §96.94 costs. On June 6, 1887, the two judgments were assigned by Davis to Alvin Burt. The assignment transfers the judgments and all sums of money that may be had by means thereof, or any proceedings to be had thereupon. On October 12, 1889, the judgments were upon further appeal affirmed by the Court of Appeals, with §122.75 costs. On January 27, 1890, Alvin Burt, the assignee of the judgments, died, and on March 21, 1890, letters of administration were issued to his widow, the plaintiff herein. The defendants executed the undertaking on the appeal to the Court of Appeals, and undertook that, in case of affirmance, they would pay the judgments, with all costs and damages upon the appeal. The action was upon the undertaking to recover the amount of the judgments appealed from, with the costs awarded. At the trial, the presiding judge directed the jury to find a verdict in favor of the plaintiff for $2,926.45, the amount claimed with interest, and ordered that the exceptions be heard in the first instance at general term. Application is now made for judgment.

      Clinton B. Gibbs, attorney, and J. F. Mosher of counsel, for plaintiff, argued:
    I. The objection that the plaintiff had shown no title at the close of her proof was not well taken. At the time of the commencement of the original action, the plaintiffs therein, Baldwin, Davis and Beam, were the sole parties in interest. So far as plaintiff’s proofs disclosed, they so continued until after the entry of judgment on the referee’s report; when, by their agreement of dissolution of partnership, all the right, title and interest of Baldwin and Beam became vested in Davis, who became the sole owner of the judgment and cause of action. It was not necessary that he should be made the sole plaintiff of record. The action was properly continued in the names of the original parties. Code Civ. Pro., § 756. Indeed, Davis could not have required, as of right, that he be made the sole plaintiff. Had he made a motion for that purpose, it w'ould be in the discretion of the court to grant or deny his motion. Ford v. David, 1 Bosw., 569, 600; Arnold v. Keyes, 37 Super Ct., 135; Senft v. Manhattan R. R. Co., 29 State Rep., 519; S. C., 57 Super. Ct., 418; Getty v.
      Spalding, 58 N. Y., 636. It follows that the rights of Davis were in no wise affected by the continuance of the action in the names of all the original plaintiffs. Davis remained the sole owner of the claim and judgments until after the entry of judgment of affirmance at general term, and after the execution by the defendants of the undertaking on appeal to the Court of Appeals, which forms the subject of the present action. At the time of the execution of that undertaking, Davis alone was entitled to its benefit. It was not, in terms, a contract made with any specified person or persons. The allegations of its contents and provisions in the complaint are admitted. The defendants undertook that the appellants would pay (without saying to whom) all costs and damages on appeal, not exceeding $500, and that if the judgments so appealed from, or any part thereof, were affirmed, or the appeal dismissed, the appellants would pay (again without saying to whom) the sum or sums recovered or directed to be paid by said judgments, etc. This language conformed strictly to the Code, §§ 1326, 1327. If the title of the action appeared on the undertaking, it was only by way of description of the cause in which it was given. The sureties on the undertaking were bound to pay only the lawful holder of the judgment, irrespective of its form or title. Wehle v. Spellman, 75 N. Y., 585, 586. The effect of the undertaking, unless it was void, was to stay the execution of the judgments. This was a loss to Davis alone, and not to Baldwin and Beam. See Snodgrass v. Krenkle, 49 How., 122. After the execution, approval and filing of the undertaking, and on June 6, 1887, Davis assigned the original judgment, and the judgment of affirmance, to Alvin Burt, plaintiff’s testator. The undertaking passed under this assignment, although not expressly mentioned, provided, of course, it belonged to Davis to assign. Wehle v. Spellman, supra; Code, §§ 1910, 1912. A bond or undertaking given in an action or special proceeding as prescribed in the Code, continues in force after the substitution of a new party in place of an original party, or any other change of parties ; and has thereafter the same force and effect, as if then given anew, in conformity to the change of parties. Code Civ. Pro., § 815. The broad language of this section covers both the case of a substitution on the record, and the case of a change without substitution. This section made no change in the law, but only declared what had been decided in Potter v. Van Vraken, 36 N. Y., 619, 630; Throop’s Code, § 815, note. In the case cited, after the execution of an undertaking for re-delivery of property replevied, the original plaintiff died, and his administrator was substituted as plaintiff, and one of the original defendants also died. It was held that the undertaking continued in force in favor of the administrator.
    II. The objection that the original judgment could not be satisfied of record upon a recovery by the plaintiff against the defendants, was not well taken, (a.) The assignment from Baldwin and Beam to Davis, and the assignment from Davis to Burt, if filed with the clerk of this court, would make such a “continuous change of title ” as would require the satisfaction of the judgment upon a certificate signed and acknowledged by plaintiff, as administrator of the owner of the judgment. Code, § 1260, subd. 2. (b.) There is nothing in the Code that requires the person entitled to enforce a judgment to record, or to have in form for recording, or to deliver upon payment of the judgment, any assignment, or any chain of successive assignments of the judgment to himself. All that he must do is to execute and acknowledge a satisfaction piece. Code, § 1261. If the judgment debtor will not pay, the owner of the judgment may proceed to execution, (c.) The defendants, as sureties, are not entitled to any assignment of the judgments as a condition precedent to payment by them. This was expressly decided by the general term of the Supreme Court in the Fourth Department, where sureties on appeal to the Court of Appeals tendered the amount due, and demanded such assignments before suit brought against them. Wadley v. Poucher, 29 State Rep., 622. Upon payment, sureties are, by law, and without express assignment, subrogated to all the rights and remedies of the holder of the judgment for its collection. Wehle v. Spellman, supra; Wadley v. Poucher, supra. They thus become the proper parties to execute a satisfaction piece.
    III. The objection that the plaintiff must exhaust her remedy against the judgment debtors before she can maintain this action was not well taken. Heebner v. Townsend, 8 Abb., 234; Wood v. Derrickson, 1 Hilt., 410; Johnson v. Ackerson, 3 Daly, 430; Staples v. Gokey, 34 Hun, 289, 290.

      John C. Shaw, attorney and of counsel, and Gratz Nathan of counsel, for defendants, argued :—
    I. The plaintiff did not show title to the cause of action set forth in the complaint, and the complaint should have been dismissed when the plaintiff rested. The plaintiff traces her title to the cause of action through the agreement dissolving the copartnership, executed by Baldwin, Davis & Beam, in which agreement the claims, demands, obligations and other assets of the firm were transferred to Davis. This agreement, dated June 5, 1885, does not refer to the judgment which had been theretofore recovered, to wit, on January 19, 1885. It of course could not refer to the general term judgment, which was not recovered until March 4, 1886, nearly a year thereafter; and, of course, it does not refer to the undertaking on appeal upon which this action was brought, which was not given until the 24th day of May, 1886. The assignment from Davis to Burt, dated June 6, 1887, does not refer to the undertaking on appeal now in suit, although the undertaking was given nearly a year prior to the date of said assignment. It is a familiar principle of law that an assignment of a principal debt carries with it all the collateral securities for such debt then in existence which the assignor holds at the time of assignment, and this principle would carry to an assignee of a judgment an undertaking which had theretofore been given to secure the payment of the judgment. This was decided in the case of Wehle v. Spellman,75 N. Y., 585. The court, on page 587, said : “ The judgment being the principal debt, the right to collect that necessarily included the right to enforce the collateral security.” This rule of law would undoubtedly carry title to the judgment theretofore entered in favor of Baldwin, Davis & Beam, against the judgment debtor Doying under the agreement of dissolution, dated June 5, 1885, although not mentioned in the agreement. But it could not carry title to the judgment of the general term thereafter recovered, to vyit, March 4, 1886, in favor of the three; nor to the undertaking on appeal to the Court of Appeals, being the one now in suit, upon which the present action was brought, thereafter given, to wit, on the 24th of May, 1886, by the defendants in the present action to the three by name, for the reason which will be hereafter more particularly stated when we come to consider section 815 of the Code. The undertaking in suit is a contract to which the present plaintiff is not a party; and, unless she can show a title to it through an assignment, express or by legal implication, from Baldwin, Beam & Davis, she cannot maintain the present action. This needs no citation of authority to support it, and as we have seen, there is no assignment by Baldwin and Beam to Davis of this undertaking; nor could there well have been, as it did not come into being—was not in existence—at the time of the dissolution of copartnership and the transfer of the assets by the two other members of the firm to Davis. Nor could it pass to him as a collateral security, incident to the assignment of the claim in suit, for the same reason, namely, that it was not in existence. There are several ways in which the accuracy or the fallacy of this proposition can he determined. First. It must be conceded that the present sureties are entitled upon the recovery of a judgment in this action to an assignment of the judgment of January 19, 1885, and the judgment of March 4, 1886, of the general term, and the judgment entered upon the remittitur of the Court of Appeals of October 12, 1889. As sureties paying the debt of their principal debtor, they are entitled to an assignment of these several judgments and whatever evidences of title the plaintiff in this action possesses, so as to enable them to enforce the judgment against the principal debtor, and unless the plaintiff is able to put them in this position she cannot maintain this action against the sureties. This was decided in the case abové referred to, in which the court says: “ The sureties on the undertaking were bound to pay only the lawful holder of the judgment, and on such payment were entitled to subrogation to all the rights and remedies of the holder of the judgment for its collection.” Welile v. Spellman, supra. One of the things that a judgment debtor is entitled to upon paying a judgment is a satisfaction thereof. A party paying a judgment is in an entirely different position from a party paying any other debt. A party paying an ordinary debt is not entitled to a receipt or a release. A party paying a mortgage is not entitled to a certificate of satisfaction. But a party paying a mortgage is not entitled to a certificate of satisfaction. But a party paying a judgment is absolutely entitled to a satisfaction thereof. Section 1261 of the Code provides expressly “ that the person entitled to enforce a judgment must execute and acknowledge before the proper officer a satisfaction piece thereof at the request of the judgment debtor, or of a person interested in the property bound by the judgment, upon presentation of a satisfaction piece and payment of the sum due upon the judgment and the fees allowed by law for taking the acknowledgment of a deed.” The statute, in other sections, contains very definite provisions as to how a judgment shall be satisfied where it has been assigned. Second. There are other provisions of the Code which bear upon this subject which are of great importance in determining the right of the plaintiff to maintain this action. Section 755 of the Code provides that an action does not abate by any event if the cause of action survives or continues. Section 756 provides that in case of a transfer of interest or a devolution of liability the action may be continued by or against the original party, unless the court directs the person to whom the interest is transferred, or upon whom, the liability is devolved, to be substituted in the action, or joined with the original party as the case requires; and sections 760 and 453 of the Code provide how this substitution of parties may be effected, either upon the application of the new party himself, or upon the application of existing parties to the action. In this connection section 815 of the Code is of vital importance in enabling us to arrive at a correct determination of this question. It provides that “ a bond or undertaking given in an action or special proceeding as prescribed by this act continues in force after the substitution of a new party in place of an original party, or any ■ other change of parties, and has thereafter the same force and effect as if then given anew in conformity to the change of parties.” This section was necessary in order to entitle the substituted party to the benefit of a security theretofore given in the action to which he had succeeded, and in which he had availed himself of the provisions of the Code heretofore referred to for substituting himself in place of the original party to the action. This section recognizes also the common law rule referred to above, that no one can maintain an action upon a bond or undertaking except the party for whose benefit the same had been given; and a prior bond or undertaking only becomes effectual by the provisions of this section in favor of the substituted party after his substitution in the action.
    II. The defendants have shown title to the cause of action in some one other than plaintiff.
    III. The undertaking in suit is void for want of consideration. It was very early held, and will not be disputed, that an undertaking on appeal would be void for want of consideration were it not that the statute itself furnishes a sufficient consideration to support it, and it has been held that if not made in conformity with the statute it cannot be enforced as against the parties who executed it. The statute certainly does not furnish any consideration for an undertaking given to a party to a suit who has transferred all his interest in the cause of action, or support it in favor of a person not a party to the undertaking itself, but only in favor of a party to the record at the time the undertaking was given. If this was not so, then section 815 with reference to undertakings theretofore given was nonsense—absolutely useless.
   By the Court.—McAdam, J.

Three results followed the assignment to Alvin Burt. First. He became the owner of the judgment, and of all securities for its payment, the latter as incidents following the principal, Thomas v. Hubbell, 35 N. Y., 120; Bowdoin v. Colman, 6 Duer, 182; Jackson v. Losee, 4 Sandf. Ch., 381; Morange v. Mudge, 6 Abb., 243; Campbell v. Birch, 60 N. Y., 214. Second. He became entitled to continue the action for his own benefit in the names of the original plaintiffs, Code, § 756; Bolen v. Crosby, 49 N. Y., 183. Third. He became liable for the costs as the party for whose benefit the action was thereafter prosecuted, Code § 3247. In other words, for all practical purposes the assignee became the plaintiff, although not so appearing on the record. The defendants, by executing the undertaking to the Court of Appeals, stayed its collection by the owner, Mr. Burt. This was an injury to him alone, and not to the nominal plaintiffs of record, Snodgrass v. Krenkle, 49 How., 122. The sureties on the undertaking were bound to pay only the lawful owner of the judgment, irrespective of form or title, Wehle v. Spellman, 75 N. Y., 585.

The right of action on the undertaking passed to Alvin Burt, as assignee, and it became vested in his administratrix after his death. The title of the administratrix was sufficiently proved. The general assignment made by T. Brooks & Company’s successors, offered in evidence by the defendants, was not pleaded by way of defence, nor did the defendants claim that the assignee named therein made any claim to the moneys demanded or was a necessary party to the action.. The judgment was recovered by the plaintiffs several months after the general assignment was made, and its admission at the trial proved nothing germane to the issues to. be there determined. The verdict was properly directed, and the exceptions taken are without merit. It follows that the exceptions must be overruled, and the plaintiff permitted to enter judgment on the verdict, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.


source: Caselaw Access Project

author: By the Court.—McAdam, J.

license: Public Domain

text:
    WINFIELD WATERS, Appellant v. SIEGMUND HARRIS, Respondent.

      Partnership, general and limited, and partners therein, general and special—Dissolution of partnership.

    The partnership existing between the defendant Siegmund Harris and Albert Hirsch was dissolved March 2, 1885. The debt now attempted to be enforced by the plaintiff against the defendant, was contracted by Albert Hirsch May 28, 1885, nearly three months after the dissolution. The partnership between Hirsch and Harris was a limited partnership formed under the statute, Hirsch being the general and Harris the special partner. The plaintiff claims to recover of the defendant because of some failure of the partners to comply with the statutory requirements whereby Harris the defendant became a general partner and liable as such. On January 28, 1885, Hirsch and Harris executed an agreement providing that the existing limited partnership between them be dissolved, the dissolution to become effectual as soon as the publication required by law was completed. On the same day (January 28,1885), Hirsch gave Harris three notes, each for $5,000, as a repayment to Harris,-of his contribution of special capital, but said notes have never been paid. The publication of the notice of dissolution of the limited partnership, contemplated by the agreement and required by law, was completed on March 2, 1885.

      Held, that the partnership relations between Hirsch and Harris were effectually terminated on the latter date. The claim of the plaintiff that the relations of Hirsch and Harris under the limited partnership terminated January 28, 1885, by the withdrawal by Harris of his special capital, and that the partnership after that became a general one, overruled. That Harris withdrew nothing. He received a promise from Hirsch to return him $15,000, at a future date hut the promise was never performed, and this unperformed promise of Hirsch to Harris was neither a withdrawal, return or payment of special capital contributed. There is no question of equitable estoppel in the case, because it does not appear that Harris did any act or thing after the dissolution which made him liable as a partner to the plaintiff or to third persons generally. The debt in suit was contracted by Hirsch with the plaintiff in his own name, May 28, 1885, at a time when there was no partnership in existence between him and Harris; therefore there is no legal basis for a claim against Harris arising out of such a transaction. Upon the dissolution of a firm the agency of each partner for the other is revoked except to the extent of closing up past transactions, and even in that respect the powers are limited. Between the parties to a contract or an agreement of limited partnership the contract determines their relations, rights and liabilities, and all settlements must be in conformity to it. If by reason of failure to comply with the statute, or because of violation of the statute, the partnership becomes general as to parties dealing with them, yet as between the parties or partners themselves their relations are fixed by the contract, and (as in this ease) the partnership is a special or limited one.
    Before Freedman P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from judgment on verdict directed in favor of the defendant, and from an order denying a motion for a new trial.

      Melville H. Regensburger, attorney, and William G. Oppenheim of counsel, for appellant, argued :—
    I. The goods having been sold to the firm of “ Albert Hirsch,” and the defendant having stipulated that he was liable for all the engagements of the firm of “ Albert Hirsch,” the plaintiff should have had judgment.
    II. The notice of dissolution was invalid, the special partnership, if it ever existed, was dissolved February 28, 1885, by the change in the capital. Beers v. Reynolds, 11 N. Y., 97; § 12 of the Limited Partnership Act.

    IH. Even if the defendant desired for some reason best known to himself to dissove whatever relation existed between him and Hirsch, under their special partnership, that notice was hot communicated to plaintiff’s assignors, and it stands conceded that as to the plaintiff, the defendant was always a general partner and never a special partner.
    IV. The Limited Partnership Act provides : Sec. 25. “ No dissolution of such partnership by the acts of the parties shall take place previous to the time specified in the certificate of its formation, or in the certificate of its renewal, until a notice of such dissolution shall have been filed and recorded in the clerk’s office in which the original certificate was recorded, and published once in each week for four weeks in a newspaper printed in each of the counties where the partnership may have places of business, and in the state paper.” The section undoubtedly gives persons dealing with the firm four weeks’ notice after the dissolution, and is not intended that the partnership shall continue and the dissolution shall be “ in futuro." The intent of the statute is plain, the business must cease, four weeks’ notice that it has ceased or been dissolved must be given, and a notice that the copartnership will dissolve is not a notice under the Statute of Dissolution; for that enables the copartnership to go on to the very date of the future dissolution contracting debts. The statute intends that four weeks’ notice must elapse after a dissolution in order to effect a valid, dissolution. In the case -of Beers v. Reynolds, 11 N. Y., 97, the firm was dissolved April 17, 1848. On the 23d day of April, 1848, after the dissolution, Beers sold goods to the firm. The prohibited acts of the partners, under this statute, even if not done with any intention to do wrong, nevertheless bring them within the letter and spirit of the statute. Van Ingen v. Whitman, 62 N. Y., 513; Durant v. Abendroth, 68 Ib., 148.

      Charles C. Leeds, attorney and of counsel, for respondent, argued:—
    I. The defendants, Siegmund Harris and Albert Hirsch, undertook to form and renew a limited partnership pursuant to the statute. It is a conceded fact in the case, that for some reason not fully disclosed in the case, the defendant Harris became liable as a general partner to creditors. Nevertheless, as between themselves, the relation of Hirsch and Harris was that of general and special partner. (a.) The relation of the parties to a contract of limited partnership, which, by reason of failure to comply with the statute, is never formed, or because of violation of the statute becomes general, is, between the parties themselves, fixed by the contract, and as to one another the partnership is special. Bates Lim. Part., § 89. (b.) As between the parties (to an agreement of limited partnership) all their settlements must be in conformity with it. Lancaster v. Choate, 5 Allen, 530, (539). (c.) If there has been a non-compliance with the statute by a failure to pay his capital in cash by a special partner he does not become a general partner. Robinson v. MacIntosh, 3 E. D. Smith, 221, (233-234). (d.) Notwithstanding the erroneous statement in the affidavit as to the payment of the capital the partnership was, in form, a limited partnership and subject to ah the rules applicable to such partnership. Durant, Jr., v. Abendroth, 97 N. Y., 132, (144).
    II. The only partnership relation that at any time existed between the defendant Harris and Albert Hirsch was that of general and special partner, and this relation was finally and effectually dissolved and ended nearly three months before the liability sued on was incurred, (a.) Defendant’s counsel produced and read in evidence the agreement of dissolution, as filed and recorded, and also, under the stipulation, the printed notice and proofs of publication. The only objections made by plaintiff were, first, that it (the notice) was of the dissolution of the special partnership and not a dissolution of any general partnership between the parties; and, second, that the notice of a dissolution to take effect at a future day is not a compliance with the statute. As to the first, we remark that the only partnership between these parties was, as already shown, a limited one, and it was that that was to be dissolved. Obviously there was no need of dissolution of a general partnership that never existed. As we have already seen, the rules applicable to limited partnerships apply between the parties, and these rules relate as Weil to dissolution as to formation, or any other matter concerning the partnership or its affairs. Plaintiff’s assignors also understood the relation between those parties to be that of limited partners. Charles H. Bond, one of the firm of E. W. Bathbun & Co., testified: “ I believed at the time of the sale that Siegmund Harris was a member of the special partnership firm consisting of Albert Hirsch and Siegmund Harris.” As to the second objection, we remark, the notice is sufficient. It is a notice in the present tense of a dissolution of the existing firm, and the mere insertion of a statement of the time when by law it could become effectual amounts to nothing; it was unnecessary and may be regarded as surplusage. The law would accomplish that without any such statement. No form of notice is prescribed by the statute. There was a full four weeks’ publication of the notice before the debt sued on was contracted, and the note on which it is sought to hold this defendant was the note of Albert Hirsch individually. (5.) Even if we accept the evidence of plaintiff’s assignors that they supposed Harris to be a partner and that Hirsch represented that there had been no change in his firm, this could not make Harris liable. Assuming the representation to have been made there is no pretense that Harris authorized it or was present when it was made. In point of fact the partnership had been dissolved nearly three months before the transaction, and no such representation could affect Harris. If this were a case where there had been a course of prior dealings between the parties there might be something in the point, but the case is destitute of any evidence showing other transactions between Hirsch and plaintiff’s assignors.
    III. The fact that promissory notes were given by the general to the special partner in repayment of his special capital was not such an alteration as worked a dissolution. The notes were dated February 28, 1885, but their due dates do not appear. It does appear, however, that they were not paid. The giving of notes payable in the future by the general to the special partner for the purchase of his interest in the firm on agreeing to dissolve, is not, before they are paid, a change, but, at most, an executory agreement or promise never carried out. Lachaise v. Marks, 4 E. D. Smith, 610, 623.
   By the Court.—McAdam, J.

The effect of the dissolution of a partnership is to put an end to the authority of the one partner to bind the other. The partnership existing between the defendant and Albert Hirsch was dissolved March 2, 1885, and the debt now attempted to be enforced against the defendant was contracted by Hirsch, May 28,1885, nearly three months after the dissolution. Hirsch and Harris formed a limited partnership pursuant to the statute, Hirsch being the general and Harris the special partner, and the dissolution was of such a partnership. The theory of the plaintiff’s action is that for some failure to comply with the statutory requirements, Harris became a general partner. But this is not a correct statement of the law. For neglect to observe the essential requirements of the law relating to limited partnerships, the special may make himself liable as a general partner to creditors of the firm, the liability being in the nature of a statutory penalty. Van Dolsen v. Abendroth, 1 City Ct. R., 469; Affd. 131 U. S. Supreme Ct. R., 66; Durant v. Abendroth, 97 N. Y., 132. As between the parties themselves, the contract of partnership determines their relations, rights and liabilities, and as between parties to an agreement of limited partnership, all settlements must be in conformity with it. Lancaster v. Choate, 5 Allen, 530, 539.

Bates, in his work on limited partnership (Sec. 89) says : The relation of the parties to a limited partnership, which, by reason of failure to comply with the statute, is never formed, or because of violation of the statute becomes general, is, between the parties themselves, fixed by the contract, and as to one another the partnership is special.”

And in Robinson v. McIntosh, 3 E. D. Smith, 221, it was held, that where parties take all the usual steps to form a limited copartnership, excepting in some particular, the neglect whereof renders the special partner liable as a general partner, he does not thereby become an active, but may be regarded as a dormant partner, in such a sense as warrants the general partner to assign the partnership effects to a trustee for the benefit of creditors.

On January 28, 3885, Hirsch and Harris executed an agreement, providing that the limited partnership existing between them be dissolved, the dissolution to become effectual as soon as the publication required by law was completed. On the same day (January 28, 1885), Hirsch gave Harris three notes, each for $5,000, as a re-payment of his contribution of special capital, which notes have never been paid. The publication of the notice of dissolution contemplated by the agreement, and required by law, was completed on March 2, 1885, so that the partnership relations between Hirsch and Harris were effectually terminated on that day.

The plaintiff claims in his points, that the relation terminated January 28, 1885, by the withdrawal by Harris of his capital, and that the partnership after that became general. Harris withdrew nothing. He received the promise of Hirsch to return him $15,000, at a future date, but the promise was never performed, and the unperformed promise of Hirsch is neither a withdrawal, return or payment of special capital contributed. There was a full four weeks’ publication of the notice of dissolution before the debt sued on was contracted, and the note on which it is sought to hold the defendant was the note of Albert Hirsch individually.

If this were a case where there had been a course of prior dealings between the parties, the question of the necessity of actual notice of dissolution might have arisen, but the absence of that feature renders a discussion of it unnecessary. There is no question of equitable estoppel in the case, because it does not appear that Harris did any act or thing after the dissolution which made him liable as a partner to the plaintiff or to third persons generally. At the trial, to obviate proof of the defects alleged in the formation of the limited partnership, which would have made Harris liable as a general partner, it was stipulated that for all the purposes of the action he was liable as a general partner for the engagements of the firm. Not that he was a general partner, but liable as such by force of the statutory provisions.

Nor did the stipulation admit that the firm had any existence at the time the contract was made. Indeed, that point was contested and left open to be determined, for as part of the same stipulation, the plaintiff consented to the admission in evidence of the affidavits of publication of the notice of dissolution of the special partnership, as proof of the publication of such notice for four weeks prior to March 2, 1885; so that the stipulation must be taken in its entirety. Thus, we have the case of parties who took the usual steps to form a limited partnership, except in some technical particular, the neglect whereof might have rendered the special partner liable to third persons as a general partner, and a dissolution of such partnership on March 2, 1885, consummated in strict accordance with the statutory requirements. The debt in suit was contracted by Hirsch, in his own name, May 28,1885, at a time when there was no partnership with Harris in existence. It is difficult, therefore, to find any legal basis for a claim against Harris arising out of such a transaction. Upon dissolution of a firm, the agency of each partner for the other is revoked, except to the extent of closing up past transactions, and even in that respect his powers are limited, and he can enter into no new obligations in the name of his copartner, even though to close up a past transaction. Palmer v. Dodge, 4 Ohio St., 36; Bank v. Lyman, 5 Mass., 57; Long v. Story, 10 Mo., 630; Woodford v. Dorwin, 3 Vt., 88; Mygatt v. Bell, 41 Ala., 233; Hall v. Lanning, 91 U. S., 160; Haddock v. Crocheron, 32 Tex., 276; Napier v. Catron, 2 Hump., 530; National Bank v. Newton, 1 Hill, 572; Lansing v. Gaine, 2 Johns., 300; Sanford v. Mickles, 4 Ib., 224; Hackley v. Patrick, 3 Ib., 528; Walden v. Sherburne, 15 Ib., 409; Mitchell v. Ostrom, 2 Hill, 520; Lusk v. Smith, 8 Barb., 570; Van Keuren v. Parmelee, 2 N. Y., 525; Gale v. Miller, 1 Lans., 451. This, upon the ground that after dissolution, a partner has not, without special authority, power to impose new obligations upon the firm, nor to vary the form and character of those already existing. Woodworth v. Downer, 13 Vt., 524; Mutual S. Bk. v. Euslin, 37 Mo., 453; Lusk v. Smith, supra; Hurst v. Hill, 63 Am. Decis., 705; Cunningham v. Bragg, 38 Ala., 436. After dissolution, one partner cannot sign the firm name to a note, even to pay an old debt. Lockwood v. Comstock, 4 McLean, 383; White v. Tudor, 76 Am. Decis., 126; Hurst v. Hill, supra, and such a note does not discharge the old debt. (Perrin v. Keene, 19 Me., 355.) In National Bank v. Norton, 1 Hill, 572, it was held, that one partner after dissolution cannot bind his co-partners even by the renewal of a partnership note. Cower, J., says : This is the making of a new contract hy one for all the partners after his authority is revoked. During the continuance of the partnership he is entitled to act for all as their general agent. On dissolution he ceases to hold that character, and must be considered as a mere joint-debtor. This leaves to him the power of payment in respect to debts due from the firm, but with slight exception, if any, nothing more.” This would seem to he so on principle aside from authority, for as Lord Kenyon says, in Abel v. Sutton, 3 Esp., 108, the moment the partnership ceases, the partners become distinct persons; they are tenants in common of the partnership property undisposed of from that period ; and if they send any securities which did not belong to the partnership into the world after such dissolution, all must join in doing so.” The question was again considered in Morrison v. Perry, 11 Hun, 33, wherein it appeared that upon the dissolution of a partnership, caused by the sale by one partner of all his interest therein to the other, the latter executed a promissory note in the firm’s name, for a then existing indebtedness, and gave it to a creditor ignorant of the dissolution of the firm. It was held, that the surviving partner had no authority to execute the note, and that the retiring partner was not liable thereon, though liable on the original cause of action, if that had been sued upon.

In the present case, there was no firm in existence when the obligation sued upon was contracted, and it became and was enforceable only against Hirsch, the person who made the note. It was made in his name, bound him alone, and was not intended to bind any one else. There is no sound principle of law or morality that requires Mr. Harris, the defendant, to pay the debt in question. It was in no sense his obligation, and the trial judge properly directed a verdict in favor of the defendant. It follows that the judgment and order appealed from must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.


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    CHARLES H. LOEBER, Appellant v. ISAIAH L. ROBERTS, Respondent.

      Negligence, there must be affirmative proof of the same.

    In this case it appeared from the evidence, that the fire that destroyed the goods of the defendant originated from a furnace in a room occupied and used hy defendant for his work as a chemist. Upon this proof, accompanied by proof that tended to show that defendant had made a fire in the furnace the day before, and said that he intended to keep a fire there all night, and there was no danger, the plaintiff rested his case, and the trial judge dismissed the complaint on the ground that there was no affirmative proof of negligence on the part of defendant. The appellant invokes the application of the familiar rule of “res ipsa loquitor," and claims that the fire could not have originated from defendant’s furnace unless it was improperly constructed or negligently used and managed by the defendant.

      Held, that it is not true, except in cases where there are contractual relations between the parties, that the proof of the fact that the accident and the loss happened to the plaintiff, without more evidence, will amount to prima facie proof of negligence on the part of defendant. There was no evidence whatsoever that the furnace was not properly constructed, or that defendant was negligent in its use, and unless these facts are to be inferred from the mere fact that the fire originated in and communicated to plaintiff’s premises and property, it is clear that the complaint was properly dismissed. The rule in this country is a universal one which has no exceptions or limitations, that no one can beconle liable for injuries to the person or property of another without some fault or negligence on his part. Where no contractual relations exist between the parties, the presumption is, until the contrary shall be shown, that every man has performed his duty, and it is incumbent upon one who alleges a failure in this respect, to prove facts from which an inference of negligence or fault may be properly drawn, and mere proof that the accident happened will not authorize such an inference. In all actions founded upon negligence, the onus probandi, or the burden of proof of establishing that negligence, rests upon the plaintiff, and failing therein his cause of action must fail of recognition.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.

      Appeal from a judgment entered on the dismissal of the plaintiff’s complaint at trial term.

      W. C. Beecher, attorney and of counsel, for appellant.

      A. S. Cushman, attorney, and E. Crandall and C. S. Truax of counsel, for respondent.
   By the Court.—McAdam, J.

The plaintiff sued to recover $3,000 damages for injury to a stock of photographic supplies contained on the second floor of the premises No. Ill Nassau street, because of a fire which occurred therein April 10, 1889. The defendant, who is a chemist, occupied part of the floor above the plaintiff. The complaint charged that the defendant kept a furnace in his rooms, and negligently kept and maintained a fire therein at too great a heat for safety, and negligently permitted the fire to burn in the furnace unattended and uncared for, and that in consequence thereof, the fire communicated with the plaintiff’s premises and destroyed his stock of merchandise. The furnace rested on a base of brick, and whether there was a sheet iron covering over his floor, the plaintiff’s witness could not state. There was evidence that the defendant had made a fire in the furnace on the day the damage occurred, and that he had said that he intended to keep the fire there that night, that there was no danger. Upon this evidence, accompanied by proof tending to show that the fire was communicated to plaintiff’s premises by means of the furnace, and that the plaintiff suffered loss in consequence of the fire, he rested his case and the trial judge, upon motion of the defendant’s counsel, dismissed the complaint upon the ground that there was no affirmative proof of negligence, and this ruling presents the question we are called upon to review.

The appellant invokes the application of the familiar rule of res ipsa loquitor, and claims that the fire could not have originated from defendant’s furnace unless it was improperly constructed or negligently used by the defendant. Breen v. N. Y. C. R. R. Co., 109 N. Y., 297; Mullen v. St. Johns, 57 Ib., 567; Saybold v. N. Y., L. E. & W. R. R. Co., 95 Ib., 568; Russell M. Co. v. N. H. Steamboat Co., 50 Ib., 121. He cites cases holding that negligence is inferred from the dropping of hot coals from elevated road engines, McNaies v. Manhattan R’y Co., 46 Hun, 502; Lowery v. Same, 99 N. Y., 158; Sheth v. N. Y. C. R. R. Co., 4 N. Y. Supplt., 951, and by the scattering of sparks and live coals hy a railroad engine along the roadway. Field v. N. Y. C. R. R. Co., 32 N. Y., 346. The Hability in the case of falling cinders, live coals or sparks from railway engines is founded on proof that locomotives properly constructed and kept in repair in respect to wire netting and ash pans would cast out no such dangers upon the roadway. The other cases cited, founded on the rule of res ipsa loquitor, rest on their own peculiarities, none of which resemble the facts proved here.

Thompson in his work on negligence (p. 1227) says : “It is believed, that it is never true, except in contractual relations, that the proof of the mere fact that the accident happened to the plaintiff, without more, will amount to prima facie proof of negligence on the part of the defendant.”

There was no evidence whatever that the furnace was not properly constructed, or that the defendant was negligent in its use, and unless defect of construction, failure to repair, or negligence in use are to be inferred from the mere fact that the fire communicated to the plaintiff’s premises, it is clear that non-suit was properly granted.

In Losee v. Buchanan, 51 N. Y., 476, the court of Appeals held that where one places and operates a steam boiler upon his premises, in the absence of proof of fault or negligence on his part, he is not hable for damages to his neighbor occasioned by the explosion of the boiler; and in his opinion, after having reviewed the principal authorities in this state, Judge Earle says: “ This examination has gone far enough to show that the rule is, at least in this country, a universal one, which so far as I can discern, has no exceptions or limitations,—that no one can be liable for injuries to the person or property of another without some fault or negligence on his part.”

In Wiedmer v. N. Y. El. R. R. Co., 114 N. Y., 462, the plaintiff proved that a hot coal from an engine on defendant’s elevated road fell into her eye; but there was no direct evidence that the locomotive from which it came was defective in design and construction or negligently operated. The trial judge refused to dismiss the complaint and the jury rendered a verdict for the plaintiff. The judgment entered thereon was, on appeal to the general term, affirmed. The Court of Appeals reversed, stating in their opinion that there were no contractual relations between the parties, and that the falling of the coal was not sufficient for the jury to infer that the defendant negligently used a locomotive improperly designed, defectively constructed, out of repair or negligently operated; and that from the fact that the coal fell the burden was not cast upon the defendant to prove the condition of the locomotive.

In Cosulich v. Standard Oil Co., 122 N. Y., 118, the facts were these: The defendant, at the time of the burning, owned and operated a petroleum refinery on Newtown creek, and the plaintiff’s vessel was lying at the wharf adjacent thereto. The oil within defendant’s enclosure got on fire, and a quantity of it, while burning, flowed down a pipe which was connected with a lighter laden with petroleum moored at the defendant’s wharf. The pipe was used by the defendant in pumping oil from vessels into its refinery. The lighter at once exploded. and burning oil and sticks therefrom were thrown upon the plaintiff’s vessel, setting it on fire. The conflagration was the immediate result of the explosion of defendant’s boiler. The damages were stipulated to have been fifteen thousand dollars. When plaintiff rested the defendant asked for a non-suit, which was denied. The defendant introduced no evidence. The jury found a verdict for the plaintiff. The general term affirmed, and the Court of Appeals reversed, holding that no contractual relations existed between the parties, and that the presumption is, until the contrary be shown, that every man has performed his duty; and that it is incumbent upon one who alleges a failure in this respect as the foundation of a right of action, to prove facts from which an inference of negligence may be properly drawn, and proof of the mere fact that an accident has happened will not authorize such an inference. Parker, J., in his opinion, says : As the existence of negligence is an affirmative fact to be established by him who alleges it as the foundation of his right of recovery, it was incumbent upon thé plaintiff to point out by evidence the defendant’s fault; for the presumption is, until the contrary appears, that every man has performed his duty. This rule has been frequently applied in cases where a fire has spread over and upon the lands of an adjoining owner to his damage. Clark v. Foot, 8 Johns., 329; Stuart v. Hawley, 22 Barb., 619; Lansing v. Stone, 37 Ib., 15; Calkins v. Barger, 44 Ib., 424. * * * In actions founded on negligence, the onus of establishing it rests upon the plaintiff.”

There were no contractual relations between the parties here, and applying the rules laid down in the preceding cases to the facts proved, we are required to affirm the judgment appealed from, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.


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    POTTIER AND STYMUS MANUFACTURING COMPANY, Respondent v. AUGUSTE NOEL, Appellant.

      Counterclaim,—Assignment, written or oral, and in the latter case whether what was said amounts to an assignment depends upon the intention of the parties and what was done by them in further anee of such intent.

    In this case the counterclaim and its assignment were both put in issue by the reply. The referee before whom the case was tried, refused to find, as matter of fact, that any assignment had been made as alleged in the answer. This was tantamount to an affirmative finding that no transfer was ever made in fact, and if there was no assignment the claim or demand could hot be used or considered as a counterclaim.
    In this case, whether the transaction be called a gift, sale, assignment or transfer, it is not evidenced by any symbolical or constructive delivery of anything, nor by any unequivocal act of the parties. The alleged assignee merely said to the alleged assignor “ that he would transfer the indebtedness over,” the amount was not stated, although the claim as one against the plaintiff was mentioned, and there was not even a charging up of the account sought to be transferred in any way. Held, that the evidence under any interpretation does not establish an assignment sufficient to pass the title. The element of “ intent ” runs all through the cases, and this is generally a question of fact, and the referee has decided it adversely to the defendant, and the judgment appealed from must be affirmed.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal by defendant from judgment entered on report of referee in favor of the plaintiff.

      Abram Kling, attorney and of counsel, for appellant.

      Charles M. Hall, attorney, and Truax & Crandall and Elbert Crandall of counsel, for respondent.
   By the Court.—McAdam, J.

The answer admitted the cause of action, and pleaded a counterclaim of $803.06 in favor of A. Noel & Son (a copartnership firm composed of the defendant and his son), under a transfer alleged to have been made by that firm to the defendant before the commencément of the action. The reply put in issue both the counterclaim and assignment. The referee, although requested by the defendant, refused to find as matter of fact, that any assignment had been made as alleged. This is tantamount to an affirmative finding that no transfer was ever made in fact. If this finding is justified by the evidence, it becomes unnecessary to consider any of the other questions in the case, because if there was no assignment, the joint demand in favor of the firm of A. Noel & Son could not be used as a counterclaim to an action against A. Noel, individually. Hopkins v. Lane, 87 N. Y., 501; Code, § 501. The assignment was oral, not in writing, and in such a case whether what was said amounts to an assignment depends upon the intention of the parties and what was done by them in furtherance of such intent. In Sheridan v. The Mayor, etc., 68 N. Y., 30, the assignment was in writing, duly executed and acknowledged; hence that case is not applicable. The owner of a cause of action may give it away, and the assignee is entitled to judgment thereon. Mills v. Fox, 4 E. D. Smith, 220; Beach v. Raymond, 2 Ib., 496; Richardson v. Mead, 27 Barb., 173; Burtnett v. Gwynne, 2 Abb., 79. In those cases, as in the Sheridan case, formal transfers sufficient to pass title were executed, and the court held the consideration therefor immaterial. Notes not negotiable have been held to pass by delivery where there was an intention to part with the title. Judgments and accounts have been transferred by delivery of the transcript, or bill of items, where an absolute transfer was intended, i and so in many other cases effect has been given tosymbolical deliveries, and to unequivocal acts evidencing an intention to pass title. But in this case there was no delivery of anything. Indeed there was not even a charging up of the account against the partner receiving the transfer. Vail v. Tuthill, 10 Hun, 31. Here, the transaction whether it be called a gift, sale, assignment or transfer, is not evidenced by any symbolical or constructive delivery or by any unequivocal act of the parties. In this instance, the alleged assignee merely said to the assignor, in substance, that he would transfer the indebtedness over; ” the amount was not stated, but that the claim against the plaintiff was mentioned (see fols. 190 to 197). The evidence technically construed would indicate a purpose on the part of the defendant to transfer to the son, rather than an intent on the part of the latter to transfer to the former; but no matter which way it is interpreted, it does not establish an assignment sufficient to pass title. The element of intent ” runs all through the cases, and this is generally a question of fact, Ram on Facts, 1st Am. ed., pp. 1, 275; Benjamin on Sales, § 309, and the referee has decided it adversely to the defendant, on the evidence of the assignor, a relative and interested party, whom he was not bound to believe. Kavanagh v. Wilson, 70 N. Y., 177. For the reasons stated, the judgment appealed-from must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.


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    THE PEOPLE, Etc., ex rel. FRANK C. BOEKELL, Relator v. CHARLES F. MacLEAN, et al., Commissioners, etc., Respondents.

      Certiorari to review the action of the Board of Police Commissioners in removing the relator from the police force of the city of New Torlc.

    The relator was tried by the police board on charges preferred to said board that the relator was so much under the influence of liquor as to be unlit for duty at 1.33 p. m. January 1, 1891, at the expiration.of his tour of patrol'duty. The facts in the case appear fully from the points of counsel and the opinion of the court.

      Held, that the testimony in support of the charges, was sufficient to sustain them were it not for the explanation offered by the relator, which seems to be fully sustained by the evidence on his part, and takes the sting out of the charge and shows that the conduct complained of was not a breach of discipline but the result of an accident. The rule undoubtedly is, that the commissioners are the statutory judges, and when they find on conflicting evidence their judgment should not be set aside except in a case where a verdict of a jury would, under like circumstances, call for the exercise of the supervisory power of the court to correct error and injustice. There is no conflict of evidence here that makes the finding of the commissioners so sacred that it should not be the subject of review. If the facts are as sworn to by the relator and the two citizens, that the relator’s horse slipped and he was thrown to the ground and rendered unconscious, and the citizens gave him whiskey which by the subsequent heat of the radiators in the station-house put the relator in a doze, it cannot be truthfully said that the relator was guilty of voluntary intoxication or of conduct unbecoming an officer. The commissioners should not have disregarded the evidence of the two citizens. They were disinterested and unimpeached witnesses and not even contradicted, and their story was highly probable. The commissioners, while exercising quasi-judicial functions, must weigh the testimony offered before them according to legal rules, and give effect to explanations which tend to mitigate or explain away the offense charged. Eor the failure of the commissioners to give proper effect to explanations offered, their adjudication must be reversed and the relator restored.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Certiorari to review the action of the board of police commissioners of the city of New York, in removing Frank C. Boekell, the relator, from the Police force.

      Louis J. Grant, attorney and of counsel, for relator, argued:—
    1. The weight of evidence is clearly against the finding, and the action of the respondent should be reversed on that ground. See § 2140 Code. The only evidence to support the charge is, first, that of the captain. He testified against objection, simply that the relator was in his opinion intoxicated ; later on in his examination he testified in support of this opinion or conclusion. “ I saw him taking his saddle and equipments back to the saddle room; he staggered; his speech was thick, face was flushed, eyes were bloodshot.” Relator had just come in from performing his full tour of duty at that time, which was from 8 a. m. to 1 p. m., as this same captain admits. It will be observed that he attempts to support the conclusion of intoxication by saying “ he came in after a fashion.” He also admits that relator at 12 o’clock the same day, one hour and a half before he came in as above stated, had reported a box being out of order, and the captain had told relator to go back and try it again. He noticed no signs of intoxication then, and the idea of the influence of liquor did not then suggest itself to his mind. At 1.25 p. m., when relator last came in, he did not at first notice. anything. He walked alone from the stable to the station house. The next witness (Steinert) says, “ I smelled his breath, saw him walk ; ” he showed he was under the influence of liquor,” which last remark the commissioners refused to strike out, to which ruling there was an exception. He says, “ Examined his breath; a very foul smell, that of beer and liquor; a very foul breath ; looks as if he had something in his stomach not digested; seemed a little thick in his speech and staggered in his walk a little bit.” The witness admits that at that “ time relator denied he had been drinking, and had no breakfast or anything.” The witness then admits that he was called to examine him to find out if he was under the influence of liquor. Again, he says that the influence of liquor would have passed off at the time he examined relator because of the length of time since it must have been taken into the stomach, if at all. Kirchner, the next witness, says, “ Smelled of liquor and beer; while walking he staggered ; spoke unintelligently,” and, against objection, gave as his opinion, that he was intoxicated and unfit for duty, to which exceptions were taken. He contradicts the captain as to relator walking alone. Sergeant Brown, next witness, says, when relator was waked up, “ he staggered; witness caught him two steps.” This witness smelled his breath, and says “ no ” in answer to the question, Are you willing to swear it smelled of intoxicating liquor?” Roundsman Kehoe gave only the testimony that he was told to smell the breath of relator, who was then asleep, and it smelled of whiskey and beer. The relator swore that on that morning “ his horse fell and he fell; he was dazed ; ” was unconscious from the fall about five minutes; two citizens saw the witness ; he didn’t know until afterwards they had got him a glass of whiskey to drink; had eaten nothing that day; dismounted alone and walked alone; felt a sort of dizzy sensation come over him from the hit and accident. No complaint had ever been made of his being under influence of liquor before, though he had been four or five years on the force; reported sick and was sick one day after the time of the alleged intoxication ; tried the box about ten minutes of one o’clock ; two citizens saw the fall; Carney saw relator on the ground and his horse run away; he and the other citizen brought the horse back; relator said, “I got an awful toss ” ; witness got relator some whiskey, brushed his coat, saw no indication of the influence of liquor; he complained of a pain in his head. Nugent, the other citizen, testified to the same facts. Duggan, a mounted patrolman, saw relator on horseback about 12 o’clock that day, and he said to witness, I have to report a box out of order ” ; there was no indication of influence of liquor. The evidence shows that the relator was made to sit in a room where there were three radiators, for about two hours, until the doctor came. This was by order of the witness, Captain Cortright, who testifies that it was not customary to put a man charged with being under the influence of liquor in such a position. He says he had no feeling against Boekell, the relator, and yet the only reason he gives for his conduct is, that he Avanted him in a safe place, though he says the back room was the usual place to send persons so charged; that he remembered no exception to such rule. Cortright admits that he knew that if a man had taken liquor it would make its effects more marked to put him in a heated atmosphere. The witness Kirchner swears that persons so charged were either put in the back room or locked up, and he knew of no case where a man Avas treated as relator had been. Sergeant Brown was surprised to see relator there ; had never seen it done before. It Avas usual to have them sit in the hack room. Kehoe never knew of another ease Avhere an officer Avas so placed. That it is the province of the general term to reverse respondent’s action if the preponderance of evidence is against it, is provided by section 2140 of the Code, and the Court of Appeals have repeatedly so held, the last time in the People ex rel. O’Callahan v. French, 123 N. Y., 636, in w'hich Andrews, J., writing the opinion, says: The general term may set aside their adjudication on the merits if, although there may be some evidence to sustain it, the preponderance of proof is such that if the facts had been found by a jury on the trial of an issue in the Supreme Court, the verdict would be set aside as against the weight of evidence.” See also, People ex rel. McAleer v. French, 30 N. Y. State Rep., 72.
    II. The evidence that relator was not intoxicated, on the part of the defence, is that of himself, the two citizens and policeman Duggan. It is opposed to that given by Cortright, Steinert, Kirchner, Brown and Kehoe. Brown does not say he was intoxicated and he refused to swear that relator’s breath smelled of liquor. Kehoe says he smelled his breath when asleep. Beyond his breath smelling of liquor there is no testimony as to intoxication. It is true that Cortright, Steinert and Kirchner say relator was intoxicated. The facts on which they base these opinions are : First, Cortright— he staggered ; speech was thick; face flushed; eyes bloodshot; ” Steinert—“ seemed a little thick in his speech and staggered a little bit.” This witness in his testimony shows that when he saw relator he was not intoxicated because he swears that when he saw him the influence of the liquor must have passed off. Kirchner says, “ staggered and spoke unintelligently.” The man had nothing to eat the whole day ; had been on duty as a mounted policeman from 8 o’clock to lp.m.; had fallen from his horse, hit his head and then been kept sitting for two hours in a hot room. He might well feel faint and weak, talk thick, stagger, and even speak unintelligently. Steinert, the physician, was called expressly to examine the man, and can only say he seemed a little thick in his speech and staggered a little bit. The staggering was probably what Brown testified, that when he was first waked he staggered, and witness caught him in two steps. As Boekell had done his full duty, had reported at about 12 o’clock, and was sent back to examine the box (no suspicion then arising that he was intoxicated), met, on returning, Duggan and told him what he had to do, dismounted alone and walked alone to the station house, it is sufficiently clear that he must have been sober. The witnesses say his breath smelled of liquor. It would be wonderful if it did not, since he had drank liquor by the testimony of the two citizens. Their testimony shows that in drinking the liquor the relator was not responsible, because he was not conscious that he was taking it, the liquor having been procured and poured down his throat without his knowledge. To offset the testimony of relator’s having performed his duty without any complaint and without suspicion of his being under the influence of liquor, as well as the testimony of the relator, the two citizens and Duggan, there are only the opinions of the two witnesses Cortright and Kirchner, that relator was intoxicated. That these opinions are not competent proof was held by the general term, Supreme Court, First Department, in People, etc., ex rel. Theodore Balke v. French, 11 N. Y. Supp., 181, in which Barrett J. says : “ The relator seems to have been convicted merely upon the opinion of the officers.” The general term reversed respondent’s action in this case and the Court of Appeals affirmed the general term. The facts observed by these two persons, and which they swear to, are entirely consistent with the truth of the story told by relator and his witnesses. The relator cannot be charged with any fault in drinking the liquor, for the testimony shows that it was got without his knowledge and put down his throat, not only without his consent, but without any consciousness on his part that anything of the kind had been done. Any effect which the liquor may have had, if such there was, being involuntary, he was without blame, and the conviction cannot be upheld. [Peo. ex rel. Hogan v. French, 119 N. Y., 493.] Finch J., page 498, at the bottom: “ When the dose of brandy has been resorted to in a sudden emergency from a commendable motive and with a reasonable expectation that it will sustain the failing ability to perform duty, there is no breach of discipline, there is no conduct unbecoming an officer, and it does not become such because a partial intoxication supervenes which no one could reasonably have anticipated.” The case at bar is a much stronger one for the relator than the one just cited, because there the relator voluntarily and consciously took the liquor, though, of course, with a commendable motive, while Boekell was only a passive instrument in the hands of the two citizens, who without any consciousness or volition on his part, did that which in his judgment the situation demanded, to wit, poured the liquor down relator’s throat, a fact which he so little realized that he had to be told afterward that it had been done.
    III. The only evidence to support the charge is circumstantial. To justify a conviction on circumstantial evidence, the facts and circumstances must be such as to exclude every other reasonable or rational hypothesis than that of guilt. That the circumstances of staggering, foulness of breath, etc., are some proof of guilt if not explained, is admitted, but when an explanation is given which is reasonable and rational, and accounts perfectly for the circumstances, then those circumstances cease to he any proof whatsoever of guilt. In this case testimony was given by three witnesses, two of them entirely disinterested, which logically explains how such circumstances occurred, and shows that relator was innocent of the charge.

      William H. Clark, counsel to the corporation, and W. A. Sweetser of counsel, for respondents, argued:
    I. The board of police had jurisdiction of the subject matter of the judgment now under review, and its proceedings were regular. A written charge was preferred against the relator, a copy of the same was duly served upon him ; reasonable notice of the examination of the charge was given him. A public examination was held as was prescribed by the rules of the board, schedule C, and testimony was taken before one of the commissioners, and subsequently laid before and examined by the board of police. § 272 of the New York City Consolidation Act. It was competent for the board to prescribe rules 196 and 197. People, ex rel. Swift v. The Board of Police, 99 N. Y., 676. The punishment inflicted was warranted by the charge; rule 193, page 63. The following is rule 193 : “ Any member of the police force may be punished by the board of police, in their discretion, either by reprimand, forfeiture and withholding pay not exceeding thirty days for any one offence, or by dismissal from the force on conviction of any of the following offences, to wit, of intoxication * * * neglect of duty * * * * of conduct unbecoming an officer.”
    II. The judgment reached by the board upon the testimony, will not be disturbed by the court. “ It is manifest that the interest of the service required that a wide discretion should be vested in the commissioners in determining what conduct is injurious to the public interests and unbecoming an officer, and their judgment, unless there is an entire absence of evidence to sustain it, ought not to be disturbed.” Peo., ex rel. Walter J. Bradley v. French, 7 N. Y. State Reporter, 253. There is preponderance of proof in the case at bar. “ The power of the court to reverse the proceedings of the respondents is limited to those cases where there is no evidence to support the conclusion arrived at, or if there is some evidence, the preponderance of proof is so great against such conclusion that if it were the verdict of a jury, such verdict would be set aside as against evidence.” Peo., ex rel. Kelly v. Charles F. MacLean, decided General Term Supreme Court, March 14, 1891; Peo., ex rel. Masterson, 110 N. Y., 494; Peo., ex rel. Flanagan v. the Board of Police, 93 Ib., 110; Peo., ex rel. Foley v. The Police Commissioners, 8 Weekly Digest, 466.

      III. The board of police are the statutory judges of the relator, and their findings on the facts, although the testimony was contradictory, is conclusive. The case at bar would not stand the test of a motion for a new trial made upon the ground that the verdict is against the weight of evidence. The witnesses for the respondents did not even contradict each other. The relator’s own witness said he gave Boekell whiskey. “ The éffect was to create a question of fact for the decision of the commissioners, against which there certainly was no preponderance in favor of the relator; and under the rule sanctioned, not only by the statute, but also by the authorities, their decision is required to be sustained.” Peo., ex rel. Rafferty v. French, 13 Weekly Supe., 337 and case cited. “ The power of this court over the case now presented, is no greater than it has over the verdict of a jury rendered on the trial of an action (subsections 4 and 5, section 2140 (Code of Civil Procedure). “ Upon this evidence the verdict of a jury would be conclusive. The court could not set it aside, and it can therefore afford this relator no assistance.” Peo., ex rel. Winchell v. MacLean, et al., 13 Weekly Supe., 342 and case cited. “ The most advantageous views of the relator that can be taken in this proceeding is that there is a conflict of evidence; but it cannot be said that it is so prepondering as to justify the claim that a palpable error .was committed by the respondents, although it may be that even if the converse view could be indulged in, it would not result to the relator’s benefit. The Court of Appeals has substantially settled the rule that the commissioners are statutory judges, and when they find upon conflicting evidence, the evidence is conclusive.” Peo., ex rel. Bradley v. French, 7 N. Y. St. Rep., 253; Peo., ex rel. McAleer v. French, 119 N. Y., 502; Peo., ex rel. Hogan v. French, 119 Ib., 493; Peo., ex rel. Masterson v. French, 110 Ib., 494; Peo., ex rel. Hart v. The Fire Commissioners, 82 Ib., 358; Peo., ex

      rel. Kent v. Fire Commissioners, 100 Ib., 82; Peo., ex rel. Irving, 25 N. Y. St. Rep., 40. “ The court is not to inquire into the merits of the decision or the justness of the penalty imposed ; it can only allow power enough to see that some violation of duty or negligence was charged against the relator, and evidence given tending ,to establish its existence.” Peo., ex rel. Walter J. Bradley v. French, supra; Peo., ex rel. Gibson v. French, 16 N. Y. St. Rep., 1012. “ The judgment of the commissioners, unless there is an entire absence of evidence to sustain it, ought not to be disturbed.” Peo., ex rel. Hart v. Fire Commissioners, supra; Peo., ex rel. Bradley v. French, supra.

   By the Court.—McAdam, J.

The relator was tried by the police board on charges preferred to said board that the relator was so much under the influence of liquor as to be unfit for duty at 1.33 P. M. January 1, 1891, at the expiration of his tour of patrol duty.

The testimony offered in support of the charges would be sufficient to sustain them, were it not for the explanation offered by the relator, which seems fully sustained by the evidence on his part. The relator went on his post on the day in question at 8 A. M., and his tour ended at 1 p. m. He completed his tour that day in full and arrived at the station house 20 or 25 minutes after 1 o’clock.

The relator was one of the mounted force, and on the day in question, he answered the first call at the station house at 12 o’clock; and at that time his condition was all right. After that an accident happened; the horse slipped and fell, throwing the relator to the ground, in consequence of which his head was injured, making him unconscious for about five minutes. When he recovered sufficiently to appreciate his surroundings, he found two citizens alongside of him, and they gave him whiskey to bring him to. He walked and rode after the accident, and, after completing his tour, returned and reported at the station house. When he arrived there he was able to sit in a chair, and was compelled to sit there for about two hours. There were radiators in the room and it was quite warm. While sitting, a sort of dizzy sensation came over him, caused, as he says, by the “ hit and the accident” and he fell asleep. It appears that the relator has been on the force between four and five years, and an officer of the same precinct for about two years, and during the whole time he was on the force no complaint of intoxication was ever made against him.

The citizens corroborate this story of the relator; it is uncontradicted, seems probable, and we believe it to he true. The explanation takes the sting out of the charge and shows that the conduct complained of was not a breach of discipline, but the result of an accident.

The rule undoubtedly is that the commissioners are statutory judges, and when they find on conflicting evidence their judgment should not be set aside, except in a case where the verdict of a jury would, under like circumstances, call for the exercise of ¿he supervisory power of the court to correct error and injustice. But there is no such conflict in the evidence here, that makes the finding of the commissioners so sacred that it should not be reviewed. The relator had taken liquor, and this combined with the accident which befel him dazed him, and warranted the captain in making the charge of conduct unbecoming an officer. This left it to the commissioners to determine (subject to review by the courts) whether the relator’s excuse was satisfactory or not. The power of the court at general term to review the finding of the commissioners is conceded, while the Court of Appeals generally accepts their finding when approved of by the general term upon certiorari, as conclusive, People v. French, 7 N. Y. State R., 253; Same v. Same, 119 N. Y., 493, 502; Same v. Same, 110 Ib., 494, and kindred cases, and yet that court, in The People v. French, 119 N. Y., 493, reversed an order of the Supreme Court, affirming the action of the commissioners in removing one Hogan from the force. In that case the court discriminates between a voluntary intoxication and the taking of liquor in a sudden emergency, from a commendable motive, and with a reasonable expectation that it will sustain the failing ability to perform duty.” In such a case, the court holds a that there is no breach of discipline, and no conduct unbecoming an officer ” (page 498)'. If, as is sworn to by the relator and the two citizens, the ground was a slippy,” his horse slipped and he was thrown to the ground and rendered unconscious, and the citizens to revive him gave him whiskey, which by the subsequent heat of the radiators in the station house put the relator in a doze, it cannot be truthfully said that the relator was guilty of voluntary intoxication, or of conduct unbecoming an officer. The commissioners should not have disregarded the evidence of the two citizens. They were disinterested and unimpeached, not even contradicted, and their story was highly probable. Lomer v. Meeker, 25 N. Y., 361; Kavanagh v. Wilson, 70 N. Y., 179. The commissioners while exercising quasi-judicial functions, must weigh the testimony offered before them according to legal rules, and give effect to explanations which tend to mitigate or explain away the offence charged. For the failure of the commissioners to give proper effect to the explanation offered, their adjudication must be reversed and the relator restored.

Freedman, P. J., and Gildersleeve, J., concurred,


text:
    SABINA F. KERNS, Respondent v. JOHN B. . HAGENBUCHLE, Appellant.

      Promise of marriage, breach of—Damages, etc.

    This action was brought to recover damages for an alleged breach of a promise of marriage. The answer denies the promise and sets up in defence, that the defendant is now, and was at the time when the alleged promise was ma¡ie, a married man. The jury found a verdict in favor of plaintiff and assessed her damages at $5,000.

      Held, that the evidence sufficiently sustains the verdict, and the fact that defendant was a married man is no defence. In .actions of this kind, if a plaintiff knows that the defendant is married at the time of the promise, the promise is void because both parties know that the defendant is incapable of fulfilling the contract, but where it appears, as in this case, that the plaintiff was not aware of defendant’s marriage, this rule does not apply. When the defendant is under a disability known to him but unknown to the plaintiff, the right of the plaintiff to maintain the action is clear. As the defendant was unable to make his promise good, the plaintiff’s right of action accrued the moment she discovered the inability. She was not bound to tender performance on her part nor to request a performance on his part. The plaintiff engaged herself to the defendant on his implied agreement that he was legally capable of contracting-marriage, in consideration of which she has remained unmarried and has not sought other suitors. There is nothing in the case to warrant the belief that the jury were misled or influenced by passion or prejudice, and nothing to indicate that the verdict is excessive.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from a judgment rendered in favor of the plaintiff upon the verdict of a jury, and from an order denying a motion for a new trial.

      N. T. M. Melliss, attorney and of counsel, for appellant, argued :—

      I. In actions of this kind it is now well settled in this state that the plaintiff cannot recover if she knew or had reason to believe that the defendant was married. Haviland v. Halstead, 34 N. Y., 643; Cammerer v. Muller, 14 N. Y. Supplement, 511. The evidence of Mary Glenn shows that the plaintiff knew that the defendant was a married man. This witness is a disinterested one and is nowhere contradicted except by the plaintiff. The evidence of Mary Glenn was nevertheless entirely disregarded by the" jury. The defendant’s motion for a verdict should have been granted.
    II. It was error for the judge to reject the question put to the Avitness Mary Glenn to bring out that it was generally known in the factory where she and the plaintiff worked that the defendant Avas a married man. Greenleaf on Evidence, XIV. ed., § 101, notes a and c.
    III. The judge at trial term erred in excluding the letter offered in evidence by the defendant and marked defendant’s exhibit A ” for identification, written by the nurse, Mrs. Graham, who, it is shown by the testimony, attended the plaintiff at the time of her confinement and wrote said letter at plaintiff’s request to the defendant, plaintiff being unable to write herself by reason of her condition. This letter had a direct bearing on the defendant’s good faith and affects the question of damages. Greenleaf on Evidence, XIV. ed., § 101.
    IV. A fair construction of the evidence is that the plaintiff was the defendant’s mistress for a period of about three years, a relationship entered into voluntarily by the plaintiff. That she was treated with liberality and justice by the defendant during the whole period of their intimacy, including her confinement, and that he supported her and her child until a short time before the action was begun. The damages ($5,000) awarded by the jury are therefore excessive. The amount should be reduced and, in default of the plaintiff’s acceptance, a new trial should be granted.

      E. G. Duvall, Jr., attorney, and John R. Reid of counsel, for respondent, argued :—
    I. The jury having found that defendant had promised to marry defendant, under such • promise had seduced her, and not only refused but was powerless to keep such promise—he being a married man—determined the question of damages. They were strangers to both parties and, without passion or prejudice, rendered a very moderate verdict. In this case, the damages not being capable of measurement by any precise rule, they were properly left to the discretion of the jury—and this discretion was not abused. Southard v. Rexford, 6 Cow., 254; Welbar v. Johnson, 58 Mo., 609; Laurance v. Cooke, 56 Me., 187.
    II. In addition to considerations of sentiment and affection, the jury had the right, in determining the damages sustained by plaintiff, to take in view the money value or worldly advantages of the proposed marriage. To this end they properly considered the social position and estate of the defendant. Harrison v. Swift, 13 Allen, 144; Holloway v. Griffith, 32 Iowa, 409; Reed v. Clarke, 47 Cal., 194; Chellis v. Chapman, 26 St. Reporter, 953.
    III. The jury, in estimating the damages, properly took into account plaintiff’s seduction by defendant as tending to increase the mortification and distress suffered by her. Sherman v. Rawson, 102 Mass., 395.
    IV. The wrong to plaintiff was intensified by defendant’s outrageous attempt to class her with common prostitutes—insisting that she sold her chastity to him— and was properly considered by the- jury in awarding damages. The jury were satisfied, as their finding shows, that this disgraceful charge of defendant was the creature of his wicked invention; it added to plaintiff’s injury, and, in itself, warranted a larger verdict than that given by the jury. It was a case of exemplary damages. Thorn v. Knapp, 42 N. Y., 474.

      Y. The contract of marriage involved protection, respect and affection. Defendant violated it by seducing defendant. This demonstrated defendant’s bad motives and his wicked heart. His conduct was cruel and fiendish, and by his unrighteous defence he sought to increase plaintiff’s disgrace and ruin her character. It was, therefore, a surprise that the jury awarded such a moderate sum in damages. The verdict not being excessive, will not be disturbed. Sargent v. Beam, 42 Mich., 346.
   By the Court.—McAdam, J.

The action was brought by the plaintiff to récover damages for a breach of promise to marry. The answer denies the promise alleged and sets up in defence that the defendant is now, and was, at the time when the alleged promise was made, a married man. The purpose of this defence was to make void any promise of marriage to the plaintiff, in case there was evidence that a promise had been made. The jury found a verdict in favor of the plaintiff and assessed her damages at $5,000, and from this judgment the present appeal was taken. The evidence sufficiently sustains the verdict, and the fact that the defendant was a married man is no defence. In actions of this kind, if a plaintiff knows that the defendant is married, the promise is void, because both parties know that the defendant is incapable of carrying out the contract. Haviland v. Halstead, 34 N. Y., 643; Cammerer v. Muller, 14 N. Y. Supplement, 511.

But where it appears, as it did in this case, that the plaintiff was not aware of the defendant’s marriage, the rule has no application. Where the defendant is under a disability known to him, but unknown to the plaintiff, the right of the plaintiff to maintain an ^action is clear.

Thus, in Harrrison v. Cage, 1 Ld. Raym., 387, it was held that a pre-engagement by the defendant is no defence. Holt, C. J. said: Pre-contract is a disability, but it will not avoid the performance of jour promise, because it proceeds from your own act.” Nor is the fact that the defendant was married at the time of the promise necessarily a defence. Wild v. Harris, 2 C. B., 999; Milward v. Littleword, 1 E. L. & E., 408; S. C., 5 Exch., 775. The consideration was said to be that the plaintiff would remain unmarried. Pollock, C. B., said that the defendant impliedly promised that there was no impediment to his performing his promise.” This doctrine was also applied in Blattmacher v. Saal, 29 Barb., 22, which correctly states the law upon the subject. This case is referred to in an article published in the 11th American Law Reg., N. S., pp. 65, 71. The rule laid down in Haviland v. Halstead, 34 N. Y., 643, has no application, for in that case the plaintiff knew at the time that the defendant had a wife living of a former marriage ; that he had been divorced from such former wife for misconduct on his part, and she knew the cause of such divorce (see opinion of the court at p. 644), and was consequently chargeable with a knowledge of the law applicable. The fact here is the reverse, for the plaintiff had no knowledge of the defendant’s incapacity to contract.

As the defendant was unable to make his promise good, the plaintiff’s right of action accrued the moment she discovered the inability. She was not bound to tender performance on her part, or to request performance on his.” In Short v. Stone, 8 Q. B., 358, it appeared that subsequent to the promise to marry the plaintiff, the defendant had married another, it was held that this dispensed with any request on the part of the plaintiff. See also, Caines v. Smith, 15 M. & W., 189; Lovelock v. Franklyn, 11 Q. B., 378, and Crist v. Armour, 34 Barb., 378, 387. The plaintiff engaged herself to the defendant, on his implied agreement that he was legally capable of contracting marriage, in consideration of which she has remained unmarried, and has not sought other suitors. She has been intentionally wronged, but whether intentionally or not, the injury to her is the same.

The next question is, whether the damages were excessive.

Southerland in his work on damages (vol. 3, page 323), says : It is proper for the jury to consider the pecuniary as well as the social standing of the defendant, as tending to show the condition in life which the plaintiff would have secured by the marriage. In these cases the jury should take into consideration the rank and position of the parties, the estate of the defendant, and all the facts proven in the case. And the amount of damages, not being capable of measurement by any precise rule, is left for decision to the discretion of the jury on the circumstances of each particular case, subject to the power of the court to set aside the verdict when it appears that the jury has been misled or influenced by passion or prejudice."

In actions for breach of promise vindictive damages are allowed, for this action, though founded on contract, is regarded as being somewhat in the nature of a tort. Johnson v. Jenkins, 24 N. Y., 252; Thorn v. Knapp, 42 Ib., 474. In Campbell v. Arbuckle, 21 St. R., 412; S. C., 4 N. Y. Supplt., 29, aff'd 123 N. Y., 662, it was held not reversible error to charge the jury that if they found for the plaintiff, she was entitled to recover such damages as the jury might award; that they were permitted to exercise their discretion in regard to the amount of damages, provided only that their conduct was not marked by prejudice, passion or corruption.

There is nothing in the case to warrant the belief that the jury were misled or influenced by passion or prejudice, and nothing to indicate that the verdict is excessive. The exceptions taken are without merit.

It follows, therefore, that the judgment and order appealed from must be affirmed with costs.

Freedman, P. J., and Gildersleeve, J., concurred.


text:
    PATRICK W. KERNS, Respondent v. JOHN B. HAGENBUCHLE, Appellant.

      Action to recover damages for the loss of service of a daughter of plaintiff, who was debauched by the defendant, and thereby the plaintiff was deprived of her assistance, society, comfort and service.

    The jury found all the facts in favor of the plaintiff and returned a verdict in his favor, assessing the damages at $3,500. The appellant claims that the damages so found were excessive and should be reduced. Held, that for injuries of this character the plaintiff was entitled to recover exemplary damages. This is a universal rule. In these cases the loss of service is merely nominal although the damages that may be recovered are large and are left much to the discretion of the jury, who may take into consideration all that the parent can feel from the nature of the loss. They may look upon the parent as losing the comfort as well as the service of the daughter, and the jury do right in giving liberal damages. In this case the verdict was not excessive, and the jury were warranted in finding as they did.
    Before Freedman, P. J., McAdam and Gilder-sleeve, JJ.

      Decided January 11, 1892.
    Appeal from a judgment in favor of the plaintiff on verdict of the jury, and from an order denying a motion for a new trial.

      N. T. M. Melliss, attorney and of counsel, for appellant.

      E. J. Duvall, Jr., attorney, and John R. Reid of counsel, for respondent.
   By the Court.—McAdam, J.

The action is by the plaintiff as the father and master of Sabina F. Kerns to recover damages from the defendant for seducing the plaintiff’s daughter and depriving him of her assistance, society, comfort and service. The jury found all the facts in favor of the plaintiff and returned a verdict in his favor, assessing the damages at $3,500.

For the injuries received through his daughter’s dishonor the plaintiff was entitled to recover exemplary damages. This is a universal rule. Lipe v. Eisenlerd, 32 N. Y., 229; Damon v. Moore, 5 Lans., 454; Knight v. Wilcox, 18 Barb., 212; Bartley v. Richtmyer, 4 N. Y., 38, 44; Ingersoll v. Jones, 5 Barb., 661; Ball v. Bunce, 21 Ill., 161. In Lipe v. Eisenlerd, 32 N. Y., 236, Denio, Ch. J., said : The object of the action, in theory, is to recover compensation for the loss of the services of the person seduced. This is so far adhered to that there must be a loss of that kind or the action will fail; but when that point is established, the rule of damages is a departure from the system upon which the action is allowed. The loss of service is often merely nominal, though the damages which are recovered are very large.”

The action is based on mere loss of service, though this is eminently a legal fiction,” says Sedgwick on Damages, vol. 2, 7th ed., p. 512, for the damages are generally large, and are left much to the discretion of the jury.”

In Lampman v. Hammond, 3 T. & C., 294, the court said: The father may maintain the action for the seduction of his minor daughter, upon the presumption, without proof, of a loss of service, because he is entitled to command such service.”

In Ingersoll v. Muller, 47 Barb., 47, the court held that proof of the slightest loss of service or the most trivial injury, if the direct result of the unlawful act, is sufficient to uphold the action.”

Lord Eldon, in Bedford v. McKnowl, 3 Esp., 119, said: In point of form the action only purports to give a recompense for the loss of service, but we cannot shut our eyes to the fact that this is an action brought by the parent for an injury to her child. In such a case I am of opinion that the jury may take into consideration all that she can feel from the nature of the loss. They may look on her as losing the comfort as well as the service of her daughter, in whose virtue she can feel no consolation, and as the parent of other children whose morals may he corrupted by her example.”

It has been laid down that actions of this sort are brought for example’s sake, and although the plaintiff’s loss may be pecuniarily small, yet the jury do ‘right in giving liberal damages. Wood’s Mayne on Damages, 659.

Decided by these rules the verdict was not excessive, the jury were warranted in finding as they did, and the judgment and order appealed from must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.