author: IÍAEDIN, P. J. :

text:
    Mary Ryan, as Administratrix, etc., of Ernest C. Ryan, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Railroad corporation — failure to provide safe appliances to hold lumber on a can' — personal injuries.

    Upon the trial of an action brought to recover damages resulting from the death of the plaintiff's intestate by reason of the alleged negligence of the defendant, tire plaintiff gave evidence which tended to show that a stake used to secure certain lumber in transit was dozy, rotten and imperfect. That by reason of the defective condition of such stake the lumber was loosened, allowing a board to project from the pile, by which the plaintiffs intestate was struck and killed. The evidence given by the defendant tended to show that the lumber had been inspected several times during its transit and the nature and character of such inspections.

      Held, that if the stake was rotten and imperfect the railroad company was liable for injuries resulting from its negligence in failing to discover the condition of the stake at the time such inspections were made.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the jdaintiff, entered in the office of the clerk of the county of Onondaga on the 17th day of January, 1895, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 21st day of January, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from the alleged negligence of the defendant in causing the death of plaintiff’s intestate, who was injured on the 26tb day of August, 1893, on the West Shore railroad, of which the defendant is the lessee, about half a mile from Auriesville, Montgomery county, while riding in the cab of the engine' of freight train No. 75, which was making a trip from Ravena westward to Syracuse over the tracks of the West Shore railroad.

      AsKbel Green and L. L. Waters for the appellant.

      Walter W. Magee and William Kennedy, for the respondent.
   IÍAEDIN, P. J. :

On the 26th of August, 1893, plaintiffs intestate was in the employ of the West Shore railroad (operated by the defendant) as a brakeman, and Avas on train No. 75 going west when he received injuries from which he died the next day. About a half mile east of Auriesville, while sitting in the cab of the engine, the deceased, it is claimed, was struck by a board projecting from a car loaded with lumber passing east on the adjacent track.

The evidence tended to show that a stake was dozy, rotten and imperfect which passed into a socket on the side of the car loaded with lumber, and that the lumber got loosened and thus allowed a board to project from the pile, which struck the intestate, injuring him. The board, when examined after the accident, was covered with hair and blood ; a piece had been split therefrom, and, subsequent to the accident, near where it occurred, the piece was found, and that was covered with hair and blood. The evidence given by the plaintiff tended to show that the stake was rotten and imperfect, •and, by reason thereof, the accident occurred. The defendant gave evidence tending to show several inspections of the loáds of lumber •while the train was passing eastward, and the nature and character of such inspection. If, however, the stake was rotten and imperfect, to the extent described by the witness Parsons, the inspection was inadequate, and the duty of the defendant in that regard had not been discharged, inasmuch as “ there was a negligent failure to discover it.” (Bailey v. R., W. & O. R. R. Co., 139 N. Y. 302; Union Pacific Railway v. Daniels, 152 U. S. 684.) It was the •duty of the defendant to provide safe appliances and apparatus for the use of its employees. Providing a decayed, rotten, dozy stake to hold the binders of the lumber was not a compliance with the duty the defendant owed its employees. The stakes were necessary to secure the lumber properly while in transit, and if the defendant failed to exercise proper care in respect to their condition it was chargeable with negligence. (Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 374; Dougherty v. R., W. & O. R. R. Co., 45 N. Y. St. Repr. 154; S. C. affd., 138 N. Y. 641; Redington v. The N. Y., O. & W. R. R. Co., 84 Hun, 231.)

Upon all the facts and circumstances and evidence disclosed it was for the jury to determine whether the defendant had discharged its duty in the premises. Doubtless the jury gave faith and credit to the evidence of Parsons. We do not find facts and circumstances contradicting liis evidence of such a nature and character as to warrant us in setting aside the verdict as-unsupported by evidence in regard to the question of defendant’s negligence and the intestate’s freedom from contributory negligence. When the trains passed each other they were moving at about the rate of eighteen miles per hour. Under the rules and practices sanctioned by the defendant, as well as the express authorization given by the train-master, Ford, for bralcemen to ride upon the engine, we think the jury were at liberty to find that the deceased, at the time of the accident, was not violating the regulations and instructions of the defendant by riding in the cab of the engine. The trial judge charged broadly that if the negligence of a fellow-brakeman caused the injuries a recovery could not be had and that the jury must find it was tiie negligence of defendant solely that caused the injury, and in that case the defendant was liable. The charge seems to have been as favorable as the defendant was entitled to under the evidence. The trial j ndge refused to charge “ that the evidence does not warrant the inference that the death of plaintiff’s intestate was caused by the defect in the stake or binder on the car in question.” He had already charged that plaintiff could not recover unless the projecting board reached such a position at the time of the accident as to have struck Ryan by reason of the defect in the stake and binder on tlie car in question.” We think the court properly allowed the jury, after considering all the evidence and» circumstances presented, to draw the natural and legitimate inferences therefrom in determiningTiow the intestate received the injuries causing his death.

The judgment and order should be affirmed, with costs.

MaetiN and MerwiN, JJ., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: HardiN, P. J.:

license: Public Domain

text:
    Edward J. Patterson, as Administrator, etc., of Jennie Patterson Townsend, Deceased, Respondent, v. The City of Binghamton, Appellant.

      Oity of Binghamton — street opening— rights in the award, of parties interested— notice of recorded incumbrances — recovery of an award.

    The language of section 4 of title 7 of chapter 314 of the Laws of 1888 (the charter of the city of Binghamton), directing the commissioners appointed in proceedings for the opening of streets to ascertain and award to the respective owners of the property to he taken and to all persons or corporations interested therein such damages therefor (after deducting the benefits to the adjoining lands) as in their opinion shall he a just compensation for the property so taken, considered in connection with the general provisions found in the statute, indicates that all the property rights of the owners are to he acquired, and that the award to he made shall include compensation not only for the principal ownership hut also for all interests in the property.
    At the time an award is made'for property taken for the purposes of opening a street the persons holding mortgages or other liens upon such property are interested therein, although they are not in form made parties to the proceeding. It is to he supposed that as the proceedings are of a public character, and notice thereof is required to he published as prescribed by statute, persons having interests in the property are apprised of the proceedings, although they do not in form appear therein.
    The language of section 10 of title 7 of such act, construed in connection with the language of section 4 thereof, indicates that all persons interested in the premises sought to be acquired are interested, or are assumed to he interested, in the distribution of the award which is intended to work a cancellation or extinguishment of the ownership or interest in the property acquired, and it does not follow, because the commissioners omit to specify in detail the persons to whom the damages awai'ded by them belong, under all the facts and circumstances relating to the property taken, or because they in terms award the damages to specified persons who own the fee in the premises, that the rights of other persons interested therein were ignored or cut ofE.
    When land is taken for public use the damages awarded take the place of the land in respect to all the rights which are dependent upon it and incident to it, and it may be said that in equity the award represents that portion of the land or the interest therein taken by virtue of the condemnation proceedings.
    Where lands taken for the purpose of opening a street in the city of Bingham-ton are incumbered, at the time of the institution of the proceedings for such street opening, by a mortgage which has been recorded, and remain so incumbered, the city is presumed to have notice thereof.
    Where'the common council of the city of Binghamton directs that the amount of an award, made by commissioners for property taken for the purpose of open--ing a street in such city, shall he paid to the clerk of the county of Broome, as the clerk of the Supreme Court, and such payment has been made, all persons who assert a claim to the amount awarded are limited to the remedy prescribed in section 10 of title 7 of the charter of the city of Binghamton (Chap. 214 of 1888), to wit, an application to the court held in the county of Broome, for directions for “the payment over on the ascertainment of the person entitled thereto,” and an action against the city to recover the amount of the award is not maintainable.
    Appeal by the defendant, The City of Binghamton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 29th day of January, 1895, upon the decision of the court rendered after a trial at the Broome Special Term.
    This action was commenced on the 17th day of August, 1892. The complaint alleges that Edward J. Patterson and Jennie Patterson were the owners of a parcel of land situated on the east side of "Water street in the city of Binghamton in the year 1891; and that the defendant, a municipal corporation, about May 13, 1891, instituted proceedings in pursuance of its charter to lay out and open through the premises a public street fifty feet wide, known and called an extension of Henry street; and that thereafter it was determined that said public street should be laid out over a portion of said land, and that it was so laid out prior to October 27, 1891; that a commission was appointed by the County Court of Broome county to ascertain the damages to the land for the laying out of the street, and that subsequently, and on the 27th of October, 1891, an award in writing was made to the plaintiffs by the commissioners, awarding as damages for the laying out of the street the sum of $6,270 (plaintiffs were to deduct the sum of $100 if they elected to remove a building on said lands); it is alleged that the plaintiffs did so elect, and that the award became effectual and final on the 6th of November, 1891. '
    Defendant, in its answer, admits that the plaintiffs were owners and in possession of the land described in the complaint subject to certain mortgages and incumbrances, which are stated, and that in May, 1891, proceedings were instituted in pursuance of the charter to lay out and open over and through a part of the lands a public street. It also sets up that on the 5th of June, 1888, Jennie Patterson and Edward J. Patterson executed a mortgage to Charles Schlager -and another, covering the lands mentioned in the complaint, which was recorded, and that the same was, on the 26th of December, 1890, by the owners thereof, assigned to the Binghamton Trust Company, and its assignment was recorded on the 11th of September, 1891; that on the 12th of September, 1891, the owners of the mortgage commenced an action to foreclose the same and a Us pendens was filed in Broome county clerk’s office, and that the plaintiffs in this action were made parties to that action ; that a judgment was thereafter had directing a foreclosure and sale, and that, in pursuance of the decree, the premises were sold on the 6th day of February, 1892, including the premises described in the complaint, to one F. "W. Downs for $6,525. A deed was executed by the referee to him, and it is alleged that he became entitled lawfully to and “ seized of all the estate, right, title and interest, as well as all right and title to the award alleged in the complaint.” It is alleged also that the surplus, $2,774.88, was paid over to the treasurer of the county, and that in proceedings for distribution the same was applied on several liens that had attached to the premises to a considerable extent, “ and a balance of several hundred dollars remaining after such distribution was duly paid to and accepted by the plaintiffs herein, who well knew and understood that such proceedings and payment deprived them of all right, title or interest in or to the premises described in the complaint for which it was alleged the said award was made, and of all right or interest in or to the said award.”
    The trial court found that the city of Binghamton was not made a party to the foreclosure action, and at the time the foreclosure action was brought the Binghamton Trust Company knew of the proceedings then pending to lay out and open TIenry street extension through the Patterson property; the trial court fo'und as conclusion pf law, viz.: “ That the said award did not pass to the purchaser of the premises on the said foreclosure sale. That the plaintiff is entitled to a judgment against the defendant for the amount of said award, to wit, $6,170, with interest thereon from Dec. 1st, 1891.” Exceptions were filed to the decision. Jane Patterson died after the action was brought, and the claim of Edward J. was assigned to her administrator.

      A. da A. W. Qwmmmg, for the appellant. ■

      EcLwcurd K. OlarTc, for tbe respondent.
   HardiN, P. J.:

Chapter 214 of the Laws of 1888 contains the charter of the city of Binghamton, and in the seventh title sundry sections are found relating to proceedings to open streets. 'Defendant under those several sections instituted its proceedings to open Henry street extension. Section 4 of said title 7 defines to considerable extent the duties of commissioners appointed to appraise the damages to be awarded to parties whose lands or interests therein are taken in virtue of the proceedings. In the language of that section it is said : “ They shall ascertain and award to the respective owners of property to be taken, and to all persons or corporations interested therein, such damages therefor (deducting the benefits to the adjoining lands) as in their opinion shall be a just compensation to them respectively.” This language, in connection with the general provisions found in the statute, seems to suggest that the acquisition is to be made of all the property rights of the owners and that the award to be made is to be in compensation, not only for the principal ownership, but to compensate “ all persons interested therein.” At the time the award was made the persons holding the mortgage and other liens upon the property were interested therein, and although not in form made parties to the proceeding by name, it is to be supposed that the proceedings being of a public character, and the notices being required to be published prescribed by the statute, the persons having interests in the property were apprised of the proceedings, and, although they did not in form appear, it is to be presumed that it was the duty of the commissioners to ascertain and determine the extent and value of the respective interests taken or affected by the condemnation proceedings. In section 10 it is provided that Immediately after the final determination of all proceedings in which any award shall have been made, the common council shall cause to be paid or tendered to the respective owners the amount awarded to each respectively.” Ye think this language, construed in connection with the language found in section 4 which we have just quoted, indicates that all persons interested in the premises sought to be acquired are interested, and ought to be assumed to be interested, in tlie distribution of the award whicli is intended to work a cancellation or extinguishment of the ownership or interest in the property acquired. Defendant’s common council did not comply immediately with that part of section 10 which we have just quoted, by paying to the owners of the fee, or to the persons interested in the premises by way of liens, the amount of the award. After the fund was raised by the defendant for the purpose of liquidating the award, it was not immediately paid over, as a dispute arose as to what parties were properly entitled to it; it was claimed by the plaintiff in this action as well as by the purchaser of the premises or his assignee under the mortgage sale. Apparently, the section undertakes to provide for a case where a dispute arises as to the proper parties to receive the award, and in the subsequent language of section 10 it was provided that if for any reason the owner shall refuse to receive the same, or be incapacitated from receiving tlie amount, “ or the right thereto be disputed or doubtful, the common council may make payment of such amount to the office of the clerk of the county of Broome, as cleric of the Supreme Court.” This part of the statute seems to contemplate that where a dispute or a doubt arises such as was existing between the parties owning or interested in the premises condemned, it should be within the province of the common council to omit paying to either one of the parties. In the case in hand there was a dispute, and it may be said to have been doubtful whether the owner of the fee or t'he lienors interested therein should receive, at the hands of the common council, the money that was placed under its power and supervision to compensate for the property acquired through the condémnation proceedings. The common council, finding that the right to the award was disputed or doubtful, was authorized by the section to make' payment of such amount to the office of the clerk of the county of Broome, as clerk of the Supreme Court.” The mode of ascertaining the parties claiming to own the award or to be interested therein is provided for in the section. It is made the duty of the clerk to “ make a report to the Supreme Court at its first term, special or general, held thereafter in the county, of the amount thus deposited, * * * and the Supreme Court shall have authority, and it shall be its duty, at such term of the court, to order the investment of such money or the payment over on the ascertainment of the. .person entitled thereto.” It is quite apparent that it was the duty of the common council, as soon as the dispute or doubt arose, to follow the provisions of the statute just referred to ; and it is probable that a mandamus would have been allowed to quicken the action of the common council if it was dilatory. It seems that the statute provides for a summary mode of a distribution of the award to the parties lawfully entitled to receive the same. It seems to be the spirit of the statute that the city is not authorized to take possession of the property until complying with the provisions which have just been referred to. Near the close of section 10 we find the following words: “Upon such payment or tender, or payment to the clerk being fully made, the land may be taken by the city, pursuant to the resolution of the common council, declaring their determination to make such improvement, and the said street or other improvement may then be opened, worked and used.” Upon complying with this provision of the statute the defendant was authorized to enter into possession of the premises for which the award was allowed. We see no other provision in the charter authorizing expressly the defendant to enter upon the premises sought to be acquired by the condemnation proceedings. It does not seem to follow, because the commissioners omitted to specify in detail to whom the damages awarded by them belonged, under all the facts and circumstances relating to the property, or because they, in terms, awarded the damages to the Pattersons owning the fee, that the rights of the persons interested therein should be ignored or cut off.

In Utter v. Richmond (112 N. Y. 610) it was said that where land is taken for public use the damages awarded take the place of the land in respect to all the rights and interests dependent upon and incident to it; and in the course of the opinion delivered in that case it was said : “ No doctrine could be more clearly just than that, when land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon and incident to it.” In the case in hand the land was mortgaged at the time of instituting the proceedings and remained incumbered by the mortgage. It was upon record, and the defendant and all its officers are presumed to have notice thereof.

In Cassidy v. The Mayor, etc. (62 Hun, 358), it was said that where an award is made to a specific person the city is not bound to pay the award to that person and thus leave the true owner to his action against such person. The award or fund raised by the city to discharge the same stood in the place of the land, and the city when parting with the fund would be entitled -to take possession of the land. The fund remained for the purpose of satisfying the rights of the owners and lienors upon the land.

“ That fund was the product of a paramount proceeding which cut off every right * * * both of owners and incumbrancers, so that there could be neither sale nor foreclosure as to that, and instead there remained an equitable lien upon the proceeds to be worked out by the court empowered to distribute.” (Matter of City of Rochester, 136 N. Y. 90.)

In Gates v. De La Mare (142 N. Y. 313) it was said in the course of the opinion of ANdbews, Ch. J., viz.: “ If all the property covered by the mortgage had been taken by the city the defendant could have made, no claim on the award except upon airy surplus remaining after payment of the mortgage debt. * * * In law the final award represented the actual value of the land, no more and no less, and the land was primarily pledged as security for the mortgage and the priority of lien was transferred from the land to the award, and could not be subordinated to a lien subsequently created by Denninger in favor of the defendant.” It may be said in equity that the award represents that portion of the land or the interest therein taken by the condemnation proceedings. (Magee v. The City of Brooklyn, 144 N. Y. 269.) Inasmuch as it appears in the case that the common council had directed the payment of the money to the clerk of the county of Broome, as the clerk of the Supreme Court, and that such payment has been made, it seems reasonable that the plaintiff, if, under the circumstances of this case, he is advised to make claim to the moneys, should be limited to the remedy prescribed in section 10 of title 7 of the charter, to wit, an application to the court held in the county of Broome for directions for the payment over on the ascertainment of the person entitled thereto.

Inasmuch as the foregoing views, if adopted, lead to a reversal of the judgment, it is not deemed necessary to discuss the numerous questions raised by the defendant as to the validity of the condemnation proceedings instituted by it, conducted step by step until it readied tlie stage where its common council authorized the payment of the money- which it had received in liquidation of the assessment made to meet the damages for taking the lands to open Henry street. Inasmuch as the conclusion has been stated as above, it is not necessary in order to determine the ri lit of the plaintiff to hold the present judgment to authoritatively jiass upon the question. Inasmuch as the defendant has been active in instituting the proceedings and conducting them and in claiming benefits under them, it may be said under such circumstances its assertion that the condemnation proceedings are irregular does not come to the court with very much grace. However, we omit to pass conclusively unon the question as to the validity of the proceedings at this time.

Merwin, J., concurred; MaRtiN, J., not voting.

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


author: MaetiN, J. :

text:
    Anna Stedman, Appellant, v. The City of Rome, Respondent.

      Personal injuries — notice of defects in a street under the chanter of the city of Home — not required where its street superintendent creates them — contributory negligence — when to be determined by the jury.

    Tlie provision of tlie charter of the city of Koine to the effect that the city shall not he liable for any injury caused by reason of its sidewalks being out of repair or unlawfully obstructed or dangerous from snow and ice, unless actual notice shall have been given to the mayor or common council of the city, is not applicable to a case where the accident which caused the injury was occasioned by the erection by the superintendent of streets of such city, across the sidewalk of one of its public streets, of a bridge which was seven inches above the level of the sidewalk and sloped on each side to the sidewalk.
    In such case the obstruction which caused the accident having been created by the officers of the city, the city will be considered to have had full notice of its existence.
    Contributory negligence is a question of fact and should be left to the j ury, unless it so clearly appears from the circumstances of the case or from uncontradicted evidence as to leave no inference of fact in doubt. It is only in very exceptional cases that it can be adjudged to be a necessary legal conclusion from the-facts proved.
    I^ithin the time prescribed by the charter of the city of Rome for the giving of notice of personal injury, provided for therein, a person injured by falling on one of tlie streets of such city presented to its common council a notice of her injury in the following words: “ That heretofore, and on or about the 24th day of November, 1898, while your petitioner was lawfully traveling upon the street and sidewalk ip. the said city, known as Henry street, and going westerly towards West street, and just before reaching a point on said street where the same connects with West street, and near an artificial structure known as a bridge, your petitioner, by reason of the imperfect character, slope, construction and condition of said street and bridge, and without any negligence on her part, and solely by the negligence of said city, its officers, employees, agents and servants, your petitioner then and there received a fall by reason of the condition of the street and bridge as aforesaid, and by the fall so received your petitioner broke her left arm, and was in consequence thereof made to suffer great pain, and was disabled and prevented from her usual avocations for some time, and will be so prevented for an indefinite pieriod in the future. Your petitioner prays that your honorable body will award her the damages which she has suffered, which are at least in the sum of §1,500, and which the petitioner hereby presents as a claim against the city of Rome aforesaid.”

      Held, that the notice was sufficient and was a substantial compliance with the provisions of the charter of the city of Rome.
    Appeal by the plaintiff, Anna Stedman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 19th day of October, 1894, upon the dismissal of the complaint directed by the court after a trial at the Oneida Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 19tli day of October, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      George T. Davis and M. H. Dowers, for the appellant.

      A. D. Kneelwid, for the respondent.
   MaetiN, J. :

This action was to recover damages alleged to have been sustained by the plaintiff by reason of the negligence of the defendant.

On the trial the plaintiff was nonsuited. The grounds of the motion were : (1) That the evidence did not establish the fact that the injury complained of was caused solely by the negligence of the defendant; (2) that the plaintiff did not show that she was free from contributory negligence; and (3) that the notice of the injury presented to the common council of the defendant was insufficient.

The court held the notice sufficient, but granted the defendant’s motion and refused to submit to the jury the questions of the defendant’s negligence and the plaintiff’s • freedom from contributory negligence.

Prior to the time of the accident, the defendant by its superintendent of streets had erected upon and across the sidewalk of Henry street, a public street of the city, a bridge which was seven inches above the level of the sidewalk and sloped on each side to the sidewalk. The plaintiff, while passing over the sidewalk and bridge at that place, fell and broke her ann or wrist.

A careful examination of the evidence contained in the appeal book renders it clear, we think, that the question of the defendant’s negligence was one of fact for the jury. Clemence v. City of Auburn, 66 N. Y. 334; Urquhart v. The City of Ogdensburgh, 97 id. 238; Bullock v. Mayor, etc., of New York, 99 id. 654; Good fellow v. Mayor, etc., of City of New York, 100 id. 15; Cohen v. Mayor, etc., of New York, 113 id. 532; Pettengill v. City of Yonkers, 116 id. 558; Bishop v. Village of Goshen, 120 id. 337; Gillrie v. City of Lockport, 122 id. 403; Keane v. Village of Waterford, 130 id. 188; Colburn v. Trustees, etc., of Canandaigua, 15 N. Y. St. Repr. 668; affd., 22 id. 996; Higgins v. The Village of Glens Falls, 33 id. 111; affd., 37 id. 964; Sherman v. Village of Onconta, 49 id. 267; affd., 60 id. 867; Goff v. The Village of Little Falls, 47 id. 729.)

The provision of the defendant’s charter which provides that it shall not be liable for any injury caused from its sidewalks being out of repair, or unlawfully obstructed, or dangerous from snow and ice, unless actual notice of the unsafe condition thereof has, prior to such injury, been given to the mayor or common council, is not, we think, applicable to this case, as the obstruction complained of was created by the defendant’s officers, and, therefore, it had full notice of its existence. (Riddle v. Village of Westfield, 65 Hun, 432; Brusso v. The City of Buffalo, 90 N. Y. 679; Wilson v. City of Troy, 135 id. 96.)

We are also of the opinion that under the evidence the question whether the plaintiff was free from contributory negligence was one of fact, and should have been submitted to the jury. Contributory negligence is a question of fact, and should be left to the jury, unless it so clearly appears from the circumstances or uncontradicted evidence as to leave no inference of fact in doubt. It is only in very exceptional cases that it can be adjudged as a necessary legal conclusion from the facts found. (Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y. 326; Massoth v. Delaware & H. C. Co., 64 id. 529; Greany v. Long Island R. R. Co., 101 id. 419, 423; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 id. 12.)

The defendant’s charter also contains the following provision: “ All claims against the city for damages for injuries to the person claimed to have been caused or sustained by defects, want of repair or obstructions from snow or ice, or other causes in the highways, streets, sidewalks or crosswalks of the city, or because of negligence of the city as to the highways, streets, sidewalks or crosswalks of the city, shall be presented to the common council in writing within three months after said injury is received. Such writing shall describe the time, place, cause and extent of the injury, so far as then practicable, verified by the oath of the claimant. The omission to present said claim as aforesaid, within three months, shall be a bar to any claim or action therefor against the city.” (§ 15, tit. 6, chap. 25 of the Laws of 1810, as amended by § 6 of chap. 384 of the Laws of 1881.)

"Within the time required by this provision the plaintiff presented to the common council a duly verified claim, which described the time, place, cause and extent of her injury, as follows: “ That heretofore, and on or about the 24th day of November, 1893, while your petitioner was lawfully traveling upon the street and sidewalk in the said city known as Ilenry street, and going westerly towards West street, and just before reaching a point on said street where the same connects with West street, and near an artificial structure known as a bridge, your petitioner, by reason of the imperfect character, slope, construction and condition of said street and bridge, and without any negligence on her part, and solely by the negligence of said city, its officers, employees, agents and servants, your petitioner then and there received a fall by reason of the condition of the street and bridge as aforesaid, and by the fall so received your petitioner broke her left arm, and was, in consequence thereof, made to suffer great pain, and was disabled and prevented from her usual avocations for some time, and will be so prevented for an indefinite period in the future. Your petitioner prays that your honorable body will award her the damages which she has suffered, which are at least in the sum of $1,500, and which the petitioner hereby presents as a claim against the city of Rome aforesaid.”

The respondent still insists that this notice was insufficient, although the court held otherwise^ and now seeks to sustain thé nonsuit upon that ground. We are of the opinion that this notice was sufficient, was a substantial compliance with the provisions of the defendant’s charter, and hence the respondent’s insistence cannot be sustained. (Sullivan v. City of Syracuse, 77 Hun, 440; Werner v. City of Rochester, Id. 33; Masters v. City of Troy, 50 id. 485; Cross v. The City of Elmira, 86 id. 467.)

It follows that the judgment should be reversed.

HaediN, P. J., and MerwiN, J., concurred.

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


author: MaetiN, J.:

text:
    Harvey Frink, Respondent, v. Jacob Stevens, Appellant.

      Technical errors in a Justice’s Gourt, disregarded on an a/ppeal to the County Oowrt.

    A technical error in regard to the admission of evidence in a court of a justice of the peace, not affecting the merits, may properly he disregarded hy the County Court when considering, on appeal therefrom, a judgment rendered in the Justice’s Court.
    Appeal by the defendant, Jacob Stevens, from a judgment of the County Court of Cortland county in favor of the plaintiff, entered in the office of the clerk of said county on the 26th day of November, 1894, modifying and affirming as modified a judgment of a justice of the peace of the town of Cortlandville, Cortland county.

      Bouton dk Gha/mphvn, for the appellant.

      Wathcm L. Miller, for the respondent.
   MaetiN, J.:

Tliis action was for damages to tbe plaintiffs mare, alleged to liave been caused by the defendant’s wrongfully, illegally and maliciously unhitching her and driving her out of his barn through a doorway twenty feet above the ground on to a barbed wire fence, whereby she was injured to the plaintiffs damage of forty dollars. The defendant appeared before the justice on the return day of the summons, but interposed no answer. Tie called for a jury, but when informed that he must first join issue in the case, lie left the court and did not return. There was no direct evidence given on the trial showing that the defendant was guilty of the act charged, but the circumstances testified to tended to show that he performed the acts complained of, and were sufficient, we think, to justify the trial court in so finding.

If it be assumed that the statement of the witness as to what Dr. Baker said as to the extent of the injury to the mare was inadmissible, yet we think the judgment should not be disturbed upon that ground as it is manifest that it could not have affected the result. It had no bearing upon the question whether the defendant committed the injury complained of; and upon the question of damages the witness testified that he had owned a good many horses, bought and sold them, knew their value, and then gave his opinion as to the value of the mare in question before and after she was injured. Thus the only evidence of the plaintiff’s damages was the opinion of the witness without any regard to what the doctor had said to him. If, therefore, it was error to admit this evidence it was at most a technical one which did not affect the merits and was properly disregarded by the learned County Court. (Code Civ. Proe. § 3063.)

We think the judgment of the County Court was right and should be affirmed.

ITaediN, P. J., and MeewiN, J., concurred.

Judgment of the County Court affirmed, with costs.


author: MARTIN, J.: HakdiN, P. J.:

text:
    Grover C. Robinson, an Infant, by his Guardian ad Litem, Edwin E. Pattengill, Respondent, v. Ernest R. Hunt, Appellant.

      Action to recover for services rendered tried on the theory of an express contract — when the judgment cannot he sustained upon the ground that a recovei'y might home been had upon quantum meruit — incompetent evidence which requires a reversal.

    The complaint in an action instituted in behalf of an infant alleged that the plaintiff performed services for the defendant at an agreed price, pursuant to a written agreement entered into between them, and that there was due him therefor a specified sum, and also contained a count or cause of action on quantum meruit for the value of the infant’s services which were alleged to have been reasonably worth the same sum. ,
    The case was tried upon the theory that the agreement signed by the infant was binding upon both parties and formed the contract which existed between them.

      Held, that although the infant might have avoided the contract on the ground'of infancy and have recovered the value of his services on quantum meruit, yet, since that was not the theory upon which the case was tried, the judgment rendered in favor of the infant would not be sustained upon the ground that the infant might have recovered upon quantum meruit, and would be set aside because of the admission of evidence which, while it would have been properly received had the action been brought to recover on a quantum meruit, was improper under the theory upon which the case was in fact tried.
    In an action brought to recover compensation for services rendered, if the complaint alleges, and the plaintiff at the trial relies upon, an express promise' to pay a specified sum, the plaintiff is not entitled to prove that the value of his services is more’than the amount stated in such express promise, although t-hie complaint contains allegations appropriate to an action on quantum meruit.

    It is a well-established rule of law that error in receiving incompetent evidence can be disregarded on appeal only when it is clearly seen that the admission of such evidence did no harm; but evidence that would have a tendency to excite the passions, arouse the prejudices, awaken the sympathies or influence the judgment of the jurors in any degree cannot be considered harmless.
    Appeal by the defendant, Ernest R. Hunt, from a judgment of the County Court of Otsego county in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 18th day of June, 1894, upon the verdict of a jury rendered upon an appeal from a judgment of the justice of the peace of the town of Morris, Otsego county, in favor of the plaintiff.
    The action was commenced in a Justice’s Court, where the plaintiff had judgment. The defendant then appealed to the County Court of Otsego county, where a new trial was had and the plaintiff again recovered judgment.

      O. F. Matterson and Charles JET. Searle, for the appellant.

      Nathan Bridges and Albert C. Tennant, for the respondent.
   MARTIN, J.:

The purpose of this action was to recover wages earned by the infant plaintiff while working for the defendant in one of his cheese factories.

The plaintiff alleged in the complaint that he worked for the defendant at the agreed price of twenty-eight dollars a month for eight months and four days, and that there was due him therefor the sum of sixty-five dollars with interest. The complaint also contained a connt or cause of action on quantum meruit for the value of the plaintiff’s services, which were alleged to have been reasonably worth the sum of twenty-eight dollars per month, and that there was due the plaintiff therefor the sum of sixty-five dollars. In another count it was alleged that there was a settlement of tlieir accounts between the parties, and that the sum of sixty-five dollars was found to be due the plaintiff and had not been paid by the defendant.

The answer admitted that the defendant employed the plaintiff to work for him in running his factory at the agreed price of twenty-eight dollars per month, and then alleged that, by reason of his carelessness and negligence in doing his work, his services were of no value, but that he (the defendant) thereby sustained damages to the amount of $100, which he set up as a counterclaim .and for the purpose of showing that the plaintiff’s services were of no value.

Upon the trial the plaintiff produced a written paper, which was as follows :

LeNA, January 18th, 1892.
“ I, Grover Robinson, have agreed to work for E. R. Hunt in the Morris creamery under the following conditions: To commence work when called upon, expecting that time to be May 1st, 1892, or sooner. I am to have the entire charge of the factory work, under the advice and supervision of E. R. Hunt; to do the work with one man to help, unless more milk than can be worked in two cheese vats is received. To do the work when it ought to be done, and not to be out nights, or attend dances or ball plays, or be away any that will in any way interfere with the factory work, or that might be deemed so by E. R. Hunt. To avoid as much as possible boys gathering at the factory nights or Sundays ; to have due diligence and proper care of the work ; to receive twenty-eight dollars per month for each full month’s work; the whole number of days in each month, to be worked for a month’s work. It is, however, understood that if the firemen of Morris have a dance I am to have the privilege of attending.
“ GROVER ROBINSON.”

"We find no evidence that the defendant agreed to the terms of this written contract, although upon the trial it seems to have been assumed that that was the contract between the parties and binding upon both. The plaintiff anight have avoided his contract upon the ground of infancy, and have recovered the value of his services on quantum meruit. (Whitmarsh v. Hall, 3 Den. 375; Winters v. McMahon, 23 Wldy. Dig. 119.) But such was not the theory upon which the case was tried. The plaintiff introduced the written contract in evidence, and when proof was offered as to the value of the services of cheesemakers, and it was objected to upon the ground that the contract was in writing and could not be varied, the plaintiff’s counsel expressly stated that it was not offered for that purpose, and that the question was not asked with a view of at all affecting the amount the plaintiff was entitled to recover.

An examination of the evidence and proceedings upon the trial discloses that the case was tried upon the sole theory that the contract signed by the infant plaintiff was binding upon both parties, and was the contract which existed between them. Such having been the theory upon which the action was tried, we should not now attempt to sustain the judgment upon the ground that the plaintiff might have recovered upon quantum meruit, and, hence, that certain evidence which was admitted was properly received, provided it was improper under the theory upon which the case was tried.

The only question that it seems necessary to determine upon this appeal is whether it was error for the court to permit the plaintiff, on the cross-examination of the defendant, to prove the value of the services of experienced cheesemakers in that locality,. It may be that this evidence would have been admissible if the action had been tried upon the theory of the plaintiff’s right to recover on quantum meruit. But be that as it may, as the case was tried upon the theory that the written contract alone was to control, and when the evidence ivas objected to the counsel for the plaintiff expressly asserted that it was not for the- purpose of affecting the amount of the plaintiff’s recovery or to vary the written contract or show a different one, we think the court erred in admitting such evidence. The specific question asked was: “Now, in 1892, in and about the vicinity of Morris, what was the regular price of cheesemakers who took entire charge of the cheese factory, and assumed the entire responsibility of running a cheese factory and in manufacturing the cheese?” This was objected to as “incompetent and improper; that the contract agreed upon is $28.00 in writing, and they can’t vary it.” The counsel for the plaintiff then stated : “ It is not for that purpose at all,” to which the counsel for the defendant remarked: “ It is incompetent and improper for any other purpose,” the plaintiff’s counsel replying: “ It is not with a view of at all affecting the amount this plaintiff is entitled to recover.” The objection was thereupon overruled and the defendant excepted, the court remarking, during the controversy between counsel, that the ruling was made upon the theory that it was not for the purpose of establishing the value of the plaintiff’s services. The defendant finally answered that the value of such services was fifty dollars a month, the cheesemaker boarding himself.

Assuming, as we think we must, that the parties had the right to try the case upon the theory adopted by them, it is quite obvious that the evidence was improperly admitted, and that the defendant’s exception was well taken. In Marsh v. Holbrook (3 Abb. Ct. App. Dec. 176) it was held that in. an action to recover compensation for services, if the complaint alleged, and the plaintiff at the trial solely relied on, an express promise to pay a specified sum, the defendants were not entitled to prove that the value of the services was less, although the complaint contained allegations appropriate to an action on quantum meruit. The doctrine of that case was fully recognized in Barney v. Fuller (133 N. Y. 608).

It is a well-established rule of the law relating to appeals that an error in receiving incompetent evidence can be disregarded only when it can be clearly seen that it did no harm. (Foote v. Beecher, 78 N. Y. 155; Green v. Disbrow, 56 id. 334, 337; Carroll v. Deimel, 95 id. 252, 256; Holcomb v. Holcomb, Id. 316.) As was said in Hutchins v. Hutchins (98 N. Y. 56, 65), following the decision in Anderson v. R., W. & O. R. R. Co. (54 id. 334):: “ Illegal evidence that would have a tendency to excite the passions, arouse the prejudices, awaken the sympathies or warp or influence the judgment of the jurors in any degree, cannot be considered harmless.” The only effect that the evidence in question could have had was to prejudice the jury by leading it to believe that the plaintiff’s services were of greater value than the price the defendant agreed to paj\ Ye cannot say that this evidence was harmless.

It follows that the judgment should he reversed.

MeRWIN, J., concurred.

HakdiN, P. J.:

The contract contained language indicating that plaintiff was to have entire charge of the factory work. The words in the contract are, viz.: “ I am to have the entire charge of the factory work, under the advice and supervision of E. R. Hunt.” Defendant’s evidence to the same effect did not need explanation; hence, the irrelevant evidence was not needed to counteract or impair the force of defendant’s evidence as a witness, and the respondent’s excuse for the ruling fails to justify it.

I, therefore, join in the opinion of Martin, J., for reversal.

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


author: Martin, J.:

text:
    In the Matter of the Petition for the Probate of the Last Will and Testament of Orville Elmer, Deceased. General Missionary Board of the Free Methodist Church, Appellant; David Cook and Others, Respondents.

      Probate of will — burden of proof — rules of evidence.

    The question whether a will was properly executed pursuant to the statute (2 R. S. chap. 6, tit. 1, art. 8, § 40, p. 68) is one of fact to he determined by the Surrogate’s Court, aud in -such an inquiry the same rules prevail as control in the trial and decision of other issues of fact.
    The proponent has the affirmative of the issue and must convince the trial court by satisfactory proof that every statutory requirement has been complied with.
    Aepeal by the General. Missionary Board of the Free Methodist Church, the residuary legatee named in the alleged last will and testament of Orville Elmer, deceased, from a decree of the Surrogate’s Court of the county of Oneida, entered in said court on the 2d day of October, 1894, adjudging that an instrument purporting to be the last will and testament of Orville Elmer, deceased, was not executed and attested according to law; that it is null and void and not a will of the deceased, and that he died intestate.

      H. W. Coley, for the appellant.

      Tvmothy Ctiriin, for the respondents.
   Martin, J.:

The only question which seems necessary to be determined on this appeal is whether, under the proof, the alleged will of the decedent was properly and legally executed.

The statute relating to the execution of wills of real and personal property provides: “ Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses. 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament, 4. There shall be at-least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.” (4 R. S. [8th ed.] p. 2547, § 40.)

The learned surrogate before whom this proceeding was had found as facts : “ That the decedent did not execute the proposed will in the presence of the subscribing witnesses; that'the will was not signed by him in the presence of the subscribing (witnesses), George E. "Wright and Charles F. Arnold ; that he did not declare it to be his last will and testament to the subscribing -witnesses; that he did not acknowledge the signature to the said instrument to be his signature to the subscribing witnesses ; and that the attestation clause to said will was not read over to the subscribing witnesses, or either of them ; and that neither of the subscribing witnesses read the same; that the decedent did not request the subscribing witnesses, George E. Wright and Charles F. Arnold, to subscribe said paper as a witness, and that the will propounded was not executed according to the requirements of the statute.”

As a conclusion of law the Surrogate’s Court held that the paper propounded as the last will and testament of Orville Elmer, deceased, was not properly or legally executed; that the same was invalid and void as such, and that it was not the last will and testament of Orville Elmer, deceased.

The court also held that the alleged will should not be admitted to probate, and that the decedent died intestate leaving no last will or testament.

A careful examination of the evidence contained in the appeal book renders it quite manifest that the learned surrogate was justified in finding that the alleged will of the decedent was not executed according to the requirements of the statute. While the evidence of the subscribing witnesses was perhaps contradictory, and the circumstances attending the execution of the will somewhat uncertain, yet, in view of the proof and circumstances disclosed, it is quite clear that the question as to whether the will was properly executed, as required by the statute, was a question of fact to be determined by the Surrogate’s Court. As was said by Ruger, Ch. J., in Matter of Will of Cottrell (95 N. Y. 329, 336): “ The determination of. the question of fact involved in the inquiry as to whether a will has been properly executed or not is governed by the same rules which control in the trial of other questions of fact. The proponent has the affirmative of the issue, and if he fails to convince the trial court by satisfactory evidence that each and every condition required to make a good execution of a will has been complied with, he will necessarily fail in establishing such will.”

We are of the opinion that the findings of the learned surrogate were justified by the evidence, and that his decision refusing probate of the proposed will is sustained by authority. (Lewis v. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97; affd., 77 N. Y. 596; Woolley v. Woolley, 95 id. 231; Matter of Mackay, 110 id. 611; Matter of Van Geison, 47 Hun, 5.)

It follows that the decree of the Surrogate’s Court should be affirmed.

ITabdin, P. J., and MerwiN, J., concurred.

Decree affirmed, with costs to the respondents payable out of the estate.


author: BLaediN, P. J.:

text:
    Georgie Petrie, by G. Harrison Smith, her Guardian ad Litem, Respondent, v. Frederick Williams, Appellant.

      Executory contract avoided by an infant — conversion of notes by the infant’s attorney — measure of liability — evidence — excuse of a juror by the court upon its own 'motion.

    An executory contract relating to the personal property of an infant may he avoided by the infant during her infancy.
    In an action brought to recover the amount of certain promissory notes belonging to an infant which had been delivered to her attorney in settlement of an action brought to recover damages for a breach of promise of marriage, instituted in her behalf, the complaint alleged that such notes had been converted by one Williams and one Breen (Breen having been the attorney for the plaintiff in the breach of promise suit) to their own use. The answer of Williams alleged that, under an agreement made between the plaintiff and Breen, the latter was to receive as compensation for his services in the breach of promise suit one-half of any sum that might be recovered in that action, and that Breen (the attorney) was authorized to make sales of the notes in question, and that Williams had purchased certain of the notes in good faith and for value before maturity, and that before the commencement of the action Breen had paid to the plaintiff the full sum to which she was entitled.

      Held, that if Williams did not act in good faith in obtaining the money on such notes, by means of the discount thereof, he-was not entitled by way of equitable offset to more than the attorney had a right to hand over to the infant, or more than the attorney would have a right to be allowed were he the general guardian of the infant.
    Upon the trial of the action a witness, called on behalf of the defendant, stated that two exhibits were made at one time and were from dictation. She was asked whether she sometimes took dictation from the attorney in the infant’s presence with reference to her matters. This was excluded upon the plaintiff’s objection, and the defendant excepted. Subsequently, in response to other questions and objections, the court stated that if the witness could say that papers relating to the breach of promise case were written by the witness in the presence of the attorney and the infant she might so testify. The witness thereupon answered : “ Well, I don’t think I can say that positively.”
    Held, that the first exception, when considered in connection with the ruling made by the trial judge and the answers made by the witness, presented no error.

      Semble, that the fact that upon the second trial of the action, the first judgment rendered having been reversed as to one defendant upon appeal, a juror drawn on the panel was excused by the court upon the court’s own motion, upon the ground that it appeared by his examination that he was present at the former trial of the cause and heard-all the evidence and the summing up of the counsel and the charge of the court, does not entitle the unsuccessful party upon the second trial to a new trial, although he excepted to such ruling, if it does not also'appear that he had exhausted his challenges when the ruling was made, and if there is nothing in the case to indicate that the unsuccessful party suffered by the action of the court in discharging the juror.
    Appeal by tlie defendant, Frederick Williams, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Jefferson on the 14th day of February, 1894, upon the verdict of a jury rendered after a trial at the Jefferson Circuit, and also from an order made at the Jefferson Circuit denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced in January, 1891, against the appellant and one Thomas Id. Breen. A trial was had at the Circuit and a verdict was recovered against both defendants, and on an appeal taken to this court the judgment rendered on the first trial was affirmed as to Breen and reversed as to Williams. The opinion delivered in this court appears in 68 Hun at page 589. The defendant Breen has died since the appeal was heard and before the trial now brought in review.
    Plaintiff’s complaint alleges that on December twenty-first she was the owner of five promissory -notes, in amount and value of $3,000, which were executed by Jeremiah Petrie and delivered to her attorney, Breen, payable to his order, and “ thereafter the said defendants, Thomas H. Breen and Frederick Williams, took possession of the said note's and converted them to their own use, and refused to return them to the plaintiff, although duly requested so to do, and sold and disposed of said notes and used the avails of such sale or sales for their own use and benefit.”
    In the answer of the defendant Breen it is alleged that the notes were given in settlement of an action brought by this plaintiff against Petrie for breach of promise of marriage. The answer of the appellant alleges that it was agreed by and between the plaintiff and Breen that said Breen should undertake the prosecution of such action, in consideration of being paid for his services therein one-half of any sum that might be obtained or recovered of said Petrie by verdict or compromise, and that the notes in question, amounting to $3,000, belonged, $1,500 to the .plaintiff and $1,500 to said Breen, and that Breen was authorized by the plaintiff to make sales of the notes “ and out of the proceeds of the notes so obtained and purchased by this defendant, he, said Breen, before the commencement of this action, paid and turned over to the plaintiff in money and property the full sum thereof which she was entitled to receive under and pursuant to their said agreement and contract.”

      Watson M. Rogers, for the appellant.

      Eton R. Brown, for the respondent.
   BLaediN, P. J.:

When this case was before us on the former appeal (68 Hun, 589), in the course of the opinion it was said: “ Under the circumstances of this case, we think the plaintiff was entitled to maintain this action.” And in the course of the opinion it was also said: “We think it must be regarded as settled in this State that an executory contract relating to the personal property of an infant may be avoided by her during her infancy. (Bool v. Mix, 17 Wend. 119; Stafford v. Roof, 9 Cow. 626; Chapin v. Shafer, 49 N. Y. 407; Sparman v. Keim, 83 id. 245; Beardsley v. Hotchkiss, 96 id. 201).” In tlie course of the opinion it was further said, viz.: “The appellants also contend that the plaintiff could not recover in this action without tendering to the defendant Breen all she received. To this there are two answers: First, that the defendants were permitted on the trial to prove all that had been advanced to the plaintiff, and the jury deducted that amount from the value of the notes other than those delivered to Williams for real estate; and, second, all the money that had been paid to the plaintiff by Breen had been expended or squandered by her during her infancy.” So far as the questions referred to in the opinion -arise upon the trial now before us, we should follow the doctrine laid down in the opinion. After the trial judge had delivered his charge, the defendant’s counsel asked the court to charge “ That the defendant is entitled to credit in this action for whatever amounts Breen has paid to the plaintiff.” The request was refused and an exception taken. Thereafter the court observed: “ Of course I do not want you to misunderstand it. I stated in my charge that Breen was entitled to credit, or that the plaintiff should be charged in this case with whatever sum was paid by Breen that was reasonably necessary for her under all the circumstances, considering her then condition and circumstances, and everything of that kind. * * * Whatever he paid that was reasonably necessary for her to have for her support and maintenance.” Thereupon the counsel for the defendant stated, viz.: We claim here that he is entitled to credit for whatever Breen paid, because this is an action of trover, and if she received these notes, if she received the proceeds, of course she could not recover in trover for it.” Thereupon the court remarked, “ I will give you an exception. I will not change my charge,” and the defendant took an exception. The defendant also requested the court to charge “ That no recovery in this action of trover can be had against this defendant for any portion of the notes which has been paid to the plaintiff.” The request was refused in the following language: “ I refuse to charge except as I have upon that.” By the evidence it appears that the defendant had been concerned in the conversion of $2,500 of the notes; that they had been discounted and that he had received the proceeds thereof, inasmuch as the notes had been paid by the maker ; and one important question in respect to the defendant was, whether he was a bona fide holder for value. That question was fully and fairly submitted to the jury, and it must be assumed that the jury has found that he was not a bona fide holder of the notes, and that, according to the doctrine laid down in the opinion in this case on the former appeal, he was liable to respond to the plaintiff for the money realized by him on the sale of the notes, less the credits which had been allowed, according to the doctrine laid down in Comstock v. Hier (13 N. Y. 269); Farnham v. Benedict (107 id. 159). The court, in its charge, allowed the defendant to receive the benefit of such sum as the jury should find was reasonable compensation for the services rendered by Breen in and about bringing the action for breach of promise, which resulted in producing the notes in question. There was some evidence given upon the trial tending to show that Breen had, prior to the commencement of this action, advanced to the plaintiff on sundry occasions sums which, in the aggregate, amounted to $1,286. By refusals to charge as requested, the jury was not allowed to diminish the claim of the plaintiff by allowing all of such sums. In the course of the charge it was stated that the jury was only allowed to regard the claim of the plaintiff as valid to the extent of $2,500, diminished by such sum as should be allowed for the payments made that were found by the jury to be “ reasonably necessary for her under all the circumstances, considering her then condition and circumstances, and everything of that kind ; ” or, to. put it in the further language used by the trial judge, “whatever he paid that was reasonably necessary for her to have for her support aud maintenance.” A majority of the court are of the opinion that the restrictions put by the trial judge as to the right of the jury to find upon the advances made to the plaintiff were not too stringent, and that if there was a conversion of the notes and the defendant did not act in good faith, he was not entitled by way of equitable offset to more than Breen had a right to hand over to plaintiff or more than Breen would have a right to be allowed were he the general guardian of plaintiff.

(2) When May Brown was testifying in behalf of defendant she stated that Exhibit 7 and Exhibit B were both made at one time, and were from dictation. Thereupon a general question was propounded to her iu the following language: “ 1 ask you whether you sometimes took dictation from Mr. Breen with reference to her matters in her presence % ” This was objected to, and the court observed that it was not competent and excluded the evidence, and the defendant took an exception. ■ Subsequently, in response as to other questions and objections, the court observed: “If she can say that papers relating to the breach of promise case were written by her in the presence of Breen and the plaintiff, she may state it.” The witness thereupon answered : “Well, I don’t think I can say that positively.” We think the exception first referred to, when considered in connection with the ruling made by the trial judge and the answers made by the witness, present no error.

(3) It is stated in the case that “ Martin V. Knight, a juror drawn on the panel, was excused by the court upon the court’s own motion, upon the ground that it appears by his examination that he was present during the former trial of this case, heard all the evidence and summing up of counsel and the charge of the court. To the ruling, excusing the juror, defendant excepted.” It does not appear in the case that the defendant had used any of his challenges when this ruling ivas made. Nor is there anything in the case to indicate that the defendant suffered by the action of the court in discharging the juror.

In Greenfield v. The People (74 N. Y. 277) it was held, viz.: “ One who has formed an opinion or impression, from the reading or report, partial or complete, of the testimony against a prisoner on a former trial, however strong his belief and purpose that he -will decide the case on the evidence to be adduced, and will give an impartial verdict thereon, unbiased by that impression, cannot be readily received as a juror indifferent towards the prisoner and wholly uncommitted.” In the case before us nothing appears to show that any injustice was suffered by the defendant. (See Stedman v. Batchelor, 49 Hun, 390, and cases cited in the opinion; § 723, Code Civ. Proc.)

It seems the testimony received against the exception of the defendant taken at folio 171 and at folio 174 was stricken out on motion of the defendant. When the motion -was made the plaintiff’s counsel remarked : I assent that it be stricken out.” Some other evidence was taken after an objection made by the defendant under a remark made by the court, “ I will receive it for the present.” Subsequently a colloquium occurred between the court and the counsel, and the court observed: If you obje.ct, I will strike all this out that has been read,” and. thereupon the counsel for the defendant remarked: “ It is fair to us that part should be in, because there was a great deal of talk on the other trial;” and thereupon the court observed: I will let you put it in and reserve the question and dispose of it afterwards.” After that remark made by the court, the counsel for the defendant said: “ Then we will let it go in.” We think no error is presented by the exceptions taken at the folios mentioned.

We have looked at numerous other exceptions incidentally referred to in the argument of the appellant’s counsel, and are not persuaded that any of them present an error prejudicial to the defendant requiring us to disturb the verdict.

The foregoing views, if assented to, lead to the conclusion that the verdict should stand.

MaetiN and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.


author: HaediN, P. J.:

text:
    In the Matter of the Estate of Frank Keinz, Deceased. John A. Keinz, Appellant; Joseph Rettig and Another, as Executors, etc., of Frank Keinz, Deceased, and Others, Respondents.

      Executors — revocation of letters — discretionary with the surrogate — •a decree on an accounting should follow the provisions of the will as to the maintenance of children.

    The question whether letters testamentary issued to executors shall he revoked is committed to the discretion of the surrogate, and the appellate court will not ordinarily interfere with his exercise of such discretion.
    Where the will of a testator provides that the income, and if need he the principal, of his real estate shall be used, in the discretion of his executors, for the support and education of his minor children, a decree adjusting the accounts of the executors, which declares that the minors are entitled to receive their entire support and education from their father’s estate, and that their earnings shall not he used for such purposes, is erroneous; the decree should follow the words of the will.

      Appeal by John A. Keinz, a legatee named in the will of Frank Keinz, deceased, from parts of a decree of the Surrogate’s Court of the county of Oneida, entered in said court on the 27 th day of February, 1894, settling and allowing the accounts of the executor’s, etc., of Frank Keinz, deceased.
    The appeal is taken from that part of the decree which credits the executors herein named “ by amount by them paid for support, education, etc., of the testator’s daughter, Anna "Wal-burger Keinz, $714.38;” also from the part thereof which credits said executors “ by amount ¡raid by them for support, education, etc., of testator’s son George Keinz, $534.56;” also from the part thereof which states a balance due said executors of $1,163.56; also from the part thereof which adjudges that said “executors are entitled to have and retain the sum of $76.85 for commissions,” “and the further sum of $108.80” allowed them for costs and disbursements; also from the part thereof which adjudges that the letters testamentary issued to executors “ ought not to be revoked, and that there is no cause for removal of the executors or either of them; ” also from the part thereof which adjudges “ that under the testator’s will the two minor children -were entitled to receive their entire support, education, etc., from the testator’s estate, and that their earnings should not be used for that purpose.”
    Testator died November 6,1888, leaving him surviving the appellant and two other children, namely, George and Anna. The will of the deceased was duly probated and the executors qualified. Proceedings to compel them to account were begun against them by the appellant, and thereupon the executors petitioned for a judicial settlement of their accounts, and the proceedings were consolidated, and after hearing the parties the surrogate made the decree adjusting the accounts of the executors and refused to revoke the letters testamentary issued to them, and refused to remove them.
    N. M. lvndsley, for the appellant.

      R. W. Melncrow, for the executors, respondents.

      John G. Gibson, special guardian, in person.
   HaediN, P. J.:

On the 31st of October, 1888, the testator made and published his will, in which he named as Iris executors Joseph Rettig and F. L. Faass, and also appointed them guardians of his minor children ■“ and trustees for the purpose of this will and the trust thereby created.” ITe authorized and empowered the executors “ to manage, lease or sell real estate * * * and to do all things required to give to the purchaser or purchasers thereof good title thereto.” The will contained the following, viz.: “ They to use the income and if need be the principal for or towards the support, education, eic., of my daughter, Anna W alburger Heinz, and of my son George Heinz, until said George Heinz shall become of the age of 21 years, using for each of said children so much thereof as in their or the survivor’s judgment is needed, and not being required to use equal parts for each. It being my will that my said executors and the survivor of them exercise discretion as to what each will be benefited by, and provide pr give same to him or her.” He also provided that upon the arrival of George at the age of twenty-one years, all that remained of the real estate and personal estate and increase of each, “shall be divided between my three children, John Andrew Heinz, Anna Walburger Heinz and Geoi-ge Heinz, equally, share and share alike.” Under the provisions of the will the executors were also named as trustees and were authorized to use the income of the testator’s estate, and if need be the principal,” for the support and education of the daughter and the son George, until he should arrive at the age of twenty-one years. It w.as for the executors to use so much for each of said children as in their judgment, or that of the survivor, should be needed, and they were not required to use equal parts for each. The discretion of theex editors conferred by the testator was exercised from time to time, as appears by their accounts and the evidence produced upon the accounting. We do not see that the surrogate has committed any error in adjusting the accounts. Nor do we think the surrogate erred in refusing to revoke the letters testamentary issued to the executors. The testator understood the capacity of the executors- when he named them, and apparently they discharged their duties without fraud or bad faith, according to their understanding of their duties, and in good faith. The evidence did not satisfy the surrogate that the objection to the executors was established, and he did not err in refusing to remove them. (Code Civ. Proc. §§ 2685, 2687.) The surrogate had a discretion,, and being satisfied with the direction it took we should not disturb his action. (McGregor v. Buel, 24 N. Y. 169; Matter of Chase, 32 Hun, 320; Matter of West, 40 id. 291-297; S. C. affd., 19 N. E. Rep. 286; S. C., 111 N. Y. 687; Freeman v. Kellogg, 4 Redf. 218, opinion by Calvin, Sur., and cases cited; Martin v. Duke, 5 id. 599.) The executors had a discretion as to expenditures to be made for the support and education of the minor children, and the will declares: The income, and if need be the principal,” of the estate is to be used, in the discretion of said executors, for or towards their support. The decree declared the minors were entitled to receive their entire support, education, etc., from the testator’s estate, and that their earnings should not be used for that, purpose. We think that clause should be modified so it shall be provided in the decree that the executors and trustees, in their discretion, may use the income, and if need be the principal, of the estate for the education and support of the minor children. The commissions to the executors should be stricken out. The decree is, therefore, modified to conform to the foregoing views.

MaetiN and MeewiN, JJ., concurred.

Decree modified to conform to the views stated in the opinion, and, as modified, affirmed, with costs to guardian respondent payable out of the estate.


author: MartiN, J.:

text:
    William E. Pratt, as Receiver of the Property and Effects of John Schaefer, Appellant, v. Charles H. Baker and Others, Respondents.

      Defective records — an application for the collection thereof must he made to the court of original jurisdiction.

    After an appeal is taken to the General Term of the Supreme Court from a j udgment of a County Court reversing a judgment of a justice of the peace, the Special Term of the Supreme Court has no power or jurisdiction to make an order requiring an amendment of the justice’s return, nor to amend the printed papers on appeal to the County Court, nor to add to the record papers not contained in the printed case. The application to perfect an alleged defective record should he made to the court whose record is sought to he reviewed, and the appellate court may stay the argument of the appeal until the party applies to the court below to have the record corrected.
    Appellate tribunals have jurisdiction to review a ruling sustaining or denying an application to amend or correct the record remaining in the inferior court, but the jurisdiction is appellate and cannot be made original save by a statute enacted under constitutional authority; such jurisdiction must be invoked in accordance with the rules of procedure and the foundation must be laid in the trial court. If a review is sought the record must be made up and exceptions so entered and preserved that the questions shall be open to investigation.
    Appeal by the plaintiff, "William E. Pratt, as receiver of the property and effects of John Schaefer, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 5th day of February, 1895, granting the defendants’ motion to correct the printed papers on appeal from the judgment of the County Court reversing the judgment of a justice of the peace of the city of Syracuse, by amending and correcting the justice’s return by. including therein certain of the defendants’ exhibits read in evidence before the justice on the trial of the action in the Justice’s Court.

      H. E. Miller, for the appellant.

      W. E MacGregor, for the respondents.
   MartiN, J.:

This action was originally commenced in a Justice’s Court. In that court the ’plaintiff had judgment. From that judgment the defendants appealed to the Onondaga County Court, where the judgment of the justice was reversed. The plaintiff then appealed from the judgment of the County Court, reversing the judgment of the justice, to the General Term of the Supreme Court. After such appeal, and while it was pending in the General Term of the Supreme Court, the defendants obtained from one of the justices of the Supreme Court an order to show cause at a Special Term of that court why the return of the justice of the peace made to the County Court and the printed papers on appeal should not be corrected and amended so as to include the defendants’ Exhibits 1, 2, 3 and 4, which were received and read in evidence before the justice on the original trial of the case. On the return of this order to show cause the Special Term of the Supreme Court made an order ordering and requiring the appellant to correct the printed papers on appeal by annexing thereto printed copies of such exhibits, and to serve copies of such amended and corrected printed papers on appeal upon the respondents’ attorney within thirty days after the service of a copy of the order. From the order thus granted the plaintiff appealed. The propriety and validity of that order is the question presented upon this appeal.

It is manifest from the papers before us that the justice’s return to the County Court did not contain the exhibits, or copies of the exhibits, referred to, and that the printed papers served by the appellant contained a correct transcript of the justice’s return.

The first and we think the only question that need be considered upon this appeal is whether the Special Term was authorized to grant the order appealed from. It will be observed that the appeal was from a judgment of the County Court, and not from a judgment of the Supreme Court. Under these circumstances, can it be held that the Special Term of the Supreme Court possessed authority or had jurisdiction to make an order requiring an amendment of a return of a justice of the peace to the County Court, or to amend the record of the County Court upon which the appeal was heard, or to add to the record other papers not contained in it % "We think not.

“Where the defect is in the trial court record, or where the rulings of that court have not been duly entered, the application to correct or amend the record must be made to that court. An application made elsewhere will be fruitless. Appellate tribunals have jurisdiction to review a ruling sustaining or denying an application to amend or correct the record remaining in the inferior court, but the jurisdiction is appellate and can not be made original, save by a statute enacted under constitutional authority. As the jurisdiction is appellate it must be invoked in accordance with the rules of procedure, and hence the foundation must be laid in the trial court. There the original proceedings must be taken, and if a review is sought the record must be made up and exceptions so entered and preserved that the questions shall be open to investigation and require judgment. The appellate tribunal proceeds upon a transcript of tlie proceedings of the court of original jurisdiction and not upon original pleadings, papers, rulings or entries.” (Elliott’s. Appellate Procedure, § 206.)

It is obvious, we think, that the Special Term of the Supreme Court had no jurisdiction to make the order appealed from. The application should have been to the court whose record was sought to be reviewed. Such has been the uniform practice, and where the record has been defective the appellate court has stayed the argument of the appeal until the party should apply to the court below to have it corrected. (Livingston, v. Miller, 7 How. Pr. 219; Witbeck v. Waine, 8 id. 433.) In Kenyon v. N. Y. C. & H. R. R. R. Co. (76 N. Y. 607) it was held that the Court of Appeals had no power to amend a record of the Supreme Court, but that any amendment sought must be obtained from the latter. The court below has power to correct any mistake in the record and to make it conform to the facts. (Baker v. The Home Life Ins. Co., 63 N. Y. 630; Peterson v. Swan, 119 id. 662.)

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

HaediN, P. J., and MeewiN, J\, concurred.

Order reversed, with ten dollars costs and disbursements.


author: MaktiN, J.:

text:
    The People of the State of New York, Respondent, v. William B. Carter, Appellant.

      A magistrate's jurisdiction — not affected by a failv/re to reduce a charge to writing— irregukmties may be waived by the prisoner.

    While section 699 of the Code of Criminal Procedure provides that where Courts of Special Sessions or Police Courts have jurisdiction and the defendant is. brought before the magistrate the charge against him must be distinctly read and he must be required to plead thereto, still an omission to reduce the charge to writing does not deprive the magistrate of jurisdiction; and where a defendant is brought before a magistrate, and without any other action upon his part pleads guilty to the oral charge, the requirements of such section are waived and the prisoner’s conviction will not be reversed because the charge was not reduced to writing.

      A magistrate acquires jurisdiction of a person when the person is placed in his custody charged with a crime, and any omission on the part of the magistrate which is a mere irregularity not affecting his jurisdiction may he waived by the prisoner.
    Appeal by the defendant, William B. Carter, from a judgment of the Court of Sessions, held in and for the county of Onondaga on the 1st clay of March, 1895, affirming -the judgment of a police justice of the city of Syracuse, convicting him of the crime of disorderly conduct in being intoxicated on a public street in said city. ■

      31. F. Sherlock, for the appellant.

      B. J. Shove, for the respondent.
   MaktiN, J.:

The charter of the city of Syracuse (Laws 1885, chap. 26, tit. 5, §.52) authorizes the police justice of that city to hold Courts of Special Sessions for the trial of' all offenses triable in a Court of Special Sessions, and confers upon such court the powers and jurisdiction conferred upon Courts of Special Sessions by title G, chapter 1, section 56 of the Code of Criminal Procedure. He is also given power and jurisdiction to try all offenses of the grade of misdemeanor under the laws of the State of New York. Section 35 of chapter 401 of the Laws of 1892 provides: “Any person who shall be intoxicated in a public place shall be guilty of disorderly conduct, may be arrested without warrant while so intoxicated, and shall be punished by a fine of not less than three nor more than ten dollars, or by imprisonment not exceeding six months.” This offense was a misdemeanor. (Penal Code,- §§ 5, 6.) Thus it is obvious that the trial court had judisdiction to try the offense of which the defendant was charged.

From the papers and return in this case it is manifest that the defendant was arrested for being intoxicated in a public place in the city of Syracuse. He was arraigned before one of the police justices of that city and charged with that offense. He pleaded guilty, and it was thereupon adjudged that he should be imprisoned in the Onondaga county penitentiary for the term of thirty days. It seems to us quite clear that when the defendant was arraigned, which presumably involved a statement of the charge made against him, and he pleaded guilty, the court had the right to convict him of that offense. The only ground upon which the appellant claims the judgment herein should be reversed is, that the charge to which the defendant pleaded guilty was not sufficient to justify the court in convicting him of the crime, because it was not in writing and verified, and the officer making the arrest was not sworn in reference to the offense. As sustaining that proposition he cites People ex rel. Baker v. Beatty (39 Hun, 476). In that case the defendant was convicted of disturbing certain oyster beds. Upon the hearn-ing of an appeal from a judgment of the Court of Sessions affirming a judgment of the Court of Special Sessions, it was for the first time objected that, in the charge before the Court of Sjmcial Sessions, the prefix “ un ” had been omitted, making the charge allege that the defendant “ lawfully ” did the acts set forth. The court in that case said that if the question had been raised by the affidavit required by section 751 of the Code of Criminal Procedure, it might have been sustained, but as it was not so specified it could not be considered. "We find in that case no authority for the contention of the appellant.

While the Code of Criminal Procedure (§ 699) provides that where such courts have jurisdiction, when the defendant is brought before the magistrate the charge must be distinctly read to him, and he must be required to plead thereto; still, we are of the opinion that an omission to reduce the charge to writing does not deprive the magistrate of jurisdiction, and that where, as in this case, a defendant is brought before a magistrate, and without any other action upon his part pleads guilty to the oral charge, the requirements of section 699 are waived, and his conviction should not be reversed because the charge was not reduced to writing. The filing of an information in writing was not required, as the statute expressly gives authority to arrest without a warrant any person intoxicated in a public place. A magistrate acquires jurisdiction of a j^ei-son when the person is placed in his custody charged with crime. (People ex rel. Gunn v. Webster, 75 Hun, 278.) If, as we have already suggested, this omission was not jurisdictional, but a mere irregularity, it could be waived by the defendant. (Pierson v. The People, 79 N. Y. 424, 429.) In The People v. Rathbun (21 Wend. 509, 542) Cowen, J., said: “He may waive any matter of form or substance, excepting only wliat may relate to the jurisdiction of the court.” (See, also, People v. McIntosh, 5 N. Y. Crim. Rep. 38; People v. McGann, 43 Hun, 55.)

If, therefore, under the circumstances of this case and under the statute creating the offense of which the defendant was convicted, any written charge was necessary, we think its omission was at most an irregularity, which was waived by the defendant when he pleaded guilty, and that the judgment of the Court of Sessions affirming the judgment of conviction by the Court of Special Sessions should be affirmed.

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

Judgment of the Court of Sessions of Onondaga county, affirming the judgment of conviction and sentence of the Court of Special Sessions, affirmed.