text:
    The People of the State of New York, Respondent, v. Gilbert Hall, Appellant.

      Promissory note — when not the subject of lan'ceny.

    When a note is only effective in case a title to land is accepted which, the payee was not bound to give nor the maker to take, it is not the subject of larceny. (Pratt, J., dissenting.)
    Appeal by the defendant, Gilbert Hall, from a judgment of the Court of Sessions held in and for the county of Westchester on the 1st day of July, 1892, convicting the defendant of the crime of grand larceny, and from an order entered in the office of the clerk of Westchester county on the 30th day of July, 1892, denying the defendant’s motion for a new tidal made upon the minutes.

      A. J. Adams, for the appellant.

      W. Popham Platt, District Attorney, for the respondent.
   Barnard, P. J.:

The defendant was indicted for larceny in the second degree and convicted. The statute reads as follows :

“ A person wlio, with intent to deprive or defraud a true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or any other person, either, 1. takes from the possession of the true owner, or of any other person, or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing; or secretes, withholds or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing* in action, evidence of debt or contract, or article of value of any kind; * * * Steals such property, and is guilty of larceny.” (Penal Code, § 528.)

The facts are as follows: One Mrs. Oappleman agreed to sell the defendant a parcel of land free from all incumbrances. A Mrs. Burnham claimed to have a ten years’ lease of twenty'feet of the same. Mrs. Oappleman failed to agree with Mrs. Burnham for the price of a release of her claim. To free herself from her difficulty, Mrs. Oappleman agreed to pay back to Hall $1,000 of the $1,275, which was the cost of the place. Hall then went to Mrs. Burnham and they made a verbal agreement to the effect that Mrs. Burnham would release the strip to Hall if he got the $1,000 of Mrs. Oappleman. Hall gave the note, which is claimed to be the subject of the larceny, to Mrs. Burnham, in these words:

“ I agree to pay to Mrs. O. M. Burnham the sum of $200 for a release of twenty feet of ground on side of building, and this note is to be null and void if Mrs. Emma L. Y. Oappleman does not pay me $1,000. “ GILBERT HALL.”

Mrs. Oappleman paid Hall the $1,000. Hall again went to Mrs. Burnham and asked to see the lease. The requirement was refused by Mrs. Burnham, and he was sent to the clerk’s office to see it. He again returned and took the release to show, as lie said, to his lawyer. Upon his return he asked Mrs. Burnham for the note. She first refused to get it, but finally did get it, and Hall snatched it from her hand and destroyed it. There were two witnesses present besides the parties, Burnham and Hall. Hall asserted that Mrs. Burn-ham had no lease. He testifies that there was no lease on the lot which Mrs. Burnham held. The note or paper was not proper. It rested on nothing. Mrs. Burnham made no written agreement to release and her verbal promise was void. (3 R. S. [7th ed.] 2326, § 8; Rowan v. Lytle, 11 Wend. 616; Odell v. Montross, 68 N. Y. 499.)

The note was only a provision by Hall to take a title which Mrs. Burnham was not bound to give nor Hall to take. Such a paper is not the subject of larceny. (Payne v. The People, 6 Johns. 103.)

Mrs. Burnham has lost no property right, actual or contingent. She has given no deed or release. She cannot be compelled to give any such paper. She ought to have shown her lease if she had one. She could not claim the $200 unless she gave the consideration, and it was not the spirit and intent of the agreement that Hall should pay $200 for a release which rested on nothing except the bare possession of Mrs. Cappleman’s property. It is not necessary to place the decision on this ground, because the note was of no value for lack of mutuality in the agreement to release.

The conviction should, therefore, be reversed, and a new trial granted.

Dykman, J., concurred.

Pratt, J.

(dissenting):

The defendant was convicted at the Court of Sessions of Westchester county of the crime of grand larceny in the second degree.

It seems the defendant carried on some negotiations with one Mrs. Burnham concerning some real estate, and came to an agreement which resulted in his giving her a paper in the following words, to wit: “ I agree to pay to Mrs. C. M. Burnham the sum of $200 for release of twenty feet of ground on side of building, and this note is to be null and void if Mrs. Emma L. Y. Cappleman does not pay me $1,000.”

This paper was delivered, signed by the defendant, to Mrs. Burn-ham on the thirteenth of February, Saturday. On the following Monday, it is claimed by the prosecution, he obtained it from Mrs. Burnham, and destroyed it without her consent.

It appeared in evidence that Mrs. Cappleman paid the defendant the $1,000 mentioned in the note or agreement, and that Mrs. Burn-ham tendered the release stipulated for and demanded the $200.

The defendant, by fraud and device, obtained possession of the paper and destroyed it.

It seems clear tliat this paper was “ evidence of debt or contract ” under section 545 of the Penal Code, and that the taking and destroying of the paper by the defendant was with an intent to defraud the true owner of her property and the use and benefit thereof, and appropriate it to his own use.

The evidence is abundant to sustain the verdict, and no legal error was committed upon the trial.

In fact the case was tried with great care and circumspection, and the charge was quite as favorable to the defendant as was warranted under the circumstances.

The case shows a wanton and fraudulent destruction of the property of the plaintiff.

Tlie judgment should be affirmed.

Conviction and judgment reversed, and new trial granted.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    T. Ella Carpenter, Respondent, v. Edgar Knapp, Appellant.

      Neto trial —• amendment of an answer, setting up a justification for slander, on the ground, of newly discovered, midenee.

    Appeal by the defendant, Edgar Knapp, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of Dutchess county on the 10th day of February, 1893, denying defendant’s motion for leave to serve an amended and supplemental answer and for a new trial on the ground of newly discovered evidence.

      W. Farrington, for the appellant.

      Fred F. Ackerman, for the respondent.
   Dykman, J.:

This is an appeal from an order of the Special Term denying a motion of the defendant for leave to file an amended and supplemental answer setting up a justification of the slanderous words recited in the complaint in this action, and for a new trial on the ground of newly discovered evidence. .

The action was for slander. It was tried at the Dutchess County Circuit in June, 1892, and a verdict rendered in favor of the plaintiff for $1,000. The slander alleged against the defendant imputed unchastity to the plaintiff, and the testimony on the trial, which is printed in this record, manifested malicious motives for the utterance of the words.

An appeal from the judgment was taken to the General Term by the defendant, and the judgment was affirmed. Thereupon this motion was made.

It is to be observed that an amendment and new trial is sought for the purpose of introducing testimony to prove the bad character of the plaintiff. The defendant has been convicted of slander, but now lie desires an opportunity to decrease the damages.

The only practical effect of a new trial would be to permit the defendant to make another effort to secure a verdict for nominal or diminished damages.

Such an effort was made upon the trial, and witnesses were called who spoke of the character of the plaintiff. If the defendant was not fully prepared then it was his duty to be so. and all the witnesses were within his reach.

There is no reason for believing that a different result would be produced upon a new' trial of the action. The affidavits upon which the motion was based are very unsatisfactory and fail to command belief, and many of them are destroyed by counter affidavits.

In no respect do the moving papers make a case which justifies a new trial within well-settled principles of law.

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

Pratt, J., concurred; Barnard, P. J., not sitting.

Order denying motion for new trial on ground of newly discovered evidence affirmed, with costs.


author:
Putnam, J.:
      Mayham, P. J.

text:
    The People of the State of New York ex rel. American Surety Company of New York, Relator, v. Frank Campbell, Comptroller of the State of New York, Respondent.

      Corporation tax —capital stock employed in tlus State — -real estate owned, and United States bonds deposited in other States, by a surety company.

    Portions of tlie capital of a domestic corporation of the State of New York organized for the purpose o f guaranteeing the fidelity of persons holding places of trust, and of guaranteeing honda and undertakings by joining as surety therein, invested in real estate in another State and in United States bonds deposited under a deed of trust in a third State and with tlie Minister of Finance in Canada, to enable the corporation to do business in sncli Slates and Canada, and to give it credit and to secure its bond or policyholders, generally, are not to he deemed “ capital stock employed within this State” for purposes of taxation, although the investments are subject to the claims of all creditors of the corporation, and the income therefrom is received by the corporation at its homo office in the State of New York, and is there used in its business. (May-ham, P. J., dissenting.)
    Certiorari to review tbe determination of tbe Comptroller of tbe State of New York in tbe assessment of taxes made by liim against tbe relator, American Surety Company of New York, under tbe corporation tax laws for tbe year ending November 1,1891.
    Tbe relator is a domestic corporation incorporated under tbe laws of tbe State of New York, for tbe purpose of guaranteeing tbe fidelity of persons bolding places of public or private trust, and also of guaranteeing bonds and undertakings required by law, by joining as surety therein or otherwise.

      John J. Crawford, for the relator.

      S. W. Rosendale, Attorney-General, for the respondent.
   Putnam, J.:

The question to be determined is, what part of relator’s capital was used or employed within the State during the time in question. The total amount of the capital stock of relator was $1,000,000, and the Comptroller assumed that it was all employed within the State. During the year for which the tax was so assessed, it was shown that relator had $200,000 of its capital invested in real estate in-Chicago; $121,187.50 in United States bonds, deposited under a deed of trust in Pennsylvania; and $60,500 of such bonds deposited with the Minister of Finance in Canada. These bonds it was shown were so deposited, and the real estate investment made, to enable relator to carry on its business in Pennsylvania, Illinois and Canada. Were the bonds so deposited in Pennsylvania and Canada, and the $200,000 invested in real estate in Chicago, being a part of the capital of relator, employed within this State ? I think not. The $200,000 invested in real estate in Chicago was located out of this State, taxable in Illinois, and a part of the capital of relator placed in that State to enable it to there carry on business. It seems to me that such real estate may properly be deemed employed in Illinois. The way relator employs its capital is to keep it invested as a security for the benefit of those doing business with it. This $200,000 was invested in real estate in Illinois where those having claims against the corporation in that State could reach it. I think relator employed this portion of its capital in Illinois and certainly did not employ if in New York.

So the bonds deposited in Pennsylvania and Canada were a part of relator’s capital not employed in this State. In the deed of trust to the Fidelity Insurance and Safe Deposit Company is the following provision, viz.: “ And whereas, it is deemed expedient, and the said surety company is desirous of establishing and creating a trust fund in said Commonwealth of Pennsylvania, by the conveyance in trust of certain securities hereinafter named, for the protection and benefit of all of its bond or policyholders, wherever situated, subject, however, to the reservation named hereafter and to the trust and powers hereinafter provided.”

These United States bonds, a part of the capital stock of relator, were deposited in Pennsylvania and Canada for the protection and benefit of its policyholders in Pennsylvania, Canada or elsewhere. The capital of relator to the extent of said deposit w'as represented by United States bonds, and these bonds were placed as above. A creditor of relator in Pennsylvania or Canada could reach them in those places. The capital of relator to the extent of the bonds was located out of the State. The bonds in Pennsylvania were actually conveyed to the trustees, and those in Canada were delivered to the Minister of Finance.

I think the papers show that the bonds in Pennsylvania and Canada were employed in those places. They were there to enable the corporation to do business, to give it credit, and secure its policyholders and creditors, and hence cannot be deemed to have been employed in this State.

I think these views are sustained by the case of People ex rel. The Edison Electric Light Co. v. Campbell (138 N. Y. 543). In that case the relator’s capital was originally invested in patent rights. It sold patent rights to various local corporations outside of the State, taking the stock of such corporations in payment, and the principal question in the case was, whether the stock of such local corporations held by the relator was capital of the relator employed within the State. This General Term held that such stock was a mere investment. That, presumably, the certificates were held by the corporation at its office in this State. That such stock was not eynployed by the corporation out of the State, and hence should be deemed employed within the State.

This doctrine, however, was overruled by the Court of Appeals. The court held (page 546) : “ The stocks which relator took in companies organized outside of this State stood for so much of the relator’s capital invested outside of the State. It took a portion of its capital, to wit, a portion of its patent rights, and employed it outside of the State to purchase those stocks. Its property in those corporations, represented by its shares of stock, was outside of this State, and was in no sense employed here. Those stocks had no situs here, and were not taxable here under any system of taxation which has ever existed in this State. * * * As to a domestic corporation, it is sufficient to subject it to taxation under the act that its capital was employed, within the State, mid it is employed where it is hept cmd used for- the purposes of the corporation.”

It seems quite clear that the real estate in Illinois and the bonds transferred in trust in Pennsylvania, as well as those deposited with the Minister of Finance in Canada, cannot be said to have been képt or used within this State. Such property was required and used out of the State. In the case last cited the company held bonds of foreign corporations received in payment of patent rights, and such bonds were held to be taxable.' The court used the following language in reference to them (page 547): “ Those bonds were presumably held at its office in this State, and such bonds, as well as all choses in action, unless kept, employed or used outside of the State, have their situs at the domicile of the owner.” In the case under consideration the bonds are shown to have been kept outside of the State, and there used to enable relator to carry on its business.

In the case referred to it was held that, to entitle the corporation to exemption on account of that part of its capital stock invested in the stocks of foreign' corporations, it was not necessary that such portion of its capital stock should be employed in business outside of the State. All that was necessary to entitle the corporation to exemption was that such portion was not employed within the State.

It is suggested by the learned Attorney-General that the bonds of relator in question and the real estate in Illinois were subject to the claims of all creditors of the corporation, and that the income arising therefrom was received by the relator at its office in New York. The same, however, could be said in reference to the stocks of the foreign corporation referred to in People ex rel. Edison Electric Light Co. v. Campbell (supra). The stock referred to in that case was subject to all claims against the company, and presumably the income thereon was received by the corporation at its office in New York. It was also presumably received at that office and there used in the business of the corporation. It is to be inferred that all the business of the corporation was conducted at the New York office, and in carrying on the same the corporation used the income received from said stocks.

I think the determination of the Comptroller should be reversed, with costs to the relator.

Herrick, J., concurred.

Mayham, P. J.

(dissenting):

The relator is a corporation organized under the second department of chapter 463 of the Laws of 1853, and the several acts amendatory thereof and supplementary thereto, and has since its organization been engaged in the business for which it was incorporated, having its principal office in the city of New York.

The relator being liable to pay a tax -into the State treasury for the rise of the State under the provisions of chapter 542- of the Laws of 1880, as amended by chapter 361 of the Laws of 1881, and the several acts amendatory thereof and supplemental thereto, on the 12th of .November, 1891, forwarded its report to the Comptroller, of which the following is a copy :

“New York City, Nov. 12, ’91.
“ To the Comptroller of the State of New York :
“ Agreeably to law, as treasurer of the above company, I make the following report, viz.:
“ 1. Date of organization of company, April 14, 1884.
“2. Total authorized capital of company, $1,000,000.
“ 3. "Whole number of shares of stock authorized, 20,000.
“ 4. Number of shares of stock issued, 20,000.
“ 5. Par value of each share, $50.
. “ 6. Amount paid into the treasury of the company on each share, $50.
7. Amount of capital paid in, $1,000,000.
“ 8. Amount of capital upon which dividends were declared, $1,000,000.
“ 9. Date of each dividend, declared December 17,1890, and June 25th, 1891.
“10. Amount of each dividend declared, $30,000.
“ 11. Rate per cent per annum of dividends, 6 per cent.
“12. Capital stock employed in New York State, $618,Y50.
“ 13. If not in New York State, where and how employed, $100,000 U. S. reg. 4 per cent bonds (cost value, $ 119,750). Deposited with the Fidelity Ins. Title Trust and Safe Deposit Co. of Philadelphia, Pa. $50,000 U. S. reg. 4 per cent bonds, cost value $61,500. Deposited with the Finance Minister of Canada, and the sum of $200.000 invested in real estate in the city of Chicago, 111. S. S. COLYILLE,
Treasurer^

Subsequently to the filing of the report by the relator the Comptroller imposed a tax in the following words and figures:

“Co:
The American Surety Company,
“ 160 Broadway,
“ In account with the State of New York, Dr.
“For tax on franchise or business, based on dividends on capital stock employed in New York State, per chapter 542, Laws of 1880, as amended by chapter 361, Laws of 1881, chapter 151, Laws of 1882, chapters 359 and 501, Laws of 1885, chapter 353, Laws of 1889, and chapter 522, Laws of 1890, for the year ending November 1, 1891, as per report filed.
“Dividend 6 per cent on capital stock of $1,000,000.
“Tax 1-J mills (•£ mill for each one per cent of dividend), $1,500.00.”

The relator thereupon asked for a revision and readjustment of said account for tax against said company before the Comptroller, and after such hearing the Comptroller made an order affirming the assessment and tax as originally fixed by him.

The main contention of the relator now is that from the original report and upon the evidence on such application for readjustment, • it appears that a considerable portion of its capital was employed out of this State, and was not, therefore, liable to taxation by the Comptroller in this State.

This contention is based upon the fact that $121,187.50 of the relator’s funds or property was invested in United States bonds, which were deposited under a deed of trust in the State of Pennsylvania, $60,000 of the capital stock invested in like bonds which were deposited with the Minister of Finance in Canada, $200,000 invested in real estate in the city of Chicago, 111., and $35,000 of its property in railroad bonds, deposited with the Commissioner of Insurance in the State of Texas, and that these securities wei’e deposited in the States and country under laws or regulations with the government of the same, for the purpose of enabling the relator to carry on its business there.

This question seems to arise chiefly on the construction that is to be put upon section 11 and tlie other sections which were added to the provisions of chapter 542 of the Laws of 1880 by chapter 501 of the Laws of 1885. The added section 11 provides that, “ In making to the Comptroller the report in writing or certificate of estimate and appraisal of the capital stock of such corporation, joint-stock company or association, provided for by the first section of this-act, it shall be the duty of the president or treasurer thereof, as the case may be, to state specifically the amount of capital stock employed within this State of such corporation, joint-stock company or association.”

Added section 14 of this act provides that, The Comptroller is. hereby authorized and directed, upon application to him made by any corporation, joint-stock company or association, to make, settle and adjust all accounts against such corporation, joint-stock company or assoeiation, for all taxes and penalties arising under the 3d section, of this act since the 12th day of May, A. D. 1882, by taking as a. basis for taxation the capital employed within the State by such corporation, joint-stock company or association.”

This act was again amended by chapter 353 of the Laws of«1889,, by inserting a provision in the 3d section as follov's : “ If the dividend or dividends made or declared by such corporation, etc.,. * * * during any year ending with the 1st day of November amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of J mill upon the-capital stock for each one per centum of dividends so made or declared.”

It is not clear but that the provisions of the added sections 11 and 14 in the act of 1885, so far as they relate to the taxation of the capital employed in this State, were repealed by the provisions of section 3 of chapter 353 of the Laws of 1889, above-quoted.

But as the learned Attorney-General does not seem to have discussed the effect of that amendment we are inclined to examine the question as it is presented by the proof under the provisions of the Laws of 1885, above referred to. What then must be the effect of the language of sections 11 and 14 of chapter 501 of the Laws of 1885, which in effect provides that the tax must be upon the basis, of the capital “ employed within the State ? ”

Was the entire capital stock employed in this State within the meaning of this act ? The principal office was in this State, and dividends were declared in this State; all of its assets were subject to its liabilities, which were constantly being created in this State. Suppose it had given its guaranty to the amount of its deposits in Pennsylvania, as a basis of doing business in that.State; would that have reduced its assets in this State ? Clearly not. Would the deposit of collaterals, instead of the giving of its bonds, be any different in effect ? It seems to me not. It was simply putting up collaterals as a guaranty for the performance of its obligations incurred in another State or country. Such collaterals would be subject to recall by the company whenever its obligations for the security of which they were pledged were performed.

Under such circumstances it seems to me that the situs of such securities would still be in this State, where their owner resides, and to whose control they are at any time subject.

The same would, I think, be true of the railroad securities in Texas, and the deposits in the Dominion of Canada. Let us take for illustration the government bonds required to be deposited in the Federal treasury as security for the circulation of the banks. Could the bank making such deposits claim, for obtaining immunity from taxation upon its stock, that because of the deposits of such collaterals, its capital represented in fact by such bonds was not within this State, and was not employed in this State, and had no situs here, and was for that reason exempt from taxation ?

It is true that the method of taxing the stock of banks and other moneyed corporations is quite unlike that of taxing corporations of the character we are discussing. But there is similarity in this, that the corporation is located in a State, and its deposits, as collateral security for its circulation, are or may be in an entirely different territory or jurisdiction. •

The bond remains the property of the bank, and may be redeemed by the bank, and the return and retirement of the circulation secured by it. The bond represents the capital of the bank and the interest of the stockholder in it. So in the case of the corporation under examination, the bond, either government or railroad, represents the capital of the corporation and the interest of the individual stockholder, and its situs would seem from analogy to be controlled in tlie one case as in tlie other by the location of the principal business, and the capital stock in both cases would seem to have its situs where the bank or corporation is located.

We are cited by the learned counsel for the relator to the case of People ex rel. Davis-Colby Co. v. Campbell (66 Hun, 146) as one supporting his contention. It is true that that was a domestic corporation incorporated under the laws of New York, and authorized to do business in this and other States. But during the year for which the tax was imposed it moved its office for the transaction of business to the State of Pennsylvania. It made no sales within this-State during tlie year; it manufactured nothing within the State; it occupied no premises, paid' no rent, and employed no men within the State during the year.

It did no business within the State during that year. It manufactured ore roasters, kept a bank account, employed servants, and paid them outside of the State. Upon these facts this court held that the entire business and capital were employed outside of the-State, and under such circumstances could not be taxed by the Comptroller in this State.

It needs no argument to show that that case is distinguishable from this. The decision of that case is fully supported by the decisions in People ex rel. S. C. O. Co. v. Wemple (131 N. Y. 64) and People v. Horn Silver Mining Co. (105 id. 76). In People ex rel. Seth Thomas Clock Co. v. Wemple, it was held that if a corporation has no property and no business within the State there is no basis upon which to compute a tax. (133 N. Y. 323.)

In this case the court held that establishing an agency in this State and selling by sample goods manufactured in the State of Connecticut, carried with it to this State no part of the capital stock, and could not be deemed an employment of the capital stock of the Connecticut corporation in this State.

It might sell its whole product by sample from ,an office in New York to be delivered to the purchaser from the factory, and yet not. employ any part of its capital within the State. It is, therefore, apparent that the mere transaction of the business of a corporation in another State is not the employment of its capital there.

It follows that the mere transaction of business by this-company in Pennsylvania, Texas and Canada was not the employment of its ■capital there. The case last cited also holds that if the foreign corporation kept on hand within this State goods from which it sold •and made shipments in the usual way, or money deposited here and used in its business, to that extent it would be employing its capital here, which would be subject to taxation.

But it will be observed that the relator had no goods or money in ■other States or country which it used in its business.

There does not appear to be any authority to pay one dollar of its guaranty or indemnity bonds out of the government bonds deposited in Pennsylvania or Canada, or the railroad bonds in Texas, in the management or conduct of its business in those foreign States. "We are, therefore, of the opinion that in depositing these securities out of the State, the relator did not remove its capital stock beyond the jurisdiction of the State, but that it still continued to employ the same in the transaction of its business in this State. There does not appear to be any law or statute regulation in Pennsylvania under which the relator could deposit its bonds in the insurance department, or ¡any other department cf the State government, as a condition for doing business in that State, and the bonds would not, therefore, be taxable in that State within the principle of the decision of the case of The People v. New Eng. Mut. Life Ins. Co. (26 N. Y. 303).

Nor have we been able to find any evidence in this case of any ¡statute or law of the Province of Canada or of the State of Texas requiring the deposits of its collaterals in those jurisdictions.

Assuming, as we must, in the absence of proof, that the law of -that State and Province are like our own on this subject, the case referred to in 26 N. Y. 303 (supra) would govern. But if we are wrong in our conclusion that the deposit of these securities outside •of the State did not take that amount of capital stock outside of the State, still it seems to me that that capital could be deemed employed there only to the extent of relator’s business transacted in those places, and I find no evidence in the rehearing before the •Comptroller of the transaction of any business outside of the State.

The Comptroller was, therefore, authorized to hold that such •deposits were only for safe-keeping or investment in aid of its business carried on in this State, and that the income from the same was realized and used in such business. (People ex rel. Postal Tel. Cable Co. v. Campbell, 24 N. Y. Supp. 208.)

We are, therefore, of the opinion that the tax was properly imposed in this State as to the capital claimed to be employed by the relator in Pennsylvania, Texas and Canada.

The remaining question is as to the property of this company invested in real estate in the State of Illinois.

Was the property invested in that State employed in this State? It was leased by the relator and rents were remitted to the home office in New York; was not occupied by the relator for offices or in any other way for the transaction of its business, except to give some kind of local credit in that State to the relator’s business transacted there. While it must be conceded that this case is not free from doubt, we are inclined to the opinion that the relator has failed to establish that the assessment was erroneous.

In this proceeding the onus is upon the relator to affirmatively establish the error. The rule upon this subject is settled that when a corporation is subject to taxation under this act the determination of the Comptroller as to the assessment and tax, unless clearly shown to be erroneous, will be sustained. (People ex rel. American Contracting & Dredging Co. v. Wemple, Comptroller, 129 N. Y. 558.)

On the whole we think the determination of the Comptroller must be confirmed and the writ of certiorari quashed.

Determination of the Comptroller reversed, with fifty dollars costs and printing and other disbursements.


author: Putnam, J.: Mayham, P. J.

text:
    George R. Newell, Respondent, v. James H. Chapman, Appellant.

      Sale of a bond and mortgage — false representations as to their value — measure of damages — guaranty by the vendor.

    In an action brought to recover damages for alleged false representations made by the defendant as to the value of a bond and mortgage, relied on by the plaintiff and by which he was induced to take such security in part payment for real estate, the measure of damages is the difference between the value of the bond and mortgage as they were and what the value would have been if the representations made had proved to be true.
    No damage is sustained if the payment of the debt covered by the bond and mortgage is secured to the plaintiff by either the bond or the mortgage, and it is incumbent upon him to show that the bond could not be collected.

      On the trial of such an action brought to recover tlie damages resulting from alleged false representations, the court refused to charge, at the request of the defendant, “ That if the plaintiff delivered his deed of the land, relying upon the verbal guaranty of defendant that he would guarantee the payment or collection of the mortgage, there was a present consideration and parting with property on the strength of the promise, and the guaranty or promise is valid and binding and can be enforced against defendant.”

      Held, that it was error to refuse to give this instruction to the jury;
    That such a guaranty was not within the Statute of Frauds and was binding on the defendant;
    That the instruction was pertinent to the question as to whether the ’plaintiff relied upon the defendant’s guaranty rather than upon his representations as to the value of the security;
    That the fact that the defendant was a responsible man and made himself liable for the payment of the bond and mortgage on its transfer to the plaintiff, tended to show the absence of fraudulent intent on his part.
    (Mayham, P. J., dissenting, on the ground that by reason of the absence of exceptions there was nothing to review.)
    Appeal by tlie defendant, Janies II. Chapman, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of Saratoga county on the 2d day of February, 1893, upon a verdict rendered at the Saratoga Circuit, and also from an order denying tlie defendant’s motion for a new trial made upon the minutes.

      Charles R. Patterson and J. W. Houghton, for the appellant.

      T. F. Hamilton, for tlie respondent.
   Putnam, J.:

Tlie action was brought to recover damages for alleged false statements of defendant as to the value of a bond and mortgage, relied on by plaintiff, and by which the latter was induced to take such security in part payment for a lot of real estate.

In such an action tlie measure of damages is the difference between the value of the bond and mortgage as they were, and the value if the representations made had turned out to be true. (Vail v. Reynolds, 118 N. Y. 29 Y.)

If the bond was of no value and the mortgage a good security for the amount due, plaintiff sustained no damage. So, also, if the real estate covered by the mortgage was of insufficient value and the bond collectible. The transfer to plaintiff was of the Toond cmd mortgage to secure a mortgage debt. If tbe payment of that debt was secured' to plaintiff by either the bond or mortgage he sustained no damage. I am not satisfied, after a careful examination of the case, that any ■sufficient evidence was given on the trial to show that the bond could not be collected of its makers. No action had been com-men'ced thereon, and it was not proved that Jane and Jerome Sullivan were irresponsible. ■ The bond and mortgage were transferred together as one security. The bond represented the debt, and the mortgage was executed to secure the payment of the bond. If the bond was a valid and collectible security defendant could not be said to have made any false representations. Nor can plaintiff be deemed to have sustained any damage. I am inclined to think, therefore, that plaintiff should have shown that the makers of the bond were irresponsible.

Again, I think the court erred in refusing to charge as asked by the defendant in his fifteenth request, viz.: “ That if the plaintiff delivered his deed of the land relying upon the verbal guaranty of defendant that he would guarantee the payment or collection of the mortgage, there was a present consideration and parting with property on the strength of the promise, and the guaranty or promise is valid and binding and can be enforced against defendant.” The court refused to so hold or charge, defendant excepting.

This guaranty of the defendant, under the circumstances, was not within the Statute of Frauds, and was binding on him. (Brown v. Curtiss, 2 Comst. 225; Cardell v. McNiel, 21 N. Y. 337; Milks v. Rich, 80 id. 269; Allen v. Eighmie, 14 Hun, 559.) To establish a cause of action against defendant, plaintiff was not only bound to show the fraudulent representations but also that the representations were relied upon by the plaintiff and induced him to take the bond and mortgage. (Arthur v. Griswold, 55 N. Y. 400-405.)

In considering this question as to whether plaintiff relied on the alleged false representations of defendant or not, and whether„or not he was induced by those representations to take the bond and mortgage, the jury should have been instructed that the defendant was liable on his verbal guaranty. The plaintiff testified that he understood the defendant was a man of responsibility. If the jury had been instructed, as requested by defendant, that his agreement to guarantee the mortgage was valid and made him responsible for its payment or collection, they could well have reached the conclusion that the plaintiff, having a valid guaranty by a responsible man securing the payment of the bond and mortgage, relied rather on that guaranty than upon the other representations of defendant as to the value of the security. I think also that the defendant was entitled to the instruction asked for on the question of his alleged fraud. The fact that defendant, a responsible man, made himself liable for the payment of the bond and mortgage on its transfer to plaintiff tends to show the absence of a fraudulent intent.

Eor these reasons I think the judgment should be reversed and a new trial granted, costs to abide the event.

Herrick, J., concurred.

Mayham, P. J.

(dissenting) :

This action was to recover damages for an alleged fraudulent representation of the defendant in negotiating the sale of a bond and real estate mortgage to the plaintiff.

To sustain this action the plaintiff was required to prove representation, falsity, scienter, deception and injury. (Brackett v. Griswold, 112 N. Y. 467.)

There must be sufficient evidence to support each of these affirmative propositions. We think, the jury having found these propositions in favor of the plaintiff, that there is sufficient proof to sustain their verdict. It was the province of the jury to pass upon the conflicting evidence, and as there is some evidence to support each of the elements essential to a recovery in this action, the court should not set aside the verdict on the ground that it is wholly unsupported by evidence.

It was not error, therefore, for the trial judge to refuse to set aside the verdict on a motion for that purpose made upon the minutes at the trial.

The defendant failed to take exceptions to what he now insists were errors in the charge of the trial judge to the jury. If the direction of the judge in his charge was erroneous, it cannot be reviewed on appeal except upon exceptions, and as no exceptions were taken we cannot review the charge or reverse, if the same was erroneous. It is true the defendant did except to what he claimed the judge charged, but the judge disclaimed makiug the statement excepted to, and we do not find the objectionable language in the charge.

On the whole case we see no error for which the judgment should be reversed, and the judgment should be affirmed, with costs.

J udgment feversed, new trial granted, costs to abide the event.


author: Putnam, J.:

text:
    Thomas J. Conlan, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Bailroads— negligence — injury to an employee of the consignee of a ca/r — he is not a fellow-servant of a brakeman— evidence.

    An employee of the consignee of a freight car, who voluntarily receives the car near his employer’s premises, and undertakes to move it himself to the point where it is to he unloaded, instead of requiring the servants of the railroad company to move it, as he might have done, does not occupy the position of a servant of the railroad company nor as such does he assume the risk of negligence 'on the part of an employee of the railroad company on the theory that they are fellow-servants.
    An employee of the owner of an elevator, for whom a railroad company maintains a switch to bring cars opposite the elevator, who, in the performance of his employment, undertakes to move railroad cars to the elevator from a point where they have been left by servants of the railroad company by direction of such employee for the purpose of being unloaded, and is, while so engaged, injured by the backing of a train upon him, is not at the place of the accident merely by the license of the railroad company, but is there rightfully and is engaged in doing a lawful act.
    When, in an action brought by an employee of the owner of an elevator to recover from a railroad company the damages resulting from a personal injury alleged to have been caused by the defendant’s negligence, the evidence justifies the jury in finding that the plaintiff received from the defendant’s brakeman, apparently in charge of the train, cars consigned to his employer, and that while the plaintiff was lawfully engaged in moving the cars for unloading, having told the brakeman that he would do so, the defendant backed its train down upon him without any signal or warning, the question of the defendant’s negligence should be submitted to the jury.
    When, in such an action, it appears that the plaintiff had notified the defendant’s servant in charge of the train of his intention to move the detached car, it cannot be said, as a legal conclusion, that the plaintiff under the circumstances was bound to watch for trains backing up against the car where he was at work, or that it was negligence not to anticipate the approach of the train which injured him.

      In such, an action tibie trial court may properly refuse to charge the jury “that if the plaintiff could have put himself in a position where by looking he could have seen these cars coming, and he did not put himself in such a position and did not look, that it was negligence upon his part; ” and the court may properly instruct the jury that while the defendant railroad company was not required to ring a bell, and the failure so to do was not negligence on its part, it was for the jury to find whether proper notice was given the plaintiff, and that if they found notice ought to have been given him under the circumstances, they might take into consideration the fact that the bell was not rung nor any signal given.
    Where the testimony authorizes the jury to find that the defendant’s brakeman at the time in question was in fact acting as the conductor, or was in charge, of the train that injured the plaintiff, it is proper for the court to charge that if the jury find that the brakeman failed in the discharge of his duty to the plaintiff and represented the defendant, his negligence might be imputed to the defendant.
    Appeal by tbe defendant, Tbe New York Central and Hudson River Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of Ulster county on the 21st day of April, 1893, upon a verdict rendered at tbe Ulster Circuit, and also from an order entered in said clerk’s office on tbe 19th day of April, 1893, denying tbe defendant’s motion for a new trial made upon the minutes.
    Tbe action was brought to recover tbe damages resulting from a personal injury alleged to have been sustained by tbe plaintiff through tbe defendant’s negligence.
    It appeared that tbe plaintiff, on or about July 8, 1892, was an employee of Everett & Treadwell, flour and feed merchants of tbe city of Kingston. Their place of business is on tbe easterly side of Union avenue, south of tbe West Shore railroad tracks, leased and operated by tbe defendant. From tbe West Shore railroad to their building there is a switch constructed on tbe property of tbe West Shore road. This switch was built for tbe convenience of Everett & Treadwell, and furnished a place for the accommodation and unloading of cars consigned to them. Along this building there were scales to weigh tbe cars, and two openings into the building, at each of which there was a hopper. At the rear of tbe building there was a private, crossing, over which tbe customers of Everett & Treadwell could drive, and between this crossing and tbe end of tbe switch there was room for two cars. The switch is near the railroad track, upon which cars are constantly running. It was the duty of the plaintiff to attend to the weighing and unloading of the cars, and when they were not “ spotted ” or in front of the hopper, to put them there.
    On the day aforesaid the defendant had backed a car in, and the plaintiff required that it be “ spotted,” that is, placed on the scales. The switching crew did not succeed after three or four attempts in so doing, and so the plaintiff told the brakeman to cut loose the rest of his train from this car, and that he, plaintiff, would spot the car himself, and pinch it back. The brakeman then cut the car loose, and after that the engine and cars moved out. The plaintiff went into the building to get his pinchbar to do as he told the brakeman he would — came out, and went to work to pinch the car which lay nearer Union avenue further on the switch, to get it clear of the car which they had attempted to spot. While he was so engaged the train backed down upon him and he was injured.

      Ashbel Green and F. L. Westbrook, for the appellant.

      G. D. B. Hasbrouck, for the respondent.
   Putnam, J.:

It is claimed by appellant that plaintiff, having directed the brakeman in charge of defendant’s train to uncouple the cars, and offered to place them himself where he (plaintiff) wanted them, should be deemed a fellow-servant of the brakeman, and as assuming the risks incident to the business, including that of the negligence of his fellow-servant or brakeman. That plaintiff, having volunteered to do the work of the employee of defendant, should not impose on it a greater liability than that for which it was liable to its own servant, and hence it was not liable for the negligence of the brakeman, if any. We think this position is not well taken. Plaintiff, at the time he was injured, was a servant in the employ of Everett & Treadwell. Defendant switched two cars down to the scales. After two or three attempts it failed to place the cars on the scales, and plaintiff then, as the agent of Everett & Treadwell, received the cars from defendant on the track near the scales, and offered to place them there himself. In the transaction he acted merely for Everett & Treadwell, voluntarily receiving the cars for that firm near the scales instead of on them. Acting for Everett & Treadwel], he relieved the company from doing what he might have required them to do. In spotting two cars he was not acting for’ defendant, but for his employers. TIence, he did not occupy the same position as a fellow-servant. Had lie not been in the employ of Everett & Treadwell, and voluntarily offered to aid the servants of the defendant in discharging their duties, the case might have been otherwise. Then, perhaps, he would have occupied the position of a servant of defendant doing the work without compensation.

Such was the case of Degg v. Midland R. Co. (40 Eng. L. & Eq. 367) and other cases cited by the learned counsel for appellant on this point.

We think the evidence in the case was such as to present a question of fact as to whether or not the injury to plaintiff was caused by defendant’s negligence, which was properly submitted to the jury by the learned trial judge. The plaintiff was rightfully where he was injured as an employee of Everett & Treadwell. He testifies : It was my business to place that car where I wanted it. It was my business to unload these cars, and to pinch the cars to accommodate myself to the elevator. I had to get it directly in front of this elevator. Q. Then your occupation required your presence on the rails? A. Yes, sir.” The switch through which the cars were run to the place of the accident was placed for his employers in order to transport cars opposite their place of business. The cars were left, near the scales by defendant’s servants, in charge of plaintiff at the place selected by defendant for unloading them. Plaintiff was not at this place merely by license of defendant, as in the case of Nicholson v. E. R. R. Co. (41 N. Y. 525), but was rightfully there and doing a lawful act. If he had been there, however, merely by-license of defendant it was liable if it injured him by a careless or heedless act. (Nicholson v. The Erie R. R. Co., supra, 532, 533.)

Hence, the jury were justified, from the evidence, in finding that the plaintiff received the two cars from defendant’s servant — the brakeman who appeared to have charge of the train — and was lawfully engaged in moving the same, having told the brakeman he would do so ; and that while plaintiff was so engaged, and a very brief period after he commenced the moving, defendant backed its cars down upon him without any signal or warning of any kind. We think the case, therefore, as to defendant’s negligence, was one properly submitted to the jury. The defendant was bound to exercise proper care in the management of its cars so as not to injure •the plaintiff. (Young v. N. Y. C. & H. R. R. R. Co., 13 Daly, 294; 103 N. Y. 678.)

The question as to plaintiff’s contributory negligence was also properly left to the jury. All the circumstances relating to the accident were proved and they raised a question of fact. We cannot determine as a legal conclusion that plaintiff, under the circumstances, was bound to watch for trains backing up against the cars where he was at work, or that it was negligence not to anticipate the approach of the train which injured him, he having notified defendant’s servant of his intention to spot the two cars. (See Newson v. N. Y. C. R. R. Co., 29 N. Y. 383; Feeney v. L. I. R. R. Co., 116 id. 375-379.)

Where the facts are all before the jury it is only in unusual cases that the question of contributory negligencé can be taken from them. (Massoth v. D. & H. C. Co., 64 N. Y. 529.)

There was testimony in the case from which the jury might have concluded that the plaintiff did not exercise proper care at the time of the accident, but such evidence was not so conclusive as to justify the trial court in passing on the question as one of law.

We think the court below properly instructed the jury on the question of contributory negligence. The request of defendant to the court to charge the jury “that if the plaintiff could have put himself in a position where, by looking, he could have seen these cars coming, and he did not put himself in such a position and did not look, that it was negligence upon his part,” was properly refused. If the court had been asked to instruct the jury that if plaintiff, where he was at work, by looking, could have seen the cars coming, and did not look, or, while doing the worTt, could so have placed himself as to have seen the cars approaching, and did not do so, it possibly might have been the duty of the court so to charge. The cases cited by appellant upon this point are those where accidents occurred to travelers crossing railroad tracks, and hence are not applicable to this case.

We think the trial judge correctly instructed the jury when requested to charge that the defendant was not required to ring a bell, and not ringing a bell was not negligence on its part. The judge remarked : I leave it to the jury to say whether, under the circumstances as proven here, the brakeman did liis duty in permitting his train to come in without giving the plaintiff any notice, either by ringing the bell, blowing a whistle, or any other signal which might have attracted his attention. I do not charge that it was their duty to ring a bell or blow a whistle. * * * It is for the jury to say whether proper notice was given, and if they find notice ought to have been given him under the circumstances, they may take into consideration the fact that the bell was not rung or other signal given.” It was a question of fact whether the defendant was negligent. It was proper to show all the facts; that the bell was not rung or the whistle blown, or any other signal given. These facts bear on the question of defendant’s negligence.

We also think the trial judge did not err in that portion of his charge wherein he referred to the brakeman. Among other things, he said: “ If you find that he did fail in the discharge of his duty to the plaintiff, and he represented the defendant so far as the defendant is concerned in this action, his negligence is negligence upon the part of the defendant.”

The testimony in the case was such that the jury were authorized to find that the brakeman, at the time in question, was in fact acting as the conductor of the train that injured the plaintiff, at least that he was in charge of the train. Under defendant’s rules as sworn to by Wattson, he could have charge of such a train. Wattson says: “ The conductor instructs his brakeman that they are going to put a car on a certain siding, and the brakeman or the conductor gives the engineer a signal to move ahead or move backward, as the case may be, and in answer to that signal the engineer moves his engine and switches the car. In answer to either the signal from the brakeman or the conductor, the brakeman, when a train operated, may be either on the top of the car or he may be on the ground.” That the brakeman was in the apparent charge of the train was shown by the evidence. Therefore, the remarks of the trial judge, to which the appellant takes exception, were justified. If the brakeman uncoupled the cars and moved the train back to the switch, and backed it up so as to injure the plaintiff, he represented the defendant, and it is liable for his negligence.

We conclude that no error was committed upon the trial, and that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    Emmett Howd, Appellant, v. Sarah E. Cole and John A. Cole, her Husband, Respondents, Impleaded with Others.

      Pleading — partial defense— Code of Oivil Procedure, § 508.
    A reasonable construction of section 508 of the Code of Civil Procedure, which provides that “ A partial defense may be set forth as prescribed in the last section, but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth,” does not require the pleader in every case to use the words “ partial defense,” where the answer sets up a defense that appears clearly on its face to be such.
    Where it is entirely clear that the portion of an answer demurred to on the ground that it is not therein alleged to be a “ partial defense ” was intended to be alleged as a partial defense, and the relief claimed by the answer is only consistent with such a defense, the answer is to be deemed to sufficiently show or state that it is interposed as a partial defense, and it is unnecessary to call it such.1
    An answer alleging a payment of a certain sum less than the amount claimed in the complaint, characterizes itself as a partial defense, and hence, in effect, states that it is such.
    Appeal by the plaintiff, Emmett Howd, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of Rensselaer county on the 4th day of May, 1893, upon a decision of the court made at the Albany Special Term overruling the plaintiff’s demurrer to the answer of the defendants, Sarah E. Cole and John A. Cole, with notice of an intention to bring up for review on such appeal the order entered in the Rensselaer county clerk’s office on the 22d day of April, 1893, overruling plaintiff’s demurrer to the defendants’ answer. The action was brought to foreclose a mortgage.
    The answer in question was as follows:
    “Now come the said defendants, Sarah E. Cole and John A. Cole, her husband, and for answer to the complaint herein:

      “ I. Deny, upon their information and belief, that there is now justly due the plaintiff upon the bond and mortgage set forth in the complaint herein, the sum of three thousand dollars, with interest thereon from the first day of November, 1881, and these defendants deny that they have omitted and neglected to pay the interest on the said bond and mortgage from November 1st, 1881.
    “ II. These defendants, further answering, upon information and belief, aver and state that the interest upon the bond and mortgage described in the complaint herein has been paid and discharged by payment in-full up to the first day in May, 1891.
    “ III. These defendants, further answering, aver and state that they have no knowledge or information sufficient to form a belief as to whether Caroline B. Powers, as executrix of the last will and testament of Ellis K. Powers, did, Avhile acting as such executrix, sell, assign, transfer and set over the said bond and mortgage for a good and valuable consideration to the plaintiff prior to the commencement of this action, as alleged in the complaint.
    “ Wherefore, these defendants demand that in the computation of the amount due upon said bond and mortgage, the interest may be computed from the first day of May, 1891, instead of from NoArember 1st, 1881, as claimed in said complaint, and that these defendants may be allowed their costs of this action.”
    Section 508 of the Code of Civil Procedure provides that “ A partial defense may be set forth, as prescribed in the last section, but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. Upon a demurrer thereto, the question is, Avhether it is . sufficient for that purpose.”

      John W. Roddy, for the appellant.

      Shaw, Bailey & Murphy, for the respondents.
   Per Curiam :

The complaint stated a cause of action upon a bond and mortgage, claiming that there was due thereon a principal sum of $3,000 and interest from November 1,1881. Defendants denied that th^ interest was due from November 1, 1881, and alleged payment of the same to November 1, 1891. In the prayer for relief they demanded that in the computation of the amount due on the bond and mortgage the interest may be computed from May 1, 1891, instead of November 1, 1884, as claimed in the complaint.

The plaintiff demurred to the allegations in the answer setting up payment of interest as aforesaid, on the ground that such' answer was not therein alleged to be a “partial defense,” as required by section 508, Code of Civil Procedure. It is plain, however, that the payment was alleged by defendants as a partial defense, although they did not characterize it by using those words.

We think that, in such a case as this, where an answer alleges plainly a partial defense, it is unnecessary for the pleader to call it suoh. Such an answer characterizes itself, being necessarily a partial defense, especially with such a prayer for relief as was interposed in t'he answer in question. A reasonable construction of section 508, Code of Civil Procedure, does not, we think, require a pleader in every case to use the words partial defense ” where the answer sets up a defense that clearly appears on its face to be such.

Section 507 of the Code of Civil Procedure provides that unless a defense “ is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer.” Tet it is held in Crasto v. White (52 Hun, 473) that where a separate defense containing denials and allegations which can by no possibility refer to any other than a particular cause of action in the complaint, the defense refers, within the meaning of section 507 (supra), to that cause of action. So here, where it is entirely clear that the portion of the answer demurred to was intended to be set up as a partial defense, and where the relief claimed is only consistent with such, the answer should be deemed to sufficiently show or state that it is interposed as a partial defense. We have examined the cases cited by appellant, but do not regard them as sustaining his contention.

An answer alleging a payment of a certain sum less than the amount claimed in the complaint characterizes itself as a partial defense, and hence, in effect, states that it is such.

The judgment should be affirmed, with costs.

Present — Mayham, P. J., and Putnam, J.; Herrick, J., not acting.

Judgment affirmed, with costs.


text:
    The New York Central and Hudson River Railroad Company and The Consolidated Transfer Company, Respondents, v. James Flynn and Others, Appellants.

      Meclusion of hac7c men from railroad premises — Bdilroad Law, § 34.
    Section 34 of the Railroad Law (Laws of 1890, chap. 565, as amended by Laws of 1892, chap. 676) is to be construed as meaning that no preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be given by a railroad corporation to any one of two or more persons competing in the same business, or in the business of transporting property, who have contract relations with the railroad corporation as a common carrier.
    This statutory prohibition does not give all the hackmen of a city or village the absolute right to intrude upon or make a _stand of the premises of a railroad corporation for the purpose of soliciting passengers, nor does it prevent a railroad corporation, which, by contract, has conferred upon a transfer company the exclusive privilege of going upon its premises with hacks for the purpose of soliciting passengers, from prohibiting other hackmen, having no contract relations with the railroad corporation or its passengers, from doing so.
    Appeal by tlie defendants, James Flynn and others, from an order of tlie Supreme'Court, granted at tlie Albany Special Term and entered in the office of the clerk of Albany county on tlie 2d day of September, 1893, continuing pendente lite a temporary injunction restraining the defendants “ from entering or being upon the lands of the said plaintiff, the New York Central and Hudson River Railroad Company, contiguous to and on the west side of its railroad depot in the city of Albany, in any other manner or for any other purpose than that in and for which the same may be lawfully used by the public in going to and departing from the trains of the plaintiff, the New York Central and Hudson River Railroad Company, and further restraining the defendants from obstructing and interfering with, or blocking up the passageways or entrances to the said depot, depot grounds or buildings, and from in any manner interfering with, and preventing the free and uninterrupted right of ingress or egress of plaintiffs, their officers, agents and servants to and from the said premises above described.”
    The action was brought to obtain a perpetual injunction. The complaint and supplementary affidavits were to the effect that the New York Central and Hudson River Railroad Company owns, keeps and maintains land to the width of about forty feet contiguous to its Albany depot, and on the west side thereof, extending from Maiden Lane to Steuben street, as a private street and way of approach for its passengers, on foot and in vehicles, going to and from said depot and the railroad trains, and for no other purpose or purposes whatsoever. That the said railroad company, for the purpose of preventing annoyance to its passengers, from the solicitation of the defendants, hackdrivers, and divers other persons engaged in the business of hackdriving, by going on said premises and soliciting business of passengers, and also for the purpose of providing a safe and orderly service and accommodation for its passengers, entered into a contract with The Consolidated Transfer Company, one of the plaintiffs, by which it granted, for a valuable consideration, the exclusive privilege of going upon its said private way with hacks, carriages and other vehicles for the purpose of obtaining and soliciting the patronage of said railroad passengers, who might wish carriages, the said transfer company agreeing to conduct its business in a proper and orderly manner and at a reasonable rate for the services it rendered, and to preserve good order in all respects on the said private way, so that passengers could go to and from the said depot safely and without molestation and annoyance. That the defendants had, at various times and' without the permission of the plaintiffs, and against their remonstrance and prohibition, entered upon the said private way for the purpose of obtaining employment by passengers, and against the remonstrance and orders of the plaintiffs remained upon the said private way soliciting employment by passengers, and by their unlawful acts and presence obstructed the said private way and interfered with the conduct of the business of the plaintiffs, and, being ordered to cease such unlawful acts, refused to do so, and' continued in the commission of said unlawful acts to the plaintiffs’ great injury.
    The defense interposed was to the effect that the defendants are competitors and rivals of The Consolidated Transfer Company, one of the plaintiffs, in the business of carrying passengers and their baggage for hire to and from the railroad depots, hotels, private residences and all other places in the city of Albany, and that as such common carriers they are entitled to the same rights and privileges on the depot grounds, in carrying on their business, as such Consolidated Transfer Company, and any agreement giving such company exclusive rights and privileges is contrary to the statute and void.

      John W. Walsh, George T. Kelly and Kdwin Countryman, for the appellants.

      Hamilton Harris, for the respondents.
   Putnam, J.:

The decision of this case depends upon the construction to be given to the following provision contained in section 34, chapter 565, Laws of 1890, as amended by chapter 676 of the Laws of 1892, viz.: “No preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be granted by any railroad corporation to any one of two or more persons, associations or corporations competing in the same business or in the business of transporting property for themselves or others.”

The defendants claim that under the statutory provision above quoted they have the right to go upon the grounds of plaintiff described in the complaint, for the purpose of soliciting employment in their business as hackmen of passengers arriving on trains on plaintiff’s road, and that plaintiff cannot exclude them therefrom.

It is clear that the defendants have no right upon plaintiff’s premises unless such a right is conferred by the above-quoted statutory provision. They do not claim to go thereon for the purpose of transacting any business with the plaintiff as a common carrier or otherwise. They wish to enter on said premises for the purpose of contracting with passengers leaving plaintiff’s depot.

They do not desire to employ plaintiff to carry passengers or freight or to make any contract whatever with it. They wish free access to the premises in question for the transaction of business with other parties.

The order from which the appeal is taken was not intended to prevent the defendants from leaving passengers or freight at plaintiff’s depot or from taking passengers or freight therefrom. But it prohibits defendants’ hacks and employees from remaining on plaintiff’s premises; from making such premises a standing ground, for the purpose of soliciting patronage while so engaged in seeking employment on said premises, they having no contractual relations with plaintiff or its passengers.

Does the statutory provision above quoted prevent the plaintiff, under the circumstances, from controlling the use of its grounds ? Under a somewhat similiar statutory provision and in a similar case the Supreme Court of Massachusetts in Old Colony R. R. Co. v. Tripp (147 Mass. 35) held the following doctrine : “ The defendant was allowed to use the depot for any business that he had with the plaintiff. But he had no business to transact with the plaintiff. He had no merchandise or baggage to deliver to the plaintiff or to receive from it. His purpose was to use the depot as a place for soliciting contracts with incoming passengers for the transportation of their baggage. The railroad company may be under obligation to the passenger to see that he has reasonable facilities for procuring transportation for himself and baggage from the station where his transit ends. "What conveniences shall be furnished to passengers within the station for that purpose is a matter wholly between them and the company. The defendant is a stranger both to the plaintiff and to its passengers, and can claim no rights against the plaintiff to the use of its station, either in his own right or in the right of passengers. * * * The statute in providing that a railroad corporation shall give to all persons equal facilities for the use of its depots, obviously means a use of right. It does not intend to prescribe who shall have the use of the depot, but to provide that all who have the right to use it shall be furnished by the railroad company with equal conveniences. The statute applies only to relations between railroads as common carriers and their patrons. It does not enact that a license given by a railroad company to a stranger shall be a license to all the world.”

"While the question involved is not free from doubt, and the Massachusetts statute differs somewhat from ours, we are inclined to adopt the views above quoted as applicable to this case and as expressing our views thereon.

"We should regret to be compelled to give any other construction to the statute in question. It would be unfortunate if railroad corporations should have no control over their premises as against hackmen. A construction of the statute is to be regretted that would give in our cities and villages all the hackmen of the place the absolute right to intrude upon and make a stand of the premises of railroad corporations for the purpose of soliciting passengers. That in fact allows a mob of hackmen around railroad depots and prevents a railroad corporation from adopting proper regulations to protect its passengers from undue solicitation and annoyance when leaving its grounds. (See, also, Jencks v. Coleman, 2 Sumn. 221; Barney v. O. B. & II. Steamboat Co., 67 N. Y. 301.)

The meaning of the statutory provision under consideration is, as above suggested, not entirely clear, but we think it should be construed to mean that no preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its ground, shall be given by railroad corporations to any one of two or more persons competing in the same business or in the business of transporting property, while homing contractual relations with said railroad corporation as a common carrier.

Since writing the above we have been referred to the very able and exhaustive opinion of Justice Green in the case of The N. Y. C. & H. R. R. R. Co. v. Sheeley and Others (not reported), in which the learned justice reaches a conclusion sustaining an action against hackmen similar to this.

It follows that the order should be affirmed, with costs and disbursements.

Herriok, J., concurred; Mayham, P. J., not acting.

' Order affirmed, with ten dollars costs, printing and othér disbursements.


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    Abel S. Myers, Respondent, v. James Y. Parker and Emma Parker, Appellants.

      Trespass by cattle — defense of agreement to pasture.

    An agreement by the plaintiff to pasture the defendants’ oattle is no defense to an action for trespasses committed by the cattle in the plaintiff’s garden and oatfield, unless the agreement is shown to be one to pasture them in the garden and oatfield, or unless it is shown that the cattle strayed to those places through some fault of the plaintiff.
    Appeal by the defendants, James Y. Parker and Emma Parker, from a judgment of the County Court of Sullivan county, entered In the office of the clerk of that county on the 10th day of April, 1893, in favor of the plaintiff, upon the reversal of a judgment of a justice of the peace in favor of the defendants.

      Wilton Bennett, for the appellants.

      Chas. II. Stage, for the respondent.
   Putnam, J.:

This action was commenced in a Justice’s Court and on a verdict of a jury judgment was rendered in favor of defendants for costs. The County Court of Sullivan- county reversed such judgment and defendants appeal to this court.

The complaint stated a cause of action for trespasses of defendants’ cattle on premises of plaintiff. The alleged trespasses were clearly shown by testimony produced by plaintiff which was not contradicted. The defendants undertook to show that plaintiff at the time of the alleged trespasses was under an agreement to pasture defendants’ said cattle, but no attempt was made to show a contract to so pasture them in plaintiff’s garden or oatfield, where the alleged trespasses were committed. Plaintiff’s agreement to pasture the cattle was no defense unless shown to be one to pasture them in plaintiff’s garden or oatfield, or unless it appeared that the cattle strayed to those places through some fault of plaintiff’s. No such proof was produced by the defendants. On the evidence,_ we think, plaintiff was entitled to judgment.

Again, on the trial the following questions were asked defendant Parker as a witness, and he was allowed to give the following-answers, viz.: Q. Hid you consider your cows in plaintiff’s care so long as you rented pasture from him? [Objected as improper and immaterial and not within the issues raised by the answer. Objection overruled.] A. Yes, sir. Q. And for that reason you say that these cattle did not commit any trespass on defendants’ land ? [Same objection, same ruling.] A. Yes, sir.”

We think that this evidence was improperly received. The objections thez-eto of plaintiff should have been sustained. This evidence may have affected the verdict of the juz-y.

Our conclusion is that the judgment of the County Court should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concuz-z-ed.

Judgment affirmed, with costs.


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    The People of the State of New York ex rel. Frederick Hess, Respondent, v. Horace Inman, Appellant, Impleaded with A. B. Flansburgh, a Justice of the Peace of the County of Montgomery.

      Justice's Oov/rt — service of a sumnons upon a non-resident of the county attending court — writ of prohibition.

    A party attending an action on trial at a Circuit in a county other than that in which he resides is exempt from the service of a summons in a civil action in a Justice’s Court of such county,
    A party so served with a summons is entitled to a writ of prohibition restraining the prosecution of the action in the Justice’s Court.
    Appeal by the defendant, Horace Inman, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Montgomery county on the 28th day of Febz-uary, 1893, directing the issuance of a writ of prohibition “ addressed to A. B. Flansburgh, a justice of the peace in and for the county of Montgomez-y, and to Hoz-ace Inman, defendants, commanding said justice and said Horace Inznan to desist and refrain from any and all further proceedings in a certain action coznmenced in the court of said justice of the peace on the 20th day of January, 1893, by said Horace Inman as plaintiff, against Frederick Hess, the relator herein, as defendant, and now pending in said Justice’s Court,” and vacating and annulling all the proceedings theretofore taken in the said action in the Justice’s Court.

      W. Barlow Dunlap, for the appellant.

      Thomas Richardson, for the respondent.
   Putnam, J.:

It is well settled that a non-resident of the State while here in attendance upon a court as a party or a witness cannot be arrested or served with a process in a civil action. (Parker v. Marco, 136 N. Y. 585; Matthews v. Tufts, 87 id. 568; Person v. Grier, 66 id. 124.)

There are cases, however, holding that a resident of the State attending as a party or a witness in a county other than that in which he lives is not exempt from the service of a summons in a civil action. (Frisbie v. Young, 11 Hun, 474; Hopkins v. Coburn, 1 Wend. 292; Bours v. Tuckerman, 7 Johns. 538; Sheldon v. Wakely, 3 Law Bull. 94; Fletcher v. Franko, 15 N. Y. Supp. 674.)

In the case of Sheldon v. Wakely (supra), although the action was commenced in the New York Common Pleas, a local court, under the provisions of section 278 of the Civil Code, the summons, though served in the city of New York, could have been served as well on the defendant in his own county, or in any other part of the State, and the denial of the motion to set aside the summons seems to have been placed upon that ground. In the other authorities above cited the facts were similar. The defendants in each case, although served out of the counties where they resided, and while in attendance at court as a party or witness, could have been as well served at their several homes, or any where within the State.

This case is different. Defendant while out of his county, in attendance as a party in an action pending in the Supreme Court in Montgomery county, was served with a summons issued by a Justice’s Court of the latter county. Process from that court could not have been served on the defendant in the county where he resided. Hence, for the same reasons that prevent a valid service of a summons on a non-resident of tbe State while here as a witness or party, the service upon defendant of the summons issued by the justice should not be deemed authorized. The defendant when served was, as to the Justice’s Court of Montgomery county, without the jurisdiction of his residence for the purpose of attending court in another jurisdiction. (See Parker v. Marco, 136 N. Y. 585-589.)

It was stated by Allen, J., in Person v. Grier (supra), that it was at least doubtful whether any distinction lies as to the service of process between cases of non-residents of the State attending court as parties or witnesses and persons living within the State attending in counties outside of their residences. The learned judge uses this language: “ Whether any distinction should or does in fact exist is at least doubtful. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses while attending court could be molested with process. Witnesses might be deterred, and parties prevented from attending, and delays might ensue, or injustice be done.” (See, also, Thorp v. Adams, 33 N. Y. Supp. 797.)

Within the principle stated in Person v. Grier (supra), we think that a party attending an action on trial at a Circuit in a county outside of his residence is exempt from the service of process in a Justice’s Court action in the latter county. (See Pritsch v. Schlicht, 5 N. Y. St. Repr. 871; Miles v. McCullough, 1 Binney [Penn.], 77.)

We also think that the writ of prohibition was properly issued. The relator had no other adequate remedy. He could not properly move before the justice to set aside the service of the summons. Unless the writ had been issued defendant would have been compelled to proceed with the trial before the justice. (See Piero on Spec. Proc. 89-94, and cases cited; Quimbo Appo v. The People, 20 N. Y. 540.)

The order should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Order affirmed, with ten dollars costs and printing and other disbursements.


author: Herrick, J.:

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    Herman Grassley, Respondent, v. Patrick J. McArdle, Appellant.

      Finding of a jury against the preponderance of evidence — when sustained.

    "Where there is a conflict of evidence and the preponderance of evidence is in favor of the defendant, and a jury has rendered a 'verdict for the plaintiff, unless such preponderance is so great as to indicate that the finding of the jury against the defendant was brought about by passion, prejudice or corruption, such finding should be sustained.
    Appeal by the defendant, Patrick J. McArdle, from a judgment of the County Court of the county of Albany in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 21st day of April, 1893, uj)on the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of May, 1S93, denying the defendant’s motion for a new trial made upon the minutes.

      P. E. Du Bois, for the appellant.

      George Addington, for the respondent.
   Herrick, J.:

I have carefully read the testimony in this case, and, while the preponderance of the evidence seems to be in favor of the defendant, still, when it is considered that the jury had the witnesses before them to observe their appearance, and the manner of giving their testimony, that preponderance is not so great as to indicate that the finding of the jury against the defendant was brought about by passion, prejudice or corruption.

There was a conflict of evidence, and it was for the jury to determine where the truth was.

The exceptions taken during the progress of the trial are not sufficiently important to cause a reversal of the judgment.

The judgment should be affirmed, with costs, there being no occasion for an opinion.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


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    Sylvester Stay, Appellant, v. Charles V. Du Bois, Respondent.

      Exclusion of a person from a theater because of his color — Penal Code, % 383 — right to sue therefor — a question of veracity is for the jwy.

    The exclusion of a person from a theater because of his color is a violation of section 383 of the Penal Code, and such person has a right of action against the person conducting such theater.
    Section 383 of the Penal Code imposes a duty upon a person conducting an opera house to grant to a colored person the same privileges that are granted to all other citizens.
    When a statute imposes a duty upon a public officer, any person having a special interest in the performance thereof may sue for a breach of such duty causing him damage. The same is true of a duty imposed by statute upon any citizen.
    When the question whether a defendant had released his control over an opera house for a certain evening, and whether he asked the doorkeeper to admit the plaintiff, depends upon the testimony of the defendant alone, and upon his veracity, the plaintiff has a right to have the question submitted to the jury.
    Appeal by tibe plaintiff, Sylvester Stay, from a judgment of tibe County Court of Ulster county in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 22d day of May, 1893, dismissing the plaintiff’s complaint upon the merits and for costs, with notice of an intention to bring up for review on such appeal the order dismissing the complaint.

      G. D. B. Hasbrouck, for the appellant.

      A. S. Newcomb, for the respondent.
   Herrick, J.:

The plaintiff brings this action against the defendant, who is the lessee of an opera house in the city of Kingston, alleging that he purchased tickets for himself and wife to attend a theatrical performance at such opera house; that on presenting himself for admission he was refused seats therein by reason of his being a colored man.

Upon the trial there was a conflict of evidence as to the reason of his exclusion; the defendant claimed that he did not have control of the admissions, and that in pursuance of a contract with the company giving the performance such company had charge of the hall that evening; and the defendant further stated that he requested the doorkeeper to admit the plaintiff.

At the close of the evidence the court dismissed the complaint, saying: I am inclined to dismiss the complaint on the ground that, no matter what relation existed between the defendant and the Tuxedo Company, he (Du Bois) requested the manager to admit the plaintiff, which was. refused. I do not know as he ought to be-responsible for the wrong done that evening.”

To which ruling the plaintiff excepted, and asked that he might, go to the jury upon the question as to whether the defendant, was responsible for the act of the doorkeeper, and as to whether the-plaintiff was excluded from the opera house by Mr. Du Bois, and also upon the question of fact connected with this contract between Du Bois and this company, upon the ground that certain testimony which Mr. Du Bois had given in the case had been contradicted by two witnesses of veracity, and on the veracity of Mr. Du Bois. and upon all the facts at issue in the case.

The court refused to permit the plaintiff to go to the jury upon such questions, and stated: “ The point upon which I dismiss the-complaint is, it seems to me, that the defendant did not control the doorkeeper, and was not responsible for his acts.”

If the plaintiff was excluded from the theater because of his color, it was in violation of section 383 of the Penal Code of the State ; by that, the duty was imposed upon the defendant, as the one conducting the opera house, to grant to the plaintiff the same privileges as were granted to all other citizens, and for neglect or breach of that duty as to the plaintiff, he has a right of action, although it may also be punished criminally.

“ "When a statute imposes a duty upon a public officer, it is well, settled that any person having a special interest in the performance-thereof may sue for a breach thereof causing him damage, and the; same is true of the duty imposed by statute upon any citizen.”' (Willy v. Mulledy, 18 N. Y. 310-314; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458.)

The question whether the' defendant had released his control over the opera house for the evening in question, and whether he asked, the doorkeeper to admit the plaintiff, are questions that depend upon the testimony of the defendant alone, and upon the question. of his veracity; upon these questions the plaintiff had a right to go to the jury. (Bookheim v. Alexander, 46 N. Y. St. Repr. 200, and cases cited.)

I think, therefore, that the trial court erred in dismissing the complaint, and that the judgment entered thereon should be reversed and a new trial granted, with costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

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


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    Jane E. O’Bryan, Appellant, v. City of Amsterdam, Respondent.

      A city is not liable for injuries sustained by tripping over a curbstone.

    "Where the proof shows that the proximate cause of a person’s injury was occasioned by her stumbling or tripping over a curbstone, and not by a defect in the sidewalk of a city, as claimed in the complaint, such person has no cause of action against such city.
    Appeal by the plaintiff, Jane E. O’Bryan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 11th day of May, 1893, upon the report of a referee dismissing the plaintiff’s complaint and for costs.

      A. B. Flansburg, for the appellant.

      E. J. Maxwell, for the respondent.
   Herrick, J.:

.The referee has found in this case that the plaintiff tripped or stubbed ” on the curbstone and “ did not stub or trip upon the stump of a tree,” nor because of any opening in the sidewalk, nor because of any elevations or depressions in the sidewalk where the stump was situated; in other words, that the proximate cause of the plaintiff’s injury was her stumbling or tripping over the curbstone, and not the defect in'the defendant’s sidewalk set forth in the complaint, and that being so, the plaintiff has no cause of action against the defendant.

I have read over the testimony in the case and there is sufficient in the evidence to warrant the finding of fact by the referee. I can see no sufficient reason for reversing it.

Judgment should, therefore, be affirmed, with costs.

Mayi-iam, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


author: Herrick, J. :

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    Charles Leopold, Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellant.

      Damages for personal injuries — when a case is properly submited to the jury.

    In an action to recover tlie damages resulting from injuries occasioned by the defendant’s alleged negligence, there was a conflict of evidence in regard to the plaintiff's freedom from contributory negligence and the defendant’s negligence. Held, that the case was properly submitted to a jury.
    Appeal by the defendant, The President, Managers and Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 2d day of February, 1S93, upon the verdict of a jury rendered at the Saratoga Circuit, and also from an order entered in the said clerk’s office on the 2d day of February, 1893, denying the defendant’s motion for a new trial made upon the minutes. ‘
    W. F. Rathbone and Lewis E. Carr, for the appellant.

      J. W. Houghton, for the respondent.
   Herrick, J. :

This case arises out of the same accident as did the case of Fanny Leopold against the defendant (reported in 66 Hun, 628; 49 N. Y. St. Repr. 459), and, while some additional witnesses testified in this case, T do not see that the facts are substantially different from what they were in the case of Fanny Leopold. In this case, as in that, there ivas a conflict of evidence both upon the question of the plaintiffs freedom from contributory negligence and upon the question as to whether the defendant was guilty of negligence, and there was evidence in the case from which the jury might infer the plaintiff’s freedom from contributory negligence and the defendant’s negligence. The case was fairly submitted to the jury by the court. I can see no error.in the charge calculated to prejudice the rights of' the defendant.

Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


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    John Wright, Respondent, v. William Wright, Appellant.

      The giving of a note is prima facie evidence of a settlement of accounts —who,t evidence is insufficient to rehut such presumption.

    The giving and acceptance of a note is prima facie evidence of tli'e settlement of accounts between the parties at the time. The ordinary presumption is-that the demands between the parties were then liquidated and that the note was given for the balance found to be due from the maker.
    What evidence is insufficient in an action upon a note given by the defendant to-the plaintiff to sustain the finding of a referee that certain sums were due by the defendant to the plaintiff for services rendered prior to the giving of the note.
    Appeal by the defendant, William Wright, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 5th day of June,. 1893, upon the report of a referee.

      Keeler & Squires, for the appellant.

      N. M. Claflin, for the respondent.
   Herrick, J.:

This is an appeal from a judgment upon the report of a referee in favor of the plaintiff and against the defendant for the sum of $496.60 recovery, together with costs.

The plaintiff is the son of the defendant; he was born in 1849, and resided with his father, and whenever not engaged in temporary employment elsewhere he lived at his father’s house and was treated in all resj>ects as a member of the family until April, 1885.

In December, 1891, lie commenced an action against his father,, claiming that his father was indebted to him “ for a balance of an open, mutual and current account for work, labor and services, goods,, wares and merchandise, money loaned and paid, rent and use of property in the sum of $1,600.”

A bill of particulars subsequently rendered sets forth various items to the amount of $1,664 and concludes with stating that the-defendant is entitled to credit for board, clothing, cash and other-items, the particulars of which the plaintiff is not able to give.”

The items in plaintiff’s bill of particulars commence in the year-1877, and conclude in 1883.

Neither party to the action kept any account of any of the dealings between them. The plaintiff testifies that he did not keep any account, and that he never attempted to make up any statement until the year 1891; he testifies that he made up a bill of items about the 1st of January, 1890 or 1891.

“ Up to that time I had not a memorandum of any one of these-items; I made this bill with the assistance of my two sisters, Mrs.. Tobin and Mrs. O’Hara; it was at my house; I did not depend, entirely on them for the dates; I had nothing but my memory to-assist me; they had talked with me that they had claims against, my father, which they had sued or were going to sue; I understood that they were making out some accounts too.”

The claim was disputed by the defendant, and there was a conflict _ of evidence in regard to it. The referee in his report allows-the plaintiff for the following items :

1874. 7 1-2 months’ work at twenty dollars a month.... $150 00-

1877. Balance due on horse trade agreed upon at....... 15 GO-

1877. 6,000 hoops made by defendant................ 30 00

1879. Heifer, chickens, turkeys and corn as agreed upon. 10 00

1879. Stack of hay, about two tons, at current prices.... 10 0(4

1882. April 26th. Note for cash loaned.............. 100 GO-

1883. Making 6,000 hoops.......................... 12 00-

and he allowed interest to the plaintiff upon each of these items-from the first of January of the year following that in which they are said to have been furnished or performed.

He finds that on the 26th of April, 1882, the defendant executed- .■and delivered to the plaintiff his promissory note for the gum of $100, at the same time paying to the plaintiff money claimed by the plaintiff to have been loaned by him to the. defendant, and .at the time of the giving of said note by the defendant, the plaintiff did not let the defendant have any other money or thing therefor.

The giving of the note is prima facie evidence of an accounting .and settlement of accounts between the parties at that time. (Sherman v. McIntyre, 7 Hun, 592; Lake v. Tysen, 6 N. Y. 461; approved, Sheldon v. Sheldon, 133 id. 1-6.)

The ordinary presumption is that the demands between the parties were then liquidated, and the note made for the balance found to be due from the maker. (De Freest v. Bloomingdale, 5 Den. 304.)

Of course, it is open to explanation that it was not given in settlement, but there is no satisfactory evidence presented in the case to rebut the primafacie evidence of the note itself ; indeed, what evidence there is rather carries the impression with it that it was .given in settlement than otherwise. The statement of both parties ■that no memoranda of the dealings between them was kept; the fact that the plaintiff was living at home, receiving assistance from his father; his statement in his bill of particulars that the defendant was entitled to credit for board, clothing, cash and other items, the particulars of which he is not able to give, and the statement by him in his evidence that he requested the defendant to settle with him and give him a note.

At the time of giving the note the defendant testifies that “John at that time was going to Watertown, and wanted to settle up, and I gave him this note; I gave him what I owed him, and this settled it all up, what I owed him; he gave me no money at that time; but I paid him $80 at that time; he was there three years before he •came back.”

It also appears in the case that subsequently to that time, com■msncing in the year 1881, the plaintiff hired a farm of the defen d-•ant at a stipulated rental, and from time to time made payments thereon, at no time apparently seeking to have credited upon his account for rent any balance claimed by him to have been due upon .any old account.

These several facts, coupled with the direct testimony that I have •quoted, support rather than negative the presumption that by the giving of the note there was a settlement and adjustment between the parties at that time, and that such note was given for the balance found due.

It was error, therefore, for the referee to allow the plaintiff for the several items of account prior to the giving of the note in 1882, and for that error judgment should be reversed.

Let judgment be reversed, the referee discharged, and a new trial granted, with costs to abide the event.

Mayi-iam, P. J\, concurred ; Putnam, J., concurred in the result.

Judgment reversed, new trial granted, referee discharged, costs to-abide the event.