author: Putnam, J.:

text:
    Annie I. Dawson, as Trustee, etc., Respondent, v. John D. Parsons, Appellant, and Others.

      Order entered by consent ■ — • appeal therefrom — dissolution of a co-partnership — order that the partners join in a convey anee of the assets — form, of deed — specification of objections thereto.

    An appeal does not lie from an order entered by consent.
    An order directing the members of a co-partnership to unite with the receiver thereof in the conveyance of its property can be made by consent as well before as after judgment in the action brought to obtain the dissolution of such partnership
    A partner was, by an order of the court, directed to sign a conveyance of his interest in certain partnership property, and there was tendered to him for execution a deed thereof which contained a covenant against his own acts; this or any conveyance he refused to sign, but made no objection to the covenant against his own acts contained therein.

      Held, that having consented to the making of the order he was obliged to obey it;
    That if he wished to object to the personal covenant contained in the deed, it was-his duty to make that objection when the instrument was tendered to him;
    That if he wished more time to examine the papers he should have so stated.
    Appeal by the defendant, John D. Parsons, from so much of an order of the Supreme Court, made at the Albany Special Term on the 13th day of June, 1893, and entered in the office of the clerk of the county of Albany, as directs that the plaintiff and the defendants unite with the receiver in a conveyance of certain premises-upon the completion of the purchase thereof by the purchaser, and also from an order made at the Albany Special Term, and entered in said clerk’s office on the 12th day of July, 1893, directing the defendant, John D. Parsons, to execute a conveyance of certain premises.

      Charles J. Bucha/nan and Matthew Male, for the appellant.

      J. Newton Fiero and Edward J. Meegcm, for the respondent.
   Putnam, J.:

This appeal is taken from a clause of the order made June thirteenth in this action, and from the whole of the order of July 11, 1893.

On the granting of the first order the appellant appeared by counsel, and the order recites that no one objected thereto. We had supposed that it was well settled that an appeal does not lie from an order so entered by consent. (Flake v. Van Wagenen, 54 N. Y. 25; Innes v. Purcell, 58 id. 388; Atkinson v. Manks, 1 Cow. 693.)

By consent of the defendant Parsons an order of the Supreme Court has been entered, providing “ that the plaintiff and defendants in this action, and each of them, unite with the receiver in a conveyance ■of said premises upón the completion of the purchase by the pur■chaser.” This order remains in full force. If the appellant, at .Special Term, had made the proper objections to the order, or to the provision therein above quoted, which is appealed from, we might ■consider whether such a provision could have been properly made before the rendition of final judgment. In that case it may be doubted whether, until the rights of the parties were determined by the judgment, the defendant should be compelled to execute a conveyance of his interest in the real estate in question. But no such point was taken at Special Term. The appellant consented to the order in advance of the judgment. So consenting, as to him the order should be deemed to have the same force and effect as if •entered after judgment. It cannot be doubted that by consent such an order can be made as well before as after judgment and with the same force and effect.

It seems to follow that, as an order of the Supreme Court, which appellant thus consented to, and, hence, cannot appeal from, was duly made, and is in full force, directing a conveyance by appellant, he was bound, on a proper demand being made and a proper conveyance ■tendered, to execute the same. And the failure to do so was a •coptempt.

It is not clear that defendant should be compelled to execute a conveyance with a covenant contained therein against his own .acts or otherwise. But on examining the affidavit of appellant it does not appear that he made any objection to signing the deed tendered him on the ground of the covenant therein. He objected to joining m cmy conmycmce, stating that he is unwilling, by joining in any conveyance of the said property, to sanction in any way, or to confirm the mode by which his interest in the said property has been taken out of his hands, and deponent also respectfully questions the power of the court, by order in this action, to compel deponent to execute a conveyance of liis property, where he has made no contract of sale and has expressed his disapproval of the proceedings hy which it is proposed to consummate the sale.”

It would, therefore, appear that the objection to the deed tendered, as containing a personal covenant, was not made • as a ground of refusing to sign the same. If appellant wished to object to the personal covenant contained in the deed it was his duty to make the objection when the instrument was tendered to him. If he wished more time to examine the papers he should have then so stated. It would appear from the papers before us that he merely declined to sign any deed.

Our conclusion is that the order to which appellant consented has the same force as if made after final judgment, and defendant is bound to obey it, and, inasmuch as he does not appear to have objected to the covenant contained therein when the deed was presented to him for signature, but objected to signing any deed, that the order of July eleventh, which was in fact made for the purpose of enforcing the order of June thirteenth, was properly granted.

. The order does not, however, compel the defendant to sign the deed tendered to him for execution. It directs him to execute that deed, or a proper conveyance of his interest in the premises therein described, to Amasa J. Parker, as receiver. A proper conveyance is one ealled for by the order of June thirteenth, and probably may be without covenants.

The orders should be affirmed, with costs and disbursements.

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

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


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    Edmund Deyo, Respondent, v. Foster B. Morss, as Executor, etc., and Others, Appellants.

      Stipulation authorizing an amended complaint — only authorizes sueh a pleading as the court could allow.

    Where a stipulation is made by the parties to an .action, to the effect that the plaintiff may serve an amended and supplemental complaint, or either, such stipulation only authorizes the service of such an amended pleading as the court at Special Term could properly have allowed upon the motion of the plaintiff.
    The substantial cause of action alleged in an original complaint was one to set-aside a conveyance of land made by -the defendants on the ground that it was fraudulent and void, and executed in pursuance of a conspiracy to appropriate and convert such land to their own use, and to prevent the same from being-applied to the payment of the claims of creditors. An amended complaint was served, which set out the statutory action against defendants authorized by article 2 of title 3 of chapter 15 of the Civil Code on account of real estate devised to them.

      ■Held, that the amended complaint alleged an entirely different cause of action, from that set out in the original complaint, and that it would not be in furtherance of justice for a court to authorize the same.
    Appeal by tlie defendants, Foster B. Morss and others, from an order of the Supreme Court, made at the Ulster County Special Term and entered in the office of the clerk of the county of Greene on the 15th day of June, 1893, denying the defendants’ motion to strike out the amended and supplemental complaint served in the above-entitled action.
    The following is a portion of the stipulation entered into between the parties to the action and referred to in the opinion :
    “ III. Provided, however, if the plaintiffs attorney shall give-notice to the defendants’ attorneys personally, or by mail, within twenty days from this date, that he elects to serve an amended and supplemental complaint, or either, herein, then in that case plaintiff may serve the same within forty days thereafter.”

      Jermings & Chase, for appellant Foster B. Morss.

      Sidney Crowell, for appellant Burton C. Morss.

      Howard Chipp, Jr., for appellant Rosaline A. Tremper.

      G. D. B. Hasbrouck, for appellant Arabella L. Munn.

      F. James Fitch, for appellant Leonidas W. Mores.

      John A. Griswold, for the respondent.
   Per Curiam :

Plaintiff’s authority to serve an amended complaint was derived only from the stipulation. Doubtless, that authorized the service of such an amended pleading as the court at Special Term could properly, on motion of the plaintiff, have allowed. Ve think it would not have been in furtherance of justice for a court to have authorized the amended complaint served. It was not, in fact, an amended complaint, but an abandonment of the original cause of action and the substitution of a new and different one. The substantial cause of action set out in the original complaint was to set aside a conveyance of land, made by the defendants, as fraudulent and void, and as executed in pursuance of a conspiracy between them, to appropriate and convert such land to tlieir own use, and to prevent the same from being applied to the claims of creditors; and the complaint asked to recover said land for the estate or its proceeds. The amended complaint sets out the statutory action against defendants authorized by article 2, title 3, chapter 15 of the Civil Code, on account of real estate devised to them. This is an entirely different action. Had plaintiff tried the cause under the original complaint, and been defeated, the judgment would not have barred his action, under the statute, to recover as a creditor against defendants on account of real estate devised to them.

We think that the stipulation did not contemplate or authorize the abandonment of the original cause of action and the substitution of a new one; and, hence, without considering other objections made to the complaint, the order should be reversed, with costs and disbursements, and the motion granted, with costs.

Present — Putnam and Herrick, JJ.

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


author: Herrick, J.: Putnam, J.

text:
    The People of the State of New York, Appellant, v. Frank McMasters, Respondent

      Violation of dome Lams — what is sufficient evidence of possession of and, intention to keep fish.

    Upon the trial of an action brought to recover a penalty because of the defendant’s alleged violation of the Game Laws, the defendant testified that he was trolling for fish, and while so trolling his line caught in something, and when he pulled it in he found that it was caught in a net; that he pulled the net and the fish contained therein into his boat and started for shore; that when he reached the shore he saw a game constable, who asked him what he was going to do with the net, to which he replied that he was going to destroy it; that the game constable said that he (the constable) was going to destroy it for he got paid for that. The constable then destroyed the net and threw the fish back into the water. The defendant said to him, “You are very hoggish; why don’t you leave some for me to cook?” From the point where the defendant found the net to the place where he landed was about 100 yards.

      Meld, that there could be no inference drawn from the defendant’s testimony except that he intended to keep the fish, and that he knowingly had in his possession fish caught in a net, (Putnam, J., dissenting.)
    Appeal by tbe plaintiff, Tbe People of tbe State of New York, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of tbe county of Clinton on the 25th day of April, 1893, upon tbe verdict of a jury rendered at tbe Clinton County Circuit, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on tbe 5th day of April, 1893, denying tbe plaintiff’s motion for a new trial made upon tbe minutes.

      Wilmer H. Dunn, for the appellant.

      R. Corbin, for the respondent.
   Herrick, J.:

This is an appeal from a judgment entered upon tbe verdict of tbe jury in favor of tbe defendant, and against the plaintiff, and from an order denying the motion to set aside such verdict. The action is brought to recover a penalty for violation of tbe Game Laws of tbe State, and for tbe purpose of this appeal it is sufficient to take tbe defendant’s version of the transaction. His statement is, that he was trolling for fish, and while so trolling his line got hitched or canght in something, and when he pulled it in he found that it was a net; that he pulled the net and the fish contained in it into his boat and started for the shore; that when he reached the shore he saw a game constable, who asked him what he was going to do with the net, to which the defendant replied that he was going to destroy it; then the game constable said that he was going to destroy it, for he got paid for that; the constable then took the net and cut it up, and threw the fish back into the water. That the defendant asked him to give him a few, saying, “You are .very hoggish; why don’t you leave some for me to cook ? ”

The distance from the point where the defendant found the net to the place where he landed was about 100 yards. The statute prohibiting the taking of fish in any manner or device except angling reads as follows : “ Fish taken contrary to the provisions of this section shall not be knowingly possessed.” (§ 102, chap. 488, Laws of 1892.) There is no pretense but that the taking of fish in a net is contrary to the statute. There is no question, from the defendant’s own evidence, but that he had in his possession fish caught in the net, and there is no question but that he knowingly had them.

I can see no inference that can be drawn from the testimony other than that he intended to keep the fish. He went 100 yards to shore with them in his possession, complained to the game constable because he threw them back into the water instead of offering some of them to him, the defendant, to cook.

It may seem rather harsh to hold a person liable for having fish in his possession, taken under the circumstances that the defendant claims these were; on the other hand, it is very plain to be seen that a story of the kind here told may be a device to escape the penalty of the law.

But, whether harsh or not, it is the law, and the law in question, if it is to be of any benefit, must be strictly construed, and jurors are not at liberty to disregard it because they think that in any particular case it is hai’sh, and the penalty heavy for the offense committed ; they are not at liberty to disregard the evidence. In this case the evidence of the defendant himself shows a violation of the law. Therefore, judgment should be reversed and a new trial ordered, costs to abide the event.

Mayiiam, P. J., concurred.

Putnam, J.

(dissenting):

Defendant did not catch the fish in question. lie found them in a net placed by another party. He proceeded to take the net with the fish in it to the shore. While they were being so conveyed, I think the fish were not in possession of defendant within the meaning of the statute, unless he intended to keep them. It is not clear that he so intended. The presumption is against such an intent. I think the question of his intent, under the circumstances of the case, was one of fact for the jury, and hence that the trial judge properly disposed of the case.

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


author: Mayham, P. J.:

text:
    Abby Rogers Clark, Respondent, v. Hiram Howard and Another, Appellants.

      Gua/rantee of the payment of a debt — privity of contract necemwy.

    Upon tlie trial of an action brought to recover from tlie defendants the amount of the indebtedness of one Frances D. Iloyt to the plaintiff in such action, it appeared that Iloyt, being indebted to the defendants and to the plaintiff, entered into an agreement, under seal, with the defendants, reciting his indebtedness to them and to the plaintiff, the sale, transfer and'assignment of all his stock of jewelry, book accounts, etc., to the defendants to secure and pay such indebtedness to them, and that in consideration of the premises and of the sum of one dollar paid to the said Hoyt by the defendants, such defendants agreed to guarantee to the plaintiff the payment to her of the sum of money owing to her by said Iloyt, within five years from the date of such agreement. The defendants took possession of the property of Hoyt under such agreement, sold the same and applied the proceeds thereof upon the debt due from Hoyt to them.
    The referee before whom the action was tried found that Hoyt did not act as the agent of the plaintiff in any of the transactions between him and the defendants, and directed judgment in favor of the plaintiff.

      Meld, that as there was no prixity of contract between the defendants and the plaintiff the judgment was improper and should be reversed;

      That in order to entitle the creditor to enforce such an agreement an obligation must exist or be created in favor of the principal debtor, which the latter can enforce, and that such a liability did not exist under the facts proved in this case. (Herrick, J., dissenting.)
    Appeal by the defendants, Hiram Howard and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 19th day of December, 1892, upon the report of a referee.

      Charles H. Machin and Esek Cowen, for the appellants.

      King & Ashley, for the respondent.
   Mayham, P. J.:

Francis D. Hoyt being indebted to the defendants in the sum of thirteen thousand five hundred and ten dollars and eighty-nine cents ($13,510.89) and to this plaintiff in the sum of twenty-eight hundred dollars ($2,800) and to Edward W. Davenport in the sum of twenty-five hundred dollars ($2,500), made the following agreement with the defendants :

“ Agreement made and entered into this twenty-first day of August, 1886, by and between Francis D. Hoyt of the city of New York, party of the first part, and Hiram Howard and Stephen C. Howard, composing the firm of Howard & Son of Providence,. Rhode Island, and New York city, parties of the second part.
“Whereas, the party of the first part is justly indebted to the parties of the second part in the sum of thirteen thousand five hundred and ten and 89-100 dollars, of which four thousand is repre-, sented by the indorsement by the parties of the second part of the paper of the party of the first part, seven thousand four hundred ninety-five and 38-100 dollars thereof by the notes of the party of the first part, given to the parties of the second part for merchandise sold and delivered; six hundred dollars thereof for cash loaned and fourteen hundred and fifteen and 51-100 dollars for merchandise sold and delivered and now in open accounts; and the party of the first part, to secure and pay to the parties of the second part the said indebtedness, has this day sold, assigned, transferred and delivered to them all Ms stock of jewelry, hook accounts, bills receivable and fixtures in bis business carried on at No. 456 Broadway, New York city, as per bill of sale this day executed and delivered to tlie parties of tlie second part.
“And whereas, tlie party of tlie first part is justly indebted to Mrs. Abby Rogers Clark in tlie sum of twenty-eight hundred dollars for money loaned, and to Edward W. Davenport the sum of twenty-five hundred dollars for money loaned,
“ Now, in consideration of the premises and the sum of one dollar paid to the party of the first part by the parties of the second part, the parties of the second part hereby agree to guarantee to the said Abby Rogers Clark and Edward W. Davenport the payment to them and each of them of the said sums of money so owing to them as aforesaid, within five years from tlie date hereof, with interest.
“ In witness whereof tlie parties have hereunto set their hands and seals the da!y and year first above written.
“ ERANOIS D. HOYT, [l. r.]
“HOWARD & SON, [L. S.]
“ H. HOWARD. [l. s.j ”

Under this agreement the defendants took possession of the property mentioned in it, Hoyt acting as the agent of the defendants in conducting the business for about two months, when the defendants sold out the goods and business and applied the proceeds upon the debt due from iloyt to them.

The referee expressly finds that Hoyt did not act as tlie agent of the plaintiff in any of these transactions between Hoyt and defendants. After the lapse of five years from the making of the above contract between Hoyt and the defendants, the plaintiff demands of defendants payment of the amount of Hoyt’s indebtedness to her, which was refused, and thereupon the plaintiff brings this action.

The referee finds in her favor, and orders judgment against the defendants for the amount Iloyt owed her, with interest.

The defendants on this appeal contend that no valid liability was created by the contract between Iloyt and them, upon which the plaintiff can maintain this action.

The plaintiff took no part in tlie making or carrying out of the provisions of the contract between Hoyt and defendants.

There was, therefore, no privity of contract in fact between the defendants and plaintiff. The plaintiff, so far as the case discloses, never released her claim against Hoyt, or agreed to accept and look to the defendants as her debtors on the debt due her from Hoyt. Nor was there any debt due from the defendants to Hoyt, which Hoyt by this contract assumed to transfer to the plaintiff in payment of her claim against him.

The defendants did not become Hoyt’s debtor by the purchase of these goods, but received the same only in part extinguishment of a debt due from Hoyt to them.

There was no cause of action created in favor of Hoyt, and no consideration moving from the plaintiff to the defendants to uphold this guaranty in plaintiff’s favor. The contract, if construed literally, was but a guaranty for the payment by Hoyt of his indebtedness to the plaintiff. I know of no principle upon which a principal debtor can maintain an action against his guarantor because of his own default. It is true that if the debt had been contracted on the strength of the guaranty, the creditor, on default of the principal debtor, might maintain an action, because then there would be a consideration of harm to the creditor, moving between the guarantor and him, which would support an action against the guarantor by the creditor.

I think, therefore, this case is clearly distinguishable from any of the cases relied upon by the learned counsel for the plaintiff upon this point.

In Lawrence v. Fox (20 N. Y. 268) Holley loaned to Fox three dollars, and at the time of the loan informed Fox that he owed Lawrence that amount, which was due the next day, and Fox thereupon, at Holley’s request, agreed to pay the money to Lawrence when due. Here a debt was created against Fox, for which Holley had a right of action at law. Not so in the case at bar; Hoyt never had a right of action at law against the defendants, and it cannot be claimed that this action can be maintained to prevent circuity of action by compelling the defendants to pay Hoyt’s debts, for the simple reason that defendants owed Hoyt nothing for which he could maintain an action against them.

Nor can it be said in this case, as was said by the majority of the judges in Lawrence v. Fox (supra), that this promise was made to the plaintiff by the defendants through the medium of Iloyt as their agent, as the referee has expressly found that no agency existed.

In Smith v. Perine (121 N. Y. 376), cited by the plaintiff, the promise was by Perine to his son and wife, to pay her one-half of a debt due the son and was upon the express ground that he owed his son and was made directly to the wife. It was, therefore, in fact and in principle unlike the case at bar. In Williams v. Fitch (18 N. Y. 546), to which our attention is called by the plaintiff, the trustee of a fund to which he would succeed in case of intestacy, to prevent the making of a will of such fund to a third person, promised to hold the fund for the benefit of the intended legatee, and it was held that the arrangement was made in contemplation of death by the party intending the legacy, and was equivalent to the delivering of the security in the hands of the trustee so as to take effect as a donatio causa mortis.

In Evansville Nat. Bank v. Kaufmann (93 N. Y. 273) it was held in effect that a consideration moving between tbe guarantor and principal debtor is essential to support the guaranty.

In all these cases cited by the learned counsel for the respondent, as well as all other cases which wTe have been able to find upon this subject, when a guaranty or promise is made to inure to the benefit of a creditor of the principal debtor, an obligation has existed or a liability has been created against the guarantor and in favor of the principal debtor, which the latter might enforce.

Hei'e, as we have seen, no such liability exists, and thus this case is distinguishable from all that line of cases relied upon by the respondent.

It being clear that the defendants were not the debtors of Hoyt, and did not become so by the transfer of these goods and this business to them, in part payment of a debt due them by him, it must follow that any money which the defendants might advance either to Iloyt to pay the plaintiff, or to the plaintiff herself, on this guaranty as the case stood, would create an indebtedness from Iloyt to the defendants. Suppose Iloyt had attempted to sue defendants in an action at law upon this guaranty, could he have recovered the amount of the debt due from him to the plaintiff ? Clearly not, for the reason that the moment that he recovered or received that amount of tlie defendants he would have become their debtor to that amount.

In The Bradford & Cuba R. R. Co. v. New York, Lake Erie & W. R. R. Co. (123 N. Y. 316), Judge Peckham, in discussing a question somewhat analogous to this, says: Of course, in the action at law, there must bo proof in the case showing, in some form, and to some extent, the amount of the damages that the plaintiff has sustained by the defendant’s breach of his agreement. And it is equally plain that it must be a rare case, indeed, where it can be said that a person has sustained any damages by the refusal of another to advance money which he has agreed to advance, where the-person to whom it is to be advanced is, by the agreement, under a valid obligation to pay it back immediately.”

If Iloyt could not recover, the plaintiff, as we have seen, could not, as there is no privity of contract between the defendants and her. The promise was not, therefore, for the benefit of the plaintiff, but was rather a promise to advance money for the benefit of Hoyt, to pay his debt, and is, therefore, unlike and not within the principle of the decision of Lawrence v. Box.

In principle it is more nearly analogous to Garnsey v. Rogers (47 N. Y. 233). In this case Hermans, who was the owner of lands on which Garnsey held two mortgages, desiring to secure a sum of money to Rogers, conveyed the same to him with a parol defeasance, the deed, however, containing an assumption clause by which Rogers agreed to pay to Garnsey the amount of the prior mortgage upon the property. An action was brought by Garnsey upon this assumption clause, and it was contended that the case was within the principle of Lawrence v. Fox and Burr v. Beers (24 N. Y. 178), and the Court of Appeals, by Rapalro, J., held that the conveyance was but a mortgage, and, after noting the difference between that case and those above referred to, says: “ Regarding the conveyance as a mortgage, the stipulation was in effect to advance to the promisee on the security of the property, to discharge prior liens, and was made for the benefit of the promisee only. If such a contract could be enforced by the creditor, who would be incidentally benefited by its performance, every agreement by which one party should agree with another, for a consideration moving from him, to become security for him to his creditors — or to acbvance money to pay his debts, could be enforced by the parties whose claims were thus to be secured or paid. I do not understand any case to go this length.”

Again, in Pardee v. Treat (82 N..Y. 385), Andrews, J., in discussing the effect of an assumption clause in a deed, uses this language : “We think the true result of the decisions upon the effect of an assumption clause in a deed is that it can only be enforced by a lienor, where in equity the debt of the grantor secured by the lien becomes, by the agreement between him and his grantee, who assumes the payment of the debt of the latter. On the other hand, if the assumption is in aid of the grantor upon the security of the land, and not, as between them, a substitution of the liability of the grantee for that of the grantor, or, in other words, if in equity, as at law, the grantor remains the principal debtor, then the assumption clause is a contract between the parties to the deed alone, and the liability of the grantee for any breach of his obligation is to the grantor only.”

In Roe v. Barker (82 N. Y. 432) the plaintiff contracted to sell land to II. for $1,350, payable $300 at date of contract and the balance in annual payments of $300 each; II. assigned this contract to the defendants in payment of a debt due them, and of $300 in goods out of their store. This assignment wras complied with on agreement that II. might redeem. After payments fell due to the plaintiff on this contract, he brought suit against the defendants to recover such payments. In discussing the liability of the "defendants upon these facts, Finch, J\, says: “ The most that can be said, therefore, if we strain the evidence to its utmost limits, is that the defendants agreed to make for IT. advances upon the contract which lie should repay, if he was able, when ho redeemed it from the defendants, and that until that time the latter held it as collateral security for their advance already made to him, and such as they might thereafter make for him upon the contract. This was, therefore, no absolute promise to pay the plaintiff at all. No assumption of the debt due to the vendor so as to make it the debt of the defendants. * * * ”

The case falls within the rule declared in Garnsey v. Rogers (47 N. Y. 239), and the transaction between Hoyt and defendants gave no right of action to the plaintiff. Other authorities might be cited, if necessary, holding that when the principal debtor remains liable on the debt due the plaintiff, and there is no privity of contract between the plaintiff and guarantor, and no debt or liability existing from the guarantor to the .principal debtor, an action in favor of the plaintiff against the debtor will not lie against the guarantor.

We are, therefore, of the opinion that the plaintiff has not, by her complaint or proof, established a cause of action againt the defendants, and that the judgment must be reversed.

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

Putnam, J., concurred; Herrick, J., dissenting.

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


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

text:
    Antoine Campbell, Respondent, v. John Hurd, Appellant.

      Order by an agent on Ms principal, not a satisfaction unless paid — accord — not a bar to the original cause of action.

    The giving of an order upon a debtor by his agent, when accepted, is equivalent to the debtor’s giving his own note in payment of the debt, and is not a satisfaction unless such order is paid in full. (Mayham, P. J., dissenting.)
    An accord is not a bar to a suit on the original cause of action. (Per Pütnam, J.)
    Appeal by the defendant, John Hurd, 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 26th day of June. 1893, upon the report of a referee.
    The plaintiff, having a claim against the defendant for services rendered under a written contract, for a considerable sum, accepted from defendant’s superintendent an order on defendant for $450 ini settlement. This order was accepted by the defendant, and $150 paid on account of it. The balance was not paid, and this action was brought to recover on the original contract.

      S. A. Beman and Theo. H. Swift, for the appellant.

      Lawrence Russell and Nelson L. Robinson, for the respondent.
   Putnam, J.:

Plaintiff brought this action to recover a balance due on an unsettled account. The defendant claimed an accord and satisfaction. The testimony in the case, however, shows an accord but not a satisfaction. The accord is not a bar to a suit on the original cause of action. (Brooklyn Smile v. De Greauw, 23 Wend. 342.) The giving of the order by defendant’s agent on defendant Was equivalent to defendant giving his own note for the claim in suit, which has been held not to be a satisfaction. (Person v. Civer, 29 How. 432, 438, 439.) Although if the order had been paid in full it would have amounted to a satisfaction.

As there was no accord and satisfaction I think it follows that plaintiff was not estopjied by the new agreement or accord as to the amount of the recovery or otherwise. To hold that plaintiff can only recover the amount agreed upon by the accord is in fact to hold such accord binding upon him without satisfaction. In my view, there being no accord and satisfaction, the plaintiff can recover on the original claim in all regards as if the order by defendant’s agent on defendant had not been given.

It follows that the refusal of the learned referee to find “ that the ■settlement and acceptance of the cash order by the plaintiff and its ■acceptance by the defendant fixed the amount of defendant’s liability under said contract mentioned in the complaint,” as requested by defendant, was not an error.

I have examined the various exceptions taken by the defendant on the trial and think that neither of them requires a reversal of the judgment.

I think, therefore, that the judgment should be affirmed, with costs.

Herrick, J.:

I concur; the new promise, that is, the order to pay $450, and the promise to pay the same was to be the satisfaction of the accord when paid; not having been paid, there was not a complete accord .and the original indebtedness remains in full force. (Kromer v. Heim, 75 N. Y. 574-577.)

Mayham, P. J.

(dissenting):

The principal question, and the one upon which all the other important questions raised by the appellant on this appeal must turn, is whether the evidence in this case established an accord and satisfaction.

The complaint sets out a written contract between the plaintiff and defendant, whereby the plaintiff agreed to peel, pile and deliver bark at a specified price, and to cut and deliver a quantity of timber therein specified at prices specially set out in the contract, alleges performance of the contract, and claims a balance due him for the labor performed under such contract.

The answer of the defendant admits the making of the contract, denies that any sum is due the plaintiff and sets up settlement, payment, accord and satisfaction. The evidence discloses the fact that after the performance of the services by the plaintiff under the contract, differences arose between the parties as to the amount of the services rendered and as to the balance remaining due the plaintiff.

In one of these interviews the plaintiff claimed $500, and the defendant offered him $450. Soon after the plaintiff wrote the defendant’s agent as follows:

“ Mr. Berkley :
“ Sir — You may send me that order for four hundred and fifty dollars, and I will send you a Recite in full. Tell Mr. Hurd about this order so that I won’t be to enny extary expense in going only once to Santa Clara; you need not send me itimise bill unless you want to.
“ Respectfully yours,
“A. V. CAMPBELL.’-’

The case shows that Berkley, to whom this letter was addressed by the plaintiff, was the defendant’s superintendent, and that on the day after the receipt of this letter he sent to plaintiff the order as directed in this letter, and on presentation the defendant accepted the same and agreed to pay it, and did thereafter pay thereon $150, which the plaintiff received and retained. Defendant directed the plaintiff to present the order to other parties, and said they would pay it, but on being requested by the plaintiff they declined to do so.

Had this order been drawn on and accepted by a third person, and not the debtor himself, it would, we think, have been an accord and satisfaction, by reason of the plaintiff’s promise in his letter to give a receipt in full.

The plaintiff would then in effect have transferred the claim from the principal debtor to the drawer and acceptor of the order, and would have had a right of action on the acceptance which would have been a satisfaction of the defendant’s liability to the plaintiff.

Such a transaction would have been a bar to an action on the original contract, because it would, in that event, have been accepting the order as payment, and would have been within the definition given in Blackstone’s Commentaries of an accord and satisfaction. (3 Black. Comm. 15.) The agreement to take the order would be an accord, and its delivery and acceptance would be a satisfaction. But no such rule obtains when the debtor promises performance himself and fails to execute his agreement. If the defendant had paid this order all of his liabilities on the original contract would have been merged in this new agreement, and such payment would have amounted to an accord and satisfaction, and no action would, therefore, lie on the original contract. Ilis failing to do so, however, left his liability still existing, only reduced by the $150 actually paid under the new agreement.

In Brennan v. Ostrander (50 N. Y. Super. Ct. 426) it was held that an accord, with part execution only, cannot be pleaded in .-satisfaction.

The accord must be completely executed to sustain such a plea. In Russell v. Lytle (6 Wend. 391) Makct, J., says: “ To make an accord good it must be in full satisfaction. "Where an accord is relied on it must be executed. Readiness to perform is not suffi-cient.” (See, also, Hawley v. Foote, 19 Wend. 516; Brooklyn Bank v. De Graw, 23 Wend. 342; Dolsen v. Arnold, 10 How. Pr. 528.)

The amount which was agreed to be paid not having been paid ‘by the defendant, upon the order accepted by him, there was no accord and satisfaction within the authorities above cited.

The remaining question is, was the previous contract between the parties so far merged in the new agreement or settlement as to bind the plaintiff as to the amount which he should recover?

It seems to me that the parties by this letter and order to which we have referred, fixed and settled the amount of the defendant’s liability, and that the plaintiff should not now be allowed, after ■accepting under this compromise or new agreement a portion of the amount, to retain so much of the fruits of the compromise as lie lias received under it, and at the same time repudiate the agreement for the purpose of his recovery in this action. He has once in writing agreed to accept a cash order for $150, and sent a receipt in full; having received the order, and accepted upon it from the defendant a payment of $150, he should be estopped from now saying to the defendant that that payment was received upon the general unliquidated claim, and seek to recover the balance as though there liad been no settlement or liquidation of the amount; and the referee’s refusal to find as requested in the defendant’s fourth request as conclusions of law, viz.: That the settlement and acceptance of the cash order by the plaintiff, and its aeeejfianee by the defendant, fixed the amount of defendant’s liability under said contracts mentioned in the complaint,” was error for which a new trial should be granted.

The judgment should be reversed, referee discharged and a new trial ordered, costs to abide the event.

Judgment affirmed, with costs.


author: Herrick, J.:

text:
    George P. Rider, Appellant, v. Elbert T. Rulison, Respondent.

      Matter libelous per se — ■allegation as to special damages.

    Any written or printed matter published of and concerning a person which has a tendency to disgrace such person and bring him into ridicule and contempt is libelous per se.

    Charging a man with being “perfectly unreliable," that “he cannot tell the truth,” that “any financial obligation does not seem to distress him in the least,” and that “ he has been more than mean to me,” is libelous per se.

    In an action brought to recover damages for written matter libelous per se, it is unnecessary either to allege or prove special damages.
    Appeal by the plaintiff, George P. Rider, 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 9th day of February, 1893, upon a dismissal of the plaintiff’s complaint at the Montgomery Circuit.

      Arthur B. Rider, for the appellant.

      Howard Putnam, for the respondent.
   Herrick, J.:

Tlie plaintiff brings this action against the defendant for libel, charging defendant with writing two several letters concerning him, in which he made use of the following expressions: “ I know him ” (the plaintiff thereby meaning) “ to be perfectly unreliable “ can’t tell the truth, and any financial obligation does not seem to distress him in the least. He has been more than mean to. me.” And, again, in another letter: It seems he ” (thereby meaning the plaintiff) “ cares no more about his reputation now to pay than he ever did.” In the meantime, should he knock at the outer door, be careful about admitting him. lie is a plausible talker, but wholly unreliable.”

The writing of these letters by the defendant is admitted.

It appeared upon the trial that both the plaintiff and defendant were physicians, and that the plaintiff had been a student in the defendant’s office at one time, and that the defendant had loaned and advanced money to him; and the plaintiff being in a distant State, the defendant had written the letters in endeavoring to collect what he claimed to be due him from the plaintiff.

In the view that I have taken of the case, it is unnecessary to state the facts more fully.

At the close of the plaintiff’s evidence the defendant’s counsel moved for a nonsuit on the ground that the plaintiff had failed to make out a cause of action, a for the reason that the words charged in the complaint, the words contained in the letters which are in substance that ‘ plaintiff is unreliable,’ that he cannot tell the truth, and does not regard his financial obligations, are not libelous j)er se, and inasmuch as they are not used in reference to plaintiff’s business or profession, and no proof of special damages given, plaintiff has failed to make out a case as to those words.”

The court granted the motion, and in doing so, stated: “ I do not think the words charged to have been written about the plaintiff are libelous per se. There is enough alleged in the complaint to make out a cause of action, but there is no proof to sustain it, namely, that he was injured in his business ; therefore, there is no damage shown, and I think the case is not made out.”

In this I think the court erred ; any written or printed matter published of and concerning a person which has a tendency to disgrace such person, and bring him into ridicule and contempt, is libelous per se. (Morey v. M. J. Assn., 123 N. Y. 207; Bergmann v. Jones, 94 id. 51; Winchell v. Argus Company, 69 Hun, 354.)

It seems to me that charging a man with being “perfectly unreliable,” that “ he cannot tell the truth,” that “ any financial obligation does not seem to distress him in the least,” and that “ lie has been more than mean to me,” is something that has a tendency to hold one up to scorn, and to bring one into ridicule and contempt, and diminish his respectability, and as such is libelous per se, and being so it was not necessary to either allege or prove special damages. (Winchell v. Argus Company, 69 Hun, 354-360.)

Eor that reason, and for the error of the court in holding that such language was- not actionable per se, the judgment should be reversed and a new trial “ordered, 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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    The People of the State of New York, Appellant, v. Albert Rockhill, Respondent.

      Form, of indictment — demurrer as to the jurisdiction of the grand jury — lohen ‘may" is not construed as “must” — •assault.
    If an indictment states an offense as tlie statute defines it the averment is sufficient, and if it contains a plain and concise statement of tlie act constituting a crime, then tlie facts set forth constitute the crime charged.
    An indictment which charges that the defendant, with intent to kill, did assault the persons therein specified with a loaded firearm, and did discharge the same toward and at such persons, and did thereby hit and seriously wound them, contains a sufficient statement of the act which constitutes the crime to comply with sections 275 and 276 of the Code of Criminal Procedure.
    A demurrer alleging that the grand jury had no jurisdiction of a certain alleged offense cannot be sustained where the indictment was for assault in the first degree, and purported to have been found by the grand jury of a county, and stated that the alleged crime was committed within such county, and that it was committed prior to the time of the finding of the indictment.

      Although under certain circumstances the word “may” in a statute should be construed to read as “ must,” it is used in section 279 of the Code of Criminal Procedure in its ordinary, permissive meaning.
    An indictment charged the defendant with the crime of assault in discharging a firearm at two persons with the intent to kill, and a demurrer was interposed by the defendant upon the ground, among others, that more than one crime was charged within the meaning of sections 278 and 279 of the Code of Criminal Procedure.

      Held, that if there was an imperfection in fihe indictment it did not tend to prejudice the substantial rights of the defendant upon the merits.
    Appeal by the plaintiff, The People of tbe State of New York, from a judgment of tbe Court of Sessions, held in and for the county of Franklin, rendered on the 6th day of June, 1893, allowing the defendant’s demurrer to his indictment of the crime of assault.

      Frederick G. Paddock, for the appellant.

      John P. Kellas, for the respondent.
   Herrick, J.:

This is an appeal from a judgment of the Court of Sessions of the county of Franklin, allowing a demurrer to the indictment against the defendant. The indictment is in the words following:

“ COURT OF OYER AND TERMINER.
“ The People of the State of (Niw York v. Albert Rockhill.
“ The grand jury of the county of Franklin by this indictment accuse Albert Rockhill of the crime of assault in the first degree, committed as follows:
“ The said Albert Rockhill, on the 31st day of. October, 1892, at the town of Bombay, in said county, did feloniously, and with intent to kill, assault Frank Mulvaney and Fred Mulvaney with a loaded firearm in the hands of him, the said Albert Rockhill, and did discharge the said loaded firearm toward and at the said Frank and Fred Mulvaney, and did thereby hit and seriously wound the said Frank Mulvaney and Fred Mulvaney.”

The defendant stated four grounds of demurrer, as follows:

First. That the indictment does not conform substantially to the requirements of the sections two hundred and seventy-five and two hundred and seventy-six.
“ Second. That more than one crime is charged in the indictment within the meaning of sections two hundred and seventy-eight and two hundred and seventy-nine.
“ Third. That the facts do not constitute a crime.
'■'■Fourth. That the grand jury had no jurisdiction of the alleged offense.”

Section 275 of the Code of Criminal Procedure requires that the indictment shall contain,' first, the title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; this the indictment does. It contains the title of the action, states who the indictment is against and specifies the name of the court to which it is presented, “ The Court of Oyer and Terminer.” Second. That the indictment shall contain “ a plain and concise statement of the act constituting the crime, wdthout unnecessary repetition.” The crime charged is an assault in the first degree. Section 217 of the Penal Code defines an assault in the first degree to be when a person, “ with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, assaults another with a loaded firearm, or any other deadly weapon, or by any other means or force likely to produce death.”

The indictment charges that the defendant did, with intent to kill, assault Prank Mulvaney and Fred Mulvaney with a loaded firearm, and did discharge the loaded firearm toward and at the said Frank Mulvaney and Fred Mulvaney, and did thereby hit and seriously wound the said Frank Mulvaney and Fred Mulvaney.

This, it seems to me, contains a sufficient statement of the act which constitutes the crime. It is an allegation or statement of the crime substantially as defined by the Penal Code; it states the act which was done, that is, the discharge of the loaded firearm at the person in question, and it seems to me it contains a sufficient statement of the act constituting the crime to comply with section 275 of the Code of Criminal Procedure. If the indictment states the offense as the statute defines it, the averment is sufficient. (Phelps v. People, 72 N. Y. 334-349; People v. Weldon, 111 id. 569-574.)

Section 276 referred to in the demurrer contains a form of indictment under the Code of Criminal Procedure, and if I am right in my conclusions that the indictment sufficiently sets forth the act charged as constituting the crime, then this indictment complies in all respects with the form contained in section 276.

The third count of the demurrer, “ that the facts do not constitute a crime,” is answered in what has just been said as to the second count, for if it contains a plain and concise statement of the act constituting the crime then the facts set forth constitute the crime charged.

The fourth count of the demurrer, “ that the grand jury had no jurisdiction of the alleged offense,” cannot be sustained.

The indictment purports to have been found by the grand jury of the county of Franldin; it states that the alleged crime was committed at a town in the county of Franklin; that it was committed prior to the time of the finding of the indictment, and of course no question can be raised but that the grand jury has jurisdiction to find indictments for assault in the first degree, committed within the boundaries of the county for which the grand jury is acting.

The second count of the indictment, “ that more than one crime is charged,” within the meaning of sections 278 and 279, is more open to question. Section 278 provides that “ the indictment must charge but one crime and in one form,” except as stated in section 279. Section 279 provides that “ the crime may be charged in separate counts to have been committed in a different manner, or by different means, and where the acts complained of may constitute different crimes such crimes may be charged in separate counts.” In this case, while but one act is charged to have been done, yet that act is alleged to have been against two jDersons, and it may be said that, although only one act was done, two crimes were committed: That it was a crime to discharge a firearm with the intent to kill Frank Mulvaney, and that it was a separate and distinct crime to discharge it with the intent of killing Fred Mulvaney, although there was but one discharge of the weapon, and that the intent to kill each should, under section 279, have been properly alleged in separate counts.

It will be observed that section 279 states that “ where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.” It has been held that the word may in a statute, under certain circumstances should be construed and read as “must,” but other provisions of the Code in relation to indictments, I think, prohibit the use of the word “ may ” as “must,” and render the ordinary, permissive, meaning of the word to be the proper meaning to be given to it. Section 285 of the Code of Criminal Procedure provides that “ no indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Section 284 provides, among other things, that “ the indictment is sufficient” where “ the act or omission charged as the crime is plainly and concisely set forth,” and “ is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.” As we have seen, the act is plainly and concisely set forth, and it is stated with such a degree of certainty, as to when, where and with what intent, and against whom it was directed, and by what means, as to enable the court to pronounce judgment upon a conviction; the imperfection in form charged, that is, that there should be two counts, one as to Frank and the other as to Fred Mulvaney, is such an imperfection, if it is such, as does not tend to prejudice the “ substantial rights of the defendant upon the merits,” because he is notified as to the time and place when and where he is charged to have committed the crime, how he was charged to have committed it, and against whom, so that he is fully apprised of the charge he has to meet. It is so stated that the record may be used by him in bar of a second trial, for the same act, committed at the same time and place, against the same persons ; these are his substantial rights, and all these are secured to him by the indictment in question. For these reasons I think the judgment of the Court of Sessions allowing the demurrer should be reversed. Let judgment be entered accordingly.

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

Judgment of the Court of Sessions allowing demurrer reversed, demurrer overruled, defendant permitted to plead over.


text:
    Louis Bourdon, Respondent, v. Francis A. Martin, as Receiver, etc., Appellant.

      A receiver changed personally with costs — absence of funds with which to pay costs — motion, where made.

    In an action against a transportation company to recover the amount of an alleged claim (a judgment in which would not have prevented a receiver of a party having a claim against such company from recovering any just claim due from the company to him as such receiver), the receiver voluntarily thrust himself into the litigation, and demanded the fund sought to be recovered from the transportation company, although long before his answer was served, to the knowledge of his attorney, the person of whose property he had been appointed receiver, and her husband also, had made a positive affidavit that the claim against such transportation company was the property of the husband.
    Upon the trial of the action the court directed a verdict against such receiver.

      Held, that, under the circumstances, the court was j ustified in finding that the defendant improperly contested the claim of the plaintiff in the action, without any sufficient evidence to sustain the position taken by him.
    Where a person as receiver voluntarily embarks in litigation without funds from which to pay the costs thereof, he may properly be deemed guilty of bad faith.
    Although it is proper to make a motion to charge a defendant personally with costs before the court in which the trial was had, it is not necessarily so made. Such a motion can be heard at any Special Term before judgment has been entered; especially, where it appears that, for some undisclosed reason, the trial judge declined to entertain it.
    Appeal by the defendant, Francis A. Martin, individually and as receiver of the property of Emma Walker, etc., from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 19th day of May, 1893, directing that the defendant personally pay to the plaintiff his taxable costs in the above-entitled action.

      J. W. Atkinson, for the appellant.

      Thomas O’ Connor, for the respondent.
   Putnam, J.:

We think that, on the affidavits and papers presented,-the court below was authorized to find that defendant, as receiver, had been guilty of mismanagement or bad faith in the defense of the action.

Louis Bourdon had commenced an action against the New York and Lake Oliamplain Transportation Company to recover on an alleged claim for board of employees of said company

It was not necessary for tlie defendant, as receiver, to take part in that litigation. A judgment in that action would not have prevented the defendant Martin, as receiver of Emma Walker (or Bourdon), from recovering any just claim due from the company to him. But it seems that he demanded the fund sought to be recovered by Bourdon from the company, and thus voluntarily thrust himself into the litigation.

The papers presented were such that the court below could properly determine that Martin was not justified in entering into the litigation. Long before his answer was served, to the knowledge of his attorney, Emma Walker (or Bourdon) had made a positive affidavit that the claim against the New York and Lake Oliamplain Transportation Company sought to be recovered was the property of her husband. Her husband, in his affidavit, had sworn to the same fact. The examination of Mitchell in supplemental proceedings was not inconsistent with the affidavit of Mr. and Mrs. Bourdon. It appeared that on the trial of the action the trial judge directed a verdict for the plaintiff, and thus that defendant produced no evidence of the truth of the allegations contained in his answer could be submitted to a jury. The court below was, therefore, justified in finding that defendant improperly, and without any sufficient evidence to sustain the position taken by him, contested the claim of plaintiff in the action, after the positive affidavit of the party for whom plaintiff wras receiver that such claim was valid.

Also., that the defendant having voluntarily embarked in the litigation, and, as the affidavits show, without funds to pay the costs, on that account may be deemed guilty of bad faith Cumming v. Egerton, 9 Bosw. 684.) We are, therefore, unable to hold that the view taken by the Special Term, as to the mismanagement or bad faith of the defendant, was incorrect.

The motion to charge defendant with costs was made at a Special Term of this court, after the entry of the verdict and before the entry of judgment, and not to the judge before whom the case was tried. Doubtless such a motion is properly presented to the same judge before whom the trial was had. We do not think, however, that it is necessarily so made. It can be heard at any Special Term before judgment lias been entered. This is especially so in a ease like this, where it appears that, for'some reason not disclosed, the trial judge declined to entertain the motion. Such being the fact plaintiff’s only course was to apply to a subsequent Special Term. The case of Hone v. De Peyster (106 N. Y. 645), followed by Jack v. Robie (48 Hun, 181), cited by defendant, is not inconsistent with this view. In these cases, after a trial, the trial court had ordered a judgment against the plaintiff, in one case an executor, and in the other an assignee, in their representative capacities. A motion was afterwards made in each case to charge the plaintiff with costs. The motion was denied on the ground that the trial court in each case had charged costs against the plaintiff in his representative capacity, and thus impliedly held that lie was not liable personally, and that a collateral attack on such an adjudication was unauthorized. Here no judgment has been entered. The trial court declined to entertain a motion to charge defendant with costs. It does not appear that any direction has been given as to the judgment to be entered, or that plaintiff has taken any steps in the action since the rendition of the verdict.

"We think, therefore, that the court below was authorized to make the order from which tlie appeal is taken.

The order should be affirmed, with costs and disbursements.

Mayiiam, P. J., and Herrick, J., concurred.

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


text:
    Henry H. Darling, Respondent, v. Daniel Klock, Jr., Appellant.

      Open commission — sitould name or describe the witnesses.

    An order for an open commission sliould not be granted on tbe motion of tlie plaintiff without the strongest proof of its necessity, especially in a case where its effect would probably be to compel the defendant to proceed with his counsel to the Territory of New Mexico, and remain there for a considerable time, rreccssarily incurring great expense.
    An order was granted authorizing the examination before a commissioner in New Mexico of any witness either party to the action might produce. It did not name the witnesses nor did it assume to describe them.

      Held, that the order should not be sustained;

      That although there might, perhaps, be peculiar and extraordinary cases where an open commission might properly issue to examine unnamed and undescribed witnesses, the examination in the case in question should be limited to witnesses residing in New Mexico, or in that locality, and such witnesses should be named or described.
    Appeal by tlie defendant, Daniel Klock, Jr., from an order made by the county judge of Rensselaer county, and entered in the office of the clerk of the county of Rensselaer on the 20th day of June, 1893, directing that an open commission issue out of the Supreme Court in the above-entitled action, directed to a commissioner in the Territory of New Mexico to examine any witness produced before him by either party.

      Edwin Countryman and John H. Peak, for the appellant.

      Lansing & Holmes, for the respondent.
   Putnam, J.:

An order for an open commission should not be granted on motion of the plaintiff without the strongest proof of its necessity. (Lentilhon et al. v. Bacon, 48 N. Y. St. Repr. 864.) Especially in a case like this, where its effect will probably be to compel the defendant to proceed with his counsel to the distant Territory of New Mexico, and remain for a considerable time, necessarily incurring great expense.

We think the order granted in this case should not be sustained. It authorizes the examination before the commissioner in New Mexico of any witness either party may produce. It does not name the witnesses or assume to describe them. Any one from any jocvrt of the world may be examined. The plaintiff, under the order, could have all his testimony taken before the commissioner if he desired. The examination should certainly be limited to witnesses residing in New Mexico or in that locality.

Also, the witnesses to be examined, if limited to persons residing in New Mexico, should be named or described. There are, perhaps, peculiar and extraordinary cases where an open commission may properly issue to examine unnamed or undescribed witnesses. (See Jemison et al. v. The Citizens’ Savings Bank of Jefferson, Tex., 85 N. Y. 546; Jones v. Hoyt, 10 Abb. N. C. 324.) We do not regard this as such a ease. In Hart v. The O. & L. C. R. R. Co. (61 Hun, 556-560) the witnesses to be examined were described as the “ present and past officers, agents and clerks of the companies,” etc. The case of Parker v. Lithgoe (36 N. Y. St. Repr. 981), referred to by respondent, was a peculiar one, and is fully explained in Kaempfer v. Gorman (43 id. 800). It cannot be deemed an authority to sustain the order granted in this case.

Perhaps the affidavit was sufficient to authorize a commission to issue providing for the examination of “Mills” and the past and present officers and servants of 'the “ Socorre Mountain Mining Co.,” or “ the Rio Grande Smelting Co.,” without naming those officers or servants. But it goes further than that, and allows the examination of any other resident of Nexo Mexico, or of any other part of the world. The order should have limited the examination to witnesses residing in New Mexico or in that vicinity, and should have named or described the witnesses, as in Hart v. The O. & L. C. R. R. Co. (supra).

The principal object of plaintiff in obtaining the commission seems to be to find witnesses, rather than to examine them. His affidavit states : “ That owing to the peculiar circumstances in this case, plaintiff has been, and he verily believes will be, unable to ascertain just who will be necessary witnesses for him to establish his side of the case, until some of the parties in the Territory of New Mexico implicated in and connected with the transactions set forth in the complaint have been examined,” etc.

He evidently does not know that there are material and necessary witnesses for him in New Mexico. On examination of parties in that Territory connected with the transactions set out in the complaint, it may turn out that there are no material witnesses there.

The order should be reversed, with costs and disbursements, - and the motion denied, with costs, but with leave to plaintiff to renew his motion.

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

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to renew motion.


author: Putnam, J.: Herrick, J.:

text:
    The People of the State of New York ex rel. Daniel E. Sutliff v. The Board of Supervisors of the County of Fulton, Respondent.

      Reversal of the determination of a hoard of supervisors — audit of a claim hy items-—proper mode of considering a claim.

    Although the court may review the actioD of a board of supervisors in extreme cases, in improperly receiving or rejecting evidence offered on the audit of a claim against the county, yet, ordinarily, an error of the board of supervisors, or its committee, in receiving incompetent evidence, will not cause a reversal of its determination.
    The court can examine the evidence taken before the board, and set aside its-determination in the same cases that a court can set aside the verdict of a jury as against the preponderance of evidence.
    The allowance bj a board of supervisors of a gross sum on a bill, instead of passing on the items thereof, is not a proper audit thereof, and justifies a reversal by the court of the determination of the board of supervisors.
    Two bills were presented to a board of supervisors for audit, and a committee was appointed, of the proceedings of which the claimant had reasonable notice, and had an opportunity with his counsel to examine and cross-examine witnesses, and at the end of the examination stated that he had no other witnesses to examine, and his counsel was allowed to discuss the case before the committee.

      Held, that the claims were properly considered;
    That it was discretionary with the board whether the counsel for the claimant should be allowed to make an argument before the full board of supervisors, or whether the stenographer’s minutes taken by the committee should be written out for the use of the board;
    That the fact that some of the members of the board had gone out from time to time during the reading of the testimony taken before the committee, would not compel a court to set aside the finding of the board.
    Certiorari issued out of tlie Supreme Court pursuant to an order made at tlie Montgomery Special Term on tlie 23d day of May, 1890, to review the action and proceedings of the board of supervisors of tlie county of Fulton in auditing two bills of the relator as the former sheriff of the county of Fulton.

      Andrew J. Nellis and John M. Carroll, for the relator.

      N. H. Anibal and J. A. Dennison, for the respondent.
   Putnam, J.:

This is a certiorari brought to review the proceedings of the board of supervisors of the county of Fulton in auditing two bills of relator as late sheriff of said county.

Bill No. 1, a copy of which is set out in the return, consists of 1,287 items, and at the end thereof is the following recapitulation:

“ Fulton County,
“ To Daniel E. Sutliff, Dr.
“For board of prisoners, per schedule No. 1, 12,490 days, 1,784 2-7 weeks, at $3.50 per week....... $6, 245 00
“For tub fees, emptying tubs for prisoners, per schedule No. 1, 1,784 2-7 weeks, at 75 cents per week...................................... 1, 338 21
“For washing for prisoners, per schedule No. 1, 1,784 2-7 weeks, at 75 cents per week.......... 1, 338 21
“For 2,577 turnkey’s fees, per schedule No. 1, at 37 1-2 cents................................ 966 37
“.Total amount of schedule No. 1............ $9, 887 79”

Bill No. 2 contains charges for taking prisoners to court, arrests, services, expenses, etc., and has at the end thereof the following recapitulation:

'“ Fulton County,
“ To Daniel E. Sutliff, Dr.
“ For taking prisoners to court, schedule No. 2...... $8 96
“ For criminal arrests, schedule No. 2............. 75 65
“ For services, expenses, etc., schedule No. 2....... 346 58
“Total..........!......................... $43119”

Both bills were properly verified and were duly presented to the supervisors for audit. The board appointed a committee before wdiom the parties and their witnesses appeared, and a large amount of testimony ivas taken. At the end of the hearing the committee reported, recommending the passage of the following resolutions :

Resolved, That the bill or claim of Daniel E. Sutliff, as Sheriff of Fulton county, from Nov. 1, 1888, to Sept. 1, 1889, for ,$9,887.79, be audited and allowed at $1,809.02.
Pesolved, That the bill of Daniel E. Sutliff, as Sheriff of Eulton county, called schedule No. 2, for $431.19, be audited and allowed at $301.06.”

The report was adopted by the board.

It is urged on the part of appellant that the supervisors erred in receiving incompetent evidence, in refusing to strike out evidence taken in the absence of relator and his counsel, in refusing to allow relator to address the board, in allowing testimony taken before the committee to be read to the board in the absence of some of its members and in other regards.

We are of opinion, however, that no such error was committed in the regard above mentioned as requires a reversal of the determination of the supervisors.

On the bills being presented the board appointed a committee. Relator seems to have had a reasonable notice of the proceedings and to have had an opportunity, with his counsel, to examine and cross-examine witnesses, and at the end of the examination stated that he had no other witnesses to examine. Counsel for relator was allowed to discuss the case before the committee at length. Whether he should be allowed to make an argument before the full board, or whether the stenographer’s minutes taken by the committee should be written out for the use of the board or not, was a matter within the discretion of the supervisors. And if some of the members went out from time to time during the reading of the testimony taken before the committee, which reading lasted seven days, we are of opinion that this fact would not compel us to set aside the finding. (See People ex rel. Gilhooly v. Commissioners, 23 Hun, 351.)

Although the court may review the action of supervisors in extreme cases in improperly receiving or rejecting evidence offered on the audit of a claim against the county (see People ex rel. Schabacker v. State Assessors, 47 Hun, 450), yet, ordinarily, an error of the board of supervisors or its committee in receiving incompetent evidence will not cause a reversal of its determination. (People ex rel. Board of Supervisors of Chenango Co. v. Board of State Assessors, 22 Wkly. Dig. 453; People ex rel. Mizner v. Hair, 29 Hun, 125; People ex rel. Walkill Valley R. R. Co. v. Keator, 17 Abb. N. C. 369.)

In the last case tlie learned judge delivering the opinion of tlie court says : “Now this is a special proceeding, a proceeding authorized to be taken under a special statute; it is not an action or proceeding to be conducted according to the strict rules of the common law, either in the admission of evidence or otherwise. It is like the ■case of People ex rel. Flanagan, v. Police Commrs. of N. Y. (93 N. Y. 9Y). As there said in regard to that case, having in view the .special powers conferred and the purpose to be attained by the proceeding, it is not to be limited or trammeled by an application of strict legal rules which prevail on trials and proceedings in courts of law.” Doctrines stated by the court in that case are applicable to this case. (See, also, People ex rel. McCarthy v. Board of Commrs. of Police, 98 N. Y. 332-334.)

Ye are, hence, of opinion that none of the objections to the proceedings of the supervisors above considered should cause a reversal of the decision made.

It is also urged by tlie appellant that, upon the evidence given in the case, relator was clearly entitled to the allowance of his bill or the greater part thereof, and that defendants had no right to reduce the same as they did. It is true that, under the provisions of subdivision 5, section 2140, Code of Civil Procedure, the court can ■examine the evidence and set aside the determination of the board in the same cases that a court could set aside the verdict of a jury .as against the preponderance of evidence. (People ex rel. McAleer v. French, 119 N. Y. 502.)

But in this case it would be somewhat embarrassing for the court to undertake tlie examination of the very voluminous evidence given, with the view of deciding which items of the relator’s bill are supported by the testimony, for the reason that it does not appear from the return of the supervisors, or by their debision, what items of relator’s claim were allowed and which were disallowed. The return shows a very long account presented by the relator, consisting of two claims, one of $9,881.19 and the other of $431.19. The first bill was allowed at the sum of $1,809.02 and the other at '$301.06. It is impossible to say from the return of the board what items were allowed and what were disallowed.

A very large amount of testimony has been taken in this case, and the parties have necessarily incurred great expense, and we should much prefer to reach a conclusion sustaining the findings of the supervisors. But we think that they failed to discharge their duty in failing to pass upon the items of relator’s claim. They failed to audit the bill properly, and, hence, within the provisions of subdivision 3, section 2140 of the Code of Civil Procedure, their determination should be set aside. That the allowance by the supervisors of a gross sum on relator’s bill, instead of passing on the items thereof, was not a proper audit is well settled. In People ex rel. Thurston v. Board of Auditors (20 Hun, 150) the question was passed upon by this General Term, and in the opinion the following language is used : “But, in order to a proper and legal audit of the account, the board must examine the bill in detail and allow or disallow the various items. It would be no proper or just audit of an account made up of numerous items to allow a gross sum instead of considering and passing upon the items. This was held in The People ex rel. Johnson v. The Board of Supervisors of Delaware Co. (45 N. Y. 196). * * * This precise question was decided in the case last cited. A legal and proper auditing of an account requires an examination of the items of which it is composed, and the allowance or disallowance of them accordingly as they shall be found correctly or incorrectly charged both in fact and law.”

The above case was affirmed by the Court of Appeals (82 N. Y. 80).

• The result is that defendants have failed to pass upon relator’s claim. They must pass upon the items, and should so discharge their duty in that regard that the relator will be able to know which items were allowed and which disallowed. It may not be necessary for the board in their decision to pass on each item of relator’s bill separately. Eor instance, if they should disallow all “ turnkey’s ” fees and all “ tub ” fees, it would be sufficient to so declare without specifying each item. ■ If they should allow the number of weeks’ board claimed, but reduce the price, it would be sufficient to merely state the price per week allowed. But in some way the board should pass on and allow or disallow the items of relator’s bill, and in such a way that it may be known what the determination in fact was as to each item. This may cause much trouble, but it seems necessary under the statute and decisions.

In People ex rel. White v. The Supervisors of Clinton County (48 N. Y. St. Repr. 3), where relator had charged a large number of days’ board of prisoners at a sum stated, we held that one finding of the supervisors, fixing the price of board at sixty cents, applied to a large number of items, was sufficient; that in fact the supervisors passed on the items of relator’s bill. In this case, as above suggested, the board of supervisors may be able to pass on many items in the bill in question in one finding, but in any event it must audit the items of the bill.

On such an audit, if the relator is dissatisfied, the items allowed and disallowed being known, the evidence can be examined, if necessary, to determine whether the finding of the supervisors is supported or unsupported thereby.

The determination of the board of supervisors should be reversed, with fifty dollars costs and disbursements to the relator.

Mayham, P. J., concurred.

Herrick, J.:

It seems to me that for many of the items in the relator’s account there is no fee or compensation allowed by law, and that for such he is not entitled to recover under section 3280, Code of Civil Procedure.

The board should also determine what the actual expense has been to the relator in providing the prisoners in his care with food pursuant to the statute. (See 2 Birdseye Stat. 2301; Laws of 1847,-chap. 460, tit. 1, art. 1, § 8.)

Order reversed, with fifty dollars costs and printing and other disbursements.


text:
    Robert Shaw, Respondent, v. Christina Kellogg, Appellant.

      Ejectment — possession under a contract of sale is subject to the conditions of the contract'— verbal extension of the time of payment.

    Upon tlx; trial of an action of ejectment it was shown that the defendant was in possession of the 'land in question under a contract for the sale thereof hy the plaintiff to the defendant, the purchase price named in which was $1,000, payable $100 at the end of the first year, $100 two years from the date thereof, and the balance as therein further provided.
    The contract also provided that upon default, for sixty days, by the defendant, in making either of the first two payments, such defendant was to quit and surrender tlie possession of the premises to the plaintiff immediately upon a. demand in writing therefor, and upon such default the possession of the defendant was to become the same as that of a tenant in arrear for the nonpayment of rent.

      Held, that as the only right of the defendant to the possession of the premises was derived from the contract, she was subject to the conditions imposed thereby. Upon the trial the plaintiff testified that when the second payment became due he had an interview with the defendant, who said that she had no money and could get none; that he told her that he could not take a hank note, and that he had concluded not to let her have the land, as the second payment was forfeited and he had a right to take it hack. That before he left she wanted to know whether, if she could make an arrangement for all the money between that time and the fall, he would take it, and let her have the land, to which he replied that he presumed he would he only too glad to do it.

      Held, that such statement failed to show any valid extension of the time of payment provided for by the contract.
    Appeal by tbe defendant, Christina Kellogg, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Hamilton on tbe 1th day of October,, 1892, upon tbe report of a referee.

      Robert Dornburgh, for tbe appellant.

      Stanley H. Bevins, for tbe respondent.
   Putnam, J.:

This is an action of ejectment to recover tbe possession of certain lands in Hamilton county, contracted to be conveyed by plaintiff to tbe defendant by a written agreement, dated February 7,1886, tbe defendant being in possession under said contract at tbe time of tbe commencement of tbe action. Tbe purchase price named in tbe contract was $1,000, payable $100 at tbe end of the first year, $100 two years from the date thereof, and tbe balance of the purchase price as provided in tbe contract, with interest on tbe principal sum unpaid at tbe time of each payment. Tbe contract also provided that upon default for tbe space of sixty days by tbe defendant in either of tbe first two payments, said defendant was to quit and surrender immediately, upon demand in writing therefor, tbe possession of said premises to tbe plaintiff, and on such default her possession was to become the same as that of a tenant in arrear for tbe nonpayment of rent. The referee to whom the case was referred found ■that the defendant made default in the payment of the second payment or installment, due February 7,1888, and interest thereon, provided to be paid in said contract by said defendant, and that she has ever since been in default, and that nothing has since been paid to apply on the second payment or the interest due thereon. That •after the expiration of the sixty days, as provided for in said contract, plaintiff served on defendant a demand in writing for the possession of said premises, as required by the contract. Thereafter, and on or about February 27, 1889, plaintiff served upon the defendant a further demand, requiring the delivery of the possession of said premises to the plaintiff, and thirty days before the commencement of the action served yet another written notice, demanding possession of said premises.

The principles applicable to such a case as this are so well settled fhat an extended discussion is unnecessary.

Defendant’s only right to the pos»ession of said premises was derived from the contract above referred to. By the contract on .a default in the payment of either the first or second installment for the period of sixty days, and upon a demand in writing by the plaintiff for the possession of said premises, the defendant covenanted to quit and surrender up the same to the plaintiff.

There seems to be no substantial conflict in the evidence. The contract was proved; the defendant concededly was in possession under said contract, and with no rights to the possession of the premises except such as were conferred upon her by the said instrument. It was not claimed that she had made the second payment, and a proper notice or demand in writing was shown to have been ■served upon her by the plaintiff.

Some evidence was given on the trial tending to show a verbal extension of the time of payment by the plaintiff. The evidence, however, was such that the referee could properly find that there was no valid extension of time. The plaintiff was sworn on the trial, and testified that when the second payment became due, he had an interview with the defendant, who said she had no money •and could get none.” I told her I could not take a bank note. That I had concluded not to let her have the land, as the second payment was forfeited, and I had a right to take it back. Before I left, she wanted to know if she made an arrangement for all tlie money between then and fall, I would take it and let her have the land. I replied that I presumed that I would only be too glad to do it.”

The referee was authorized to believe this statement of the plaintiff, and it failed to show any valid extension of the time of payment. It showed merely a suggestion of defendant as to an alteration of the contract which she might be able to make. To that suggestion plaintiff answered that he presumed he would only be too glad to do it. This was no agreement to extend the tune of payment. The question as to whether there was any verbal extension of the time of payment was a question of fact passed on by the learned referee, and the evidence is such that we would not be authorized to disturb his conclusion.

"We have carefully considered the rulings made by the learned i;eferee on the trial, to which exceptions were taken by the defendant, and are of the opinion that there was no material error in any of said rulings which requires a reversal of the judgment.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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

text:
    Orrando P. Dexter, Appellant, v. Warren Joseph Alfred, Respondent.

      .Action for trespass — when the question of title is not raised by the pleadings— nominal damages — costs — evidence.

    In an action brought to recover the damages caused by certain trespasses, the answer alleged that a highway was laid out under chapter 114 of the Laws of 1880, and that the defendant, believing such highway to be a legal one and to have been properly open to public travel, and before the courts had passed upon the constitutionality of the act under which the highway was laid out, cut some fallen trees out of such highway in obedience to the order of the commissioner of highways.
    The allegation in the complaint, that the plaintiff was the owner of the premises, was not denied, nor did the answer state that the place where the alleged trespasses were committed was a legal highway, nor was the question of title raised upon the trial. The jury rendered a verdict for the plaintiff for six cents and the defendant was awarded the costs of the action.

      Held, that no question of title was raised hy'the pleadings (Mayham, P. J., dissenting);
    That the plaintiff having recovered only nominal damages the defendant was entitled to recover the costs of the action.
    Upon the trial testimony was admitted, over the plaintifE’s objection, to the effect that a former owner of the land in question had given the defendant a license to cross and draw logs over the same. The complaint alleged that notice had been given by the plaintiff to the defendant, before the alleged trespasses, that the plaintiff was the owner of the premises and forbidding any trespass thereon, and this'allegation was not denied.

      Held, that such evidence was irrelevant and might have influenced the verdict of the jury.
    Testimony was also given that the co-partnership, of which the defendant was a member, had 40,000 logs cut at the end of the road so attempted to have been laid, out, which there was no practical way of getting out except over such road.'

      Held, that such evidence was incompetent, did not justify a trespass and did not tend to mitigate the damages.
    Appeal by the plaintiff, Orrando P. Dexter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 30th day of December, 1892, upon the verdict of a jury for six cents rendered at the Franklin Circuit, and also from an order entered in said clerk’s office on the 13th day of December, 1892, granting the defendant an extra allowance of costs, and also from an order entered in said, clerk’s office on the 9th day of January, 1893, denying the plaintiff’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal an order made at the Franklin Circuit, and entered in said clerk’s office on the 23d day of December, 1892, denying the plaintiff’s application for a. certificate that the title to real property came in question on such trial, and also from an order made at the Clinton Special Term and entered in the office of the clerk of the county of Franklin on the’ 17th day of January, 1893, denying the plaintiff’s motion to set aside the taxation of costs made by the clerk of the county of Franklin, and for a new taxation of costs.

      John P. Badger, for the appellant.

      Cantwell & Cantwell, for the respondent.
   Putnam. J.:

This action was brought to recover damages for thirty-three alleged unlawful trespasses. The defendant in his answer does not deny plaintiff’s title to the premises described in the complaint, and admits one or more trespasses; but alleges that, in pursuance of chapter 114 of the Laws of 1880, one Henry Foster, commissioner of highways of the town of "Waverly, proceeded to lay out a highway where the alleged trespasses were committed, taking the steps required by stattite to lay out such highway, and the defendant believing that the same was legally laid out, and before the court had decided the said act under which the proceedings were taken unconstitutional, was directed by said commissioner to cut some fallen trees at said place, and in obedience to said direction entered upon the premises on one occasion. Other matters are set up in the answer in the way of mitigation of damages.

The jury rendered a verdict for the plaintiff for six cents damages, and the defendant was awarded the costs of the action.

The plaintiff on this appeal claims that the question of title was raised by the answer and upon the trial, and, hence, that, recovering a verdict for six cents, he was entitled to the costs of the action.

We think that under the answer the plaintiff’s title to the premises in question was not controverted. The allegation in the complaint, that plaintiff was the owner of said premises, was not denied in the answer, and, hence, such allegation stands admitted in the pleading. Nor does the answer allege that the place where the alleged trespasses were committed was a legal highway. It alleges that the highway was laid out under chapter 114 of the Laws of 1880, and “ that this defendant verily believed that said highway, so laid out as aforesaid, was a legal highway, and properly opened to public travel; and that while said defendant so thought, and before the courts had passed upon the constitutionality of said act, the said commissioner of highways ordered and commanded this defendant to cut some fallen trees out of said highway, which the defendant did in or about the latter part of January, 1890, in pursuance of said command.” It is evident that the answer does not aver that there was a legal highway where the alleged trespasses were committed, but rather that defendant at the time so thought. Nor was the question of title raised on the trial. It is difficult to see how it could be raised under the pleading.

As the answer, therefore, does not controvert plaintiffs title to the premises, or allege a legal highway, it follows that, plaintiff recovering only nominal damages, defendant was entitled to recover the costs of the action.

We think, however, that some evidence was improperly received on the trial. The witness Webb testified as follows : “ I recollect an occasion a short time before Mr. Dexter bought this Richard Gilo’s lot in question when there was a conversation between Mr. Alfred and Richard Gile about going across the premises. It was in my office. Gile was then the owner of the land. I think it was along in the fall of 1889 or about that time. Q. State the substance of the conversation. [Objected to by plaintiff as incompetent, immaterial and hearsay. Objection overruled. Plaintiff excepted.] A. Mr. Gile and Mr. Alfred were in my office in relation to this particular matter. Mr. Gile told Mr. Alfred that he could go across over his land, draw logs right along, and gave me instructions to draw up a writing to that effect. [Plaintiff moved to strike out the evidence on the ground that at most it was only a license which was revoked by the sale to Dexter, and the evidence was immaterial and incompetent. Motion denied. Plaintiff excepted.] That is the substance of it. Mr. Alfred wanted to cross the land, and Mr. Gile told him he could do it and wanted me to draw up a writing ; there was a writing drawn; Mr. Gile was .to come in and sign it, but he didn’t execute it. [Plaintiff moved to strike out the testimony as to the writing. The motion was denied and plaintiff excepted. Plaintiff moved to strike out the testimony of the witness Webb as to the conversations with Richard Gile, on the grounds stated in the objections at the time, and also outlie ground that there is no evidence that Gile owned the land or had any authority to give anybody permission to cross. Motion denied. Plaintiff excepted.] ”

It was not material to the case that a former owner had given defendant license to cross over the land. Such evidence was entirely irrelevant. The complaint alleges that notice had been given by plaintiff to defendant before the alleged trespasses, that he, plaintiff, was the owner of the premises and forbidding any trespass thereon, and this allegation is not denied. The evidence so objected to and received may have influenced the verdict of the jury.

We are also unable to see how the testimony that the Shanley & Alfred Lumber Company had 40,000 logs cut at the end of the road so attempted to be laid out, and which there was no practical way of getting out except over said road, can be deemed competent. The fact that the defendant, or the co-partnership to which he belonged, had no other way of moving their logs except over the road so attempted to be laid out, did not justify a trespass on plaintiff’s premises without his consent. We are unable to see that the fact so allowed to be proved tended to mitigate damages. This testimony may also have influenced the verdict.

On account of the receipt of this evidence, the judgment should be reversed, and a new trial granted, costs to abide the event.

Herrick, J.:

The judgment being reversed, the orders for costs naturally fall' with it; the appeals in the matter of costs, heard at the same term of this court, we see no occasion for passing upon at this time.

Mayham, P. J.:

I think the allegations in the amended answer from folio 38 down to and including the words “ took place ” in folio 41, were sufficient prima facie to show that the locus in quo was a public highway, and thus raise question of title to land, which, if pleaded in Justice’s Court, would have ousted the justice of jurisdiction, and that the statement in the answer that the defendant verily believed that said highway, so laid out as aforesaid, was a legal highway,” was not such a necessary part of the pleading as to overcome the positive allegations of fact that this entry was upon a public highway, as set out in the answer.

The defendant having taken the responsibility of pleading a public highway in justification of his entry, his belief as to its legality becomes quite immaterial, and could not be the subject of proof on the trial.

But as illegal evidence was offered and received on the trial, the-judgment should, for that reason, be reversed.

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