author: Macomber, J.:

text:
    In the Matter of the Petition of BELLE E. GRANDIN and Others, to Compel WILLIAM H. FENTON, as Their Special Guardian, to Render an Account of His Proceedings. BELLE E. GRANDIN and Others, Respondents, v. WILLIAM H. FENTON, as Special Guardian, Appellant.

      jSale of an infant’s real estate —failure of the special guardian to pay over the proceeds to the infants — token the statute of limitations begins to run.

    One Fenton was appointed, in 1866, a special guardian of certain infants, in a proceeding to sell tlieir real es ate, and by the final order therein was directed to invest the proceeds, less certain debts, upon real estate security, and to pay the principal to the infants as they severally reached majority. The youngest of the infants became of age in 1878.
    Fenton never, in fact, received or invested the moneys, nor after the infants became of age did he, at any time, repudiate the trust, nor did he claim title to the proceeds in hostility to their rights.
    In a proceeding begun by them in 1889 to enforce their claim:

      Held, that the statute of limitations had not begun to run against the demand and that it was not a defense thereto.
    That, in contemplation of law, the fund remained at all times invested as ordered and in a situation to be delivered to the infants, and that the guardian held it as trustee.
    Appeal by William H. Fenton, the former special guardian of Belle E. Grandin, Frank W. Blancbard (now Frank W. Briglitman), and Addie J. Gatlin (now Addie J.' Frink), from an order entered in tlie office of tlie clerk of Chautauqua county, on the 2d day of February, 1891, confirming tlie report of a referee and directing the payment to said persons, by said William II. Fenton, of the sum of $2,423.82, with interest, and to their attorneys, their costs and disbursements.
    This proceeding was begun in 1889.

      J. J3. Fisher, for the special guardian, appellant.

      A. C. Pioleard, for the petitioners, respondents.
   Macomber, J.:

The facts in this case, as reported by the referee, and which stand substantially undisputed, are as" follows: On the second Monday in January, 1866, Julia C. Carpenter, the mother of the petitioners, presented to the Supreme Court a petition, properly verified, praying for tlie sale of ten acres of land belonging to the infants, and the appointment of the - appellant, "William II. Fenton, as special guardian of the infants to represent them in the proceedings for the sale of the lands. One of the infants at that time was fourteen years of age, and the others were, respectively, eleven and nine years of age. The appellant was accordingly appointed special guardian, and required to give a bond in the penal sum of $2,500, with two sureties, to be approved by the court, for the faithful discharge of his duties as such special guardian. The matter, by the same order, was referred to a referee to examine into and report upon the facts stated in the petition. The bond required by the order was executed and filed. The referee reported in favor of the sale of the premises. This report was confirmed by the court at a subsequent term held on the fourth Tuesday of March, 1866, by. an order which, among other things, directed the special guardian to execute a deed of the premises to the purchaser, which was accordingly done. The purchase-price was the sum of $1,500. Out of this amount the sum of thirty dollars was directed to be paid for costs, and $200 upon certain indebtedness to sundry creditors of the father of the infants through whom their title was derived. The order further directed that the special guardian invest the residue on real estate security with annual interest, the principal to be paid when the infants should arrive at the age of twenty-one years, respectively. The amount thus coming to the hands of the special guardian, after payment of the expenses and debts for investment, in pursuance of the-order, was the sum of $930.07, as of the lltli day of June, 1866.

As a matter of fact, however, the special guardian never received any of the moneys arising from the sale, no part of which ever passed through his hands; he never invested any of the proceeds of the sale for the benefit of the infants or otherwise. He never gave any account of the disposition which he made of the $930.07, or any part thereof, or of the interest or income thereof which he was directed to do by the terms of the order, and he has paid to the infants no part thereof either of principal or interest. The referee further finds, that while the infants knew the fact that their father had owned these lands at the time -of his death, and the same had been subsequently sold, they wore not cognizant of their rights until •three years before the reference was held.

The amount which the referee reported as the sum for which the appellant was liable to the infants was the sum of $930.07, with interest to the time of making the report, amounting in all to the sum of $2,423.82, without annual rests, and for such sum the order of the court holds the appellant liable and directs him to pay the same to the infants within twenty days after notice of the entry of the order, together with certain costs. No fact is found by the referee, nor is there any proof contained in the case to the effect, that the special guardian at any time after .the infants arrived at their majority repudiated any trust or obligations which he owred to them respectively, nor is there any proof that any demand for an accounting was made by the infants until shortly before these proceedings wei’e instituted.

The principal answer relied upon is the ten-year statute of limitations. The argument of the learned counsel for the appellant is, that the sum due each of the infants was payable at his or her majority, and that, consequently, the trust in each instance was terminated when the infant arrived at the age of twenty-one years; and from that time forward only the relations of debtor and creditor existed between the trustee and beneficiaries. Counsel, in support of this contention, calls attention to the case of Witter v. Brewster (12 Week. Dig., 358.) There is no disputing the fact, that the authority so cited, if correctly reported, holds in all material respects with the contention made by counsel. The court there decided, that in a proceeding for the partition of real estate, begun in the year 1862, the special guardian appointed in such proceedings who had been required to invest money for his wards and pay the same over to them respectively as they arrived at the age of twenty-one years, was not liable to them in any action or proceeding after the lapse of ten years from the time that each ward became of full age. The court there say: “ The defendant had this money in his hands payable to plaintiff and her sister when they became of age respectively. The amount was fixed and determined. He had received it for them; it was his duty to provide for its payment and pay the same to them at their majority. That was the condition on which he received it. It became due at their majority and . payable as effectually as a note so payable. His retaining the money after that time was a breach of his implied promise or undertaking. His received it to be paid at a certain fixed time. After that time the defendant was the debtor of the plaintiff. He had no right to retain the money from plaintiff. He had no active duty to perform except to pay over. There was, therefore, no trust and no relation of trustee or eestwi que trust. There was no subject for an accounting. It was a debt due.”

With great deference to the court which rendered the foregoing decision, we are constrained to hold, in view of other cases of paramount authority, that the doctrine there stated cannot now successfully be maintained. We do not put our decision upon the ground that there is any difference in the obligations of the special guardian appointed in the case cited, and the obligations of this appellant in proceedings for the sale of the infants’ real estate; for, in our judgment, the duties of the special guardian, in each instance, required of him a faithful performance of a trust imposed, and for the paying over, or the investment and accounting for all moneys which he should receive, according to the order of any court having authority to give direction in the premises, and for the observance of any order and direction of the court in relation to the trust. Such, in substance, was the condition of the bond which the guardian was required to enter into with sureties. The bonds, in the case cited and in the case now before us, were, in substance, the same, and the duties imposed by the order and by the acceptance of the trust were the same. No argument, therefore, based on a difference in the nature of the proceeding seems to us to be sound.

The appellant’s obligation was to receive the money belonging to the infants and invest the same, and pay the income thereof in the manner stated, and the principal to the infants when they .should become of full age. In Matter of Camp (50 Hun, 388), it was held, under this statute of limitations, that it was no defense, by a general guardian, to a petition for an accounting, that ten years had elapsed since, by the order appointing the guardian, he was required to turn the property over to the ward ; and that, in contemplation of law, the fund remained at all times invested as was required by law, and in a situation to be delivered over, and that the guardian held . as trustee for the infants only; and until he repudiated the trust, or in some way claimed title to the fund in defiance of it, there was no beginning of the running of the statute of limitations. In respect bo tbe statute of limitations this principle was affirmed by tbe Court of Appeals in Matter of Camp (126 N. Y., 377) ; see, also, Boughton v. Flint (74 id., 481); Reitz v. Reitz (80 id., 538); Mabie v. Bailey (95 id., 206); Lammer v. Stoddard (103 id, 672).

We are of the opinion, therefore, that, in the absence of any evidence that the special guardian in this instance had openly, and at the knowledge of the beneficiaries, renounced, disclaimed or repudiated the trust imposed upon him after his wards had, respectively, become of full age, the statute of limitations had not begun to run. We are unable to see that the arrival of the beneficiaries .at the age of twenty-one years is, in and of itself, unaccompanied by any assertion of title in himself, a fact of any moment in measuring the obligation of the guardian.

It follows, therefore, that the order confirming the report of the referee must be upheld.

Dwight, P. J\, concurred; Lewis, L, not sitting.

Order appealed from affirmed, with costs.


source: Caselaw Access Project

author: Macomber, J. :

license: Public Domain

text:
    THE VILLAGE OF MAYVILLE, Appellant, v. MARIETTE WILCOX and Another, Respondents.

      Municipal corporations — riparian rights of a village in waters within its limits— jurisdiction of a court of record, presumed — right acquired by prescription.

    The Holland Land Company, the proprietor of certain land, laid out a street through it, in 1804, of a width of six rods. In June, 1827, the Court of Common Pleas of Chautauqua county, pursuant to section 2, chapter 150, Laws of 1827, made an order granting permission to Dexter & Tinkom to erect a wharf, of a width of forty feet, at the termination of said street, extending into Chautauqua lake, a navigable body of water, and to place storehouses thereon. The wharf was built, and the effect was to narrow the street by forty feet for a short distance near the point where it projected into the water.
    This street was included within the limits of a village, which was incorporated in 1867, and by its charter acquired the powers of commissioners of highways.
    In an action brought by the village against the defendants, grantees by mesne conveyances of Dexter & Tinkom, to restrain them from erecting proposed buildings upon the end of the wharf nearest to the land, which, as alleged, would interfere with the right of the public to enjoy the street at its full width, ■unobstructed to the water’s edge:

      Held, that the parties who had succeeded to the rights of the Holland Land Company were the only persons who could sue.
    That the village, as a municipal corporation, had no riparian rights over the waters of the lake, and could have none unless they were expressly conferred by statute.
    That the inhabitants of the village could not be said to be deprived of access to the lake while the remainder of the street was open.
    That the order of the Common Pleas was not ineffectual because it did not affirmatively appear, outside of the recitals therein, that Dexter & Tinkom were owners of lands adjacent to the lake, as was required by section 2 of chapter 150 of the Laws of 1827, when the order was made.
    That it would he presumed that the Court of Common Pleas, being a court of record, acted within its jurisdiction.
    That the defendants had acquired a right by prescription to occupy the premises.
    Appeal by tbe plaintiff, the Village of Mayville, from a judgment, entered in the office of the clerk of the county of Chautauqua on the 27th day of November, 1886, upon the report of a referee, dismissing the complaint on the merits, with costs.

      Sherman 8. Rogers, for the appellant.

      Lorenzo Morris, for the respondents.
   Macomber, J. :

This action was brought to restrain the defendants from erecting buildings in front of the termination of Erie street, in the village of Mayville, abutting against the waters of Chautauqua lake.

The plaintiff, which was incorporated April 19, 1867, has, by virtue of its charter, the powers of commissioners of highways, under the general laws of the State, within the limits of Mayville.

The Holland Land Company was the' original proprietor of the land situated within the corporate limits of this village, and of the waters of.Chautauqua lake. The lake is a navigable body of water, and sundry lines of steamers are now operated thereon for the purpose of conveying passengers and merchandise to and from various parts of its shores. The Holland Land Company laid out Erie street in the year 1804, the map of which (included in the map of the village), was filed in the county clerk’s office of Chautauqua county, on the 23d day of February, 1829. The street was then six rods wide. In the year 1827 the Court of Common Pleas, on proper application, made an order, dated the twenty-seventh day of June, of that year, granting permission to John Dexter and Hezekiah Tinkom to erect a wharf on the land covered by the water at the termination of Erie street, and to extend it on a line parallel with the north-eastern line of Erie street, to the width of forty feet, for a distance of three hundred feet into the lake, with the privilege to erect on such wharf or pier such store-houses as they might think necessary for public convenience. This order has remained unrevoked. At the time mentioned the waters of the shore of Chautauqua lake at this point were shallow, not exceeding the depth of two feet at a distance of fifty feet from the shore. In pursuance of the power given to Dexter & Tinkom, by the Court of Common Pleas, these persons .did, in the years 1828 or 1829, erect a wharf and store-houses at the .termination of Erie street, in accordance with the power thus bestowed, namely, taking up forty of the ninety-nine feet of the street at its intersection with the water, and- carrying the wharf or pier .into the lake a distance of 300 feet. These premises, for a width of forty feet, have been in the possession and occupancy of the defendants and their grantors since the year 1828 or 1829. The wharf has not been used for about twenty years, and the buildings erected thereon by the defendants were destroyed by fire about the year 1883.

That the Court of Common Pleas had the power, under chapter 150 of the Laws of 1827, to make the grant above-mentioned admits of no doubt. Section 2 of that act is as follows :

“And.be it further enacted, that it shall .and may be lawful for any person owning lands adjoining the Cayuga, Seneca or Chautauque lakes, to erect any wharf or wharves, storehouse or storehouses, upon any land covered by the water of such lakes adjacent to and bounding upon the land of such owners, and to use, occupy and enjoy the same as if conveyed by the commissioners of the land office, pursuant to an act passed February 6, 1824: Provided, that nothing in this act shall be so construed as to authorize any person to erect a wharf at ■ the termination of any highway, so as to obstruct the passage of ferry boats or any other water craft; and provided, further, that before any person or persons shall be authorized to erect any wharf or storehouse in Chautauque lake, such person or persons shall first apply to and obtain the consent and order of tlie Court of Common Pleas of said county, which consent and order shall not he granted until the applicant or applicants shall first give at least three weeks notice of such intended application, by publishing a notice in one of the newspapers printed in said county; and when such order and consent shall be obtained, it shall forthwith be filed in the clerk’s office of the county of Cliautauque.”

The learned counsel for the appellant contends, notwithstanding the judgment of the Court of Common Pleas, and the continued occupation thereunder by the defendants and their grantors, that the village of Mayville nevertheless has the right to maintain Erie street as a public highway to its full width of ninety-nine feet unobstructed to the water’s edg'e. In this contention we cannot concur with counsel. Erie street was by the Holland Land Company opened and dedicated as a street in the year 1804. It was 'then, it is true, six rods wide. The public had received, through the dedication made by the Holland Land Company, no rights beyond a right of way to the waters of the lake. We know of no powers given to the village of Mayville to construct wharves and maintain them upon thes ewaters. The right of action underlying this suit seems to be based upon allegations, that the defendants threatened to erect and maintain in front of such street, within the limits of its lines, extended into the waters of the lake, structures and buildings, the erection of which, it is claimed, would prevent the plaintiff and the jrublic from enjoying the frontage of Erie street upon the lake, and from using the same as an approach to or from the street, docks or wharves that may be hereafter erected 'thereon, whereby the plaintiff would be deprived of its vested riparian rights. But it is quite evident that the plaintiff has no riparian rights over the waters of Chautauqua lake. It is a municipal corporation, without ownership of any highways or streets except in trust for jiublic use. Its charter is silent upon the subject of any riparian right, and our attention has not been called to any statute which would give it any power to erect, for its own purposes or' for the purposes of the commerce of the lake, piers or wharves out into the lake for its own use to the exclusion of the public. It cannot be regarded as having any control over the navigable waters unless such power is expressly conferred by statute.' If the defendants have made, or if they now threaten to make any structures into the lake so as to impede navigation, it is not, in our judgment, the province of the village of Mayvilie to •call such action in question; but the same is cognizable only by the proper action in behalf of the people of the State, as the State has succeeded to the original rights of the Holland Land Company ( Wetmore v. Brooklyn Gas-Light Co., 42 N. Y., 391.)

Furthermore, it appears that the occupation by the defendants and their grantors, which has been continuous since the year 1828, has been not of the whole of the foot of Erie street upon the lake, but of only forty feet thereof out of the total width of ninety-nine feet. There remains, therefore, to the village ample room for access to the lake, and it has not been deprived in any respect by the interference of the defendants with easy egress and ingress from the lake to the highway.

It is further claimed, by counsel for the appellant, that the order of the Court of Common Pleas above-mentioned was ineffective, because it did not affirmatively appear, outside of the recitals of the order, that Dexter & Tinkom owned lands adjacent to the waters of the lake where the wharf was permitted to be extended. But in our judgment a presumption arose that the court acted within its jurisdiction, for it was a court of record. Moreover, the statute does not require that the order as entered shall contain the proofs upon which it ivas founded. The direction is only that the order shall be entered upon the record of the clerk’s office.

Hnder the facts proved, the occupation by the defendants and their grantors, since the year 1828, clearly establishes a prescriptive right under a claim of title based upon a decree of a competent court having jurisdiction in the premises specially bestowed by the statute above set forth. (Code Civil Pro., § 369.)

The title of the defendants and their grantors has been repeatedly recognized by the plaintiff. In the year 1869 condemnation proceedings were instituted by the plaintiff to extend Erie street over the lands in question ; but, after a jury had been summoned for the assessment of damages and an appeal had been taken, the proceedings were subsequently abandoned and discontinued. Since the incorporation of the plaintiff it has caused the premises and property of the defendants and their grantors to be assessed, and has exacted and received taxes thereon from the defendants and their grantors.

Were it important or necessary to establish the fact, that the plaintiff has ample access to the lake, it would be sufficient to point to the evidence and to the accompanying map, which show that it has control of Water street, which runs nearly at right angles to Erie street and along the shore of the lake, and that such street affords all adequate facilities needed by the plaintiff.

The judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment appealed from affirmed, with costs.


author: Maqomber, J.:

text:
    WALTER S. YATES, Respondent, v. WILLIAM H. APPLETON and Others, Appellants.

      Sales — a book canvasser who has engaged to take “ reliable ” orders — proof that the persons from whom, he took orders were responsible.

    A book canvasser engaged to sell the publications of a firm to none but bona fide subscribers, and to take reliable orders; the proof of the reliability of said orders being stated to be the readiness of the subscribers to receive the books and to pay for them according to their orders.
    In an action brought by the agent to recover commissions upon his sales, the defense was interposed that the orders were not collectible.

      Held, that it was not a condition precedent to a recovery that the canvasser should show that each subscriber was responsible to the amount of his purchase, and that the firm had in each instance received the price of the book.

      Semble, that if the firm had shown that their omission to fill the orders was because they did not regard the subscribers as responsible, the burden of showing such responsibility might, under the agreement, have been cast upon the agent.
    Appeal by the defendants, William H. Appleton, William W. Appleton, Daniel Appleton and Edward D. Appleton, from a judgment, entered in the office of the clerk of Erie county on the 24th day of December, 1890, in favor of the plaintiff for $646.20, after a trial before a referee.

      George F. Yeomam, for the appellants.

      Ansley Wilcox, for the respondent.
   Maqomber, J.:

The facts as found by the learned referee in his report, and which are clearly sustained by the evidence, are as follows: Between the 25th day of June, 1887, and the 1st day of October, 1887, the plaintiff was employed by the defendants, under a special contract in writing, to canvass and sell books and publications of the defendants in the States of Indiana, Ohio and Michigan, for which he should receive certain graduated compensations. The plaintiff performed* his part of the agreement, and, under the contract, his commissions came to the sum of $835.30, upon which he was paid the sum of $550 by the defendant. Other items of increased compensation growing out of verbal modifications of the written agreement, one of thirty-nine dollars and twenty cents, and the other twenty-five dollars and twenty cents, do not seem to be disputed. With these added, the whole amount of unpaid compensation to the plaintiff is, and is so found by the referee to be, $399.70, for which judgment has been given, with interest, from July 9, 1889.

By reference to the written agreement, it is found that the plaintiff was engaged to sell the publications of the defendant to none but bona fide subscribers within the territory assigned, and to do all in his power to advance the interests of the defendants. ’ He also engaged to take reliable orders, but “ proof of the reliability of said orders shall be the readiness of the subscriber to receive the books and pay for them according to their respective orders.” The defendants engaged on their part, as follows: “All orders for the above-named publications, taken in accordance with the provisions of this agreement, will be served, and all collections will be made through O. J. Rowe, Superintendent of Agencies for Ohio, Michigan and Indiana.”

The defense, which is that portions of the orders taken and returned by the plaintiff are uncollectible, and the subscriptions thereto are not made bona fide, is wholly unsupported by any evidence in the ease. An inspection of the whole testimony, which is confined to that of the plaintiff himself, and the defendants’ agent Carmichael, shows that the conclusions arrived at by the learned referee in his report, notwithstanding the criticism of his opinion made by the learned counsel for the appellants, are well sustained. Hnder this agreement, if the subscriptions obtained by the plaintiff were bona fide, and made by apparently responsible person's, as we must presume them to have been in the absence of testimony to the contrary, the plaintiff was entitled to recover the commissions for such subscriptions, even though the defendants failed to deliver the books m pursuance of such subscriptions. The plaintiff did not engage to show, as a condition precedent to the right of payment for his services, that each of the subscribers whom he had obtained was responsible for' the amount of his subscription, notwithstanding the provision of the agreement which reads as follows: “ Proof of the reliability of said orders shall be the readiness of the subscriber to receive the books and pay for them according to their respective orders.” It is argued, as we understand the brief of the appellants, that from this and other provisions of the contract, the subscriptions cannot be deemed to be reliable subscriptions within its terms, unless the subscriber has paid for the book; and that it is incumbent upon the plaintiff to show that the defendants actually received pay for the book, or that it was the fault of the defendants that they did not so receive it. In this conclusion we cannot concur with the.learned counsel. Had the defendants shown by evidence that their omission to fill the orders was because they did not regard the subscribers responsible, the burden of establishing such responsibility might, under this clause of the contract, well be deemed cast on the plaintiff; but such reason for their action is not shown, and hence the plaintiff was not driven to the necessity of showing affirmatively,, beyond presumptions, that each subscriber was able and willing to-pay the amount of Ms subscription.

The referee seems to have carefully considered the whole evidence and the presumptions arising from the absence of evidence in the case, and has reached a conclusion entirely consonant with such facts as the parties saw fit to lay before him.

Judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment appealed from affirmed.


author: Macomber, J :

text:
    STEPHEN E. McNALL and Others, as the Board of Health of the Town of Franklinville, Appellants, v. JOHN W. KALES, Respondent.

      Boards of health — a penalty under chapter 270, Latos of 1885, must be fixed at a definite sum — its amount cannot be established upon the trial of an action brought to recover it.

    The board of health of a town is, by chapter 270 of the Laws of 1885, authorized to make orders or regulations necessary for the preservation of life and health; to impose penalties for their violation and to maintain actions to recover such penalties.
    The Board of Health of the town of Franklinville made a regulation, in terms which were a mere repetition of the statute, as follows: “ The local board of health will enforce compliance and inflict a penalty not exceeding a hundred dollars ($100.00) for non-compliance with or violation of its lawful regulations and orders.”
    In an action brought, not upon the statute, but upon this regulation, for a failure by a physician to report a case of diphtheria,

      Held, that as no definite penalty was fixed by the resolution, none could be recovered.
    That the board alone had power, under the statute, to fix the amount of the penalty, and not having done so, it could not recover upon a trial such 'a sum of money as it should show ought to bo paid under the circumstances.
    Appeal by tlie plaintiffs, Stephen E. McNall and others, as the Board of Health of the Town of Franklinville, from a judgment of nonsuit, entered in the office of the clerk of the county of Cattaraugus on the 11th day of IVIarch, 1891, after a trial at the Cattaraugus Circuit before the court and a jury.

      A. c& G. E. Spring, for the appellants.

      Bolles <& Wa/ring, for the. respondent.
   Macomber, J :

The plaintiffs, as the Board of Health of the Town of Franklinville,. bring this action to recover a penalty of the defendant, who was a practicing physician in that town, for omitting to report to the board of health a case of diphtheria, as required by the town board of health. The answer puts in issue all of the allegations of the complaint. After hearing such evidence as was offered and received, the court at the trial, on motion of the defendant’s counsel, granted a nonsuit, holding, as we gather from the report of his oral remarks at the hearing, that there was not competent evidence of the fact of an adoption by the plaintiffs, as the board of health, of any regulations affecting the preservation of health and the registration of vital statistics; and, secondly, that the board of health had failed to exercise the power conferred upon it by statute to impose a penalty in their regulations for the offense alleged to be committed by the defendant.

There is attached to the case (Exhibit A), a paper purporting to be an account of the organization of the local board of health of the town of Eranklinville, but which, in reality, seems to be nothing further than a statement of the things enacted by chajfler 2Y0 of the Laws of 1885. Among the duties imposed upon the board of health of towns by this statute was the making from time to time and the publication of orders and regulations which the boards should think necessary and proper for the preservation of life and health, and the successful operation of the statute, 3, sub. 6, and id., sub. 9): “To impose penalties for the violation of, or non-eomjfliance with, their orders and regulations, and to maintain actions in any court of competent jurisdiction to collect such penalties, not exceeding $100 in any one case, or to restrain by injunction such violations, or otherwise to enforce such orders and regulations.”

The only penalty imposed, by any supposed order or regulation made by the board of health appears in Exhibit A, as follows : “ The local board of health will enforce compliance and inflict a penalty not exceeding a hundred dollars ($100) for non-compliance with, or violation of its lawful regulations and orders.”

This action, it must be borne in mind, was not brought upon the statute, but upon an alleged order or regulation alleged to have been made by the board of health, in pursuance of the powers conferred upon it by the statute. It will be seen, that.the supposed order or regulation, which, it is now claimed in behalf of the plaintiffs, was an imposition of a penalty for the violation of the law committed .by the defendant, was not the exercise of the power given to the board by the statute, but is a mere repetition of the language of the statute itself. ■ It would be impossible for the board of health, under this statute, to bring an action for the penalty imposed by one of their regulations, so long as the amount of the penalty is left undetermined and indefinite through non-action of the board. It is to the board acting as a unit that the power is given to make a regulation imposing a definite and determinate penalty, and then the further power is conferred to recover, by action at law, such penalty. The board alone, as a body, outside of the courts, is clothed with power to fix the amount within the limi tation of the statute, as a penalty which any person shall be required to pay for violatiou of the ordinance or regulation. The case presented to US) therefore, is as though the members of the board of health had brought an action to recover a sum of money which, upon the trial of the action, they should show ought to be paid to it under the circumstances. But there is no authority given by the statute to permit the plaintiffs, after an action has been brought by them, thus to determine the amount of the penalty. The theory of the statute is, that the board of health should fix, applicable to all persons, a definite penalty for violation of its regulations; and on proof of the violation thereof the recovery would be for the exact amount of money thus provided for, and not for a sum to be established by proof upon the trial.

Upon the ground, therefore, that the plaintiffs had not, before this action was brought, passed any resolution or made any regulation imposing a definite penalty for a violation of its rules, we think the judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J. concurred.

Judgment appealed from affirmed.


author: Dwigiit, P. J. :

text:
    SAMUEL WILDER, Respondent, v. WILLIAM A. STACE, Appellant.

      Landlord and tenant — statute of frauds — a parol lease for more than one year, and no occupation thereunder — a new contract is necessary to create a'tenancy for a year — it need not he express.

    Wliile a building was in process of erection its owner leased, by parol, to one Stace certain rooms therein for a term of five years, Stace paying $100 “ to bind the bargain.” Stace, wishing a more elaborate finish in some respects, made certain changes in the rooms, the expense of which was to be borne in part by each He was subsequently notified to occupy the rooms, which, however, he never did, nor did he accept a key thereof.

      In an action brought by the owner to recover the rent oí the premises:

      Held, that the parol lease was void under the statute of frauds.
    That no tenancy for a year was created by or resulted from the acts above-mentioned.
    That a tenancy for one year, in a case where the original lease having been void the tenant has taken possession, can only arise from a new contract, which must, be established.
    That the new contract need not be express, but facts must appear showing- the intention of the parties to enter into it, such, for example, as the payment and receipt of an aliquot part oí the annual rent, etc.
    That the payment by Stace of $100, and for the repairs made by him, were acts done under the void lease and showed no understanding as to a new contract for a tenancy of one year.
    Appeal by the defendant William A. Stace from a judgment of the County Court of Monroe county, in favor of the plaintiff, entered in the clerk’s office of said county on the 20th day of January, 1890, after a trial before the court and a jury, at which a. verdict was rendered in favor of the plaintiff for $450.

      J. M. Dunning, for the appellant.

      J. P. Bowman, for the respondent.
   Dwigiit, P. J. :

In January, 1888, the plaintiff being engaged m the erection of the Wilder Building, in Rochester, agreed with the defendant, by parol, to lease to him certain rooms therein on the first floor (second story) for a term of five years at a rent of $1,325 a year, to be paid monthly at the expiration of each month. No time was agreed upon for the commencement of the term for the reason that it was uncertain when the building would be completed and the rooms ready for occupancy, but it was expected by both parties that the defendant might get in on the first day of April. At the time of the agreement the defendant paid the plaintiff $100 “ to bind the bargain,” wliidh was to be applied on the first month’s rent. The defendant desiring a more elaborate finishing of the rooms than was in Mr. Wilder’s plan it was agreed that he might have an oak floor put in at his own expense, and a paneled oak wainscoting, of the expense of which, if exceeding $300, the plaintiff should allow one-third to be applied on the rent. The extra work was procured to be done by the defendant. He also, in March, had his business, sign — “ Stace, Tailor” —put on the glass of the windows in gold,. letters. On the twenty-eightli day of April the plaintiff notified the defendant that the rooms would be ready for occupancy on the first of May The defendant never moved either goods or furniture into the room; never had a key, nor ever occupied or took possession of them in any manner except as above described. On the twenty-fourth of May he informed the plaintiff that he should have no use for the rooms and the latter removed his name from the windows, and in July rented the rooms to another person for the remainder of the year, from the first of August, at the rate of $900 a year. This action was brought and a recovery had for a. year’s rent, after allowing the amounts paid by and to be allowed thereon to the defendant, and the amount received by the plaintiff from the other tenant.

Whether the recovery can be sustained manifestly depends upon the question whether, on the facts above stated, a tenancy for one year was created in the defendant. Under the doctrine of Laughran v. Smith (75 N. Y., 205) and Talamo v. Spitzmiller (120 id., 37) it seems very clear that this question must be answered in the negative. All the cases agree that under the statute, of frauds a yearly tenancy is not created by force of the void agreement for more than one year. That agreement is void¡ as the statute declares; and as was said by Earl, J., in Thomas v. Nelson (69 N. Y., 118), it is difficult to see how such a contract, declared void by the statute, can be held valid for a single hour. The question did not arise on the record as made-in that case, but in Xaughran v. Smith (supra) Andrews, J., quoted the dictum with approval, and the court gave it authority, holding that such a lease “ created no estate or interest in land, and imposed no obligation upon either of the parties,” although “ a tenancy was created by the entry of the lessees under the void agreement; ” the question being of the character of that tenancy, and the conclusion that in such a case the law would imply a new contract between the parties corresponding with the void agreement so far as it was not in conflict with the statute.

In Talamo v. Spitzmiller (supra) the second division of the same court further developed the doctrine of the case last considered, and held that there must be a new contract to create a yearly tenancy, and that there must be evidence to establish it; that the parol agreement for five years was not effectual to create it, nor did the mere-fact that the supposed lessee went into possession have that effect; that he having remained in occupation a part of a year only, something more was required to-create a tenancy for a-year; that while it was not required that a new contract be made in express terms there must be something from which a contract may be inferred, something which tends to show that it was within the intention of the parties; and they say “ the payment and receipt of an installment, or aliquot part of the annual rent, is evidence of such understanding and goes in support of a yearly tenancy, and, without explanation to the contrary, it is controlling evidence for that purpose.” We must regard the case last cited as controlling authority against the contention of the plaintiff in- this case. So far from there being any circumstances in this case from which a new contract for a yearly tenancy can be inferred, all the evidence seems to -demonstrate that the minds of the parties never met in any understanding, except the parol agreement for a lease for five years, which was absolutely void and imposed no obligation upon either of the parties. No possession was ever taken under that agreement. 'The commencement of the term was postponed to the first day of May, and after that date there is no evidence that the defendant •ever set his foot within the premises to be demised. The extra work which, with the consent of the owner, he caused to be done in the finishing of the rooms was merely preparatory to his occupation, and the lettering on the windows was to the same purpose only. He never paid any “ installment or aliquot part ” of the rent reserved. 'The $100 paid in January was “ to bind the bargain ” under the void contract, and it was to be applied on the rent only when a pay. ment of rent should become due. In short, during the term contemplated by the void agreement no act of possession wasexereised by the defendant, nor any payment made upon any contract, new or old.

It is impossible to find in this case any evidence from which a new contract for a yearly tenancy may be inferred, and the exception to the charge of the court in that respect was well taken.

The judgment and order appealed from should be reversed.

Lewis, J., concurred ; Maoombeb, J., taking no part.

Judgment of County Court reversed and a new trial ordered, ■with costs to abide the event.


author: Lewis, J. : Macomber, J.

text:
    ABIGAIL DE PUY, Appellant, v. WILLIAM QUINN, Respondent.

      Juror — exclusion of, in a civil damage act case, because of a prejudice against the sale of liquor — what considered on appeal.

    In an action, brought to recover damages under the civil damage act, a juror was challenged by the defendant, and upon being examined as to his competency said that he did not-think much of the business of selling liquor, and that he would go into the jury-box with a prejudice against it. He further testified that he had no prejudice against the defendant, and could give an impartial verdict irrespective of what he thought of the business itself.

      Reid, that the juror was competent and his exclusion was error.
    That the question of fact whether the juror is indifferent between the parties is one for the court; and it must be decided by the court, and an appeal lies from such decision.
    That the court cannot arbitrarily excuse a competent juror.
    That the fact that the juror had an opinion relative to the sale of liquor was not material.
    That an appellate court, in deciding upon the propriety of a ruling as to the com, petency of a juror, cannot go outside the record, e. g., to consider the effect of the appearance of the juror, and his manner of testifying, unless some statement in reference thereto appears in the record. (Macomber, J., dissenting, on the ground that the challenge was not for principal cause, but to the favor and for actual bias, in deciding which the judgment of the trial court should not be disturbed.)
    Appeal by tbe plaintiff Abigail De Puy from a judgment of the Supreme Court, entered in the office of the clerk of the county of Cayuga on the 28th day of October, 1890, after a trial at the Cayuga Circuit before the court and a jury, at which a verdict was rendered for the defendant; and also from an order, entered in said office on the 5th day of November, 1890, denying a motion for á new trial upon the minutes.

      F. D. Wright, for the appellant.

      Lyon ds Fierce, for the respondent.
   Lewis, J. :

This action was brought under the civil damage act to recover damages against defendant for the loss of the means of support of the plaintiff caused by the death of her son while intoxicated, which intoxication the plaintiff alleged was caused in whole or in part by intoxicating liquors furnished him by defendant.

The only question which it is necessary to examine upon this .appeal is the one raised by the plaintiff’s exceptions to the ruling of the trial court sustaining the defendant’s challenges to the proposed jurors, George C. Graham and W. T. Tuller, who were members of the panel of jurors in attendance upon the court. ■Graham, when called, was challenged by defendant, and the following proceedings were had. He was sworn as to his competency as a juror, and was examined by defendant’s counsel, and testified that he did not think much of the business of selling liquor; that he had a prejudice against it, and that were he to sit as a juror in the case he would go into the box with a prejudice against the business. He further testified that he had no prejudice against the defendant; that he could sit and hear the evidence and give an impartial verdict ■according to the evidence in the case, irrespective of what he thought of the business itself. The trial court allowed the challenge and excused the juror, and the plaintiff excepted. Like proceedings were had and testimony to the same purport was given when Tuller was called, and there was a like ruling by the court and an exception 'by the plaintiff. The parties exhausted tlieir peremptory challenges. A panel of jurors was secured, the trial proceeded and resulted iii a verdict for the defendant. The trial court was required to decide the question, “Tas the proposed juror indifferent between the parties?” That question, section 1180 of the Code provides, must be tried and determined by the court only. Either party may take an exception and the determination of the court is reviewed in the .same manner as when an issue of fact presented by the pleadings is tried by tile court, and the case is required to contain the matters necessary to present the facts upon which the determination excepted to was based.

In impanneling jurors a liberal discretion is vested in the trial court. Such discretion conduces to the'just and correct administration of law in the trial of causes by jury. Yet litigants are entitled to the benefit of the provisions of • law goveniing the impanneling of juries. Section 1166 of the Code of Civil Procedure provides that the first twelve persons who appear as their names are drawn and called, and are approved as indifferent between tlie parties and not discharged or excused, must be sworn to constitute a jury to try the issue. The court cannot arbitrarily excuse a proposed juror who is, in all respects, competent to sit. If the facts presented failed to prove that Graham and Tuller were disqualified to sit as jurors in the case, it was error to exclude them. And it was so held in the case of Hildreth v. The City of Troy (101 N. Y., 234). The ground of challenge in that case was that the juror was incompetent because he was a resident and taxpayer in the city of Troy. The challenge was sustained.

The charter of the city provided that the facts mentioned did not disqualify a person as a juror in a case in which the city was defendant, and Justice Andrews, in his opinion, says: “Jurors differ in intelligence, judgment and fitness to act as jurors. It is, we think, the legal right of a party to have the jury selected from the competent names in the jury-box, and that the range of selection shall not be limited by excluding, without cause, competent jurors from the panel. * * * The law prescribes the qualifications of jurors. The court cannot add to or detract from them. It cannot itself select the jury, directly or indirectly.. It cannot, in its discretion, or capriciously, set aside jurors as incompetent whom the law declares are competent, and thus limit the selection of the jury to jurors whose names may he left. If this is done a légal right is violated for which an appellate court will give redress.” It was a question of law that was presented for the decision of the court in the ease of Hildreth v. The City of Troy. In the case at bar the court was required to decide the question of fact, “Was the proposed juror indifferent between the parties ? ”

The question litigated in this case was, Did the defendant sell or furnish to the deceased, liquor, which wholly or in part caused his intoxication, etc. The propriety or morality of selling liquor was not in question any more than were the political or religious views of the defendant. The jurors stated they had no prejudice against the defendant; that it would not require any greater evidence in 'a case tried before them where one party was engaged in that business than if he were engaged in any other business; that they could sit and hear the evidence and give an impartial verdict according to the evidence in the case, irrespective of what they thought of the business of selling liquor. They were, so they testified, indifferent between the parties.

A very large proportion of persons who have arrived at their majority entertain opinions as to the propriety of selling liquor to be used as a beverage. The majority of them undoubtedly think it does not tend to elevate and improve mankind, and such opinion is not confined to the classes not engaged in the business. Substantially, every one has an opinion upon the subject. They either think it is or is not a beneficial calling.

If one who, like Graham, does not think much of the business, is adjudged incompetent to sit, a person entertaining an opposite opinion ought also to be held incompetent, and juries would have to be selected from those who had never given the subject sufficient reflection to have formed an opinion, if such could be found possessing the qualifications required by section 1126 of the Oode, a in the possession of his natural faculties, * * * intelligent, of sound mind and good character and able to read and write the English language understandingly.”

It does not seem to us that the fact that Graham and Tuller entertained a prejudice against the business of selling, liquor disqualified them to sit as jurors in the case, so long as they testified that they were indifferent between the parties, and could sit and hear the evidence and give an impartial verdict according to the evidence in the case, irrespective of what they thought of the business.

It is suggested that the court, having the juror before him, had a better opportunity to judge of the qualifications of the juror than the appellate court; that he saw the juror, his manner of testifying and his appearance generally. ¥e must, however, assume that no unfavorable impressions were thus obtained by the court, as the case fails to so state. There is the usual certificate in the case that it contains all the evidence and proceedings in the action.

• If their manner and appearance afforded to the trial justice evidence of their unfitness, that fact should have been stated in the case and would be decisive of the question before us. To go outside of the case and indulge in speculation as to what might have influenced the mind of the court would render nugatory the provisions of the Oode, providing for the review of the rulings of the trial court on such questions.

The respondent further suggests that the appellant had induced the trial justice to hold that a juror was disqualified if he was prejudiced against the civil damage act, and that he had thereby established a precedent, and should be held to be estopped from objecting to the enforcement of the rule against him. .

It may well be doubted if the questions were alike in principle. The jury when impanneled became an important part of the court, which was to be asked to enforce the law if it had been violated j and if a juror, who is opposed to capital punishment, is disqualified as a juror on the trial of a person charged with a crime where the punishment is death, it might, perhaps, be correctly held that a juror entertaining a prejudice against the act in question ought not to be allowed to sit in such a case, but we do not think the doctrine of estoppel can be held to apply to such a question.

We think there was an absence of any evidence tending to show that Graham and- Tuller were incompetent to sit as jurors in the case, and that it was error to exclude them, for which the judgment should be reversed.

The judgment and order denying a new trial should be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., concurred.

Macomber, J.

(dissenting):

The motion for a new trial, the denial of which is claimed to be an error, was made upon the following grounds : (1.) That the challenge interposed by the defendant to each of two jurors was erroneously sustained by the court. (2.) That the verdict was against the weight of the evidence and should have been for the plaintiff.

It is quite clear that the jury must have - rejected the testimony of the plaintiff’s two witnesses, Dorr Baker and Simeon Baker, as wholly unworthy of credit and insufficient to support a verdict. The character of these witnesses for truth was necessarily before the jury, and the latter’s determination thereof ought not to be disturbed by the court; for it is impossible to discover in the verdict any evidence that the jury was actuated by prejudice or any other unworthy motive. The account which these two witnesses respectively give of themselves, and of their connection with the case and its incidents, was well calculated to produce upon tlie mind of tlie persons passing upon tlie question of fact a keen distrust of them, and a lively apprehension that a verdict could not be safely rendered upon their testimony. This may, indeed, be a misfortune to the plaintiff, yet tlie defendant ought not to be held in damages, except upon evidence given- by witnesses worthy of belief. This part of the case, therefore, is easily disposed of upon reading the testimony of the witnesses upon whom tlie plaintiff’s case almost wholly depended, and which- the jury had a right to discredit.

But there is a question more elaborately discussed in the brief of the learned counsel for the appellant, which merits serious attention. The action was brought under the civil damage act (chap. 646, Laws of 1873) for tlie loss to the plaintiff of the means of support afforded by her son, who was her main reliance. The son was drowned April 20, 1889, in the race-way leading from Owasco lake to the Auburn Water-works Company, caused, as was alleged, by the intoxication, jtroduced in whole or in part, by intoxicating liquor furnished to the deceased by the defendant.

The peremptory challenges to the jurors allowed by the statute at that time (two in number), had been exhausted, but whether before or after the challenges made to the two jurors-in question does not distinctly appear in the case. Two jurors, Graham and Tuller, were called and challenged by the defendant, which challenges were sustained by the court. The questions and answers of the two jurors and tlie objections made, respectively, to them were so nearly alike that they may, for the purposes of this review, be grouped together. They were, respectively, asked whether they had a prejudice against the liquor business. Each answered that he had, and that he would carry the prejudice against that business Into the jury box; and it was claimed by the defendant that such prejudice would influence his verdict. Graham answered as follows: Q. So that if you were to sit as a juror in this case you would go into the box with a prejudice against the business, would you not ? A. I would against the business; yes, sir.” On examination by the plaintiff’s counsel he stated that he had no prejudice against the defendant, and that he could sit and hear the evidence and give an impartial verdict according to the evidence, irrespective of what he thought of the business. The juror Tuller further answered as follows: “ Q. So that if you were to sit as a juror in this case you would go into the box with that prejudice existing in your mind ? A. Yes, sir, I think I would.” This juror also said that he had no prejudice against the defendant, and that he could decide impartially upon the evidence. The challenge to each juror was sustained by the court and an exception was taken, and upon these two exceptions the appellant mainly relies for a reversal of the judgment.

The first clause of section 1166 of the Code of Civil Procedure provides as follows: “ The first twelve persons who appear, as their names are drawn and called, and approved as indifferent between the parties, and not discharged or excused, must be sworn, and constitute the jury to try the issue.” By section 1180, “An objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must be tried and determined by the court only. Either party may except to the determination, and it may be reviewed, upon a question of fact, or a question of law, or both, as where an issue of fact presented by the pleadings is tried by the court; except that where one or more exceptions are taken, to the rulings of the court, made after the jury is empaneled, an exception to the determination of a challenge must be heard at the same time; and the case must contain the matters necessary to present it, upon the facts, or the law, or both.”

Had the learned justice presiding at the trial ruled otherwise than as he did upon this question (assuming, in passing, that the challenge was for principal cause), such ruling clearly enough would not have been disturbed upon any review of it, for we are of the opinion that .the objection of a juror to the business in which the defendant was shown to be engaged, namely, that of retail liquor selling, was not a legal disqualification on a challenge for principal cause,' and that so long as it appeared that the juror could hear the evidence and. render a dispassionate verdict he was competent within the meaning of the statute. But it by no means follows that the ruling actually made by the learned justice must result in a reversal of the judg-, ment. ' The challenge was not for principal cause, as it seems to me, but to the favor and for actual bias. Had the challenge been placed upon the ground that the juror was not competent to sit, and was actually disqualified,.by the terms of the statute, by reason of entertaining such prejudice, the ruling of the learned judge .would have presented clearly a legal error; that is to say, an error in law, and not merely an erroneous conclusion upon a question of fact.

These two sections of the statute above quoted must be considered and construed together. Taken as a whole, they properly give to the trial judge an ample discretion. By section 1880 the decision is reviewable according to the nature of the objection, either as a question of law or a question of fact. Where, however, the question, as in this case, is undertaken to be reviewed by appeal as arising upon a question of fact, that is to say, where the conclusion of the learned trial judge as to the competency of the juror under a challenge for actual bias is drawn in question, then recourse must be had to the provision of section 1166. Under this section each of the jurors must be approved as indifferent between the parties. The judge at the trial had means of accurately determining the capacity and integrity of the jurors which the court, on appeal, cannot possibly possess from an inspection of the printed record alone. The jurors’ mode of answering questions, intelligence, appearance, together with their apparent candor, general character, and the many little things which appear on the voir dire, but which are incapable of being reproduced in print, were elements which necessarily entered into the final determination of the trial judge in his selection of the twelve men. So long as it appears clearly, as it does in the case before us, that twelve indifferent and impartial men were actually impanneled to try the case, the appellate branch of the Supreme Court should be loth to reverse the results of the trial simply upon the ground that the members of that court might have come to a different conclusion, acting solely upon the printed testimony, from the one arrived at by the trial judge. From the nature of the case much latitude must be given to the judge at the circuit. Were the obverse of the question presented, namely, a juror retained by the court who ought to have been excluded; and a case thus presented, which would raise a suspicion of a tainted verdict, an entirely different question would be presented.

The conclusion of the justice upon the question of the actual bias of the jurors ought not to be disturbed unless the party appealing has been prejudiced. It cannot be said that a party is prejudiced in law by a ruling of tlie court that excluded from a panel of jurors persons that were hostile and opposed to the business carried on by his opponent. (Maretzek v. Cauldwell, 5 Rob., 660.) In the case of criminal actions, the expression or formation of an opinion, or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground for a challenge for actual bias to any person otherwise legally qualified, if he declare-on oath that he believes such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict. •

In analogy to this statute for the trial of criminal cases, where the general provision for the impanneling of a jury is the same as in civil actions, why should not the trial court be left untrammeled in its effort to exclude from the jury-box every person having an actual bias against the business of one of the parties when such occupation is neither malum in se nor malum prohibitum ? While, therefore, the rejection of a competent juror may be deemed ground of error, although the jurors who actually try the case are competent, as was held in the case of Hildreth v. The City of Troy (101 N. Y., 234), where the error of the trial judge was one of law, holding that a juror was incompetent by reason of being an inhabitant of the city which was the defendant, yet, where the objection goes to actual bias, and the determination thereof was at most but an error of fact, and that, too, in an effort to obtain an impartial jury; and where there appears to be no objection to the twelve jurors actually impanneled, I am of the opinion that the error'is unimportant and not prejudicial to any legal rights of the appellant, and that, consequently, there should be no review of such determination except in the case of abuse, or an arbitrary use of power by the trial judge of which there is not the slightest suggestion in the case before us.

There is another reason why the appellant ought not to be allowed to prevail upon this appeal, and that is, that prior to the challenge made to the jurors, Graham and Tuller, the plaintiff’s counsel had examined three jurors who had stated, in answer to his questions, that they were prejudiced against the enforcement of the civil damage act; and thereupon the counsel asked for and obtained a ruling of the court that such jurors were not competent to sit. The plaintiff, therefore, appears in the attitude of a person who had, through great diligence of counsel, obtained a decision of the trial court upon the qualification of jurors under this statute (assuming that such challenge was for principal cause), and he ought not now to be heard to complain if, after procuring such ruling, the court felt bound to be entirely consistent, and applied the correlative proposition in favor of the defendant’s contention, namely, that prejudice against the business, of liquor selling was also a disqualification. If one proposition is correct, the other must be also.

The judgment and order appealed from should be affirmed.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.


author: Lewis, J.:

text:
    GEORGE W. FINTON, Respondent, v. JAMES W. EGELSTON, as Surviving Administrator, with the Will Annexed, of STEPHEN EGELSTON, Deceased, and JAMES W. EGELSTON, as Administrator, etc., of MARGARET EGELSTON, Deceased, Appellant.

      Breach of wa/rranty of title to land — statute of limitations runs from the judgment of ouster — right to recover costs and counsel fees — proof of personal transactions with a decedent.

    One Egelston conveyed to George W. Finton a parcel of land by a full covenant. deed. Subsequently an action was brought against Finton by one Thayer, who-claimed a life tenancy in the land, and was in such action adjudged by the-Court of Appeals to be entitled thereto. Finton then presented to the executor of Egelston, who had died in the interval, a claim for the value of the land, costs and counsel fees, in respect to which claim a reference was ordered under the statute relative to claims against decedents’ estates.
    Held, that Finton's cause of action did not accrue until it was adjudicated that Egelston’s deed conveyed no title to the premises, and that the statute of limitations did not begin to run before that time.
    That said judgment was prima facie evidence that the covenants in the deed toFinton were broken, without proof of notice to Egelston of the pendency of the action of Thayer against Finton.
    That it was incumbent on Finton, if lie desired to hold Egelston for the costs and expenses of the action of Thayer against himself, to prove that timely notice of the commencement of sucli action was given Egelston wltli a request that the latter defend his title.
    That testimony of Finton, Egelston being dead, that he went to Egelston with, duplicate notices stating the pendency of the said action, and also calling upon him to defend the same, and that he, Finton, did not bring away the duplicates, was a manifest attempt to evade said section.
    That, although this objection was not raised upon a motion for a new trial heard at Special Term, yet, inasmuch as the testimony was duly objected to upon the trial and an exception taken, the objection was available at the General Term.
    Appeal, under date of October 17, 1889, by the defendants, Margaret Egelston and James W. Egelston, as administrators of Stephen Egelston, deceased, from a judgment, entered in the office of the county cleric’of Yates county on the 23d day of September, 1889; and also from an order, entered in said office on the same day, confirming the report of a referee directing judgment for the plaintiff herein, with notice that the said defendants intend to bring up for review the said order and the judgment entered thereon.
    Also an appeal, under date of January 2, 1890, by the defendant James W Egelston, as administrator, etc., oí Stephen Egelston, deceased, and as administrator, etc., of Margaret Egelston, deceased, from an order denying defendant’s motion for a new trial, entered, in the above-entitled action, in the office of the clerk of Yates county on the 6th day of December, 1890.
    It would appear, although the fact is not stated in the case on appeal, that Margaret Egelston died between the two dates upon which the above appeals were respectively taken.

      Almn J. Hughson, for the appellant.

      William 8. Briggs, for the respondent.
   Lewis, J.:

On the 8th day of February, 1867, Stephen Egelston, the defendant’s testator, executed and delivered to the plaintiff Finton a full covenant deed of three parcels of land in the town of Barrington, Yates county. One of the parcels contained eight acres three roods and thirty-one rods, and is the lot about which this contention arises.

After the delivery of the deed the plaintiff entered upon the eight-acre lot and cut and removed therefrom timber. One Samuel Thayer, claiming a life tenancy in the lot, commenced an action in a Justice’s Court against the plaintiff for damages for cutting and removing the timber. Finton interposed a plea of title to the premises, and the action was thereupon transferred into the Supreme Court, was tried and resulted in a judgment of this court against Finton, adjudicating that Anna Maria Thayer was, at the time of her death, the owner in fee of the premises ; that Samuel Thayer, as tenant by the curtesy, was entitled to the possession thereof, and that the deed from Egelston to Finton of the eight acres of land conveyed no title to Finton. An appeal was taken by Finton to the General Term of the Supreme Court from said judgment; that court reversed the judgment of the trial court, and thereupon Thayer appealed to the Court of Appeals; that court reversed the judgment of General Term and affirmed that of the trial court, thus establishing that the plaintiff’s grantor, Egelston, did not have title to the eight-acre lot and had no right to convey the same to plaintiff, and judgment was recovered against the plaintiff for costs, which he paid, aud thereupon presented to the defendant, as executor, etc., a claim against the estate of Stephen Egelston for the value of the eight acres of land and for the costs and expenses of the litigation paid by him. The claim being disputed by the executor, it was, ]mrsuant to the statute, referred. The issues thus made were duly brought to trial before the referee, who subsequently made his report, wherein he found in favor of the plaintiff for the value of the land, with interest, $1,184.40; costs of action, $353.54; • costs and disbursements paid by Finton to his counsel, $356.34; making, in all, $1,894.28. The Special Term, upon motion, confirmed the report and directed judgment for the plaintiff for the amount thus reported. A motion was thereupon made at Special Term upon a case and exceptions for a new trial. The motion was denied, and Finton thereupon appealed to this court from the order confirming the report and from the order denying the motion for a new trial, and claims that the statute of limitations has run against the claim of the plaintiff, as more than twenty years expired after the delivery of the deed and before the commencement of the action.

¥e think the Special Term correctly held that the cause of action accrued when it was adjudicated that the deed conveyed no title to the premises, and that the statute had not run against the claim.

The judgment was prima facie evidence that the covenants in the deed to Finton were broken, without proof of notice to the testator Egelston of the pendency of the action against Finton. (Taylor v. Barnes, 69 N. Y., 433.) The referee correctly decided that the plaintiff was entitled to recover the value of the land, with interest. It was incumbent upon the plaintiff, however, if he sought to make the defendant liable for his costs and expenses in his efforts to defend his title, to prove that a timely notice of the commencement and pendency of the action against him was given to his grantor, with a request to him to assume the defense thereof. The appellant contends that the plaintiff failed to make proof of the service of such notice. Evidence was given upon the trial of the admissions of the grantor of notice to him of the pendency of the action of Thayer v. Finton. Without the evidence of Finton as to the service of the notices (which will be considered hereafter) the case was left in great doubt as to when the notice was served, at what stage of the litigation it ivas given, and also as to the purport of the notice.

The plaintiff was called as a witness in his own. behalf and ivas permitted to testify that he caused to be prepared duplicate notices of Exhibits 7 and 8, printed in the case; they were formal notices to the deceased of the pendency of the action, and calling upon him to defend the same; that he Avent with the notices at the time they bear date to the residence of Stephen Egelston, deceased, upon two occasions, first, with the duplicates of Exhibit 7, and after-wards Avith duplicates of Exhibit 8, and that on neither occasion did he bring away with him the duplicate of the exhibits. This evidence of the plaintiff was objected to by the defendant on the ground that it was not competent evidence under section 829 of the Code. The objection was overruled and the defendant duly excepted, and the exhibits were offered and received in evidence. The witness, Frederick Crosby, testified that he accompanied Finton to the residence of the deceased on the occasion of the service of the last notice, Exhibit 8, in August, 1884, and that Finton delivered to Egelston■ a paper, and stated to him that he was going to appeal the suit, and there was a notice for him; that Finton’s counsel had advised him to appeal and he was going to do so. This witness had no knowledge of the contents of the paper served. The only evidence tending to prove the service of the first paper, Exhibit 7, was that given by the plaintiff.

To entitle the plaintiff to recover his costs and disbursements it was incumbent upon him to establish that his grantor had notice of the action brought against him, and that he was requested to defend his title. This notice should have been served in time so that the grantor could have control of the action if he so desired. A notice served after the action was pending in the Court of Appeals was undoubtedly too late. Egelston was under no obligations to assume the defense of the action if he had not received notice of it till then.

The referee, in his twelfth and thirteenth findings of fact, finds that Exhibits 7 and 8 were served upon the deceased at the time they bear date respectively, to which findings the defendant duly excepted. Without the testimony of Finton these findings are unsupported by the evidence in the case. The appellant contends that the evidence of Finton as to the service of the notices was improperly admitted, and it is quite apparent that he is right in this contention.

The action was against the executors of Egelston. One of the executors, before the trial, died. While Finton did not testify to the actual delivery of the notices to the deceased, he was permitted to testify as to the preparation of the notices; to his taking them to the house of the deceased; to his coming away from the house without having them in his possession, and to the identity of the notices. The purpose and object of this evidence was to establish the service of the notices. This evidence, it must be held, related to a personal transaction or communication with the deceased. Without his evidence the testimony of the witness who accompanied him would be practically ineffectual to establish any material fact. He knew nothing as to the contents of the paper. To hold that the testimony of Finton was competent would be to thwart and render ineffectual the object and purpose of section 829 of the Code. The facts in the case of Gregory v. Fitchner (14 N. Y. Supp., 891) are very similar to the case at bar. The court there held such evidence to be inadmissible. It appears from the opinion of the justice at Special Term that the question of the competency of this evidence was not raised before him, but it appears from the case that the appellant duly excepted to tlie admission of tlie evidence, and can avail himself of the point upon this appeal notwithstanding his omission to present it at Special Term. (People ex rel. Witherbee v. The Board of Supervisors, etc., 70 N. Y., 228; Mackay v. Lewis, 73 id., 382 ; Fenno v. Hannan, 2 N. Y. Supp., 474.)

We think that, because of the admission of this improper evidence, the judgment and order appealed from should be reversed and a new trial granted before another referee, to be appointed, with costs to abide the event of the action.

Dwight, P. J., and Macomber, J., concurred.

Orders appealed from reversed and a new trial granted before-another referee, with costs to abide the event.


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    BRADLEY SALT COMPANY, Respondent, v. EDWARD F. KEATING, Appellant.

      ¡Supreme Court cannot enjoin, upon motion, an action in the Court of Common-Pleas — remedy against an irregular judgment — motion to compel an election — cross-action.

    A corporation commenced an action, of which the venue was laid in Wyoming-county, for the recovery of damages upon a contract, against one Keating,, who appeared therein. Soon afterwards Keating began an action, in the Court of Common Pleas of the city and county of New York, against the corporation for a balance alleged to be due to him by it upon the same contract In the last-mentioned action Keating recovered judgment by default and issued execution. Upon papers showing that the corporation had never been duly served with the summons in the action in the Court of Common Pleas, the Supreme Court made an order in the first-mentioned action enjoining Keating from prosecuting any action for any cause of action which could be set off in the action brought in. the Supreme Court, and especially from proceeding in the action in the Court of Common Pleas.

      Held, that the Supreme Court had no power to make such an order.
    That Keating, having begun his action in a court having jurisdiction of the subject-matter thereof, was acting lawfully in so doing; that if the Common Pleas judgment was irregular, a motion to correct or vacate it should have been made in that court. ->
    That it was not within the power of the Supreme Court, upon motion, to stay proceedings upon a judgment in another court of co-ordinate jurisdiction; that if a stay of proceedings in an action in another court was desired, the remedy was by an equitable action in the Supreme Court.

      That where a defendant brings a cross-action, based upon the same matters set up in his answer in a pending action, a motion to compel him to elect either to abandon his answer or his cross-action must be made in the cross-action.
    Appeal by the defendant Edward F. Iveating from an order, ■entered in the office of the clerk of the county of Wyoming on the. 10th day of November, 1890, enjoining him from prosecuting any •action against the plaintiff for any cause of action which could be •set off or made a counter-claim herein, and especially from proceeding with a certain action in the Court of Common Pleas of the city and county of New York, in which judgment had been recovered against the plaintiff for $1,017, and from taking any steps ■or proceedings in said action, other than to reply to any counterclaim that the plaintiff in this action may plead in said action, or to oppose motions to vacate said judgment, and from proceeding to collect any execution thereon, and from filing any transcripts of the judgment therein.

      Henry dá F. O. MeOloskey, for the appellant.

      M. E. da E. M. Bartlett, for the respondent.
   Lewis, J.:

The respondent commenced this action against the appellant on the 26th day of September, 1890, to recover damages against ■defendant for the non-fulfillment of a contract between the parties for the sale, by the defendant to the plaintiff, of a quantity of salt-works’ fittings or supplies. The place of trial is in the county of Wyoming. The defendant appeared in the action; the complaint had not been served at the time of granting the order appealed from.

After the commencement of this action, and after his appearance therein, the appellant commenced an action against the respondent in the Court of Common Pleas of the city and county of New York, to recover the balance of the purchase-price claimed to be due from the respondent for said goods sold. He caused judgment to be entered by default against the respondent in that court for the sum of $1,017, and issued execution to collect the same.

Forming part of the judgment-roll was the affidavit of one John E. Hogan, showing that he served the summons and complaint in that action by delivering the same to. W alter H. Bradley, the treasurer of the defendant in that action, in the city of New York on the 7th day of October, 1890.

The plaintiff in this action moved this court at a Special Term thereof held in the city of Buffalo, for the order appealed from.

It was made to appear, by the papers read upon the motion, to the satisfaction of the court, that the summons and complaint in the Common Pleas action were not, in fact, served upon the defendant therein, that the judgment was irregularly entered. The order appealed from was granted, enjoining defendant from prosecuting any action for any cause of action which could be set off or made a counter-claim in this action, and especially from proceeding in the action in New York.

Courts of equity have frequently restrained the prosecution of actions in that court, when the subject matters in dispute could all be adjusted in a pending action between the same parties. And the same power has been exercised in actions at law where there were especial equitable grounds warranting the exercise of the equity powers of the court.

It is a general rule that equity will not restrain an action at law where the plaintiff has only a legal defense. (Liftchild v. Smith, 7 Robt., 306; McCarthy v. Peake, 9 Abb. Pr., 164.)

The appellant commenbed his action in a court having jurisdiction of the subject-matter. This he had a legal right to do, and we fail to see that he violated, in so doing, any legal or equitable right of the respondent. It is true that the whole controversy can be adjudicated in the "Wyoming county action, but what equitable right of the respondent is violated by allowing the appellant to proceed to collect his judgment ? Respondent prefers that the question should be tried at its home. The appellant naturally wishes to carry on the litigation at his home.

There is still another reason why the order should not have been granted. Judgment had been entered against the respondent in the Common Pleas Court. True the Special Term Court was satisfied by the papers read upon the motion that it was irregularly entered, that that court never got jurisdiction of the defendant in that action, but the Special Term of the Supreme Court was not the tribunal to adjudicate that question. The Common Pleas Court-should have been moved to correct or vacate, its judgment. (The N. Y. and Harlem R. R. Co. v. Haws, 56 N. Y., 175.) Tlie appellant having a judgment in a court of co-ordinate jurisdiction with the Supreme Court, it was not in the power of the Supreme Court, upon motion, to stay proceedings in that court. If the New York action was to be stayed by the Supreme Court an equitable action should have been instituted for that purpose. Where a defendant brings a cross-action upon the same matter set up in his answer a motion to compel him to elect either to abandon his answer cr his cross-action should be made in the cross-action. (Farmers' Loan and Trust Co. v. Hunt, 1 Code Rep. [N. S ], 1; Wright v. Delafield, 11 How., 465, end of case.)

The order appealed from was, we think, improperly granted and it should be reversed, with ten dollars costs and disbursements of the appeal against the respondent, and the motion is denied, with ten dollars costs.

Dwight, P. J., and Macomber, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements and the motion denied, with ten dollars costs.


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    JACOB PAULEY, as Administrator of, etc., of FRANK ALBERT PAULEY, Deceased, Plaintiff, v. STEAM GAUGE AND LANTERN COMPANY, Defendant.

      Mre-eseapes in faetones — duties of the owners — •presumption as to the cause of an employee's death — contributory negligence.

    The statute relating to placing fire-escapes upon factories (§ 10 of chap. 409, Laws of 1886, as amended by chapter 462, Laws of 1887) imposes a duty upon the owners of a factory to provide for its employees convenient and proper fire-escapes, conveniently and properly located, with unobstructed passage thereto. Their number depends upon the size of the factory, the number of employees and the inflammable character of the materials used.
    In an action brought to recover for the death of an employee, in which it was charged that the statute relating to fire-escapes had been violated, it appeared that there were in the factory in question but two fire-escapes, one of which was, because of intervening iron shutters, practically useless, and the access to the other of which was not free; that at the lowest extremity of the latter there was a shute used for sliding goods into a sub-cellar; that che deceased, a boy of fifteen, was familiar with tlie premises; that his body was found, with other bodies, in the sub-cellar near the lowest end of the sliute. There was no proof of the precise manner in which ho came to his death.

      Held,, that it was a question-for the jury whether the corporation was not negligent in failing to provide proper fire-escapes, and whether such death had not resulted therefrom.
    That the question of the contributory negligence of the deceased was also one for the jury.
    That it was a question of fact for the jury whether his failure to escape resulted from lack of effort or from lack of means of escape.
    MotioN by tbe plaintiff Jacob Pauley, as administrator, etc., of Prank Albert Pauley, deceased, for a new trial ordered to be beard in tbe first instance at General Term, after a motion for a nonsuit, granted January, 1890, upon a trial at the Monroe Circuit before tlie court and a jury, where a judgment of nonsuit was ordered.

      J. <& Q. Vcm Voorhis, for the plaintiff.

      LovAs Marshall, for tbe defendant.
   Lewis, J.:

This action was brought to recover damages for tbe death of Prank A. Pauley, alleged to have been caused by defendant’s negli■gence. Tbe case was tried at tbe Monroe Circuit, in January, 1890, and' at the conclusion of plaintiff’s evidence a nonsuit was granted.

Tbe defendant was an incorporated company engaged in tbe manufacture of lanterns in tbe city of Rochester, and on the evening of November 9, 1889, its factory was destroyed by fire and some thirty or more of tbe employees were killed. Frank A. Pauley was an employee in tbe factory, and was one of tbe victims. He was, at tbe time of his death, between fourteen and fifteen years of age. Tbe factory building was seven stories high, including a basement and sub-basement. The basement was the floor immediately below the level of the ground, and the sub-basement was the floor below that. There were two buildings connected; one called the main building, the other the wing. The main building was located on the river. The wing building was over one hundred feet in length. South of and connected with the main building was the shoe factory of Hoyt & Williams, which formed, with the main part of tlie defendant’s factory, one solid building, Hoyt & Williams’ building being one story higher than the defendant’s main building.'

Connected with the southerly side of the wing of defendant’s factory was a building occupied as a bok factory, which was two Stories lower than the wing, and between the building occupied by Hoyt & Williams and the box factory was a court from thirty to forty-five feet wide, extending from a street northerly between said buildings. There were flights of stairs in defendant’s main building, one near the south -end and the other in the wing; the latter being located a little to the west of a door leading into the wing from the court. About ten feet east of the wing door was an elevator used for carrying freight. The shaft of this elevator was built against the south wall of the wing, on the outside so that it projected southerly into the court six or seven feet. On the east side of this shaft was a fire-escape, consisting of a ladder of iron staples fastened into the side of the shaft. The lowest staple or rung being about fifteen feet above the surface of the court. There was an area at the north end of the court extending from this elevator shaft to the east side of the court, which was as deep as the sub-basement. In this area, and next to the elevator shaft, and substantially under this fire-escape or ladder, a shute or slide had been constructed for the purpose of sliding boxes into the sub-basement from the court. A person dropping from the ladder was liable to fall into the shute. There was another fire-escape consisting of a ladder attached to the southerly side of the main building, and on the east side of the court between two rows of windows. These windows had iron blinds, which were so constructed as to practically prevent the use of the last mentioned fire-escape. There was no ladder leading from the top story of the building to the roof. There was a passenger elevator on the west side of the main building near the south end.

The work of the fire was very rapid, and the well of the passenger elevator acted as a flue to carry the fire to the upper stories. There was a quantity of benzine, turpentine, varnish, paints, oils and other inflammable materials, including some hay, stored in different parts of the building. The deceased worked on the fifth floor at the southerly end of the main building, and in the vicinity of the fire-escape last described. There were about sixty men and boys at work upon the fifth floor on the night of the fire. There was proof in the case tending to show that Pauley was at work upon the fifth floor of the factory at the time the fire occurred, but none of the witnesses called testified to having seen him after the fire broke out.

His body was found in the sub-basement in the vicinity of the foot of the shute above described. When the fire broke ont the employees in the fifth story attempted to escape from the building by going down the stairway, but the smoke and fire prevented, and they then rushed for the fire-escape attached to the wing-elevator shaft. In getting to that escape they were obliged to pass through a window, and the way thereto was somewhat obstructed by a bench and other objects. A large number of persons in attempting to use this escape obstructed each other, and many of them became panic stricken, caught hold of each other and were lying in a mass upon the floor holding each other and calling for help. A considerable number succeeded in leaving the building by this fire-escape, but in doing so were seriously burned by fire-coming from the windows and in dropping from the lower rung of the escape. Several were precipitated into the shute mentioned as being under the escape, falling into the basement of the building and receiving quite serious injuries in coming in contact with the shute, but succeeded in escaping. One person, and one person only, succeeded in getting out of the building by way of the escape attached to the main building. His access to the escape was rendered very difficult by reason of the blinds obstructing his way. He was not able to explain how he reached the escape. He testified that, after the fire, he made the attempt to get to this fire-escape, but was not able to do so in consequence of the shutters obstructing his way. Evidence tended to show that it was practically useless. There was evidence that a person, on the roof of the building could probably have escaped through a. door leading from the roof into the highest story in the north end of the Hoyt & Williams building, or by dropping from the-roof of the wing onto the roof of the box factory, a distance of two stories.

Section 10 of chapter 409 of the Laws of 1886, as amended by chapter 462 of the Laws of 1887, provides that “fire-escapes shall be provided on the outside of all factories three or more stories in height, connecting with each floor above the first, well fastened and secured, and of sufficient strength. Stationary stairs or ladders shall be provided on the inside from the upper story to the roof as a means of escape in case of fire.”

The defendant owed a duty to its employees to comply with this statute, and provide for them convenient and proper fire-escapes, conveniently and properly located, with free and unobstructed passage thereto. While the statutes do not specify the number of fire-escapes, the number required depends upon the size of the factory, the number of employees and the inflammable character of the materials in the factory.

The history of this fire tends to show that one escape was not adequate. Pauley’s body was found in the sub-basement lying upon and covered with the debris of the building, near the foot of the shute and several feet distant from a number of bodies which were lying together in the sub-basement of the wing.

While the proof failed to show, very satisfactorily, precisely how Pauley came to his death, the place where his body was found, its position in reference to the debris, and its position in reference to the shute, tended to show that he attempted to leave the building by the fire-escape and fell into the shute.

We are left, as was stated in Willy v. Mulledy (78 N. Y., 315), to the necessity of weighing probabilities. ' We may assume that Pauley was familiar with the fire-escapes; that he knew of the obstructions to the use of the one attached to the main building.

We think there was evidence in this case which should have been submitted to the jury, whether the defendant was not guilty of negligence in failing to provide proper escapes from the building.

When a duty is imposed by statute upon an employer, the law gives to a person having a special interest in its performance a cause of action for a breach thereof, causing him damages. (Willy v. Mulledy, supra, and cases therein referred to.)

I-iad both fire-escapes and a ladder to the roof been in a condition to be used, the panic among the operatives would very likely not have occurred, and thej' might have succeeded in escaping from the building.

The case of Schwandner v. Birge (33 Hun, 186), is, in its facts, very similar to the case at bar. Scbwandner was a lad nineteen years of age, working in a wall-paper factory in the city of Buffalo, and came to his death by the burning of the factory.

The alleged negligence of the defendant consisted in not providing proper means of escape from the fifth story of the factory, and particularly in not furnishing a staircase or ladder or other means of access to the scuttle in the roof. The evidence in that case failed to show the circumstances under which Schwandner was killed. It was not shown that he would have escaped by the use of a ladder to the roof had one been provided.

The plaintiff was nonsuited at the circuit, and the General Term of this department set aside the nonsuit, holding that it was a question for the jury whether his failure to escape was not due to the lack of means of escape rather than to a lack of effort on the part of the deceased.

It was a question for the jury whether Pauley was himself free from negligence contributing to his death. He was a lad between fourteen and fifteen years of age, was undoubtedly familiar with the premises and the means of escape, and the jury had the right to infer that he made efforts to escape, but failed in so doing because of the inadequacy of the fire-escapes. He undoubtedly knew of the escape attached to the main building near where he worked, but may not have known the fact that the iron shutters prevented its being used.

The plaintiff’s complaint stated that Pauley, in attempting to descend the fire-escape attached to the wing elevator, fell into the shute, which caused his death.

The defendant claims that there was no proof warranting the jury in finding that his death was caused in that manner, and that, therefore, the nonsuit was proper. We think there was evidence tending to show that he met his death in that way: There was a general allegation in the complaint that his death was caused by the negligence of the defendant, and without any fault or negligence of the deceased. If necessary, the complaint could have been amended to conform to the facts proven. The plaintiff was not confined upon the trial to proof that the deceased was killed by falling into the shute. He was allowed to prove all the facts, and we-do not think there was such a variance between the pleadings and tbe proof as to mislead tbe defendant to its prejudice in maintaining its defense upon tbe merits.

Tbe nonsuit should be set aside and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomiber, J., concurred.

Plaintiff’s motion for a new trial granted, with costs to abide tbe event.