author: Bradley, J.:

text:
    The People of the State of New York, Respondent, v. Carl Oettinger, Appellant.
   Judgment and conviction of the Court of Sessions of Monroe county appealed from reversed and new trial granted, and for that purpose the proceedings are remitted to that court.

Appeal from judgment of the Monroe Court of Sessions convicting the defendant of the crime of grand larceny. The indictment contained three counts, all of them charging the commission of the alleged offense on August 4, 1893. By the first it is charged that the defendant, acting in the capacity of agent, servant, bailee and bookkeeper of the Voght Manufacturing Company, having in his custody thirty dollars of the money of that com- . pany, feloniously embezzled and appropriated it to his own use. By the second the defendant is charged with feloniously secreting and appropriating to his own use a like sum of money of that company; and by the third that he feloniously stole and carried away such sum of money of the company.

Bradley, J.:

In the fall of 1891 the defendant went into the service of the Voght Manufacturing Company at the city of Rochester as clerk, and in July, 1893, he was promoted to the position of head bookkeeper, and accountant, which place he occupied until he was discharged in November, 1893. It was the custom of the company to pay the wages of its employees weekly. For the purpose of ascertaining the amount they respectively were entitled to receive, the foreman furnished to the defendant the time of their service, and he entered it in the time hook kept for the purpose. Talcing into account the money onliand, a slip containing statement of the amount requisite was taken to the treasurer, who would draw the check of the company upon its bank account, with the proceeds of which the amount to which each workman was entitled was put into an envelope for him. In the time book was entered the wages paid tlie men respectively and in the journal was entered the amount paid them. The entries in those books were in the handwriting of the defendant, and by the entries in the former it appeared that the amount paid out for wages on August 4,1893, was $379.66, and the corresponding entry in the journal of the amount was $409.66, thus representing a difference of thirty dollars, which it is charged was appropriated by the defendant to his own use. And in support of the charge of his felonious intent evidence was given to the effect that in several weeks subsequent to that time like discrepancies appear by the entries in those books producing the same and greater differences between the entries of payment of wages in the time book and in tlie journal. While this indicated an irregularity in the defendant’s bookkeeping which would create suspicion against him, it did not necessarily prove that he had taken the differences in amount so represented. Another witness, who afterwardsbecame a bookkeeper, testified that he had examined the situation on the 4th of August, 1893, as represented by the books, including the cash book of the company, and that it appeared by the cash book that there was on hand at the close of the day before, $29.87; that the receipts on that day, including the proceeds of the check of the company drawn upon its bank account, were $58.47, $3.09, $2.60 and the amount of the check $575, making together $609.03 ; that the amount paid out was the pay roll, $379.66, salaries, $151.77, to Mr.Voght, $41.50, sundries during the week, $32.37, and the balance remaining as appeared by the cash book was $33.73, making $639.03; producing a like difference of $30. This state of facts was apparently sufficient to justify the conclusion that somebody had on that day taken that amount of the company’s money. The defendant as a witness in his behalf testified that the slip containing statement of wages and salaries and such sum as was needed was written by another, the assistant bookkeeper, that he (defendant) took the entry made in the journal from the slip as it appeared in the latter, and that the slip and entry in the journal would agree. The slip, as was common, appears not to have been returned after it was taken to the treasurer for the purpose of the check, but was destroyed. He also testified that he did not take thirty dollars or any other sum of the company’s money. It appeal's that the cash book was kept and the entries made in it by the assistant bookkeeper, who also had access to the safe and who had charge of the petty cash drawer in which money was kept to pay freight, express charges and other minor expenses. There was evidence sufficient to justify the submission of the case to the jury for them to determine whether or not the defendant was guilty of the offense charged. And, therefore, the motion made at the close of the evidence for his discharge was properly denied. After the defendant had been examined as a witness, Mr. Voght, the president and treasurer of the company, was recalled, and after stating what the slips contained and that they were destroyed, was on the cross-examination asked: “They would be of some value if you had them now ? ” answered, “Yes, sir; they would be strong evidence against the prisoner.” Thereupon the defendant’s counsel asked that the answer be stricken out. This was denied and exception taken. The latter part of the answer was not responsive to the question and should have been stricken out, and the motion may fairly have been understood to have had reference only to that part of the answer given by the witness. It is possible that the defendant may have been prejudiced by the expression that the slips would be strong evidence against him. The court in charging the jury stated that on tlie day the check of the company was made there was a balance on hand of twenty-nine dollars and eighty-seven cents, and that there should have on that day remained in the defendant’s hands a balance of sixty-three dollars and thirty-three cents, whereas in fact there was but thirty-three dollars and thirty-three cents. The defendant’s counsel excepted to that part of the statement in the charge that sixty-three dollars and thirty-three cents should have remained in the defendant’s hands that day. Treating the entries in the cash book as evidence such appeared to have been the fact. But it may.be observed that the entries in the cash book were not made by the defendant, nor did he, so far as appears, have anything to do with it. In that view the defendant's counsel requested the court to charge the jury that it was not shown that the company had any definite amount of money in its possession on the 4th of August, 1893. This was declined and exception taken. The fact was dependent upon the entries in the cash book as evidence. They were not made by the defendant. It does not appear that he had any knowledge of them, nor was any evidence verifying the entries given by the person who mad.? them, and while t1 o attention of the court was not called as specifically as it ought to have been to the question sought to be raised by the defendant’s counsel, we think the fact should not be overlooked that the defendant may have been prejudiced by the effect which may be treated as having been given by the charge of the court to those entries in the cashbook, the correctness of which was not supported by evidence other than that inherently manifested by them. The defendant should have a new trial. The conviction and judgment should be reversed and a new trial granted.

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


source: Caselaw Access Project

license: Public Domain

text:
    Julia Snow, as Administratrix, etc., of Israel Snow, Deceased, Respondent, v. The Buffalo Creek Railroad Company, Appellant, Impleaded, etc.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Vernon E. Smith, Respondent, v. Anna D. Weaver, Appellant.
   Judgment of the County Court of Chautauqua appealed from affirmed, with costs.


text:
    The Hamilton Coal Company, Appellant, v. James F. Casey, as Surviving Partner of the firm of Bernhard & Casey, Respondent.
   Order appealed from affirmed.


text:
    Edward F. Parker and Another, Respondents, v. Mary J. Bowman, Appellant.
   Judgment appealed from affirmed.


text:
    Joseph Dorr, Respondent, v. German-American Brewing Company, Appellant.
   Judgment and order appealed from affirmed.


text:
    Sarah Brooks, Respondent, v. Benjamin Brooks, Appellant.
   Judgment appealed from affirmed, with costs.


text:
    John F. Dolan, as Surviving Partner, etc., Respondent, v. John C. Rogers, Appellant.
   Judgment appealed from affirmed on the opinion of the referee.


text:
    Wilbert Shampagne, Respondent, v. Patrick Burke, Appellant.
   Judgment of the County-Court of Jttonroe county appealed from affirmed, with costs.


text:
    Walter H. Sherman, Respondent, v. Julius Robertson, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Timothy L. Hayes, Appellant, v. James P. Bainbridge, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    John Butscheck, Plaintiff, v. The Vacuum Oil Company, Defendant.
   Plaintiff’s motion for a new trial denied and judgment ordered for the defendant on the verdict on the authority of Mahoney v. Same (76 Hun, 579).

Haight, J., not sitting.


text:
    Chester W. Chapin, Plaintiff, v. The Niagara Racing Fair Grounds Association, Defendant.
   —Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    John Burton, Respondent, v. Peter V. Egbert, Appellant.
   Judgment of the County Court of Cayuga county appealed from affirmed, with costs.


text:
    Walter N. Mecklan, Appellant, v. The Buffalo Spring and Gear Company, Respondent.
   Judgment and order appealed from affirmed.


text:
    Allen J. Hastings, Respondent, v. The Brooklyn Life Insurance Company, Appellant.
   Judgment and order appealed from affirmed.


text:
    George C. Murphy, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Order appealed from affirmed on the opinion of this court in same case (62 Hun, 587).


text:
    William W. Mumford, as Receiver, etc., Appellant, v. George W. Crouch and Frank P. Crouch, Respondents.
   Judgment appealed from affirmed, with costs.


text:
    Laurella Morris, as Administratrix, etc., Respondent, v. The Lake Shore and Michigan Southern Railway Company, Appellant.
   Judgment and order appeal from affirmed.


text:
    George E. Ramsey and Another, Respondents, v. The Keystone Gas Company, Appellant.
   Judgment and order affirmed.


text:
    In the Matter of the Guardianship of Lucinda F. Emerick.
   Order of the surrogate of Monroe county affirmed, without costs.


text:
    Lizzie Wilson, Appellant, v. Moriah Heath, as Executrix, etc., Respondent.
   Motion to strike case from the calendar and for affirmance granted on default.


text:
    John O’Connell, Respondent, v. George A. Lee, Appellant.
   Motion to strike case from the calendar and for affirmance granted on default.


text:
    James H. Clark, Respondent, v. The City of Rochester, Appellant.
   Motion to strike case from the calendar and for affirmance granted on default.


text:
    In the Matter of the Probate of the Will of Simeon Kriebler, Deceased.
   Motion to dismiss appeal granted on default.


text:
    Ida Green, Respondent, v. The Middlesex Valley Railway Company, Appellant.
   Motion to strike case from the calendar and for affirmance granted, with costs, unless printed papers are served on or before the second Thursday of the term.


text:
    Bloom v. National Benefit Loan Company.
   Motion to strike case from the calendar and for affirmance granted, with costs, unless papers are served on or before the second Friday of the term.


text:
    Mary A. Knope, Respondent, v. Joseph Nunn, Appellant.
   Motion to strike case from the calendar and for affirmance denied, without costs.


text:
    The People of the State of New York ex rel. Bernard Ritzenthaler v. Edward F. Higgins and Others.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    William Kiernan and Another, Appellants, v. The Agricultural Insurance Company, Respondent.
   Motion for reargument granted.


text:
    Edwin Einstein, Appellant, v. Rochester Gas and Electric Company and Another, Respondents.
   Motion for leave to appeal to the Court of Appeals granted for the reason that in our opinion the question arising in the case is of sufficient importance to render a decision of that court desirable before proceeding further.


text:
    George Werner v. The City of Rochester.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Auburn Button Company v. Philip Silvester and Others.
   Motion to amend decision granted, so as to show that the judgment be reversed on questions of fact as well as questions of law, but on condition that the defendant, if so advised, may discontinue his appeal to the Court of Appeals, without costs of the appeal.


text:
    Charles P. Hemenway and Others, Respondents, v. Morris F. Knudson and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


author: Van Brunt, P. J.:

text:
    In the Matter of Sophia Moss.
   New trial ordered upon issues to be framed in the order to be entered hereon, and case sent to the Court of Common Pleas for such retrial, with costs to appellant to abide event.—

Van Brunt, P. J.:

It is impossible, in the disposition which is to be made of the appeal in the case at bar, to discuss in this opinion at any length the evidence which is contained in the record, without giving expression to opinions formed by a consideration of this evidence to which undue and improper weight may be given upon a retrial of this proceeding before a jury. It has become too much the practice to permit the presentation to juries of 1he opinion of courts upon given questions of fact, with, which opinion the nury has nothing to do. The jury lias to determine the questions of fact governed by the impression winch the evidence offered during the progress of the trial makes upon their judgment — such impressions to be guided and controlled by the rules of law which may be laid down for their guidance by the charge of the court. The opinions of an appellate court in the discussion of evidence have no place in the jury box. But they are so often used for the purpose of influencing the judgment of juries that it has become nazardous to indulge in such discussion. In the case at bar we have determined, therefore, simply to state the conclusion to which we have arrived, and to give some expression of opinion as to the general character of the rulings of the court below in respect to the large mass of evidence which makes up the record upon this appeal. It is undoubtedly true that the door was thrown wide open for the admission of evidence upon the trial of this case — so wide open that a vast amount of irrelevant and improper material has been embraced within this record, and has probably influenced the mind of the surrogate in coming to the conclusion at which he arrived. The question which was to be determined upon tne trial of the issues presented was as to •whether the will in question was the will of the testatrix; and not as to whether, subsequent to the time of the date of that will, her sons robbed her. A consideration of the evidence in this case leads us irresistibly to the conclusion that the true issue which was involved was lost sight of, and that there never has been any judgment based only upon evidence pertinent to such issue. We think, therefore, under the circumstances, that a new trial should be ordered upon issues to be framed in the order to be entered upon this decision, and the case sent to the Court of Common Pleas for such retrial, with costs to the appellant to abide the event.

Follctt and Parker, JJ., concurred.


author: Parker, J.:

text:
    Edward H. Swan, Jr., Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment reversed and new trial granted, on the ground of excessive damages, with costs to appellant to abide event.—

Parker, J.:

The evidence fully justified the court in submitting to the jury the question of defendant’s negligence. They not only found that the injury to the plaintiff was wholly due to defendant’s neglect, but that he had sustained damages in the sum of $12,500. It appears that since the injury plaintiff lias expended $200 for medicine, ana about $450 for medical attendance; that it was over five weeks after the accident before he was able to return to the city, and that thereafter he used a crutch for a period of eight weeks, and still continues to use a cane. Further inquiry is naturally prompted in respect to the nature of the injury, which caused the jurytoaward the plaintiff damages in a sum which, if invested at the rate of five per cent, would produce an income of $025 a year during his life, and leave the principal intact for those dependent upon him — a yearly income equal to twenty-five per cent of that resulting from his labor both before and since the accident— for his employers continue to pay him the same salary as before. Dr. Scemzig, who dressed the wound immediately after the injury, testified: “ In other words, the leg was black and blue from a point a little above the knee joint to a point a little below, about five inches, and under the knee there was a slight cut of the skin. Couldn’t say how deep this cut was under the knee joint. I couldn’t say whether it was anything more than a superficial cutting away of the skin. I don’t think it was more than a quarter of an inch wide. I should think it was an inch long. It was not a cut, it was more of a tear, not a clean cut. There was no bone broken, no muscle cut, no cord cut and no vein or artery cut that I could see.” The other physician called by the plaintiff said that “ one of the principal nerves of the limb had received contusion, as shown by an examination of the parts beneathit; that is, of impaired sensibility,” for which he prescribed tonics, electricity, and that the patient go into the country. The plaintiff explained how the injury had kept him from lawn tennis, boating'-and athletics generally, and described quite fully the severity of the pain which he had suffered and was still suffering. The doctor gave him such support as he reasonably could in that direction. He said: *• On examining it I found that there was a horizontal scar in the ham, about behind the knee. On making extension, very great pain.” u Q. Could you judge from your examination of the cause of his pain, and, if so, in what way other than by the simple statements of the witness? A. It is different with different patients. In Mi*. Swan’s case I judged from his character that he knows when he is hurt, and if I press on a certain place and he complained of pain, and I press on another place and he does notcomplain of pain, I have reason to believe he is not deceiving me, and he has pain over the parts about which he complains when I used the pressure.” It is quite apparent that his answer is not within the definition of diagnosis as given by Judge Finch in the Griswold Case (115 N. Y. 64). He said, “at the best, diagnosis is little more than a guess, enlightened by experience.” Here we have, so far as the element of pain is involved, a guess enlightened only by the-statement or the patient, which ought not to have had, but probably did have, greater weight because reaching the jury through the mouth of the physician. Undoubtedly the bruise was asevere one, occasioning the plaintiff expense; preventing him for a time from working, and causing him to suffer severe pain. But the results flowing from it did not justify, as we think, an award to the plaintiff of $12,500 as compensation for the injury sustained. The judgment should be reversed because the damages are excessive, and a new trial granted, with costs to the appellant to abide the event.

Follett and Yan Brunt, JJ., concurred.


author: VAN Brunt, P. J.:

text:
    John McQueen, Receiver, etc., Appellant, v. Charles E. Lockwood, Respondent.
   Judgment reversed, new trial ordered, costs to appellant to abide event.—

VAN Brunt, P. J.:

This action was brought to recover the balance of the proceeds of the discount of certain notes belonging to and made by the Powerville Felt Roofing Company, Limited, which the said company had intrusted to the defendant, its secretary, to have discounted, and with the proceeds thereof to pay certain indebtedness of said company; and also for a balance upon certain cash which the said company had intrusted to the defendant for the same purpose. The complaint alleges that the defendant had fraudulently appropriated and converted to his own use the said balance. The answer admitted the receipt of the notes and the amount realized thereon, and also the receipt of the cash, but denied that the defendant had failed or neglected to pay over said balance for the benefit of said company, or the creditors thereof, or that he had wrongfully appropriated and converted tho same to his own use. We think that the errors which have arisen in the trial of this cause were due to the fact that both the parties and the court lost sight of the admissions contained in the pleadings. The defendant upon this argument states that the answer was, in effect, a general denial, whereas, instead of being a general denial, it admitted all the allegations of the complaint except that the defendant had failed to apply to the purposes designated all the moneys which he had received from the company. Upon the trial the plaintiff seems to have thought it incumbent upon him to show by evidence that the relation of debtor and creditor did not exist between the company and the defendant by reason of the transactions alleged in the complaint, whereas in fact the defendant had admitted all the allegations of the complaint in regard to the receipt of the notes and cash for special purposes, and it required no evidence to establish the conditions under which he held the cash and the proceeds of the discounts of the notes. All that it was necessary for the plaintiff to prove in order to make out a cause of action was that the defendant had failed to apply the money in the manner in which he was under obligation to do. Evidence seems to have been given from which this fact might very reasonably be inferred. It was shown that, according to the accounts, there was this balance due from the defendant; that it was demanded of him; that he promised to pay it, and that he did notpay it; that at the time of the demand there was no denial of the fact that he had not applied the money to the purposes designated, and that he was answerable therefor. It is stated upon the argument of this appeal that the defendant could show that he had applied the money in the manner required by the terms under which he had received it. But no evidence of this kind was offered, and if the defendant was able to establish this application of the moneys received by him it was incumbent upon him so to do. The court seems to have been of tho opinion that the evidence did not establish the fact that the defendant held this money in a fiduciary capacity, having no title thereto himself, and was bound to apply it in accordance with the terms of his trust. It is undoubtedly true that the evidence failed to establish any such relation between the company and the defendant. But the existence of such a relation liad been admitted by the pleadings, and it was not necessary under such circumstances to establish it by proof. We are of the oinnion, therefore, that the learned court erred in dismissing the complaint, and that the defendant should have been put upon his proof to establish the application of the money m the manner in which he was under obligation to apply it. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Follefct and Parker, JJ., concurred.


text:
    Sarah B. Tucker and Another, Plaintiffs, v. Metropolitan Elevated Railway Company, Defendant.
   Motion 'for reargumenfc denied, with ten dollars costs.


text:
      Stephen G. Condit, Appellant, v. Charles Wahlig and Others, Respondents.

   ~Judgment affirmed, with costs. No opinion.


text:
      John Mahon, Respondent, v. Mary Tracy and Others, Appellants.

   Judgment affirmed, - with costs, on opinion of Special Term.


author: O’Brien, J.:

text:
    Edward Rouget, Respondent, v. Theodore Haight and Others, Appellants.
   Judgment affirmed as to Theodore Haighi, with costs ~nd disbursements, and the judgment against Ellen J. H. Haight modified by deducting therefrom $~,OOO ai~d interest, and, as so modified, affirmed, with costs and disburse-m~nI-c, in hpr_

O’Brien, J.:

This action was brought to recover the sum of $7,250, upon an agreement dated July 9,1887, which provided that a sum of money not to exceed $10,000 should be advanced to the defendant Theodore Haight by the plaintiff; that such sums so advanced were, upon the death of plaintiff and his wife, to become the property of the defendant Theodore Haight, provided that during the lives of plaintiff and his wife interest was paid .at the rate of fifteen per cent per annum. On failure, however, of Haiglit to pay interest, then the whole sum was to become due, .and the defendant Ellen J. H. Haight agreed to repay such advances. Plaintiff claims to have advanced the amount sued for, and that, the interest being unpaid, the whole sum ■claimed to have been advanced has become due. Upon the trial it appeared that of the $7,250 the sum of $2,000 was advanced before the making of the agreement, and that at the various times when advances were made promissory notes were given, payable on demand, instead of receipts. The notes having been surrendered upon the trial, the courfc submitted the question of the amount of indebtedness, and in effect directed a verdict for the full amount and interest against both defendants. We shall treat the case then as though the verdict was directed. As regards the defendant Theodore Haight, ire think the “verdict was right; for though, upon the other evidence in the case, a question might have been presented as to whether themoneys were advanced under tho agreement cr upon the promissory notes, this was set at rest by the testimony as to the manner in which the notes were given and the purpose for which they were received, and by the evidence of the defendant Theodore Haight, who admitted the receipt of the $7,250, which lie stated lie was to invest under the agreement, the' money to be his in the end, and that no part; of such sum was repaid. His express admission, together with the other evidence in the case, was conclusive upon the liability of the defendant Theodore Haiglit, and removed any doubt that might otherwise exist as to whether the moneys were advanced on the notes or under the agreement. A different question, however, arises as to the liability of the defendant Ellen J. H. Haight in regard to the $2,000 which was concededly given to her husband, Theodore, prior to the making of the agreement. It is not claimed that any of tho money was advanced to Mrs. Haiglit, her status being that of a guarantor under the agreement, by the te2\ms of which she was to repay such advances of money as might be made to her husband, only in case her husband should die before the plaintiff and his wife, or upon failure to pay interest. It was not made to appear that when she signed the agreement she knew of any prior advances, nor is there anything in the language of the agreement itself which binds her to repay past loans. In the absence of such testimony, and considering the language of tho agreement itself, which in express terms refers to advances thereafter from time to time to be made, we are furnished with no good reasons upon which her liability for past advances can be predicated. No motion for a now trial was made, nor was any order entered denying such a motion, nor any appeal taken therefrom, and though we are thus confined to a consideration of questions of law, the question as to Mrs. Haight’s liability is directly raised by the exception taken to the refusal of the court to charge the jury or to hold that, in order to render her liable, the money must have been advanced under or pursuant to the agreement. As the evidence stood, therefore, at the close of the trial, we think it was the duty of the court, while directing a verdict against the husband for the full amount, to nave deducted from the amount chargeable against the wife the $2,000 which had been given to the husband prior to the making of the agreement, and for which, by the terms thereof, she was not liable. The judgment as to Theodore Haight should accordingly be affirmed, with costs and disbursements and the judgment against Ellen J. H. Haight modified by deducting therefrom $2,000 and interest, and, as so modified, affirmed, with costs and disbursements to her.

Follett and Parker, JJ., concurred.


author: Per Curiam

text:
    Hewlett Scudder and Others, Appellants, v. The Mayor, etc., of the City of New York, Respondent.
   Judgment affirmed, with costs.

Per Curiam

This suit is brought to restrain New York, owned by plaintiffs, for an unpaid assessment for a local improvement. The complaint was dismissed upon the grounds: JPirst, that the assessment was void upon its face; and, second, that the remedy by injunction has been taken away by statute. The facts appearing bring this case clearly within the authorities of Sixth Avenue R R. Co. v. The Mayor (63 Hun, 271) and People ex rel. Consolidated Gas Co. v. Myers (65 id. 14), which are decisions of this court, and, therefore, controlling. It was suggested upon the argument that these cases were questioned or overruled by some later decisions m the Court of Appeals, and reference was made to the case of People ex rel. Martin v. Myers (135 N. Y. 465). We are unable to understand how this contention can be sustained in the face of the language of the opinion, which, among other cases, cites, with approval, People ex rel. Consolidated Gas Co. v. Myers (supra). The judgment should, accordingly, be affirmed, with costs.

Present—O’Brien, Follett and Parker, JJ.


author: Per Curiam:

text:
    Thomas J. McKee and Others, as Executors, etc., Respondents, v. New York Elevated Railroad Company, Appellant.
   Judgment modified, as directed in opinion, with costs to appellant.—

Per Curiam:

For the reasons given in the opinion, herewith handed down in the case of McKee v. The N. Y. El. R. R. Co. (Action No. 1), the judgment herein should be modified by striking out the alternative as to the payment of the money and receiving the release or conveyance, and by directing .that an injunction absolute issue, unless, within six months after the entry of the order upon this appeal, the defendant shall have condemned such easements, with costs to appellant.

Present — O’Brien, Follett and Parker, JJ.


text:
    Louis P. Whiteman, Appellant, v. The Saratoga Kissengen Spring Company, First National Bank of Saratoga, Respondent.
   Order affirmed, with ten dollars costs and disbursements.—

Per Curiam:

An affirmance of the order under review is required by the decision of this court in Manufacturer’ National Bank v. Hall (60 Hun, 466). The order should, therefore, be affirmed, with ten dollars costs and -printing disbursements.

Present — O’Brien, Follett and Parker, JJ.


text:
    George P. Rowell and Others, Appellants, v. Henry Tuck, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    George P. Rowell and Others, Appellants, v. Joseph E. Janvrin, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    George P. Rowell and Others, Appellants, v. Gustavus S. Winston, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    George P. Rowell and Others, Appellants, v. Edwart W. Lambert, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Joan B. M. Duché and Others, Respondents, v. Theodore Lindberg, Appellant.
   Order imposing terms on opening default reversed, with ten dollars costs and disbursements.— Order denying motion to open default reversed, without costs, but with disbursements. No opinion.


text:
    Miles M. O’Brien and Another, Receivers, etc., Respondents, v. Joseph F. Blaut and Others, Appellants.
   Order reversed, with ten dollars costs and disbursements, and case sent back to Special Term for further action. No opinion.


text:
    Miles M. O’Brien and Another, Receivers, etc., Respondents, v. Simon Ottenberg and Others, Appellants.
   Order reversed, with ten dollars costs and disbursements, and. case sent bade to Special Term for further action. No opinion.


text:
    William B. White and Another, Respondents, v. Mignon C. Barnard, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs of motion to abide event. No opinion.


text:
    Henry P. Rogers and Others, Respondents, v. Frank I. Maguire, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. No opinion.


text:
    Robert J. Dean and Others, Appellants, v. Peter C. Collignon and Others, Respondents.
   Order reversed, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of William H. Brandt.
   Order affirmed, with ten dollars costs and disbursements, No opinion.


text:
    Nason Manufacturing Company, Respondent, v. The Pocantico Water Works Company, Appellant.
   —Judgment affirmed, with costs. No opinion.


text:
    In the Matter of Jane Jones.
   Decree reversed, and will admitted to probate. No opinion.


text:
    Alfred H. Smith and Another, Appellants, v. The American Turquoise Company, Respondent.
   Appeal dismissed, with ten dollars costs. No opinion.


text:
    David Belasco, Respondent, v. N. K. Fairbank, Appellant.
   Order reversed, with ton dollars costs and disbursements, and motion granted. No opinion.


text:
    David E. Austen, Receiver of Taxes, Respondent, v. George V. Hecker Company, Appellant.
   Order reversed, with ten dollars costs and disbursements. No opinion.


text:
    Nicholas Quackenbos, Respondent, v. Grace G. Mintin, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    The People of the State of New York ex rel. Elizabeth S. Baldwin, Appellant, v. Henry M. Goldfogke and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    The Arrow Steamship Company, Respondent, v. James G. Bennett, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Irving Smith, Respondent, v. Charles A. Seymour, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Michael Bowen, Plaintiff, v. Michael Sweeney, Defendant.
   Motion dismissed, with ten dollars costs and disbursements. No opinion.


text:
    James Stephens and Another, Appellants, v. The Waddell-Entz Company, Respondent.
   Order reversed with ten dollars costs and disbursements, and the attachment reinstated. No opinion.


text:
    Cornelius W. H. Elting, Respondent, v. Charles W. Dayton, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Thomas K. Foster, Respondent, v. New York Elevated Railroad Company, Appellant.
   Judgment affirmed, with costs. “No opinion.


text:
    The H. B. Claflin Co., Respondent, v. John Courtney, Sheriff, etc.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Frederick L. Gilbert v. Karnes M. Fitzgerald.
   Motion denied.


text:
    Isaac K. Kohn v. Frederick H. Kellogg.
   Motion granted on payment of ten dollars costs.


text:
    In the Matter of the Forty-second Street, Manhattanville, etc., Railroad Company.
   The court is of the opinion that this application should not be entertained at the present time, for the reasons stated orally upon the argument.


text:
    In the Matter of an Attorney, etc.
   This application must be made on notice to the attorney, on whom copies of the papers must be served.


text:
    David McClure, as Receiver, etc., Respondent, v. Henry J. Davison, Jr., Appellant.
   Order affirmed, with costs. No opinion.


text:
    In the Matter of Alexander Bremer.
   Reference ordered. Section 132, Code of Criminal Procedure, confers jurisdiction.


text:
    Joseph Bernard, Appellant, v. Leah Bernard, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    William H. Shecker, Appellant, v. Edward J. Woolsey, Respondent.
   Order modified by allowing service of answer, as proposed, and affirmed, as modified, without costs. No opinion.


text:
    The Canadian Agricultural Coal and Colonization Company (Limited), Respondent, v. Joseph L. Spofford, Appellant.
   Order reversed, ■with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and with leave to renew upon payment of those costs. No opinion.


text:
    Judson A. Wann, as Receiver, Respondent, v. The National Park Bank, Appellant.
   Order affirmed, with ten dollars costs and disbursements, and with leave to renew application upon proper papers. No opinion.


text:
    Frederick W. Miller, Respondent, v. Cornelius Kiel, Appellant.
   Order affirmed, with costs. No opinion.

All concur.


text:
    James Finlay and Another, Appellants, v. John J. Leary, Respondent.
   Order affirmed, with costs. No opinion.

Cullen, J., not sitting-.


text:
    Joseph F. Durfey, Respondent, v. George M. Dieter, Appellant.
   Order affirmed, with costs and disbursements.

All concur.

No opinion.


text:
    Albert E. Gunther, Appellant, v. Emma S. Gunther, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

All concur.

No opinion.


text:
    Leonora S. Gray, Respondent, v. William T. Baker and Another, Appellants.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

Dykman, J., not sitting.


author: Cullen, J.:

text:
    Samuel J. Campbell, Respondent, v. Albert Friedlander and Marcus Marks, Appellants.
   Order reversed, with costs.—

Cullen, J.:

We think that the demurrer of the defendants presented questions which fairly admited debate, and hence it was not frivolous. The order appealed from should be reversed, with ten dollars coste and disbursements.

Brown, P. J., and Dykman, J., concurred.


text:
    Frederick J. Stubing v. The Metropolitan Life Insurance Company.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Francis Dent v. Stephen V. Ryan.
   Motion denied. No opinion.

All concur.


text:
    In the Matter of the Board of Rapid Transit Commissioners.
   Motion granted. ’

Per Curiam:

We think that an allowance to each commissioner of $1,250, in addition to the sum allowed upon the previous application, would, under the circumstances, bereasonable. This sum is proportionately less than that previously awarded. At that time, however, it was expected that the fees of the commissioners would be paid by purchasers of the franchise. That nope is now dissipated and the expense is to be borne by the city. It is to be borne, too, without corresponding value, for the new commission undoubtedly resulted, from the failure of its predecessor to realize the objects for which it was created. As Mr. Spencer resigned in the month of June, 1893, the sum awarded should be apportioned between himself and his successor. We think that a fair apportionment would be an allowance to Mr. Spencer of $820, and to Mr. Porter of $430. An allowance of $1,250, in addition to the previous allowance of $5,000, is accordingly made to each of the following commissioners: Messrs. Steinway, Starin, Inman and Bushe. An allowance of $820, in addition to the previous allowance of $5,000, is made to Mr. Spencer. And an allowance of $430 is made to Commissioner

Porter. Present—Van Brunt, P. J., Follett and Barrett, JJ.


text:
    In the Matter of the Mayor, etc., of the City of New York. In re Charles Schup.
   Order affirmed, with costs. No opinion.


text:
    Miles M. O’Brien and Others, Respondents, v. Frederick A. Kursheedt, Appellant, Impleaded, etc.
   Judgment affirmed, with leave to defendant to answer upon payment of costs of appeal and in the court below.—

Van Brunt, P. J.:

This action was brought by the plaintiffs, as receivers of the Madison Square Bank, to recover damages alleged to to have been sustained by said bank through the failure and neglect of the defendants, who were directors of said bank, to perform the duties which devolved upon them by reason of their office. The defendant demurred to said complaint upon the grounds: Mrsf, that causes of action had been improperly united, and secondly, that the complaint did not state facts sufficient to constitute a cause of action. It is urged by the defendant demurring that no cause of action is stated against him in the complaint at all, because no legislative enactment is referred to which makes it the duty of tiie defendant to do the things which the plaintiff alleged it was his duty to do upon becoming a director of the Madison Square Bank. This ground, however, does not seem to be well taken, because it is a familiar rule of pleading that it is not necessary to plead a domestic general statute, and that an allegation of default upon the part of a defendant in performing a certain duty maybe established by showing that the law governing the position which he occupied required this duty, without any reference in the complaint to the specific general statutes relating to the subject. And, furthermore, it may be questionable as to whether the neglects referred to in the complaint require the support of any statutory enactment in order that they may become the basis of a recovery by those who have been injured. Outside of this criticism of the complaint, the defendant demurring admits that a good cause of action is alleged, but claims that it is a cause of action at law and not in equity, and that, therefore, causes of action against his co-directors and himself could not be joined. It is conceded upon all sides that if this action is to be treated as an action at law, then causes of action against these various directors cannot be joined. Bub it is claimed on the part of the plaintiff that the action is one in equity, and that an action of this nature may be maintained. This principle was held in the case of Brinkerhoff v. Bostwick (83 N. Y. 52), and also in the case of Bauer v. Platt (72 Hun, 327), where the grounds upon which courts of equity take cognizance of actions of this description are distinctly stated. The complaint in this action was framed upon that which was sustained by the Court of Appeals in the case of Brinkerhoff v. Bostwick, above cited, the only variation (which claimed upon the part of the appellant to be fatal to the complaint in the case at bar) being in the prayer for judgment. As far as the plaintiff was concerned in the action of Brinkerhoff v. Bostwick the declaration as to damage was as specific as that which is contained in the complaint at bar; but in regard to the damages sustained by others who might come in and participate in the action, the prayer for relief was indefinite, and, therefore, it is claimed that there is a broad distinction between the case at bar and the case cited, inasmuch as in the case at bar the allegation of damage is specific and the prayer for judgment is specific. But we think the rule has become well established that the prayer for judgment is not conclusive upon tne nature of the action. It is true that in the case of Glenn v. Lancaster (21 Abb. N. C. 270) the court held that the character of the action, whether it was one in equity or at law, was determined by its prayer for judgment. But this view does not seem to have been adhered to in the case of Murtha v. Curly (90 N. Y. 372) and Bell v. Merrifield (109 id. 202), in both of which cases it was held that the court might give such judgment as was embraced within the issues and which the evidence required. It is true-that in those cases answers had been interposed and formed apart of the record in the action in which the relief was granted. But an answer had also been interposed in the case of Glenn v. Lancaster, in which a different rule seems to have obtained. Taking the later expression of opinion in regard to the effect of the prayer contained in the complaint, it would seem that it does not definitely determine the character of the action, but that that must be determined having in view not only the prayer of the complaint but also the allegations therein contained. In the case at bar it appears distinctly that this action was brought for the purpose of the ascertainment and recovery of -the damages which had been caused by the various directors named as defendants by their neglect of duty, and that, for the purpose of avoiding multiplicity of suits, as well as for other reasons, such an action must necessarily be an equitable action in order that the rights of all parties may be protected. With this character stamped upon all the allegations of the complaint, the mere prayer for judgment should not be allowed to throw the plaintiffs out of court when they would be entitled to equitable relief, although perhaps they might not be entitled to maintain the action as one strictly at law. We are of tho opinion, therefore, that the interlocutory judgment should bo affirmed, with leave to the defendant to answer upon payment of the costs of the appeal and m the court below.

Follett and Parker, JJ., concurred.


text:
    Miles M. O’Brien and Others, Respondents, v. Lawrence J. Fitzgerald, Appellant.
   Judgment affirmed, with leave to defendant to answer upon payment of costs of appeal and in the court below.—

Van Brunt, P. J.:

For the reasons stated in the opinion handed down in the case of O'Brien v. Kursheedt, decided herewith, the interlocutory judgment appealed from should be affirmed, with leave to the defendant to answer upon payment of the cost of the appeal and in the court below.

Follett and Parker, JJ., concurred.


text:
    In the Matter of E. Townsend Goldberg, an Attorney.
   Judgment is that this attorney be suspended from practice for two years.—

Per Curiam:

In this matter the court finds, as a fact, that the attorney altered the undertaking which was used upon the unsuccessful application to the presiding justice; and thereafter. without procuring it to be re-executed or re-acknowledged, used such altered undertaking upon an application for an attachment to a judge cf the Court of Common Pleas. Upon this fact, without passing upon the other charges, the court adjudges that the attorney was guilty of professional misconduct. As to the measure of punishment., while it is undoubtedly a case for discipline, it is not—in view of the attorney’s youth and inexperience—a case for the extreme penalty of disbarment. That would wreck this young man’s entire life. When he fell, he had been admitted to the bar less than a year. He has yet ample time to redeem himself and he should be afforded the opportunity to do so. He will be sufficiently punished and the honor of the profession vindicated by judgment of suspension for a substantial period. The court leaves him the hope of redemption and an incentive to work for its realization. The judgment is that the attorney be suspended from practice for two years.

Present—Follett and Barrett, JJ.


author: Martin, J.:

text:
    Montraville W. Atwood and Another, Respondents, v. Martin Barney, Appellant.

      Goods sold and delivered — books of account ■ — • how proved to ha/oe been honestly kept — when competent evidence — what constitutes keeping a clerk.

    In an action brought to recover the value of goods sold and delivered, the testimony of several witnesses to the effect that they had dealt with the plaintiffs, and had settled with them from their books, which they found to be correct, is sufficient to show that the books were fairly and honestly kept.
    When there are regular dealings between two persons, and it is shown that the vendor keeps honest and fair books of account, that some of the articles charged to the vendee have been delivered to him, and that the vendor keeps no regular clerk, his books of account are admissible in evidence in an action brought by him to recover from the vendee the value of goods alleged to have been sold and delivered.
    The purpose of the rule limiting the admission in evidence of books of account, to cases where a party has no clerk, is to withhold this class of evidence where the party has some third person in his employ, whose business it is to notice sales made or services rendered, and to make entries of them in the books as they occur, and by whom he can prove the sale or services for which he seeks to recover.
    What constitutes the keeping of a clerk within this rule, considered.
    Appeal by tbe defendant, Martin Barney, from a judgment of tbe Supreme Court in favor of the plaintiffs, entered in tbe office of tbe clerk of tbe county of Jefferson on the 25th day of September, 1893, upon tbe report of a referee.

      This action was brought to recover the value of goods sold and delivered.

      George E. Morse, for the appellant.

      Wayland F. Ford, for the respondents.
   Martin, J.:

Practically the only question which arises upon this appeal is whether the plaintiffs’ books of account were properly admitted in evidence.

The plaintiffs were hardware merchants doing business at Clayton, Jefferson county, N. Y. The books admitted in evidence were the books of account kept by them in the regular course of their business.

The appellant contends that the referee erred in admitting these books : First. Because the plaintiffs kept a clerk during the time of the dealing between the parties; and, second, because there was no proper proof that the plaintiffs kept fair and honest accounts. Several witnesses were called who testified that they had dealt with the plaintiffs, settled from their books, and that they found them to be correct. We think this was sufficient evidence that the books were fairly and honestly kept.

The plaintiffs’ testimony was to the effect that during the time this account was running they had no regular clerk, but that they sometimes employed persons to help them about the store for a few days or months; also employed persons to assist, them, temporarily, in posting their books, and that the entries made on their books by others were made under their supervision, in their presence and at their suggestion. On cross-examination the plaintiffs testified that they could not swear they were always present when the charges on their books were made, or that they saw or gave directions as to every charge. The witnesses Marshall and Sumner both testified that the work they did was correctly done, and that when goods were sold or charged by them the sales were correctly reported to the plaintiffs or correctly entered upon the plaintiffs’ books. A fair construction of this evidence leads to the conclusion that the entries were made under the general supervision of the plaintiffs, with their knowledge, usually in their presence, at their suggestion, and that those made by Marshall and Sumner were correct.

Under these circumstances can it be held that the plaintiffs’ boohs were inadmissible ? In Sickles v. Mather (20 Wend. 72), where the plaintiff had in his employ a foreman who delivered the goods sold by the plaintiff to the defendant, and who kept a slate at the factory on which he made a memorandum of the goods delivered, from which the plaintiff made his entries in a daybook, it was held that he was not in any sense a clerk for the purpose of verifying the books, and, hence, not within the doctrine of the case of Vosburgh v. Thayer (12 Johns. 462) which is the leading case in this State oh the question of the admission of books of account in evidence, and which holds that where there are regular dealings between the parties, and it is proved that the plaintiff keeps honest and fair books of account, that some of the articles charged to the defendant have been delivered to him, and that the vendor keeps no clerk, his books of account are admissible in evidence. In Matter of McGoldrick v. Traphagen (88 N. Y. 334, 338) it was said: “ We think that the clerk intended was one who had something to do with and had knowledge generally of the business of his employer in reference to goods sold or work done, so that, he could testify on that subject. It evidently means an employee whose duty it is to attend to the details of business, and thus is able to prove an account, and not one who from his isolated position as a bookkeeper can have but little means of knowledge personally as to the transaction done, or information relating thereto, except what is mainly derived from others. The latter position was that occupied by the bookkeepers of the •re pondent, and they were in no sense clerks within the meaning of the law as to evidence of this character.” (See, also, Cobb v. Wells, 124 N. Y. 77, and cases cited in opinion.)

The obvious purpose of the rule limiting the admission in evidence of books of account, to cases where the party has no clerk, is to withhold this class of evidence, where the party has some third person in his employ whose business it is to notice the sales made or services rendered, and to make entries of them in the books as they occur, and by whom he can prove the sale or services for which he seeks to recover. While this may be a border case, still, we are of the opinion that the plaintiffs had no such clerk as would prevent the admission of their books under the rule established by the Yosburgh case, and that under the evidence they were properly received.

Tbe case, however, discloses that in the plaintiffs’ account there was included four dollars and forty-one cents for goods delivered to other persons, and as to which there was no evidence of any authority from the defendant to deliver them to the persons receiving them. This amount should, therefore, be deducted from the plaintiffs’ recovery.

Again, the plaintiffs’ books contained a charge of fifteen dollars for cash. This was not a proper subject of book account, and, under the Yosburgh case, and subsequent cases following it, the books were insufficient evidence to justify a recovery therefor. There was no other evidence that would authorize the allowance of that sum. The defendant denied having it, and the plaintiffs testified that they had no recollection of paying or loaning him that amount.

It follows, therefore, that the judgment herein should be modified by deducting from the amount of the recovery as of the date of the judgment, the sum of nineteen dollars and forty-one cents, with interest from February 13, 1889, to September 25, 1893, which, amounts to the sum of five dollars and fifteen cents.

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

Judgment modified by deducting therefrom as of the time o'f its entry, the sum of twenty-four dollars and fifty-six cents, and, as so modified, affirmed, without costs of this appeal to either party.


text:
      William D. Bailey, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.

      Damages for personal injuries — when a verdict is excessive ■ — ■ amount thereof reduced.

    Upon the trial of an action, brought to recover damages for personal injuries,, it was shown that the plaintiff’s leg was injured to an extent requiring its amputation about eight inches below tbe knee, and that his lip, right arm and leg above where it was amputated were cut (the lip so that two stitches were taken in it), and the leg from the place of amputation to his body, and that his knee joint was stiffened; that it was about three weeks before he could get around at all; that his leg healed in about four months, and that he suffered pain from this injury down to the time of the trial.
    Before his injury the plaintiff received one dollar and sixty cents a day; on the trial he testified: “ Am now a canvasser, and have been a little while. * * * 1 have been canvassing, collecting and delivering all the while.” It was not shown whether his new occupation- was more or less remunerative than his former employment as a brakeman. The jury rendered a verdict in his favor for §16,000.

      Held, that the verdict was excessive, and indicated that in rendering the same the jury must have been controlled by prejudice, passion or some other improper influence, and not by that cool, unprejudiced and unbiased judgment which should have governed its determination;
    That the judgment should be reversed and a new trial granted unless the plaintiff should stipulate to reduce the verdict to §9,000.
    Appear by the defendant, The Rome, Watertowmand Ogdensburg Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Oneida on the 11th day of January, 1894, upon the verdict of a jury rendered after a trial at the Oneida Circuit, and also from an order entered in said clerk’s office on the 10th day of January, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      A. M. Beardsley, for the appellant.

      Beryptxore da Backus, for the respondent.'
   Martin, J.:

This is the fourth time this case has been before us. Upon the first appeal it was held by this court that the evidence was insufficient to justify the submission to the jury of the question of the defendant’s negligence. When here upon the second appeal the doctrine of the former decision was adhered to, and it was also held that the trial court erred in admitting the opinion of witnesses as to the capacity of a brakeman to displace the brake rod when the pin was in, and whether the pin could have been lost out between Nor-wood and De Kalb. Upon a subsequent retrial of the case the plaintiff was nonsuited and a judgment ivas entered thereon, from which a third appeal was taken. Upon that appeal the judgment was affirmed by this court, and an appeal taken to the Court of Appeals. That court in considering the case held that the trial court erred in rejecting evidence as to defects in other cars of the train besides that which occasioned the plaintiff’s injury, and was “unwilling to say * * * that there was no evidence from which a just inference might not be drawn by the jury that the defective condition of the brake existed when the car left Norwood, and that there was a negligent failure to discover it at that point ” (139 N. Y: 306), and held that under the proof, as it then stood, the question of the defendant’s negligence was a question of fact, and should have been submitted to the jury. When we examine the evidence given on the last trial we find no such change in it as would justify us in holding differently upon that question.

We are also of the opinion that the question whether the plaintiff was free from contributory negligence was a question of fact for the jury, and that the Court of Appeals by its former decision impliedly so held, or no new trial would have been granted.

The appellant contends that a new trial should be granted on the ground that the verdict is against the weight of evidence. It might, perhaps, be assumed from our former decisions in this case that we have heretofore considered the plaintiff’s evidence as insufficient to entitle him to recover, but, as the Court of Appeals has held otherwise, we not only feel bound by the decision of that court, but are of the opinion that after four trials of the case, in which three juries have found for the plaintiff, this litigation should end, and no new trial should be granted upon this ground.

This leads to the consideration of the appellant’s claim that the damages are excessive. The jury awarded the plaintiff $16,000. The evidence discloses that the plaintiff’s leg was injured to an extent requiring its amputation about eight inches below the knee ; that his right arm, lip and leg above where it was amputated were cut, the lip so that two stitches were taken in it, and the leg from the place of amputation to Ins body; that it was about three weeks before he could get around any, and that the leg healed in about four months. The plaintiff testified that he suffered pain from this injury down to the time of the trial. It also appeared that his knee joint was stiffened. Before his injury the plaintiff received one dollar and sixty cents a day. On the trial he testified: “Am now a canvasser and have been a little while; * * * I have been canvassing, collecting and delivering all the while.” Whether the employment in which he has been engaged since his injury is more or less remunerative than his - employment as brakeman does not appear. It is, perhaps, to be presumed that if it had been less so, that fact would have been proved. But, be that as it may, we are of the opinion that the damages awarded in this case are excessive, and that the trial court erred in refusing to grant a new trial on that ground. It seems to us quite clear that the jury, in rendering this verdict, must-have been controlled by prejudice, passion or some other improper influence, and not by that cool, unprejudiced and unbiased judgment that should have governed its determination. That it may have resulted from improper and inflammatory remarks addressed to the jury by the counsel for the plaintiff may, perhaps, be inferred from the charge of the court, as it will be seen that the remarks of counsel were of such a character that the court felt constrained to express its regret that the counsel for the plaintiff should have made improper remarks to the jury, and to charge it that it should not be influenced by what he said.

On the two previous trials, where the plaintiff obtained a verdict, the verdicts were respectively for $8,000 and $10,000. If the plaintiff is permitted to hold this judgment, and recover the amount of it, the annual interest upon it would be $960, while at the time of his injury he was able to earn only'about $500 a year. Thus the effect of this judgment is to award to the plaintiff an income during his life which is nearly double the amount he was able to earn, and still leave the principal unexpended. And this, too, although he is able to labor, and, perhaps, earn as much as before the injury. While recognizing the fact that this was a question for the jury, and that its verdict should not be disturbed unless there is reason, to believe that the jury has been swayed or misled by improper influences, yet, it seems to us so clear that this verdict was the result of such influences, instead of being the result of the calm and unprejudiced judgment of twelve intelligent and fair-minded jurors, that we feel it to be our duty to grant a new trial on the ground that the damages were excessive, unless the plaintiff will stipulate to reduce the amount of the verdict to the sum of $9,000, which to us seems a liberal award for his injuries.

Several cases have been cited by the respondent’s counsel where large verdicts have been sustained, but, as the facts in each case are unlike those before us, but little aid can be derived from an examination of them. In Coppins v. N. Y. C. & H. R. R. R. Co. (48 Hun, 292; affd., 122 N. Y. 557), where the verdict was for- $15,000, it was by this court reduced to $7,000, and the presiding justice, in delivering the opinion in that case, examined many of the cases cited by the respondent, and fully stated the principle of the authorities governing this question, so that a detailed examination of cases or of the principles applicable to it, would seem to be unnecessary.

These considerations lead us to the conclusion that the judgment and order should be reversed on the ground that the damages are excessive, unless the plaintiff will stipulate to reduce the verdict to the sum of $9,000.

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

Judgment and order reversed on the ground that the damages are excessive, and a new trial granted on payment of the costs of the trial by the appellant, unless the plaintiff shall stipulate to reduce the verdict for damages to the sum of $9,000, in which event the verdict and judgment as so modified are affirmed, without costs to either party.


author: Marten, J.:

text:
    Norman A. Barnes, Appellant, v. Gerrit S. Wheaton, Respondent.

      Inability of corporate stockholders under the Constitution of the State of Ohio — action brought under the statute of another State — right of action against a stockholder for the corporate debts — when not niaintoAnoMe in the New York courts — form of action.

    The provision of the Constitution of the State of Ohio, declaring that “ dues from corporations shall be secured by such individual liability of the stockholders and other means as may be prescribed by law, but in all cases each stockholder shall be liable over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at'least equal in amount to such' stock,” is not self-executing. Its purpose is to confer upon the Legislature the power, and to impose upon it the duty, of securing dues from corporations by imposing upon the stockholders of corporations organized under the laws of that State an individual liability and by such other means as, in its discretion, it should deem proper, but limiting such power and discretion by the provision that each stockholder should bo made liable to an amount at least equal to the amount of the stock held by him.
    Such provision, independent of a statute imposing such liability, does not confer upon a creditor of a corporation organized under the laws of the State of Ohio any right to maintain an action to charge such liability upon its stockholders.

      In an action brought upon a cause of action given by a statute of another State, the existence of the statute is a fact which must be pleaded-, and it must appear that under the statute, if proved, a good cause of action exists in favor of the plaintiff against the defendant.
    A right of action against a stockholder for the debts of a corporation does not • exist at common law, and a statute which imposes upon the stockholder per- . sonal liability for the corporate debts, as it is in derogation of the common .law, must be strictly construed, and cannot be extended beyond its literal terms.
    A party seeking to maintain an action under a statute must state every fact requisite to a cause of action arising under it, and to state a cause of action under the provisions of section 3258 of the statutes of Ohio, as revised in 1890, imposing a liability for the debts of a corporation upon its stockholders, it is necessary to allege that the corporation mentioned in the complaint was either formed subsequent to the adoption of the statute, or that the stockholders thereof were at the time of its passage liable under some former statute for the corporate debts.
    Under the statutes of the State of Ohio the corporation mentioned in the complaint, in a’n action brought to enforce the liability of the stockholders thereof, and the owners and holders of its stock and all persons liable as stockholders thereof, must be joined as defendants. An independent action cannot be maintained in the State of Ohio against one stockholder alone, and the remedy to enforce the liability of stockholders, being specially provided by the statutes of that State, is exclusive, and not available in the courts of the State of Hew York.
    Appeax. by the plaintiff, Norman A: Barnes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Onondaga on the 28th day of November, 1893, upon the decision of the court, rendered at the Onondaga Special Term, sustaining the defendant’s demurrer to the plaintiff’s amended complaint and dismissing the plaintiff’s complaint, with notice of an ixiteixtion to bring up for review oxx such appeal the findings of the court and the order entered ixx said clerk’s office on the 28th day of November, 1893, sustaining the demurrer to the amexxded complaint.
    The allegations of the amended complaixxt herein are in substance that the Bellevue Banking Company was duly organized under the laws of the State of Ohio as a joint-stock banking compaxxy, on or about September 23, 18T6 ; that its last principal place of business and its office were located in Bellevue, Huron county, Ohio; that prior to September 30, 1881, it was doing a general banking business; that section -3 of article 13 of the Constitution of Ohio provides: “ Dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but in all cases each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock; ” that section 3258 of the Revised Statutes of Ohio, Giauque’s edition, 1890, provides: “ The stockholders of a corporation which may be hereafter formed, and such stockholders as are now liable under former statutes, shall be deemed and held liable, in addition' to their stock, in an amount equal to the stock by them subscribed, or otherwise acquired, to the creditors of the corporation, to secure the payment of the debts and liabilities of the corporation; ” that section 3260 of said statutes provides : “ A stockholder or creditor may enforce such liability by action jointly against all the holders or owners of stock, which action shall be for the benefit of all the creditors of the corporation and against all persons liable as stockholders, and in such action there shall be found and determined the amount payable by each person liable as stockholder on all the indebtedness of the corporation, in which adjudication no costs shall be taxed to, nor collected of, any stockholder to an amount which, together with the amount to be paid on said indebtedness, will exceed the amount of the stock on which he is liable.”
    It was further alleged that this action was brought by the plaintiff as a creditor of such corporation, pursuant to the statutes hereinbefore referred to, for the benefit of himself and all the creditors of said corporation, to ascertain the pro rata share of the indebtedness of said corporation for which the defendant is severally liable, and to recover judgment against him for the amount of said liability ; that prior to the 30th day of September, 1887, the plaintiff was a bona fide creditor of said corporation to the amount of $1,223.02; that on the last-mentioned date the company, being insolvent, made an assignment for the benefit of its creditors to Thomas C. Wood, since which time said corporation has had no property upon which ■an execution could have been levied, and an action at law would have been useless, and that said company is now, and has been since September 30,1887, hopelessly insolvent; that on or about October 15, 1887, the plaintiff duly presented his claim, properly verified, to-the assignee for allowance; that it was allowed, and such allowance duly approved by tlie Probate Court of Huron county; that tlie assignee declared dividends to tlie creditors of said corporation whose claims bad been approved, amounting to sixty-five per cent of sucli claims, and paid tlie same pro rata to such creditors, including tlie plaintiff, but not including the interest thereon; that the total authorized capital of said company was $100,000, divided into shares of $100 each; that at the time the indebtedness, to the plaintiff was incurred the defendant and nineteen others, including Abishai "Woodward and E. J. Sheffield, were the stockholders of such corporation, the defendant having 80, Woodward 150 and Sheffield 80 shares of such stock; that all the solvent stockholders of such corporation paid their subscriptions and shares of stock in full; that in 1889 the plaintiff, pursuant to the statutes of the State of Ohio herein referred to, commenced an action in the courts of the State of Ohio as a creditor of such corporation for the benefit of himself and all the creditors thereof against all the stockholders, for the purpose of obtaining an accounting of the indebtedness of the corporation, as to who were its stockholders, the amount of stock held by each, and what, if any, portion of the subscription of the stockholders remained unpaid, who of the stockholders were solvent, who were creditors, the amount and nature of their claims, and to recover judgment against such stockholders for the amount of their respective liabilities, and for other relief according to the statutes of the State of Ohio before referred to; that the defendant was not served with process in that action, did not appear therein, was not then and has not since been a resident of Ohio, or owned any property in said State excejating said stock; that at the commencement of this action the defendant resided in the county of Onondaga, N. Y., owned a large amount of real estate therein, was solvent, and all the other stockholders -were then and now are residents of Ohio, and not within the jurisdiction of this court; that judgment was duly rendered in the action brought in Ohio against the defendants who were served with process in that State, but not including the defendant herein, and against the defendants in that action who were found by the court to. be solvent, in which judgment it was, among other things, adjudged that said corporation was insolvent, had made a general assignment for the benefit of its creditors, and that its debts remaining unpaid, including the interest up to November, 1891, amounted to $50,922; that it was further adjudged that to pay such liabilities it would require an assessment of the stockholders who were solvent and within the jurisdiction of the court, of eighty-five per cent of the amount of the stock held by the stockholders who were solvent named in the petition, and within the jurisdiction of the court; that it was further adjudged that if execution against any of the defendants should be .returned unsatisfied, that a new assessment be made upon the resident stockholders, defendants therein, to pay such uncollected judgments, provided that none of the stockholders, defendants therein, should be assessed to an amount greater than the amount of the stock held by them, with interest at six per cent from July 30, 1889; that executions were issued under said decree against Woodward and Sheffield to ■collect judgments rendered against them severally upon their stock, which executions were returned unsatisfied, and they have been found to be insolvent; that it was further decreed that one Rood be, and he was, appointed receiver in said action to collect and receive from the defendants therein the amounts of their several liabilities as decreed in said judgment, and to pay the same over to the creditors upon the judgments rendered therein in their favor fro rata ¡ that the general assignee of said corporation has collected all the available assets of the corporation, has paid the same, less the expenses of administration, to the creditors of said corporation joro rata, prior to the commencement of the action in Ohio; that the assignee has rendered his account as such to the Probate Court of Huron county, has been duly discharged, and that there are no assets remaining in his hands applicable to the payment of the debts of the company; that the receiver duly qualified, entered upon the duties of his office •and has proceeded to enforce said judgment and collect from the solvent stockholders, who were defendants, the amount of the judgments against them respectively, and has collected the whole amount of said judgments against all the defendants who were decreed to be solvent, except the defendants Woodward and Sheffield, on the judgments against whom executions were returned unsatisfied, and they were found to be insolvent, and the judgments against them worthless; that the amount collected by such receiver from the solvent stockholders was the stun of $39,20486, from which the receiver has distributed among the creditors of the corporation, including the plaintiff, the sum of $33,262.32, being sixty-five per cent of the total amount due said creditors according to said judgment, leaving thirty-five per cent, or $17,659.68, still dire and owing the creditors of said bank, with interest from November 2, 1891; that out of the moneys remaining in the hands of the receiver the costs of the action, of the administration and receiver’s fees, master’s fees and other disbursements and expenses must be paid, which will substantially exhaust all the moneys remaining in the hands of the receiver • that in order to pay the remaining debts of said corporation to its creditors it will be necessary to collect from the stockholders who are solvent and against whom judgments have been recovered the remaining fifteen per cent of the amount of stock held and owned by them, and also to collect of the defendant in this action the full amount of the j>ar value of the stock held by him, with interest from the 10th day of October, 1891; that in accordance with the provisions of the Constitution of the State of Ohio, the statutes of that State, the decisions of the courts thereof, and by reason of the facts hereinbefore stated, the defendant Wheaton is liable severally to the plaintiff acting for himself and for the benefit and on behalf of the other creditors of said corporation pro of,ata in the sum of $8,000j being a sum equal to the amount of the capita] stock of said corporation held and owned by him, with interest from the 10th day of October, 1891, the date of the commencement of this action.
    The plaintiff demanded judgment against the defendant for the sum of $8,000, with interest from the 10th day of October, 1891, and that, if necessary to the final determination of this action, the other stockholders of the corporation might be brought in as parties defendant, and for such other and further relief as to the court might seem just and proper under the laws of the State of Ohio hereinbefore referred to.
    To this complaint the defendant demurred upon the grounds : '•‘•First. That the court has not jurisdiction of the subject of the action.

      “Second. The defendant further demurs to the amended complaint on the ground that there is a defect of the parties plaintiff, because it appears in the said amended complaint that the action is brought to recover a liability alleged to have been imposed upon the defendant as one of tbe stockholders of the Bellevue Banking Company, under the laws of the State of Ohio, which company made an assignment for the benefit of its creditors to Thomas 0. Wood, and that said company has various creditors, and that Thomas C. Wood, as assignee of said Bellevue Banking Company, and said creditors are not joined as parties plaintiff herein, and that, therefore, there is defect in parties plaintiff.

      “Third. The defendant further demurs to the amended complaint herein because it appears that the said action is brought to recover a liability alleged to have been imposed upon the defendant and other stockholders mentioned in the complaint herein of the Bellevue Banking Company under the laws of the State of Ohio, and that said stockholders are not made parties defendant in this action, and that, therefore, there is a defect in parties defendant.

      “Fourth. The defendant further demurs to the amended-complaint on the ground that it appears on the face of said amended complaint that it does not state facts sufficient to constitute a cause of action.”
    The issues of law joined by the defendant’s demurrer were brought to trial at a Special Term, and the court found the facts as alleged in the complaint, sustained the defendant’s demurrer, dismissed the plaintiff’s complaint, with costs, and directed judgment accordingly. In pursuance of this decision judgment was duly entei’ed in Onondaga county November 28, 1893. From this judgment the plaintiff appeals and seeks to bring up for review upon such appeal the order sustaining such demurrer and the findings of law by the court on the decision of the issues of law raised thereby.

      Walter 8. Mae Gregor, for the appellant.

      Jermey db Mcurshdl, for the respondent.
   Marten, J.:

The provisions of the Constitution of the State of Ohio set out in the complaint declare that, “Hues from corporations shall be secured by such individual liability of the stockholders and other-means as may be prescribed by law; but, in all cases, each stockholder shall be liable over and above the stock by him or her owned,. and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.” In State of Ohio, etc., v. Sherman (22 Ohio St. 411) it was held that the Legislature of that State had no power, under the present Constitution, to create corporations without securing the individual liability of their stockholders, at least to the minimum amount required by the Constitution; and if the act of incorporation did not secure this, either by express provision or by requiring from the corporators or stockholders such acts of organization or otherwise as would subject them to the constitutional provision, the act would be unconstitutional and void. In French v. Teschemaker (24 Cal. 518, 539), where a similar provision in the Constitution of that State was under consideration, it was held that the provision was not self-executing, but required legislation to carry it into operation. The cases of Morley v. Thayer (3 Fed. Rep. 137), Fusz v. Spaunhorst (67 Mo. 256), and Groves v. Slaughter (15 Pet. 449), are to the same effect.

It is obvious that this provision of the Constitution of the State of Ohio is not self-executing, but that its purpose is to confer upon the Legislature the power and impose upon it the duty of securing dues from corporations by imposing upon the stockholders of such corporations as are organized under the laws of that State an individual liability, and by such other means as, in its discretion, it should deem proper, but limiting such power and discretion by the provision that each stockholder should be made liable to an amount at least equal to the amount of the stock held by him, and we think that this provision does not, independent of a statute imposing such liability, confer upon the plaintiff any right to maintain this action. Moreover, an examination of the complaint discloses that this action was not based upon a right to recover under the provisions of the Constitution, but upon the provisions of the statutes of that State j>assed in, pursuance of such constitutional provision, and thus the plaintiff is bound by his complaint which bases the action upon the statutory liability of the defendant. (May v. Black, 77 Wis. 104.)

Therefore, in determining the liability of the stockholders of a corporation organized under the laws of that State, it is necessary to examine the statutes defining or declaring the same. The only statute which imposes or defines such liability, at least so far as appears from the complaint, is section 3258 of the statutes of Ohio, as revised in 1890. As we have already seen, that section provides: “ The stockholders of a corporation which may be hereafter formed, and such stockholders as are now liable under former statutes, shall be deemed and held liable, in addition to their stock, in an amount equal to the stock by them subscribed, or otherwise acquired, to the creditors of the corporation, to secure the payment of the debts and liabilities of the corporation.” If there was any other statute of that State that would justify this action upon the facts alleged in the complaint, the existence of that statute should have been set out to a sufficient extent to show that the plaintiff had a right of action under and by virtue of it. In an action brought upon a cause of action given by the statute of another State, the existence of the statute is a fact which must be pleaded, and it must appeal’ that under the statute, if proved, a good cause of action exists in favor of the plaintiff against the defendant. (Fagan v. Strong, 17 N. Y. Civ. Proc. Rep. 438; Throop v. Hatch, 3 Abb. Pr. 23; Debevoise v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 378.) A right of action against a stockholder for the debts of a corporation does not exist at common law, and a statute which imposes upon the stockholder personal liability for the corporate debts must be strictly construed, as it is in derogation of the common law, and cannot be extended beyond its literal terms. (Chase v. Lord, 77 N. Y. 1.) A party seeking to maintain an action under a statute must state every fact requisite to a cause of action arising under it. (Austin v. Goodrich, 49 N. Y. 266.) To state a cause of action under the provisions of section 3258, it was necessary to allege that the corporation mentioned in the complaint was either formed subsequent to the adoption of the statute, or that the stockholders of it were, at the time of its passage, liable under some former statute, as that section is made applicable only to such cases. The complaint in this case contains no such allegation, and thus, we think, fails to state a cause of action against the defendant under section 3258.

The statutes of the State of Ohio have not only limited the liability of stockholders to those of a corporation formed after the passage of that act, and such stockholders as were then liable under former statutes, but they have also provided a special remedy for the enforcement of such liability. Section 3260 of the Ilevised Statutes of Ohio in effect provides that a stockholder or creditor may enforce the liability mentioned in section 3258 by a joint action, against all the holders or owners of the stock of the corporation, which action shall be for the benefit of all the creditors of the corporation and against all persons liable as stockholders. In such an action there shall be found and determined the amount payable by each person liable as such stockholder on all the indebtedness of the corporation, and that upon such an adjudication no costs shall be taxed to, nor collected of, any stockholder, to an amount which, together with the amount to be paid on such indebtedness, would exceed the amount of the stock on which he was liable.

Thus the question is presented whether this statute has provided such a remedy for the enforcement of the liability imposed by section 3258 as to exclude any other remedy.

In Nimick & Co. v. Mingo Iron Works Co. (25 W. Va. 184) the question of the effect and operation of this statute was considered, and it was there held that it not only conferred upon the creditors of a corporation a new right, but also prescribed the remedy whereby the same might be enforced; that the remedy so prescribed for the ascertainment and enforcement of this liability must be pursued in the courts of the State of Ohio, where the corporation was located, and by the local statutes of which alone the liability existed, and that a bill in equity to ascertain and determine the extent of such individual liability against the stockholders of such corporation could not be sustained in the courts of West Yirginia.

May v. Black (77 Wis. 101) was an action commenced in that State on a demand for work and labor against a corporation organized under the laws of the State of Michigan. The Constitution of the latter State provides that the stockholders of all corporations organized under the statutes of that State shall be individually liable for all labor performed for it, and that such liability may be enforced by an action in assumpsit, and a suit for such labor may be commenced against all the stockholders and the corporation jointly. In that case it was held that the remedy by action in assumpsit was exclusive, that the corporation must be a party, and ’that the remedy thus given against the stockholders could be enforced only in the courts of Michigan.

In Pollard v. Bailey (87 U. S. [20 Wall.] 526), in examining this question, Chief Justice Waite said: u The individual liability of stockholders in a corporation for the payment of its debts is always a creature of statute. At common law it does not exist. The statute which creates it may also declare the purposes of its creation, and provide for the manner of its enforcement.” After discussing the provisions of the charter then under consideration, he added: <c It was not only to be apportioned and collected, but the mode of apportionment and the manner of collection were specially provided for. The liability and the remedy were created by the same statute. This being so the remedy provided is exclusive of all others. A general liability created by statute without a remedy may be enforced by an appropriate common-law action. But where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that alone, must be employed.”

In Fourth National Bank v. Francklyn (120 U. S. 747) it was held that where the statutes of a State create a corporation, making the stockholders liable for the, corporate debts, and provide a special remedy, the liability of the stockholders can be enforced in no other manner in a court of the United States.

In Erickson v. Nesmith (4 Allen, 233) it was held that a creditor of a corporation established in New Hampshire, the stockholders of which were individually liable for its debts under the statutes of that State, could not maintain a bill in equity in Massachusetts to enforce his claim against the stockholders, although some of them lived there, and the bill was alleged to be brought in behalf of all the creditors.

In Patterson v. Lynde (112 Ill. 196), where a bill was filed by creditors of an insolvent corporation of the State of Oregon against the defendants as stockholders, the complainants alleged the recovery of a judgment at law in Oregon against the company, its insolvency and their inability to obtain a judgment at law in the State of Illinois, that the defendants owed large sums on their subscriptions to the capital stock of the company, and sought a decree against them to satisfy complainants’ demand, and the court below sustained a demurrer to the bill, it was held by the Supreme Court that the demurrer was properly sustained, for the reason of its being impossible to acquire jurisdiction of the corporation, and the non-resident stockholders having no property there.

In Lowry v. Inman (46 N. Y. 119) it was in effect held that where the charter of a foreign corporation makes the propei’ty of a stockholder liable for the fulfillment of the contracts of the company and points out no mode in which its liability may be made available, the courts of other States may give effect to the provisions and the course of proceeding must be regulated by the law of the State where the remedy is sought to be enforced. But where the effect of the charter was not to charge the property of the stockholders generally, but only to an amount equal to his stock upon prescribed conditions, and by a specific process, the remedy of the creditor must be sought according to the terms and by the means provided by the charter. In that case Judge Allen said: “Whether the obligation is imposed, and the remedy given solely by the statute, or rests upon the assent of the stockholders to the terms and conditions of the act, the result is the same; the obligation or liability, and the remedy are inseparable, and the party interested is confined to the remedy prescribed by the act and assented to by the stockholder. If the liability rested solely upon contract, and the contract provided an adequate remedy, the parties would be restricted to that remedy. Every other remedy would be excluded by necessary implication.” After examining the statute under consideration in that case, the judge adds : “ The act provided, as the appropriate remedy, that a judgment and execution .against the corporation ■ should be a lien upon and be enforced against the individual property of the stockholders made liable by the act. It, in terms, made the property liable upon a judgment and execution against the bank, to which the stockholders were not parties, and the property was not made liable in any other way or by any other process. It is very evident that an independent action would not lie in Georgia against the stockholders of this corporation, for the obvious reason that an adequate remedy is provided by this act, without action, and if not, then it cannot be maintained elsewhere. * * * The remedy is necessarily confined to the sovereignty of Georgia, and can have no recognition or effect beyond the boundary of that State.”

In Christensen v. Eno (106 N. Y. 97) it was held that a remedy given by the statutes of another State to creditors of a corporation against its stockholders was not available here.

The principles to be deduced from these authorities clearly are, that under the statutes of Ohio the corporation mentioned in the complaint and all the owners and holders of its stock, and all persons liable as stockholders thereof, should be joined as defendants in an action to enforce the liability of such stockholders ; that an independent action could not be maintained in Ohio against one stockholder alone, and that the remedy to enforce such liability being specially provided by the statutes of that State, is exclusive, and not available here.

"We think the decision of the Special Term was right and that the judgment herein should be affirmed, with costs.

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

Judgment and order affirmed, with costs.