text:
    SOLOMON JONAS, Respondent v. SIMON FEIST, Appellant.

      ■New trial, motion for, is a proceeding subsequent to the trial, reviewable only by appeal.

    On an appeal from a judgment entered upon the verdict of a jury, the errors arising upon exceptions taken at the trial, are the only errors that can be considered by the court. An exception to an order denying a motion for a new trial, is not available for any purpose on the appeal from the judgment. Such an order is reviewable only by an appeal from the same.
    Before Truax and Dugro, JJ.

      Decided April 15, 1889.
    Appeal from a judgment entered upon the verdict of a jury.

      Howe <6 Hummel for appellant, argued:—
    That upon the evidence in the case the complaint should have been dismissed, etc., and that the verdict was against the evidence.

      Jacob Marks for respondent, argued:—
    That there is no question of law involved in the appeal, and that the court cannot review or consider the appeal. There is not a single exception in the case to the admission or rejection of any evidence or to any question asked of any witness; and there is not an exception to the charge of the learned judge, and no •requests to charge were submitted by defendant, and no motion was made to dismiss. The appeal taken in this action is from the judgment only. No order denying motion for a new trial was made or entered by the defendant, and no appeal is taken from any such order, and there being no questions of law or exceptions, there is nothing for this court to review. Where the judgment was rendered upon the verdict of a jury an appeal may be taken upon questions of law, but the appeal brings up questions of law only, and no questions of fact can be considered. Code of Civil Procedure, § 1346. Boos v. World Hut. L. I. Co., 64 N. Y. 236; Willis v. Weaver, 58 Ib. 681; Fitzpatrick v. Woodruff, 15 Jones & Sp. 436, 439; Baylies on New Trials and Appeals, page 335, and cases cited. To bring up the facts for review there must be an order made and entered upon a motion for a new trial, and an appeal from the order. (Ib.)

    An exception to the denial of a motion upon the minutes such as was made by defendant in this case, is not available for any purpose. There must be an order made and entered and an appeal therefrom. Boos v. World Mut. L. I. Co., 64 N. Y., p. 242. Baylies on New Trials and Appeals, supra, and cases cited; Matthews v. Meyberg, 63 N. Y. 656.
   By the Court.—Dugro, J.

This is an appeal from a judgment entered on the verdict of a jury.

Errors of law arising on exceptions taken at the trial are therefore alone before this court for consideration.

The only exception which appears in the case is one to an order denying a motion for a new trial. Such an exception is not available for any purpose.

On trials by jury the only subjects for exceptions are rulings at the trial.

The motion for a new trial is a proceeding subsequent to the trial, and an order made on such motion is reviewable only by appeal. Boos v. World Mutual Life Ins. Co., 64 N. Y. 236; Thurber v. Harlem B. M. & F. R.R Co., 60 Ib. 326.

The judgment must therefore be affirmed.

Truax J., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CHARLES M. ADAMS, Respondent v. JAMES G. FITZPATRICK, et al., Appellants.

      Contract for service for one year at a stated price. Continuance of the same beyond the stated time, when presumed from the act of the parties.

    When the contract of service is for a fixed period and an annual salary, and the service is continued beyond the period without anything being said between the parties about the terms of such continuance, the presumption is, and the law implies, a second employment for the term of one year at the same salary, unless there is something in the circumstances that overcomes the implication.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 15, 1889.
    Statement of the case by the Court.
    On Oct. 15th, 1885, the defendant engaged the plaintiff as a salesman from that day until Nov. 1, 1886, at the rate of §3,000 per year. The plaintiff entered upon the employment on the day of the engagement and was paid at the rate of §3,000 a year until the 1st" of November, 1886. After that date, nothing being said "by either party about the terms of a continuance of the employment, the plaintiff remained with the defendant receiving pay at the same rate as before.
    On March 24, 1887, the defendant notified the plaintiff that he would be discharged on the first of May following; that his engagement must then cease, and that his services were thereafter no longer needed. On the latter day the plaintiff left the defendants’ employ in compliance with the notice. From the time of this notification of discharge the plaintiff sought diligently for other similar positions, and in the latter part of April obtained one for a period of six months, to begin May Í, 1887, with a salary at the rate of §2,000 per year.

      The plaintiff brings this action for damages, claiming under an implied contract for a year from November 1, 1886.

      Donohue, Newcomhe <6 Cardozo, attorneys, and Stephen G. Baldwin, of counsel for appellants.

      Dill, Chandler & Seymour, attorneys, and James B. Dill, of counsel for respondent.
   Per Curiam.

The prior employment was at a fixed salary, and as the services continued beyond the period fixed by the original contract the presumption is that the salary was at the same rate. Vail v. Jersey L. F. M. Co., 32 Barb. 567; Ross v. Hardin, 79 N. Y. 84.

On the facts there is no legal presumption that the second contract of service was for the same period of time as the first.

In cases where an employment is continued immediately after the performance of a prior contract of service of the same kind for a term longer than one year, the law implies a second employment for the term of one year, unless of course there is something in the circumstances of the case which overcomes this implication; Greer v. Peoples’ Telephone &c. Co., 50 Super. Ct. 517.

The appellant at the trial took another exception than that alluded to above, and presented it in his points. The exception has been examined and no error is found to have been made by the referee.

The judgment should be affirmed with costs.


author: O’Gorman, J. Per Curiam.

text:
    GEORGE WILSON, Appellant v. GUZMAN BLANCO, Impleaded, &c., Respondent.

      Envoy extraordinary and minister plenipotentiary—International law, rule of as to immunity from, service of civil process in the country to which the minister is accredited.

    In this case Guzman Blanco, the defendant, was an envoy extraordinary and minister plenipotentiary, duly accredited from Venezuela to France, and recognized as such by the United States; and while in the city of New York, and awaiting early means of conveyance from New York to France, was served with a summons in this action, and failing to make any appearance in the action a judgment was recovered against him for the sum of $2,194,536, and a motion was made at special term in his behalf to vacate and set aside the judgment and to vacate and set aside the service of the summons in this action on the ground, that when the summons was served he was an ambassador, and as such, not amenable to any civil action brought against him in this state.

      Held, that the service of the summons in this action, made upon Guzman Blanco, and the judgment subsequently entered against him based upon said service, are of no force, and are void, and are therefore vacated and set aside.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ. •

      Decided April 15, 1889.
    Appeal from an order of the special term vacating the judgment in this action and setting aside the service of the summons therein upon Guzman Blanco.
    The following opinion was delivered by the court at special term:
   O’Gorman, J.

Guzman Blanco, being an envoy extraordinary and minister plenipotentiary, duly accredited, from Venezuela to France, and recognized as such by the government of the United. States, and while in the city of New York, waiting to take early means of conveyance from this city to France, was served with a summons in this action. Failing to make any appearance in the action, judgment was recovered against him for the sum of $2,194,536.

A motion is now made to set aside the judgment, and vacate the service of summons upon him, on the ground that he was, when so served, an ambassador, and as such, not amenable to any civil suit brought against him in this city or state.

It is conceded for the purposes of this motion that he could not lawfully have been arrested, while thus in the city of New York, and this concession is in accordance with the judgment of this court in Holbrook v. Henderson, 4 Sand. Super. Ct. 626. The court there, however, went farther, and expressed the opinion that the privilege of an ambassador extended to immunity against att civil suits sought to be instituted against him in the courts of the country to which he was accredited, as well as in those of a friendly country through which he was passing on his way to the scene of his diplomatic labors, and to this privilege, the learned court held that he was entitled, as representative of his sovereign, and also because it was necessary for his free and unimpeded exercise of his diplomatic duties.

This opinion of the Superior Court is in accord with that of Wheaton, as set forth in his book on the Law of Nations, in which he has collected and condensed the views of numerous jurists of recognized authority on the subject. Wheaton’s Law of Nations, page 240, et seq.

This rule of international law derives support from . the legal fiction, that an ambassador is not an inhabitant of the country to which he is accredited, but of the country of his origin and whose sovereign he represents, and within whose territory he, in contemplation of law, always abides.

When, therefore, a claim is made against him in the country to which he is sent, for payment of a debt incurred by him, the creditor must proceed against him exactly as if he were not resident there, and as if he had not contracted the debt there, and as if he had no property there, in his quality of ambassador. Wheaton's Law of Nations, page 242.

If he has contracted debts, and has no real property in the country to which he is sent, he should be requested to make payment, and, in case of refusal, application should be made to his sovereign; and as a necessary consequence of this rule of extra-territorial residence, he is always considered as retaining his original domicil, and may be proceeded against in the competent court of his own country, and he cannot set up the plea of absence in the service of the State as a bar to a suit in the domestic forum, since the law supposes him still to be present there.

From these views, I am led to the conclusion that the service made on Guzman Blanco in this case, and the judgment entered against him, are of no force and void.

■ The fact, rather suggested than positively averred in the complaint, that he was connected as a partner in a mercantile business in New York, is not material.

It does not appear that the cause of action arose out of that mercantile relation, or business, or out of any contract or transaction which arose in the state of New York, or the United States.

The motion to vacate the judgment against Guzman Blanco, and to set aside the service of the summons-upon him, is granted, with ten dollars costs.

W. M. Safford, for appellant, argued :—

The precise question now involved has never been judicially determined. The precise question is: “Can an ambassador be sued, by service of summons, in other words, cited to appear, and if so cited, there being no capias, or attachment, may he plead his privilege ? ” The doctrine in regard to civil suits which for the present immediately concerns us, is thus stated by Blackstone: Cooley’s ed., vol. 1, p. 254. “ In respect to civil suits, all the foreign jurists agree that neither an ambassador, nor any of his train or comités, can be prosecuted, for any debt or contract in the court of that kingdom wherein he is sent to reside.” Coke maintained this to be the law: “ If an ambassador makes a contract which is good jure gentium he should answer for it here.” 4 Coke’s Institutes, p. 153. That such ambassador cannot be arrested or his personal chattels attached is conceded. Dryson v. Pichou, 4 Dallas, 321; Holbrook v. Henderson, 4 Sandf. 619. This privilege extends to his domestic servants. Kent Commentaries, vol. 1, § 39 et seq.

It may also for-the purposes of this argument be conceded, though the concession is broader than adjudicated cases, or the best text-writers warrant, that “ an ambassador is deemed to be under the protection of the law of nations in his passage through the territories of a third and friendly power, while upon his public mission in going to and returning from the government to which he is deputed. To arrest him under such circumstances would be a breach of his privileges as a public minister.” Kent, vol. 1, § 39. The foregoing language is as broad, nay broader than any adjudicated case warrants. It is the language of Chancellor Kent. . The doctrine of extra - territoriality, as it is called, admits of several exceptions. Says Wharton in his Digest of International Law, vol. 1, section 93a: “ The prevalent view so far as concerns civil process, is that the doctrine of extraterritoriality does not apply.” In cases where the ambassador engages in trade and the suit is brought in respect to such trading engagements. Wharton’s Digest of International Law, vol. 1, §§ 92 and 93; Grotius, Boole II., ed. 18, § 5, says: “ The obligation to protect ambassadors extends only to the power to whom the embassy is sent, and does not extend to a third power.” All text-writers agree to the following proposition: “ If an ambassador be concerned in trade, his property in that trade is liable to seizure as in the case of any individual.” Bynkershock De Pro. Legal, C. 14; Vattel, B. 4, C. 8. Valarino v. Thompson, 3 Selden (7 N. Y.,) 576, has no application. It turned on a question of jurisdiction of the state courts in a suit against a counsel.

Mr. Fish, while Secretary of State, expressed tersely the tendency of modern thought and modern opinion. In respect to the doctrine of absolute immunity he says:

“ The tendency of opinion in regard to immunities of diplomatic agents is believed to be strongly toward restricting them to whatever may be indispensable to enable the agents to discharge their duties with convenience and safety. The extreme doctrine of immunity which was the necessity of an age of barbarism, and of the intercourse of uncivilized nations has happily yielded to the progress of Christianity and modern culture.” Fish to Jay, 1874; Wheaton's Digest, § 94 and seq. Taylor v. Best and others, 14 C. B., page 487, is a case which when rightly considered sustains our view. It is, moreover, a very instructive case worthy of careful perusal.

Since this case was argued at special term, the case ■ of the New Chili Gold Mining Company against Blanco (same defendant), has been decided by the High Court of Justice, Queens Bench Division.

The learned counsel set forth fully the case and the views of counsel and the judgment therein; and it appearing therefrom that the order directing service upon Guzman Blanco in Paris should be discharged.

John E. Bisley for respondent, argued :—

I. Under the law of nations the service of the summons on the defendant was void, because he was then the sovereign of a nation with whom we were at peace, and was passing through our territory under permission both express and implied. The principles of international law applicable to this case are very fully discussed in Exchange v. McFadden, 7 Cranch. 121.

II. The service was void because defendant was a diplomatic agent of Venezuela to the United States. The authorities are gathered and carefully analyzed in a note under the case of U. S. v. Ortega, Book 6, U. S. Supreme Court Reports, published by the Lawyers’ Cooperative Publishing Co., bottom page, 522. Wheaton’s International Lato, §§ 225, 226, 2d English edition.

III. The service was void because defendant was an ambassador of one sovereign state to another passing through our territory in the execution of his duties when it was had. This question was so fully and so ably discussed by some of the most eminent judges who ever sat in this court, in the case of Holbrook v. Henderson, 4 Sand. 619, that I deem it superfluous to do more than call the attention of the court to that case. It was decided in 1830, and has ever since been followed as the law in this country. See Kents Commentaries, 11th ed. vol. 1, p. 45 and note C. Also, Wharton’s International Law Digest, vol. 1, § 92, p. 638, et seq. At page 646, Holbrook v. Henderson, is cited: “ A diplomatic agent, traveling on his way to the country to which he is accredited, through a third country, pursuing for this purpose a natural ¿md proper route, is entitled to the same privilege as when traveling through the country to which he is accredited.” Whartons International Law Digest, vol. 1, 655. See also Wheaton’s International Law, 2d English edition, §§ 224, 5-7.

“ A public minister, proceeding to his destined post in time of peace, requires no other protection than a passport from his own government.” (Wheaton, supra, § 220.)

Per Curiam.

Order affirmed with $10 costs, for the reasons assigned by Judge O’Gorman for granting the motion.


author: Held, (O’Gorman, J., writing,)

text:
    HENRY THAU, Respondent v. THE BANKERS AND MERCHANTS TELEGRAPH COMPANY, Appellant.

      Receiver, appointed by this court in a sequestration action against a corporation, although a receiver of the property of the corporation had been previously appointed by another court.

    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 7, 1888.
    Statement of the case by the Court.
    On December 3, 1885, the plaintiff in this action recovered a judgment in this court against the defendant, for the sum of $2,511.82, and that judgment was duly filed and docketed on that day.
    A receiver of the property of defendant corporation having been appointed by the Supreme Court, a motion was made by the plaintiff here, in that court, for permission to issue execution on his said judgment against the property of the corporation, for the purpose, as stated in his affidavit used on the motion, of enabling the plaintiff to take proceedings for sequestration of the property of the corporation, under the authority of section 1784, et seq., of the Code of Civil Procedure. On May 27, 1887, an order was made by the Supreme Court, in and for the county of New York, granting such permission, and execution was thereupon issued and returned unsatisfied.

      In June, 1887, the present suit was brought by the plaintiff, in which he prays for sequestration of the corporate property, and for the appointment of a receiver, with the usual powers and obligations, to take possession of the property and apply the proceeds to the benefit of all the creditors, as should be equitable.
    On January 3,1888, an order was made in this action by this court, at special term, on motion of the plaintiff herein, for the appointment of a receiver in this action, in which order it was, among other things provided, “ that nothing therein contained would affect the right and power of any receiver theretofore appointed over any property of the defendant corporation, to act in the performance and accordance with the powers and duties conferred upon him by the order appointing him pursuant to law.”
    From this order, the defendant company now appeals for various reasons, prominent among which is, that the appointment of such receiver would create a conflict with the Supreme Court.

      Robert II. Griff en, attorney, and Robert G. Ingersoll, of counsel for appellant.

      Robert 8. Hudspeth, attorney, and Benjamin Patterson, of counsel for respondent.
   Held, (O’Gorman, J., writing,)

"that the appointment of the receiver in this action was within the judicial discretion of the court on the facts placed before it on the motion; that there was no reason to doubt that that discretion was not exercised properly and for good cause; and that the order, with modifications of some of its provisions which seemed to be inconsistent with the provision therein contained in relation to the Supreme Court Receiver above adverted to, should be affirmed.”

Sedgwick, Ch. J., concurred.


author: Held (Sedgwick, Ch. J., writing),

text:
    STEPHEN A. WEST, Respondent v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Charge, exception to, Request to charge exceptions to refusal, Striking out evidence, exception to refusal, when no ground, presented thereby for refusal, and reasons therefor.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided June 20, 1888.
    This is an action for damages by reason of personal injuries. Three points were raised on appeal.
    First:—That the trial judge erred in refusing to charge as requested “ that the jury cannot upon the testimony in the case allow any damages for medicine, lotions or medical material.”
    Second:—That the trial judge erred in refusing to charge as requested: “ That prior to the adoption of the Code of Procedure in this state*, or prior to the present constitution of this state, the plaintiff:, being a party, was not a competent witness in his own behalf, and that it is under that constitution he is enabled to be a witness, and the question as to his credibility is entirely one for the jury, and that they have a right in considering the case to wholly reject his evidence; ” and erred in charging in this regard as follows : “ I charge you without any reference to the constitution that the plaintiff’s testimony, as that of every other witness, is to be considered by you and believed or disbelieved according as your good sense and judgment govern you‘”.
    Third:—That the trial judge erred in refusing to strike out the testimony that plaintiff immediately after the accident said “ Take these splinters out of my leg; take these splinters out.”

      Davies & Rapallo, attorneys, Edward 8. Rapallo and Henry D. Sedgwick, Jr., of counsel for appellant.

      Taylor & Parker, attorneys, and Alfred Taylor, of counsel for respondent.
   Held (Sedgwick, Ch. J., writing),

as to the first point, “ that under the charge of the judge as made, the jury were not at liberty to give anything for the cost of medicine, etc.; that the matter of the request was unnecessarily introduced by the plaintiff and therefore he could not avail himself of an exception to a ruling on it; and further that the request was ambiguous in form and meaning, it being neither a request to charge that there could be no recovery for the cost of the medicine, nor a request that the jury could not allow for the using of medicine. In the latter aspect the jury could have found something for the plaintiff being obliged to take the medicines, as they were uncomfortable, nauseous, destructive of appetite and caused one to live in the atmosphere of a druggist’s shop; for which the jury could give compensation.”

As to the second point, “ that the charge was correct as to the credibility of an interested party and covered the substance of the request; and that the general exception to the charge as made did not raise any question as to the use of the words 1 as that of every other witness,’ the attention of the court being thereby particularly called to that phrase as being objectionable.”

As to the third point, “ that the words were admissible under the rule that allows exclamations. A strict grammatical construction should not be used. The jury might find the words were exclamatory in reality. There were as matter of fact no splinters in his leg. The words were not' received as evidence of there being splinters. The jury might find that pain forced out the words.”

Truax and Dugro, JJ., concurred.


text:
    JAMES WATTS, Respondent v. CALEB B. KNEVALS as trustee, et al., Appellants.

      Discovery under § 806 Code Civil Procedure, before answer—grounds for denial of, (l) where the applicant avers he never made the instrument; (2) where the proof shows that the parly against whom the motion is made has not the possession dr control of the instrument.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided October 25, 1888.
    Appeal by defendants from order vacating order requiring the plaintiff to deposit with the clerk the agreement upon which the cause of action is based, or etc.

      Knevals <& Perry, attorneys, and James W. Perry, of counsel for appellants.

      Goodrich, Beady & Goodrich, attorneys, and of counsél for respondent.
   Per Curiam.

The application for the discovery, was professed to be made for the purpose of enabling the defendants to frame an answer. The affidavit of the principal defendant shows that the answer can be made without a discovery, for he avers that the agreement or alleged agreement asked to be discovered, was never made by him, whether or not there should be relief after issue joined, is not before the court.

Further, the court below was right in setting aside the order upon its finding from the affidavits that the plaintiff had not the possession or control of the instrument in question: § 806 Code Civil Procedure. The proof on this subject was of such a nature, that the conclusion of the court below, as to this fact, cannot be reversed.

The order should be affirmed with $10 costs and disbursements to be taxed.


author: The Court (Freedman, J., writing)

text:
    ANN DUFFY, Plaintiff v. MICHAEL DUFFY, Defendant and Respondent.

      Revivor—Motion for under § 757 Code Civil Procedure as amended by chapter 542, Laws of 1879, as to denial of on mere ground of delay.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    The action was one at law. The original plaintiff died more than ten years before a motion to revive was made. The motion was denied at Special Term on the ground that too much time had elapsed; and an order was entered denying the motion.

      E. B. & C. P. Cowles, attorneys, and of counsel for moving parties, appellants.

      John E. Parsons, attorney, and with II. B. Closson, of counsel for respondent.
   The Court (Freedman, J., writing)

held that under Coit v. Campbell, 82 N. Y. 509, the motion was properly denied; but that the late case of Holsman v. St. John, 90 N. Y. 461 (which was decided without noticing Coit v. Campbell) was in apparent if not in real conflict with Coit v. Campbell; that the late case should be followed unless some distinction could be drawn between them; that the only distinction the court was able to draw is, that the first case was in equity and the latter an action-at-law; that it might still be a debatable question, notwithstanding Greene v. Martine, 21 Hun 136, affirmed, 84 N. Y. 648, whether a distinction between an action in equity and one at law should be maintained ; and that in view of the circumstances and the great importance of the question, it was in the interest of all parties to affirm the order so that the question involved might be squarely presented to the court of appeals, and put at rest by that court.”

The order was affirmed.

Sedgwick, Ch. J., and Ingraham, J., concurred.


author: The Court (Ingraham, J., writing)

text:
    ANN MARIA PALMER, Plaintiff v. GEORGE H. SAFFT, Defendant.

      Ejectment; adverse possession is established where the premises sought to be recovered have been for the twenty years immediately prior to the commencement of the action inclosed by a substantial inclosure, and have during all that time been in the possession of the defendant and his grantors claiming title thereto, and neither the plaintiff nor his ancestors, predecessors or grantors have been seised or possessed thereof within that period.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    This is an action of ejectment. A verdict was directed for the plaintiff, and exceptions were ordered to be heard at the General Term.

      McKoon & Foote, attorneys, and D. D. McKoon of counsel for plaintiff.

      Eugene K. Sackett, attorney, and Lemuel Skidmore, of counsel for defendant.
   The Court (Ingraham, J., writing)

held as set forth in the head note, citing Code of Civil Procedure, §§ 365-372; Page v. Waring, 103 AT". Y. 636; and held that there was sufficient evidence of the facts constituting adverse possession to carry the case to the jury; and therefore sustained defendant’s exceptions and ordered a new trial.”

Sedgwick, Ch. J., and Freedman, J. concurred.


text:
    CHARLES MAYER, et al., Respondents v. PHILIP HEIDELBACH et al., Appellants.

      Appeal—On a second appeal, the law as expounded on the first must govern, there being no essential differences in the facts.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 4, 1889.
   The above case was twice tried. It was first tried before the court without a jury by consent of the parties, and resulted in a decision and judgment against plaintiffs. On the appeal to the General Term by the plaintiffs, the appeal book did not contain the evidence, but only the findings of fact and law. The General Term reversed the judgment and ordered a new trial (54 N. Y. Super. Ct. R., p. 438). On the new trial which was also had by consent before the court without a jury, a decision was made in plaintiffs’ favor, from the judgment on which the appeal was taken. The appeal book contained all of the evidence as well as the findings of fact and law. The findings of fact and law contained in the appeal book on the first appeal presented all the material facts disclosed by the evidence given on the new trial.

The court in affirming the judgment rendered for the plaintiffs on the new trial, held as set forth in the headnote.

Sterne & Thompson, attorneys, and Simon Sterne and John K. Creevey, of counsel for appellants.

James G. Foley, attorney and of counsel for respondents.


author: By the Court.—Sedgwick, Ch. J.

text:
    SOPHIE HILLESUM, Respondent v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellant.

      Trial, conduct of—Rulings on objections to questions, and striking out answers. Uncertainty of questions, ground for their exclusion—Statement to Physician if not appearing tí be made for his professional guidance, and the time when made not appearing, is inadmissible—Where on a party's examination, a witness has denied having had any conversation with another witness on a certain subject, it is in the discretion of the trial judge whether on the same party's examination, he will allow further interrogation as to a conversation on that subject. The necessary consequences of a future or conditional state of affairs cannot be asked of a witness. Credibility of witness, assuming that of two loitnesses for the defence one or the other must be responsible to the defendant by reason of an accident complained of occurring through the defective condition of the sidewalk in front of his particular premises, yet that fact cannot be used by the jury to estimate the credibility of either in particular, therefore a refusal to charge that the defendant has a right of action over against the owner of the property in front of which the accident occurred for the reimbursement of any verdict rendered, is not error. Instances of irresponsive ansivcrs.

    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided March 5, 1889.
    Appeal by defendant from order granting a motion for a new trial, made by plaintiff upon the minutes.

      Henry E. Beekman, counsel to the corporation, attorney, and Henry B. Twombly of counsel for appellant.

      Klebisch ds Marks, attorneys, and M. L. Marks of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from the plaintiff’s falling, in consequence of a defect in the sidewalk of a street which the complaint alleged was defective, through defendant’s negligence.

The jury found for the defendant. The new trial was granted upon the exceptions taken on the trial, by the plaintiff. The case does not particularize the exception which was sustained by the court. It is necessary to examine all the exceptions on which the respondent relies.

The question: Do you know anybody that fell over that ? was rightly excluded on the trial. It referred to the alleged defect in the sidewalk. The question had such a form that it was not certain that the witness was required to speak of his knowledge of any fall, or more than of his knowlege of a person whom he had heard had fallen. The witness immediately after this question, was allowed to testify that he had seen his wife fall over the defect.

A physician had testified that the accident would have an effect upon the nervous system of the plaintiff. He was then asked, And do you think it affected that ? The witness not answering responsively said, She is complaining of that now. This was properly stricken out both because it was not responsive and because complaints of the plaintiff might be inadmissible, at least, if not made to the physician, for his professional guidance and only overheard by him. Roche v. Brooklyn, etc., R. R. Co., 105 N. Y. 295.

Another question was properly excluded for the reason that its form was leading.

On the trial the plaintiff assumed that a witness named Mahoney, would be liable to the present defendants in case there should be a recovery against them, and that such liability might affect the credibility of Mahoney,' who had testified in behalf of the defendant as to the condition of the sidewalk. Another witness was called by defendant. He was and had been in the employment of Mahoney. He was asked, Hasn’t he, Mahoney, told you, and don’t you know as matter of fact, that he would have to pay to the city any damage which the city might sustain by reason of this case ? The court was correct in excluding the question. Had the question not been objectionable in itself, it was within the discretion of the court to exclude it, as the witness had said, immediately before, that Mahoney had told him nothing about his liability for the condition of the sidewalk. It was objectionable in the part that asked the witness to state the necessary consequences of a future or conditional state of affairs.

Mahoney as a witness was asked; Don’t you know, as a fact, that this sidewalk was fixed in March, 1887 ? The accident had happened in February, 1887 ? This called for a categorical answer, which when given might have been left (without any further inquiry as to what made the “fixing” of the question) to produce a confusion in the minds of the jury. The question was objectionable, as it did not appear to refer to a repairing of the defect alleged by the plaintiff, and therefore it did not tend to show what was the physical condition of the sidewalk at the time of the accident.

The plaintiff’s husband was asked, Did' the plaintiff have people by whom she had been engaged to nurse ? He answered she had about five and she could not attend to them. The last of the answer was properly stricken out as irresponsive.

The charge of the court was in accordance with the law.

The plaintiff did not prove that the accident had put her to any personal expense, nor did she prove any facts upon which the jury might assess damages for any loss of business as nurse.

I think it is probable that the court, in granting a new trial, considered that there might have been error in refusing to charge one request of plaintiff. It was, “ The defendant has a right of action over against the owner of the property in front of which the accident occurred, for the reimbursement of any verdict rendered against it and which it may be called upon to pay.” A particular examination of the testimony shows that the plaintiff was not entitled to such a charge even if it be assumed, although not held, that an owner of a house is responsible for the consequences of a defect in the sidewalk in front of his house, which is not a nuisance created by him, or unlawfully maintained by him. The case showed that the testimony of one of two witnesses only could have been affected by the existence of the liability alluded to in the request. These witnesses were the respective owners of No. 107 and No. 109 Sheriff St. The sidewalk in front of these houses, was wholly or partly paved with flag-stone. The case, as made by the plaintiff, was that as she was walking along the flagging of No. 109, and had reached the line where it ended, she stepped upon the flagging of the sidewalk in front of No. 107. This latter sidewalk was from 3 to 7 inches lower than the sidewalk of No. 109. The plaintiff testified I was walking along and stepped from a higher stone to a lower stone and fell as I made the step. I did not see the stone was lower than the other.” The witness most favorable to plaintiff testified that the plaintiff fell in front of 107 and 109. The sidewalk in front of 107 was about 3 or 4 inches lower than the sidewalk of 109. There was a step between the two stones never filled up. On this and other testimony, the jury could not have found that there was any other cause of the accident than the plaintiff’s stepping from the higher level of one sidewalk to the lower level of the other, she being unaware that there was any difference in the levels. There was no testimony to show that either, or if one of the owners, which one, had the right or lawful level in front of his house. Even if it could be said that one or the other must have been the responsible party, the announcement of that to the jury could not have been used by them to estimate the credibility of either witness in particular.

I am, therefore, of opinion, that the motion for a new trial should have been denied.

Order reversed with costs, with leave to defendant to enter judgment upon the verdict.

Freedman and Truax, JJ., concurred.


text:
    GEORGE W. VIDETTO, Appellant v. FRANCIS D. DUDLEY, Respondent.

      Examination of party after issue and before trial, allegations not necessary in moving papers.

    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 5, 1889.
    Appeal from an order, vacating an order for the examination of the defendant as a party before trial.

      David Keane, attorney and of counsel for appellant.

      Friend & House, attorneys and of counsel for respondent.
   The Court (Truax, J., writing and Sedgwick, Ch. J., concurring)

held that it was not necessary to allege in the moving papers that there were no other witnesses by whom he could establish the facts sought to be proved by the party; that the Code did not require such an allegation; "that the moving party has a right if he sees fit to call his adversary to prove his case; ” also held “ that an allegation that the action is brought to recover damages for a personal injury resulting from defendant’s negligence was a sufficient statement of the nature of the action.” The order was reversed.


text:
    FIRST NATIONAL BANK OF GLOUCESTER, Respondent v. JOHN COX, et al., Appellants.

      Trial, conduct of—Direction of verdict, is proper although there is some evidence, on the issues joined, in favor of the party against whom the verdict is ordered, where the force of such evidence is destroyed by undoubted facts in the case.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 15, 1889.
    Appeal hy defendants from judgment entered upon verdict for plaintiff, as directed by the court.

      Johnson & Lamb, attorneys, and Jesse Johnson of counsel for appellants.

      Harriman & Fessenden, attorneys and of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was upon a promissory note against the defendants as makers.

On the trial, the defendants did not contest that at first the plaintiff had paid value for the note, or that it was in the plaintiff’s hands when it fell due.

The answer had averred, “ that if the plaintiff is the owner and holder of said note the same was purchased after it became due and payable.” If this referred to the purchase by the plaintiff at the time it first went into the plaintiff’s ownership, there was no evidence to sustain this answer. On the trial, the defendants assumed, that the answer referred to a second purchase or delivery of the note by the plaintiff from the payee, one Stinson, who it was claimed had in some way paid or satisfied the bank’s claim against him as indorser, and afterwards, after maturity, re-transferred the note to the bank.

If these facts had existed, the defendants claimed that the bank acquired only the rights of Stinson, the indorser, against the makers, which would permit the defendants to make an offset against the indorser, and in the answer an offset was pleaded, which, if valid, would extinguish any claim upon the-note.

The answer also alleged that Stinson the payee in said note mentioned, is now the lawful owner and holder of said note.”

The defendants to maintain these defences, gave testimony for the purpose of showing that after maturity the payee Stinson was in possession of the note, they arguing that this possession made a presumption that it had been delivered to him by the bank, in a transaction that made him the owner of the note. They did not, in reality, give testimony that Stinson was in actual possession. The witness, who spoke on this point, said that one Eaton was in actual possession. As to Eaton’s possession being the possession of Stinson, nothing more was .shown than that at the time Eaton was the general manager of Stinson’s business. This did not tend to show that the note was held in the course of that employment of agency, when the other undoubted facts of the case are considered.

The defendants called a witness, one of the attorneys for the plaintiff in this action. .He testified that the note in action was given to him by Mr. Booth. Both Booth and Stinson were his clients. Stinson had placed in his hands the papers that concerned the claim that Stinson made in respect of the contract which is the subject matter of. the offset in the present answer. Booth had such relations to Stinson that he was present at consultations in respect of the contract. In the course of these Booth placed in the hands of the witness the note, with directions to bring suit upon it, with no instructions as to the ownership of the note. An action was begun in the name of Stinson. Before answer the witness learned that the bank was the owner and he so told the defendants’ attorney, and no answer was served. Thereupon this action was brought.

The cashier of the bank was called as a witness for plaintiff. On his cross examination he testified that the bank sent the note from its place of business in Massachusetts, to Booth in New York, with instructions to collect the note and if necessary to have suit brought upon it. His testimony on the point of Booth’s having custody of the note was so corroborated by the evidence of plaintiff’s attorney, called as a witness by defendants, that his credibility was not a question for the jury.

One of the defendants testified that Eaton did have possession of the note at a time not definitely fixed, and that Eaton demanded payment of the note. The other testimony satisfactorily showed, that if Eaton had the note before Booth gave it to the attorney, Eaton must have been acting for Booth or for the bank, or if he. had it after the attorney held it from Booth, he must still have held it for the bank in reality even if we suppose that for a time Stinson was thought by a mistake to be the holder. Such a mistake would not give Stinson or Eaton a right to act in the attempt to collect for any but the bank.

I am of opinion, that there was no evidence that the note was ever in Stinson’s possession after maturity, as owner, or that plaintiff’s rights were other than those of a purchaser before maturity.

The judgment should be affirmed with costs.

Trtjax and Dugro, JJ., concurred.


text:
    James H. Lane, et al., Appellants v. Charles Rosenberg, et al., Respondents.
    Decided June 20, 1888.
    Appeal by plaintiffs from a judgment entered on a verdict directed by the trial judge in favor of defendants.
    M. W. Divine, for appellants. Richard S. Newcomb, for respondents.
    Sedgwick Ch. J., and Freedman, J.
   This appeal involved the question as to whether the evidence was such that a- verdict in favor of' plaintiffs would have been allowed to stand. The Court held (Freedman, J., writing, Sedgwick, Ch. J., concurring) that upon the whole case the «evidence preponderated so much in favor of the defendants, that, if the case had been submitted to the jury and their verdict had been in favor of the plaintiffs, such verdict would not be permitted to stand. Under these circumstances the trial judge was justified in directing a verdict for the defendants, especially as the plaintiffs made no request to be allowed to go to the jury, and affirmed the judgment.”


text:
    Ann Slevin, Appellant v. The Mayor &c., of the City of New York, Respondent.
    Decided June 20, 1888.
    Appeal by plaintiff from a judgment entered upon the verdict of a jury for defendant in an action brought by her to recover damages to her from her slipping upon ice that had been negligently suffered to remain upon a sidewalk of unsafe grading; also an appeal from an order denying a motion for a new trial.
    Thomas Nolan, for appellant. Thomas P. Wickes, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   The Court held (Sedgwick, Ch. J., writing, and Freedman^ J., concurring) u that there was no evidence that plaintiff slipped on the ice ; and affirmed the judgment and order.”


text:
    Milton G. Clapp, Respondent v. John C.. Atterbury, et al., Appellants.
    Decided June 20, 1888.
    Appeal from a judgment entered in favor of plaintiff, upon a verdict of a jury.
    Logan & Melliss, for appellants. Philip Carpenter, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   The complaint in this case contained two causes of action. The first was to recover damages alleged to have been sustained by plaintiff in the purchase of the negotiable paper of one Keene, which purchase was claimed to have been induced by certain representations made by defendants. The chief question raised on the appeal as to this cause of action, was in reference to a refusal by the trial judge to dismiss the complaint on the ground that no damages had been proven. It was mutually agreed on the trial, that the measure of damages was the difference between the actual value of the negotiable paper and the value it would have possessed at the time of the purchase if the representations had been true; but defendants insisted that no proof had been given as to there being any such difference. The second cause o'f action was for the conversion of certain stock in defendants’ office to the credit of one Wooley. Defendants, acting for the plaintiff, credited him with this stock under their assumption that plaintiff had a right to demand and receive the stock from Wooley. The defendant, while thus holding the stock for plaintiff, pretended to, but did not in fact sell it. The Court (Sedgwick, Ch. J., writing, and Truax, .J., concurring) held, as to the first cause of action, “ that defendants’ contention was correct, and that the complaint as to that cause of action should have been dismissed.” As to the second cause of action, “ that the acts of the defendants above alluded to, with other circumstances, wras either a conversion or made a special case averred in the complaint; and that there was no reason for disturbing the judgment as to this cause of action.”


text:
    Edward N. Dickerson, et al., Respondents v. Simon Scheuer, et al., Appellants.
    Decided June 20, 1888.
    Appeal by defendants from judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial.
    Lyman Rindskopf, for appellants. Henry C. Andrews, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   This appeal in addition to a question of fact, involved a question as to the submission to the jury of the case on the basis of an account stated. The Court held (Freedman, J., writing, and Sedgwick, Ch. J., concurring) “ that the judgment and order should be affirmed,” saying on the question of the submission to the jury of the case on the theory of an account stated : “ Upon the question whether the plaintiffs gave sufficient evidence to call for the submission of their case as one upon an account stated to the jury, it must be held, under the decision of Case v. Hotchkiss, 3 Keyes, 334, that they did. The fact that some of the defendants denied that they had assented to the bill as rendered and promised to pay it, could not defeat such submission but only made the case one for the jury.”


text:
    Antonio Philipe, Appellant v. Boas Levy, et al., Respondents.
    Decided June 20, 1888.
    Appeal by Ann M. Philipe, executrix of the will of Antonio Philipe, denying her motion to open a default taken against Antonio Philipe in his lifetime, and for leave to prosecute the action and to defend and contest the validity of a counterclaim contained in the answer.
    Marsh, Wilson & Wallis, for appellant. L. Edgar Aron and H. Morrison, for respondents.
    Before Sedgwick, Ch. J., and Truax, J.
   The papers showed that the appellant qualified as executrix in Alabama ; that she had never taken out letters in this state, and that she had not been substituted as a party to the action. (Truax, J., writing), held “ that the appeal should be dismissed.” (Sedgwick, Ch. J., writing), held that the order should be affirmed or the appeal dismissed at the option of the respondents.”


text:
    Edwin Gomez, Jr., Appellant v. Edward Joyce, Respondent.
    Decided June 20, 1888.
    Appeal by plaintiff from a judgment in his favor for six cents damages, entered upon the verdict of a jury directed by the trial judge in an action for slander.
    Hector M. Hitchings, for appellant. Thomas F. Magner, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   The Court held (Per Curiam) that the words spoken were actionable per se, and therefore the jury might give exemplary damages as well as damages for plaintiff’s mental disturbance and suffering; and reversed the judgment and ordered a new trial.”


text:
    Ann Crawford, Respondent v. The Delaware, Lackawanna & Western Railroad Company, Appellant.
    Decided June 20, 1888.
    Appeal by defendant from judgment entered upon a verdict in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.
    Hamilton Odell, for appellant. Holmes & Adams, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

The judgment and order should be affirmed with costs.


text:
    Mary J. Conley, Respondent v. The Forty-second Street, Manhattanville & St. Nicholas Avenue Railway Co., Appellant.
    Decided June 20,1888.
    Appeal by defendant from a judgment entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial.
    William C. Trull, for appellant. Herbert W. Grindal and Austen G. Fox, for respondent.
    Before Sedgwick, Ch. J., and Freedman J.
   Per Curiam.

The judgment and order should be affirmed with costs.


text:
    Charlotte A. Baldwin, Appellant v. The New York Central & H. R. R. R. Co., Respondent.
    Decided October 25, 1888.
    Appeal by plaintiff from a judgment dismissing her complaint in an action brought-to recover damages from alleged negligence of defendant’s servants.
    Samuel H. Randall, for appellant. Henry H. Anderson, for respondent.
    Before Sedgwick, Ch. J., and Ingraham, J.
   The only evidence of negligence was a release which defendant received from plaintiff. A point was sought to be raised which was not taken below. The Court held (Per Curiam) “ that the release was not an admission of liability; that on appeal the court could only examine the action of the court below upon matters actually presented on the trial; and affirmed the judgment.”


text:
    Daniel J. Sprague, Appellant v. The Bartholdi Hotel Company, Respondent.
    Decided January 7, 1889.
    Appeal from a judgment entered on the dismissal of the complaint at trial term, and from an order granting an extra allowance.
    David Keane and Rush Taggart, for appellant. Stern & Myers, for respondent.
    Before Sedgwick, Ch. J., Freedman, and Truax, JJ.
   Plaintiff had a written contract with the owner of a building, known as the Hotel Bartholdi, for a lease thereof; he entered into an agreement with one Yale whereby he assigned'all his right and interest in said contract, and the lease to be given under it, to Yale, and Yale agreed to employ him to conduct and manage the Hotel for a certain period at a stipulated compensation ; afterwards Yale assigned to the Bartholdi Hotel Company all the rights and interests he had acquired under his agreement with plaintiff. The Hotel Company discharged the plaintiff, to recover damages for which discharge this action is brought. There was no evidence that the Hotel Company assumed any of the obligations of Yale. On the trial certain parol evidence was offered for the purpose of construing certain written instruments, and was excluded. ’ The Court held (Truax, J., writing, Sedgwick, Ch. J., and Freedman, J., concurring) “ that the Hotel Company was not liable ; that the exclusion of the parol evidence was correct, the instruments not being ambiguous; that there was nothing to show any error in granting the extra allowance; and that the judgment and order should be affirmed.”


text:
    Barker Place, as Executor, etc., Appellant v. Jedediaii K. Hayward, Respondent.
    Decided January 7, 1889.
    Appeal from judgment dismissing the complaint entered on the report of a referee.
    Charles F. Wells, for appellant. J. K. Hayward, respondent in person.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   The case involved questions of fact only. The Court held (Per Curiam) that the judgment should be affirmed.”


text:
    The National Oleo Meter Co., Appellant v. Walter M. Jackson, Respondent.
    Decided January 7, 1889.
    Appeal by plaintiff from a judgment entered after a trial at special term, dismissing the complaint.
    Edmund Coffin, Jr., for appellant. Isaac Angel, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   The appeal involved substantially only questions of fact. The Court held (Per Curiam), that the judgment should be affirmed.”


text:
    Kate Towart, Respondent v. The Broadway & Seventh Avenue Railroad Company, Appellant.
    Decided January 7, 1889.
    Appeal by defendant from judgment entered on the verdict of a jury, and from an order denying a motion for a new trial upon the minutes.
    Samuel B. Clarke, for appellant. Henry B. Stapler, for respondent.
    Before Sedgwick, Ch. J., and Ingraham, J.
   The only question involved was whether the damages were excessive. Per Curiam. The judgment and order should be affirmed, because, considering the testimony, it cannot be held that the jury abused its power to assess the damages.


text:
    Morgan Jones, et al., Appellants v. Adelaide Jones, Impleaded, Respondents.
    Decided February 4, 1889.
    Appeal from an order denying plaintiffs’ motion to strike out certain portions of respondents’ answer.
    T. B. Clarkson, for appellants. David B. Ogden, for respondents.
    Before Sedgwick, Ch. J., and Truax, J.
   The Court held (Per Curiam) “ that where averments in an answer are relevant to ‘the position taken by the defendants, either as a defence or by way of counter claim, they cannot be stricken out; that the correctness of defendant’s position cannot be determined on such motion and the matter stricken out if it be found incorrect; and that the order should be affirmed.”


text:
    Henry Hess, as Assignee etc., Respondent v. Nathaniel Hess, Jr., et al., Appellants.
    Decided March 14, 1889.
    Appeal by defendants from judgment entered upon verdict for plaintiff.
    Otto Horwitz, for appellants. W. J. Townsend, for respondent.
    Before Sedgwick, Ch. J., and Ingraham, J.
   Per Curiam.

Judgment affirmed with costs.


text:
    James Rogers, Respondent v. James McGay, Impleaded, Appellant.
    Decided April 15, 1889.
    Appeal from a judgment in favor of plaintiff.
    Hastings & Southworth, for appellant. James A. Deering, for respondent.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   This appeal involved only a question of fact. The Court held (Dugro, J., writing, Sedgwick, Ch. J., and Truax, J., concurring) “ that the judgment should be affirmed.”


text:
    HARRISON B. MOORE, et al., Respondents, v. THE NEW JERSEY LIGHTERAGE COMPANY, et al., Appellants.

      Injunction.—Equity jurisdiction in an action by citizens of this state against a foreign corporation.

    The plaintiffs, being citizens of. the state of New York, have a right in equity to restrain the defendants, a foreign corporation, from attempting to forfeit their shares of stock, for non-payment of an assessment, of $50 per share, called after the shares had been fully paid for, and such an assessment should not be enforced against them by forfeiture, &c.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 6, 1889.
    Appeal from order enjoining the defendants during the pendency of the action.

      Enos N. Taft, for appellants.

      Abbott Brothers, attorneys, and Albert A. Abbott, for respondents.
   By the Court.—Sedgwick, Ch. J.

The defendant-corporation is foreign, having been constituted by the statutes of New Jersey. I assume that the plaintiffs are residents of this state and that the courts of this state have jurisdiction of the action. The appellants make no question as to the jurisdiótion.

The defendant-corporation made a call upon its stockholders, generally, including the plaintiffs, of $50 per share. In this call it was declared “ that any stockholder might assign, to the corporation, his shares, and that in such a case, the corporation would issue to him a certificate for one-half of the number of shares assigned, and the assignment should be in satisfaction of the call.

The plaintiffs claimed in this action that such a call was not authorized by law, and was invalid because the shares of the company had been before the call fully paid for, and were not assessable and the corporation was not authorized by law to.take anything but cash in payment for shares. It, however, appears that if the plaintiffs were not liable to the threatened consequences of the call, they would not be injured by other shareholders acceding to the terms of the call.

On the papers the plaintiffs’ shares have been fully paid for, and the call should not be enforced against them. The resolution directing the call specifically threatens to enforce it under its charter, that is to proceed to forfeit the shares of those stockholders who do not fulfil the demands of the call. The plaintiffs have a right in equity to restrain an attempt to forfeit their shares. When this restraint is made by order of the court, they are fully protected against any injury that may come from the enforcement of the call against other shareholders. The order below should be modified by enjoining the defendants from proceeding to forfeit the plaintiffs’ shares. The plaintiffs have an adequate pro-

tection at law against any action the corporation ■may bring, for a money judgment upon the supposed obligations of the call.

I do not think that the order of injunction is contrary to the provision of § 1809 Code Civil Procedure, but, omitting the specific injunction against other directors than the one served, will take the question out of the case.

The order is modified, as the opinion suggests, and, as modified, affirmed without costs.

O’Gorman, J., concurred.


text:
    EDWIN H. LOVELESS, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence—Questions to witness on trial.

    A question to Dr. Stimson, an expert witness on the trial, asking his general opinion as to the testimony he had heard in regard to a rupture of certain ligaments of plaintiff’s leg, was properly excluded. The court held that his general opinion as to the said testimony was not evidence.
    The next question to the same witness was also properly excluded, because he was asked to weigh the evidence that he had heard before answering the question, and this was the office of the jury, and also because it did not appear from the question what evidence the witness had heard, or as to what part of the testimony the question was pointed
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 6, 1889.
    Appeal from judgment, entered on verdict of jury, for plaintiff.

      Davies & Rap alio, attorneys, and Howard Townsend, of counsel, for appellant.

      Arnoux, Ritch & Woodford, attorneys, and Haley FisJee, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from alleged negligence of defendant’s servants. The question that on the trial was asked of plaintiff when a witness, and that defendant’s counsel objected to, and that related to the declarations of Dr. Freer, was not answered, and the next question, asked by the court, which was different substantially from the first question, was not objected to.

Dr. Stimson, a witness on behalf of defendant, testified on direct examination that he had heard the testimony that there was a rupture of certain ligaments of plaintiff’s leg. The next question was : What have you to say on the testimony you have heard on that subject ? This question was properly excluded, for his general opinion as to the testimony was not evidence. The next question was properly overruled. It was : Does the testimony you have heard on that subject satisfy your mind as to the existence of any such double rupture ? The witness was here asked to weigh the evidence he had heard. This was the office of the jury. Beyond this it did not appear from the question what evidence the witness had heard, or as to what part of the testimony the question was pointed.

The learned counsel for the appellant has urged that the complaint should have been dismissed under the law of the case of Kelly v. The Manhattan Railway Co., 112 N. Y. 443. The cited case sustains the law as charged by the court below, and the facts of this case differ from the facts in the Kelly case in such respects that the judge below was correct in not dismissing the complaint.

Judgment affirmed with costs.

Freedman and O’Gtorman, J. J., concurred.


author: By the Court—Sedgwick, Ch. J.

text:
    ROBERT F. SHEPARD, MARY N. SHEPARD and FRANCES S. SHEPARD, Individually, and as Administratrix of the Estate of FRANCIS N. SHEPARD, Deceased, and IRENE F. SHEPARD, et al., Infants by Guardian, &c., Respondents, v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.

      Complaint.—Union of several causes of action and parties.—Under Section 484 of the Code of Civil Procedure, it must appear on the face of the Complaint that all the causes, so united, belong to one of the subdivisions of this section, that they are consistent with each other, and affect all the parties to the action.-—Misjoinder.—Injunction, &c.

    It is not a misjoinder if all the plaintiffs have an interest in the action, although it is not a co-extensive interest. The action should concern an interest in common.
    The injunction asked was against the continued operation of the elevated railroad of defendants, and the maintenance of the structure. The remedy for this was one equitable cause of action for the injunction and the recovery of the damages caused, at least, before the commencement of the action.
    Before 1887, Francis N. Shepard, and the plaintiffs Robert F. Shepard and Mary N. Shepard were the tenants in common of the premises affected by the construction and operation of the railroad of defendants. Francis N. Shepard died in 1887, leaving as his heirs two children, who became tenants in common with the owners of the other two undivided third parts. Although the heirs could not recover for damages before the death of their father, yet it was proper to make them plaintiffs. The other tenants in common had a right to recover damages inflicted continuously, from before the death of the father of the children, and afterwards to the bringing of the action, at least. The children had a right to recover one third of the damages from the time of their father’s death; therefore, all the tenants in common became interested in the damage done.
    As to Frances S. Shepard, as administratrix and individually, she had a right to the damage suffered by the land owned by her intestate, Francis N. Shepard, prior to his death, and her personal interest as widow without dower assigned was such an interest as might be protected by an injunction against the effects upon the land in which she had a dower interest.

      Held, that there was no misjoinder of action or of parties.

      Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 6, 1889.
    Appeal from an interlocutory judgment overruling a demurrer to the amended complaint.

      Davies & Rapadlo, attorneys, and Edward S. Rapallo and Brainard Tolies, of counsel, for appellants, argued :—
    I. Causes of action cannot properly be united unless they all affect all the parties to the action. Section 484 of the Code of Civil Procedure, after enumerating nine different classes of causes of action, prescribes the following conditions npon which they may be united in the same complaint: “ But it must appear, upon the face of the complaint, that all the causes of action so united, belong to one of the foregoing subdivisions of this section ; that they are consistent with each other ; and, except as otherwise prescribed by law, that they effect all the parties to the action.” The tendency of Code legislation has been to make the rules of pleading and practice as few and as simple as possible, and to assimilate the legal and equitable procedure. The rule laid down with respect to the joinder of causes of action, viz., that they should all affect all the parties to the action, applies without distinction to causes of action which are legal or equitable, or both. It is enough for the purpose of this appeal to say that it is the law of the land and that it is too short and plain to be evaded ; it must either be obeyed or disregarded. No rule of policy or convenience can sanction the violation of a plain statutory requirement.
    II. Three causes of action are set forth in the complaint. The phrase “ cause of action,” as used in the Code, does not mean merely a connected narrative of one transaction, or the general topic of a controversy. It means a right which may be made the basis of an action. Such a right must be complete, indivisible and of legal cognizance. It is the unit of pleading. No conception in the law is more fixed and definite. The law of procedure could not exist without it. The surest test to determine whether .two causes of action are distinct is that laid down by the court of appeals in Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y., 646, viz., whether judgment on one would have barred the enforcement of the other. Applying that principle to the case at bar, there appear distinctly to be three causes of action in this complaint: (1) A cause of action for damages to the premises described in the complaint prior to the death of Francis N. Shepard. (2) A cause of action for damages to the premises described in the complaint subsequent to the death of Francis N. Shepard. (3) A cause of action for an injunction. Each of these three causes of action could be separately enforced, in a separate action, without barring the right to enforce any of the others, and without the presence in any one of the actions of all the plaintiffs in the action at bar.
    III. The administratrix of Francis N. Shepard is not affected by the cause of action for an injunction. (1) The first cause of action specified under the preceding point does not affect the plaintiffs, Francis B. Shepard, Jr., Irene F. Shepard and Dorothy B. Shepard. It is true that they are the children of Francis N. Shepard, and they may become entitled to an interest in any balance of his personal estate which may remain after the claims of creditors are satisfied. But they have no present legal or equitable title to his unadministered personalty which can make them proper parties to this cause of action. Their interest is almost as contingent as in the lifetime of their father. If an administrator is a trustee for creditors and next of kin, it is a trust ordinarily to be recognized and enforced only in a Surrogate’s Court, and this Court will not assume jurisdiction over it except under special and extraordinary circumstances such as do not appear in this complaint. (2) The second cause of action specified under the preceding point does not affect the plaintiff Frances S. Shepard, either individually or as administratrix. It does not affect her as administratrix, because it is for injuries inflicted to the fealty after her intestate’s death. It does not affect her individually because she has not and has never had any estate in this land, or any right to any portion of the rents and profits. She has merely a contingent interest that, at some future time, dower may be assigned to her out of the land. (3) The third cause of action specified under the preceding point does not affect Frances S. Shepard, as administratrix of Francis N. Shepard. We select this point for a more extended discussion because it cannot be questioned that the complaint states a cause of action for an injunction, or that Frances S. Shepard is a party to t the action ; and if we establish that one of the causes of action fails to affect one of the parties it is sufficient for the purpose of the appeal. Of course it would be possible for circumstances to exist which would make the administratrix of Francis N. Shepard a proper party to the cause of action for an injunction, just as they might exist -in the case of any other person whatever. But no such circumstances appear in the complaint, and the requirement of the Code is, that it shall appear upon the face of the complaint that the causes of action affect, all the parties. The only escape from the conclusion that the demurrer must be sustained lies in the bold suggestion that Frances S. Shepard, as administratrix and Frances S. Shepard individually, constitute one party.

      Peckham & Tyler, attorneys and of counsel for respondents, argued :—
    I. The first and second grounds of demurrer really state the same objection, viz. : that actions are united improperly, as defendants claim. If Francis N. Shepard had not died his brother and sister could have sued with him in one action for all damages suffered. Why should they be compelled to bring two actions merely because of his death ? This precise point has been decided adversely to the defendants by the special and general terms of the Common Pleas in the case of McCrae v. N. Y. Elevated R. R. (decided at General Term in February, 1886) ; see 13 Daly, 302. Judge J. F. Daly there says, at special term: “ Mrs. McCrae, as executrix of Edward P. McCrae,. and also suing in her own right as devisee of the said Edward, is joined as plaintiff with three other persons, who, with the said Edward, were the owners as tenants in common of the premises situated on the northwesterly corner of Greenwich and Eector streets at the time that the structures of the Elevated Eailway, which are complained of in this action, were erected in Greenwich street.” * * * “ All the other plaintiffs except Mrs. McCrae are proper parties to all the causes of action set forth. Mrs. McCrae is both executrix and devisee, and in the former capacity is entitled, with the other plaintiffs, to recover the damages accruing up to her husband’s death, and in the latter capacity is entitled with the other plaintiffs to the damages after his death. The question is whether she can unite both her causes of action in one complaint, it being conceded that the other plaintiffs might do so, as far as their recovery is concerned. Although the demurrer is for a misjoinder of parties, it is in effect a demurrer for uniting improperly two different causes of action on the part of Mrs. McCrae. It would seem unfortunate if these causes of action (which in this case are united in one individual, although she is to recover in different capacities) must be severed, for it requires the splitting of what would be a single cause of action in her co-plaintiffs, viz.: the claim for continuing damages. I think we have authority for holding that there is not an improper union of causes of action, and consequently not an improper joinder of parties plaintiff.” And at the general term, Judge Larremore says : * * * “It does appear from the complaint, as a whole, that the plaintiff has an interest in the cause of action, and is a proper party to its final determination. This action is on the equity side of the court, in which all parties having an interest, contingent or otherwise, are required to be brought in, in order to obtain a final adjudication of the matters in dispute. That a party has asked for more relief than he was entitled to, is no ground of demurrer. If he is entitled to any relief he is properly joined in the action (Price v. Brown, 10 Abb. N. C., 67, and cases there cited). The order appealed from should be affirmed, with costs.” The above case in principle covers this action. In that case. Mrs. McCrae was allowed to recover in two different capacities, namely, as executrix and devisee. In the present case Mrs. Shepard is interested as administratrix and widow. Her children are interested as next of kin and heirs in both past and future damages, and her capacity as administratrix is purely formal to enable her to recover for herself and children the past damage.
    II. The theory of the Code is that all parties in interest in an action must be joined. In the theory of the law the heirs and next of kin are the real parties in interest in an action brought by the administrators. The administrators merely sue without them on the principle that the trustee of an express trust sues without joining with him the person for whose benefit the action is prosecuted. In this aspect of the case, when a person dies, the administrators, heirs and next of kin all together constitute only one party to take his place. See Armstrong v. Hall, 17 How. Pr., 76, where Allen, J., says : “The object of the Code seems to have been to avoid a multiplicity of actions, and to effect, if possible, between the same parties in one action an end of the controversy. The testator, if living, could not recover but in one-action, and by section 111, every action must be brought in the name of the party in interest. The devisees and legatees are the real parties under a will in an action brought by the executors; but, by section 119, the executor or administrator or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.” * * * “ Here the defendant ought not to complain that the plaintiff has commenced but one suit against him when she ought to have commenced two. She unites the right of E> A, as executrix, with the right of E. A. as devisee, both-rights accruing under a contract made by the testator with the defendant, and growing out of the same matter. She has a common interest as executrix and devisee in the subject-matter of the action, and this would be good ground for joining in a court of equity.”
    III. As an individual Mrs. Shepard is interested in abating the nuisance on account of her dower right, and if we had not made her a party the defendants would have demurred for defect of parties. In her individual capacity she is certainly a proper party to an equity suit.
   By the Court—Sedgwick, Ch. J.

The only ground taken on the argument, as a reason for reversal, wasi that the complaint unites causes of action which do not affect all the parties under section 484 of the Code of Civil Procedure, which declared, after union of causes had been allowed by the previous section, “ But it must appear upon the face of the complaint that all the causes so united, belong to one of the foregoing subdivisions of this section, that they are consistent with each other, and. except as otherwise prescribed by law, that they affect all parties to the action.’’

Leaving unconsidered for a while the effect of making a party-plaintiff or parties-plaintiff, Frances S. Shepard individually, and as administratrix of Francis N. Shepard, it may first be said there is not in the complaint more than one cause of action. That is an equitable cause of action for an injunction which carries with it an equitable right to recover the damages that have followed from the trespass, as to which the plaintiffs have the remedy of an injunction. • This latter right to damages is not a separate legal cause of action, but a part of an equitable cause of action. In such case it is proper to make any one who has a common or joint interest in the damages actually done, or in any part of them, a party-plaintiff. Section 446 Code Civil Procedure ; Story’s Equity Pleadings, §§ 72 to 76a. It is not a misjoinder if all the plaintiffs have an interest in the action, although it is not a co-extensive interest. A tenant for life and remainderman may join as plaintiffs in a suit that concerns their interest in the estate (Story’s Equity Pleadings, § 27a) a fortiorari, when the action concerns a common interest. All this is in part grounded on the equitable consideration that as few litigations as possible should be made against the defendants.

The injunction asked was against the continued operation of the elevated road of the defendants and the maintenance of its structure. The remedy for this was one equitable cause of action for the injunction and the recovery of the damages caused, at least, before the bringing of the action.

Before 1887, the plaintiffs, Robert F. Shepard, jyiary N. Shepard and Francis N. Shepard, were the tenants in common of the premises affected by the railroad. In 1887 Francis N. Shepard died, leaving as his heirs his children. The children became tenants in common with the owners of the other two undivided third parts. Although the heirs could not recover for damages before the death of their father, yet, under the rules stated, it was proper to make them plaintiffs. The other tenants in common had a right to recover damages inflicted continuously from before the death of the father of the children and afterwards to the bringing of the action, at least. The children had a right to the one-third of the damages from the time of their father’s death. All the tenants in common had become interested in the damage done. No question is made as to how infant heirs, when plaintiffs, should be represented.

Now, going to the joinder of Frances S. Shepard, as administratrix and individually, it should be held that she had a right, as administratrix, to the. damage that had been suffered by the land owned by her intestate Francis N. Shepard, and that had been suffered before his death, and for that reason could be made plaintiff.

I will also hold that her personal interest, as widow without dower assigned, was such an interest that it might be protected by injunction against the effects upon the land in which she might have an estate in dower. This is an inference from Simar v. Canaday, 53 N. Y. 298. The same case supports the joinder of the other parties.

I further suggest, that as to Frances S. Shepard, individually, the question is, not whether she is entitled to recover as having a right of dower before assignment, but whether her claim-to be so entitled, from its nature, is a part of an alleged cause so that she could be a plaintiff.

The judgment and order should be affirmed with costs.

Freedman and O’Gorman, JJ., concurred.


author:
By the Court.—Sedgwick, Ch. J.
      By the Court.—Sedgwick, Ch. J.

text:
    THE MAYOR, etc., OF THE CITY OF NEW YORK, Appellant, v. JOHN BRADY, et al., Respondents.

      Appeal from order allowing costs to defendants severally.—Injunction, vacation of—Action for new trial, on the ground of newly-discovered facts and evidence.

    The complaint in an action for a new trial on the ground of newly-discovered facts and evidence is of the same nature as the former bill of review in equity, and similar facts should be alleged.
    It should allege the facts newly-discovered, and their nature, in order that the court might exercise its judgment upon their relevancy and materiality with the same particularity as was necessary in the affidavit preliminary to filing a bill of review, or on a motion for a new trial. It should show with precision who were the new witnesses, and the facts to which each could testify. Held, that for the reason, that the complaint in this case fails to show distinctly what are the newly-discovered facts, what is the supposed newly-discovered evidence to establish the same, and who are the witnesses to testify to such facts, the judgment and order appealed from, should be affirmed.

      Also held, that the order of a judge allowing defendants their costs severally in an action, is conclusive when he was of the opinion that the several demurrers were interposed in good faith for the protection of their several interests.
    In" the appeal from an order vacating an order of injunction in the case; Held, that the preponderance of the evidence to support the allegation of fraud in the complaint was not with the plaintiff, and even if it were clear that some fraud of some kind had been perpetrated, there was no proof that the particular fraud alleged in the complaint had been committed, and therefore the order is affirmed.
    Before Sedgwick, Oh. J., Freedman and O’Gorman, JJ.

      Decided May 6, 1889.

      Appeal by plaintiff from interlocutory judgment, entered upon orders sustaining demurrers interposed by each of the defendants to the plaintiff’s complaint.
    Appeal from order allowing defendants appearing by different attorneys, their costs severally.
    Appeal from an order vacating the injunction theretofore granted in the action.

      Henry R. Beehman, counsel to the corporation, and David J. Dean and Arthur H. Hasten, of counsel, for appellant, argued:—
    I. The complaint clearly charges that it was the fraudulent act of Brady which was the immediate means of his procuring the contract on which these judgments were based. Under this point may be considered several questions which have been raised with regard not only to the form of the pleading, but as to the effect of the acts sought to be charged therein. 1st. The various fraudulent acts committed by Brady took place before the contract was let. 2d. The contract would not have been awarded to Brady except for these fraudulent misrepresentations made by his procurement. 3d. The fraudulent acts of Brady were committed with full knowledge of the facts, and with the intent of profiting by the result of his acts. 4th. The fraud practiced by Brady through Duffy was direct fraud upon the officers of the city.
    II. The complaint fully shows the reasons why the evidence now presented was not available at the time when the judgments were entered and that the absence of • such evidence was due to no fault or neglect on the part of the city.
    III. The city is entitled to relief by injunction as prayed for in the complaint, either restraining the prosecution of the pending suit, or, if that is not granted, restraining the defendant Brady from offering in evidence on the trial of the pending suit the judgments in the former action.
    IV. There is no force in the suggestion that the ' court is without power to grant the relief sought herein on account of the length of time that has elapsed since the judgments were rendered.
    V. The court below erred in allowing more than one bill of costs against the plaintiff.

      E. Laflin Kellogg, attorney, and John Brady and Bernard Brady, of counsel, for respondents, argued:—
    I. The complaint fails to state any cause of action against these defendants, for the reason that it appears upon the face of the complaint that the precise questions which it desires here to be litigated have been adjudicated upon by this court in former judgments rendered in the actions of Bernard Brady against the city and John Brady against the city and in the motions made for a new trial in those cases before this court, passed upon by the special term, and general term of this court, and court of appeals.
    II. The judgments and orders above referred to having made the questions of actual and constructive fraud “ res adjudícala,” in the absence of allegations of fraud in their concoction (and the judgments having been satisfied and paid), the plaintiff is not entitled to relief by injunction to prevent the judgments being given their legal effect by being offered in evidence.
    III. The prosecution' of the action by Bernard Brady against the Mayor cannot be restrained under any of the allegations of the complaint.
    IV. Another fatal defect in the complaint which leaves out" of consideration all the principal subjects heretofore discussed is that there is a complete absence in the complaint of any statement that any of the defendants knew that the statement alleged to have been made by Dufiy to Viele was false. The necessity of alleging “ scienter ” on the part of a party charged with fraud is too well settled.
    Y. The contract cannot now be set aside in any event, even in spite of the adjudication of its illegality, for the reason that the plaintiff having accepted the work under the contract and the street itself, and devoted it to public use, is not in a position to restore the defendant contractor to his original status.

      Arthur N. Smith, attorney and of counsel, for respondent, The Laflin & Rand Powder Company.

      Jar dine Lyng, attorney and of counsel, for respondent Henry J. Morris.
   By the Court.—Sedgwick, Ch. J.

The complaint seeks to set aside judgments at law, in several actions that have been tried, and to interpose the defence of fraud in those actions. The plaintiff’s right, as claimed for this relief, is placed upon those allegations of the complaint that relate to the plaintiff’s claim, that the fraud was discovered, since the judgments, from evidence, also since then discovered.

I do not examine whether the defence, if interposed and sufficiently proved, would result in a verdict for plaintiff, and do examine the complaint, to ascertain, whether it shows that such a defence would be sustained by the evidence that the complaint alleges has been newly discovered.

The present complaint is of the same nature as the former bill of review that might be brought* upon the discovery of new matter. To secure leave of the court, which it was necessary to obtain to file the bill, it was also necessary to present an affidavit that, among other things, should show the nature of the new matter, in order that the court might exercise' its judgment upon its relevancy and materiality. The new matter was to be such as, if known, would probably have, produced a different determination. Story’s Equity Pleadings, §§ 412, 413; Wiser v. Blachly, 2 Johns. Ch., 488; Livingston v. Hubbs, 3 Ib. 124; 2 Dan. C. P. 1578, note. This was the rule in the case of an application for a review in equity. But its principle applies to a case of a judgment at law which a complaint asks to review. Of this, it is said, that a new trial will not be granted unless there can be no doubt as to the result if the case goes to another jury. 2 T. & W. L. C. in Eq., p. 1383.

In motions for a new trial at law for newly discovered evidence, it was necessary to show with precision who were the new witnesses, and the facts'to which they could testify. It is generally necessary to present the affidavit of the new witness. This was to show the court that a different result would probably follow the introduction of new proof.

Equity refused to interfere, when there might be relief by motion at law. Simson v. Hart, 14 Johns. 77.

I am of opinion that a complaint, like the present, if sustainable as setting forth a cause of action, should allege the facts newly discovered with the same particularity as was necessary in the affidavit preliminary to filing a bill of review, or as is necessary on a motion for a new trial, and that especially it should allege the facts, and not merely the result of the judgment of the plaintiff upon the facts said to be newly discovered.

The_ case made by the complaint, in respect of matters now under review, is sufficiently described by the following references to it. 'After alleging that certain investigations were made it proceeds thus: “As the result of such investigation this plaintiff is now in possession of numerous facts which constitute a sufficient defence, which said facts are of such a nature that they could not with the exercise of due diligence, have been discovered in time for their production upon the trial, &c., &c. Such facts were derived in many instances, from the statements of laboring men, or from employees of the defendant, or residents of the vicinity, &c., &c. In other instances they were derived from the statements of engineers and others.” It does not here appear that the matters, called facts, were facts, or what was their weight and significance. It does not appear to the judgment of a court that the matter would tend to support a defence of fraud. The allegations disclose no more than the opinion of plaintiff.

The complaint, also as to Duffy alleges: “ Said Duffy was twice called as a witness and examined de bene esse on behalf of the defendant Bernard Brady in the suit before referred to, in which he is plaintiff, under a pretended claim that said Duffy was about to leave the State, the first of such examinations being held on the 6th day of March, 1886, and the second on the 28th day of January, 1887. Between the dates of such examinations, to wit, on the 29th day of July, 1886, and the 7th and 13th days of December, 1886, and the 8th day of January, 1887, said Duffy was examined before the Commissioners of Accounts, and from the testimony there given by him in connection with his cross-examination upon his second examination de bene esse, and certain other independent examinations made by said commissioners, the evidence was obtained of the fraudulent and corrupt manner in which the aforesaid report was procured and the award of. said contract thereby effected. Such evidence was not complete, however, nor available to this plaintiff, until some months after the preparation of said affidavits and motion papers.

In this, a general inference from many things, is called evidence. Whether the pleader is justified in calling it evidence is not made to appear. There is no statement of what the facts are and of the witnesses who can prove them, and whether the testimony of such witnesses can now be produced. The complaint does not allege what Duffy testified, and what he is now willing to testify to. From the generality of the statement it is possible that facts sufficient to apprize the plaintiff of the fraud, and which are the facts upon which the plaintiff substantially relies to prove the fraud, came to its knowledge in time for their use before Judge Van Yorst’s decision. If this were so, the plaintiff might have had the legal remedy to which it should resort before resorting to equity, 2 Paige, 321; Dodge v. Strong, 2 Johns. Ch. 228, and cases cited. The complaint in saying “ such evidence was not complete nor available to this plaintiff,” puts a construction upon the evidentiary force of the facts which might not be justified if the facts were alleged and the exact time when they were first known.

For the reason that the complaint does not show what is the supposed newly-discovered evidence, and who are the witnesses that can give it, the judgment and order appealed from should be affirmed.

In the appeal from the order allowing the defendants their costs severally, the finding of the judge on the facts before him is conclusive. He was of the opinion that the several demurrers were interposed in good faith for the protection of several interests.

Order affirmed with $10 costs.

Freedman and O’Gorman, JJ., concurred.

In the same case.

Appeal by plaintiff from an order vacating an order of injunction.

Same counsel.

By the Court.—Sedgwick, Ch. J.

On the motion below the facts of the case were fully examined. The preponderance of the evidence to support the allegation of fraud in the complaint was not with the plaintiff. Perhaps the plaintiff very thoroughly showed the worthlessness of Duffy as a witness. It was not shown that his testimony could be relied upon to prove the fraud. Even if it were clear that some fraud of some kind had been perpetrated, there was no proof that the particular fraud set up in the complaint had been committed. It is also manifest that upon a trial the method of the examination of Duffy would be objectionable in vital respects.

The complaint is also demurrable.

The order should be affirmed with $10 costs to abide the event of the action.

Freedman and O’Gorman, JJ., concurred.


text:
    PETER F. MASTERSON, Respondent, v. JOHN TOWNSHEND, et al., Appellants.

      Demurrer in ejectment, on the ground that complaint does not state facts sufficient to constitute a cause of action.

    In certain cases a person claiming as heir, and being collateral, should aver in his complaint that there are no descendants of the intestate, nor father or mother living, thus showing how he became an heir ; but in a case like this under consideration, where the plaintiff claims no particular estate nor any cause of action in an ancestor, but claims in his complaint an estate in fee simple, the rule is different, and it is sufficient for him to state a seisin in fee simple, that is, to simply allege that he was “ seized in his demesne as of fee of and in a certain messuage, &c.

      Held, That the complaint in this action is sufficient under this general rule.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 6, 1889.

      Appeal by defendants from an interlocutory judgment overruling a demurrer to the complaint entered upon an order for such interlocutory judgment.

      John Townshend, for appellants.

      George Wilcox, for respondent.
   By the Court—Sedgwick, Ch. J.

The action is in ejectment. The' complaint alleges that William H. Masterson had owned in fee an undivided half of certain land ; that he died, leaving a will which created a trust in the land; that said trust had determined ; that plaintiff claims as one of the children of one James Masterson, who was a brother of William H. Masterson, or, in other words, plaintiff claims as a nephew of William H. Masterson. The complaint on this point alleges (subdivision 7) “ that the said William H. Masterson left him surviving, his widow, Mary Masterson (now Mary McNulty), and John S. Masterson, Hugh Masterson, Peter Masterson and James Masterson, her brothers, Mary Agnes Coleman and Ann E. Treacy, his sisters, his only heirs-at-law.”

(Subdivision 8). “ That on or about the 28th day of May, 1879, the said James Masterson died intestate, leaving him surviving, his widow, Theresa Masterson and Henry B. Masterson, Peter T. Masterson, the plaintiff herein, Julia E. Jenkins and Annie E. Clark, his children and only heirs-at-law.”

The defendants demurred, on the ground that the complaint does not state facts sufficient to constitute a cause of action.

For the demurrer it is argued that, whether one is an heir is a conclusion of law, from the facts that concern the existence or non-existence of individuals who may stand as descendants or collaterals, etc., of a deceased, and that, therefore, a plaintiff claiming as heir, being a collateral, should aver that there were no descendants or father or mother living, and cases are cited to show that, when it is necessary to allege that plaintiff is heir of an ancestor, it is necessary to show how he is heir.

It is not denied that, in certain cases, such a rule is to be applied. In a case, however, where the plaintiff claims not a particular estate, or a cause.of action in an ancestor, where he must show how, by the succession of the estate, he derives a title to the action, but claims an estate in fee simple, the rule is general, and it is sufficient to state a seisin in fee simple per se; that is, simply to state that the party “ was seized in his demesne as of fee of and in a certain messuage,” &c. Stephen on Pleading, 9 Am. ed., 305 (306).

The complaint in its 9th subdivision alleges, “ that, by reason of the matters hereinbefore set forth, plaintiff became and is now seized in fee of one undivided sixtieth interest in the premises hereinbefore described and entitled to the immediate possession thereof.” The complaint is therefore sufficient, unless, at least, the “ matters hereinbefore set forth,” show on their face that plaintiff was or is not seized in fee. ■ The matters are not inconsistent with a fee simple in the plaintiff. They may be looked upon as matters of inducement, and certainly apprize the defendants of the course of title under which plaintiff claims. It is not now considered whether or not the plaintiff can claim another title than that derived as the complaint states.

I am, therefore, of the opinion, that the judgment and order should be affirmed with costs.

O’Gorman, J., concurred.