text:
    Anthony Yeoman et al., Appellants, v. John Townshend et al., Respondents.

      Action for actual fraud — fraud not 'presumed — burden of pi'oof — pu/rchase at a sale by an attorney conducting the same — how repudiated — Statute of Limitations — application of, to, different trusts.

    When an action is brought based upon actual fraud, and a finding is made, justified by tbe evidence, that no actual fraud was proved, tbe complaint should be dismissed.
    When actual fraud is alleged it will not be presumed, and the burden of proof is upon the parties alleging it.
    Where an attorney who has conducted a sale becomes the real purchaser thereat, his client may avoid the sale and claim the benefit of the purchase, and to entitle the client to such relief he is not required to allege or prove any fraud. Such a purchase is one which equity forbids, and to avoid which all that need be shown is the relation between the parties and the purchaser, and if this appears it is optional with the principal to repudiate or affirm the contract of sale, irrespective of any proof of actual fraud.
    A. distinction must be drawn'with respect to the Statute of Limitations between an actual, express, subsisting trust, or a case of actual fraud, and the case of an implied trust, of a trustee ex mal officio or a constructive fraud. In the two former the statute does not begin to run against the beneficiary or cestui que trust until the trustee has openly, to the knowledge of the beneficiary, renounced, repudiated or disclaimed the trust; while in the latter cases the statute begins to run from the time the wrong was committed by one chargeable as trustee by implication. The ten-year provision of the Statute of Limitations held to be applicable to the present case.
    Appeal by the plaintiffs, Anthony Yeoman and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the city and county of New York on the 7th day of March, 1893, upon the decision of the court, rendered after 'a trial at the New York Special Term, dismissing the plaintiffs’ complaint.

      John S. Davenport, for the appellants.

      John Townshend, for the respondents.
   O’Brien, J.:

The complaint alleges that in 1865 John Townshend, then and still an attorney and counselor at law, approached one Anthony Yeoman, now deceased, and informed him that by reason of his relations to persons who had an interest in four lots of land at Eightieth street and Eleventh avenue he was possessed of certain rights therein, and requested to be intrusted to bring'a suit in partition to settle the rights of the different parties, which request was acceded to and a partition suit was subsequently commenced. It is further alleged that upon a sale in such partition suit, although the property was bid off in the names of others, it was in fact purchased by Townshend, who thereafter, by various devices, succeeded in preventing the knowledge of such purchase being brought home to those who, after the death of Anthony Yeoman in 1871, were interested in the property. Upon such facts amplified, the complaint, by way of relief, demands that Townshend be adjudged to hold the title to such premises in trust for the plaintiffs.

°The first question presented relates to the form of the action, as to whether it is one founded on actual or constructive fraud. If the former •— and this, as we understand it, is the plaintiff’s contention — then, upon the finding made by the learned judge below, that no actual fraud was proven, which finding is justified by the evidence, the complaint upon this ground was properly dismissed. "Where actual fraud is alleged it will not be presumed, but the burden is on the parties alleging it to prove it.

Hpon the theory of constructive fraud, which presents the other phase by which the rights of the plaintiffs may be determined, we shall take the facts as presented most favorably to the plaintiffs.

The charge is that the defendant Townshend, as an'attorney, purchased the property put up for sale, which, it is insisted, entitled the plaintiffs, as heirs at law of Anthony Yeoman, deceased, and as parties to such partition suit conducted by the attorney, to avoid the sale and have it adjudged to be made for their benefit.

The defenses interposed were, that the attorney did not purchase at the sale, and that if he did, the plaintiffs have, by lapse of time, lost their right to avoid the sale.

Notwithstanding the tendency of the evidence, which would seemingly show that the property was originally bought at the sale by one Huntington, who thereafter sold two of the lots to the wife of the defendant Townshend, and two to one Mitchell, who subsequently sold them to a Miss Langdon, by whom, in 1887, they were conveyed, to Townsliend, we shall assume, as did the trial justice, that the attorney, though not in name, was in reality the purchaser at such sale.

It may be regarded as settled, that where an attorney who has conduct of a sale becomes a purchaser, his client may. avoid the sale and claim the benefit of the purchase. (Fulton v. Whitney, 66 N. Y. 548.) And to entitle the client to such relief, he is not required to allege or prove any fraud, because such a purchase is one which equity forbids, and to avoid which all that is necessary to be shown is the relation between the parties and the purchase. This appearing, it is at the option of the principal to repudiate or affirm the contract of sale, irrespective of any proof of actual fraud.

Where, therefore, no actual fraud has been proven, and the relief, if granted, is to be upon the theory of constructive fraud, the question is, what lapse of time will bar the action?

The sale was in 1867; the plaintiffs’ ancestor did hot die until 1871; and from the date of the sale until Ms death in the latter year, he took no action to repudiate the sale. This action was commenced in 1892.

The unauthorized purchase by an attorney of propérty intrusted to him to sell is sometimes termed a constructive fraud, and the attorney is termed a trustee ex mal officio. A distinction must be drawn with respect to the Statute of Limitations between an actual, express, subsisting trust or a case of actual fraud, and the case of an implied trust, of a trustee ex mal officio, ora constructive fraud. In the two former the statute does not begin to run against the beneficiary or cestui qtie trust until the trustee has openly, to the knowledge of the beneficiary, renounced, repudiated or disclaimed the trust, while in the latter cases the statute begins to run from the time the wrong was committed, by one chargeable as trustee by implication. This distinction is recognized • by our Code of Civil Procedure. Thus, by section 410 it is provided that where a right grows out of the receipt or detention of money or property by an agent, trustee, attorney or other person acting in a fiduciary capacity, the time must be computed from the time when the person having the right to make the demand has actual knowledge of the facts upon which that right depends.

The two principal witnesses for plaintiffs, with some reluctance and some qualifications as to the exact date when the knowledge came home to them, admit that as early as 1871 they heard or were informed in some way of the claim made by the defendant Townsliend to the property in question, but refrained .from taking any action for more than twenty years thereafter. If, therefore, section 410 were applicable, we do not think the plaintiffs would receive much comfort therefrom, for it thus appears that as to some of the plaintiffs, at least, the right to demand the property was complete from the time that they were apprised of the attitude of the defendant in claiming the property as his own, and from that time, undoubtedly, the statute would run.

We do not think, however, that upon the facts here appealing section 410 is applicable, but agree with the view-taken by the learned trial justice, to whose reasoning nothing need be added, that the ten years’ Statute of Limitations, as provided by section 388, applies, and in dismissing the complaint upon the ground that it was barred by lapse of time, we think he correctly disposed of the case.

The judgment appealed from should, therefore, be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    Maud Eva Slaven Depierris, Appellant and Respondent, v. Henry B. Slaven and Another, as Executors, etc., and Others, Respondents and Appellants.

      Order'for examination before trial — defective affidavit.

    [t is a fatal objection to an order for examination before trial, granted on the application of the plaintiff in a pending action, that the papers on which the order was made failed to set forth either the residence or office address of the plaintiff’s attorney.
    Such an omission constitutes a failure to comply with the requirement of subdivision 1 of section 872 of the Code of Civil Procedure, that the affidavit for such an order shall, if either of the parties to the action has appeared by attorney, set forth the residence or office address of the attorney.

      Appeal by the defendants, Henry B. Slaven and Ellen A. Slaven, from so much of an order made at Special Term, and entered in the office of the clerk of the city and county of New York on the 1st day of November, 1893, as denied their motion to vacate as to their examination an order theretofore obtained by the plaintiff for the examination of them and certain others (not parties to the action) before trial; and also an appeal by the plaintiff, Maud Eva Slaven Depierris, from so much of the same order as vacated the order theretofore obtained by her for the examination of certain persons not parties to the action.
    The affidavits upon which the order for the examination was made stated that the defendants had appeared in the action, and set forth the names and office and post-office address of the defendants’ attorneys, but failed to show either the residence or post-office address of the plaintiff’s attorneys.
    Section 872 of the Code of Civil Procedure provides that: “ The person desiring to take a deposition, as prescribed in this article, may present to a judge of the court in which the action is pending, * * * an affidavit setting forth as follows :

      “ The names and residences of all the parties to the action, and whether or not they have appeared, and, if either of them has appeared by attorney, the name and the residence or office address of the attorney. ' * * * ”

      G. H. Adams, for the plaintiff.

      A. H. Joline, for the defendants.
   Per Curiam :

The objection that the papers upon which the order for examination was granted did not comply with subdivision 1 .of section 872 of the Code seems to be fatal to this proceeding.

The order denying the motion to vacate the order for examination should be reversed, with costs, and the order vacating the examination as to persons not parties to the action should be affirmed. Upon payment of which costs the plaintiff has leave to renew her application for examination of defendants.

Present — Yan Brunt, P. J., O’Brien and Parker, JJ.

So ordered.


text:
    In the Matter of the Judicial Settlement of the Accounts of Jean Alice Bradway, as Executrix, and Samuel C. Mott, as Executor, etc., of Eunice A. Roberts.

      Appeal — in the absence of findings or refusals to find, no question cam, be reviewed.

    Wliere, upon a compulsory judicial settlement of the accounts of an executor, the surrogate modifies the report of a referee to whom the accounting was referred as to one item, which modification is found only in the final decree, and there is, on the part of the appellants, no exception to the modification or to any finding or refusal to find, either by the surrogate or the referee, and the surrogate neither makes nor is requested to make any findings or decision, an appeal, from the decree brings up no question for review.
    Appeal by Jean Alice Brad way, as executrix, and Samuel O. Mott, as executor, etc., of Eunice A. Roberts, deceased, from that portion of a decree of the surrogate of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 31st day of July, 1893, which settled and allowed their accounts as executor and executrix, modifying, and confirming as modified, the report of a referee.

      Jacob F. Miller, for the executrix and executor, appellants.

      H. B. Closson, for the petitioner, respondent.
   Per Curiam :

A petition having been presented by one Smith to the surrogate-to obtain an accounting from the executrix and executor, and ¡he prayer of the petition having been granted and an accounting ordered, the same was referred to a referee, among other things, to examine the account of the executors and the ob jections of the petitioner thereto, and to hear and determine all questions arising upon the settlement of such account. Thereafter the referee made his report, and upon the motion to confirm the same it was modified as to a single item of sixty-tliree dollars and ten cents, which by the final decree of the surrogate was directed to be paid to the petitioner, and the account of the executors was in other respects approved and settled. The decree in addition allowed the petitioner the sum of $128.87 for bis costs, counsel fees and disbursements in the proceeding.

Requests to find were presented to the referee and passed upon by him, and to his refusal to find certain of the requests presented by the petitioner exceptions were filed. The modification of the referee’s report is to be found only in the final decree, no requests having been made or passed upon by the surrogate, and no exceptions having been filed to the modification, the appellants confining themselves to a notice of appeal.

In view of the small amount involved, it was of doubtful benefit, in any event, to the estate to have the executors appeal; but whether they are right or not in the questions sought to be presented as to the surrogate’s conclusion with respect to the sixty-three dollars and ten cents; we think the point well taken by the respondent that there is nothing before us for review and that his statement is correct.

The surrogate made and was requested to make no findings or decision; and there is not an exception by the appellants to any finding or refusal to find, either of surrogate or referee. Under these circumstances their appeal brings up no question for review. The point has been decided over and over again.

Matter of Accounting of Executors of Sprague (125 N. Y. 732), by the court, Earl, J.: The surrogate did not make any findings, as required by section 2515 of the Code, and the record does not contain any exceptions to the findings or to the decision of the surrogate. Therefore, the General Term did not have jurisdiction on the appeal to it to review the surrogate’s decision upon the facts, and neither has this court-. If the appellant desired to bring to the General Term or to this court questions of fact or of law involved in the accounting, and to review the decisions of the surrogate in reference thereto, he should have procured findings of fact and of law, and should have made proper exceptions thereto. (Hewlett v. Elmer, 103 N. Y. 156, 164; Matter of the Judicial Settlement of Kellogg, 104 id. 648; Angevine v. Jackson, 103 id. 470).” (Matter of Kellogg, 104 N. Y. 648; Matter of Marsh, 45 Hun, 108; In re Falls’ Estate, 10 N. Y. Supp. 41; Matter of Prout, 18 N. Y. Civ. Proc. Rep. 270; Matter of Moulton, 32 N. Y. St. Repr. 631; Matter of Otis, 6 id. 592; Matter of Peck, 39 id. 231; Matter of Hood, 104 N. Y. 103, 106.)

The appeal should, therefore, be dismissed, with ten dollars costs and disbursements to respondent.

Present — Yan Brunt, P. J., O’Brien and Parker, JJ.

Appeal dismissed, with ten dollars costs and disbursements to respondent.


author: Eollett, J.: “ Ingraham, J.:

text:
    Continental National Bank of Boston, Respondent, v. Horace K. Thurber, Appellant, Impleaded with Others. Same v. United States Book Company and Others.

      Substituted service of summons — constitutionality of section 435 of the Gods of Giml Procedure —facts authorizing a substituted service.

    Section 435 of the Code of Civil Procedure, providing for a substituted service of a summons upon residents of the State of New York, in lieu of personal service, is not violative of the constitutional provision that a person shall not be deprived of his property without due process of law.
    Every sovereignty has power to regulate the procedure of its courts and prescribe the rights which plaintiffs may acquire and the liabilities which may be imposed on resident defendants by the judgments of its tribunals.
    What facts presented upon an application for an order for substituted service are sufficient to authorize the court to grant the order.
    When the affidavits read in support of a motion to vacate the order for,substituted service do not establish the fact that the defendant’s place of sojourn could have been ascertained by the plaintiff or his attorney.
    Appeals by the defendant, Horace K. Thurber, from an order of tlie Supreme Court, made at the New York Special Term and entered in tbe office of the clerk of the city and county of New York on the 12th day of October, 1893, denying the defendant’s motion to vacate a judgment against him; and also from an order made at the New York Special Term and entered in the said clerk’s office on the 22d day of September, 1893, denying the defendant’s motion to vacate an order permitting a substituted service upon him of the summons in the action.

      H. Aplington, for the appellant.

      James Byrne, for the respondent.
   Eollett, J.:

Tliis action was brought to recover of the appellant the amount clue on a hill of exchange, dated January 18, 1893, drawn and payable at the city of New York, and indorsed by the defendant at that city. "When the bill was drawn the defendant was, and lias ever since remained, a resident citizen of this State. The summons in this action was issued August 10, 18^3, and on the twenty-third of the same month an order for the substituted service of it on the defendant was granted, jmrsuant to section 435 of the Code of Civil Procedure.

August 23, 1893, the summons and order were served on the defendant by leaving copies of them at his residence with a person of proper age, pursuant to said order and section 436 of the Code. The defendant failed to appear in the action, and September 16, 1893, judgment was entered against him, which he moved to vacate on the following grounds:

1. That the court had not, at the date the said order for substituted service was made, nor at the date said judgment was rendered, jurisdiction over the person of said Horace K. Thurber.
2. That said judgment, being a personal judgment, is void, as there has been no personal service of the summons herein upon said Horace K. Thurber.
3. That section 435 of the New York Code of Civil Procedure, under which said order for substituted service was made, is unconstitutional, being contrary to the provisions of article Y and article XIY of the amendments to the Constitution of the United States.
“ 4. That said judgment was so rendered against said Horace K. Thurber without due process of law.”

The motion was denied and said defendant appeals from the order. The appellant’s sole point, which he has divided into four, is that the court did not acquire jurisdiction to render a personal judgment against him, not because all of the steps required by the Code were not duly taken, but because the legislation establishing the procedure for the substituted service is violative of the provision of the Constitutions of the United States and of this State, that a person shall not be deprived of his property without due process of law. A citizen of a State is bound by its la-ws, both substantive and those regulating judicial procedure. Acquiring jurisdiction of resident defendants by constructive service of process is a proceeding according to tbe course of the common law, and is due process of law. This kind of service was not unknown to the common law, but was an authorized mode by which the English courts of law, and of equity, from the earliest times acquired jurisdiction of resident defendants. (3 Black. Com. 3ÍJ3, 445.)

Anciently, if a citjzen refused to appear and answer to the process of the courts of England he was outlawed and his property taken to satisfy the just demands of his creditors. (2 Reeves’ Hist. Eng. Law [Finlason’s ed.] 308; 6 Bracton [Twiss’ ed.] 477, et seg.; 2 Sellon’s Pr. [1st Am. ed.] 277.)

In this State outlawries in personal actions were regulated by chapter 9 of the Laws of 1787, and the practice in such cases is stated in chapter 10 of 'Wyche’s Practice, the first work published on the procedure of the courts of this State.

Every sovereignty has power to regulate the procedure of its courts and prescribe the rights which plaintiffs may acquire and the liabilities which may be imposed on resident defendants by judgments recovered in its tribunals. (Hunt v. Hunt, 72 N. Y. 217; Rigney v. Rigney, 127 id. 408; Mackay v. Gordon, 34 N. J. Law, 286; Piggott For. Judg. 130; Schibsby v. Westenholz, L. R. [6 Q. B.] 155.)

In the case last cited Lord Blackburn said : “ Now, on this we think some things are quite clear on principle. If the defendants had been, at the time of the judgment, subjects of the country whose judgment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been, at the time when the suit was commenced, resident in the country, so as to have the benefit of its laws protecting them, or,’ as it is sometimes expressed, owing temporary allegiance to that country, we think that its laws would have bound them.” This was said in an action brought to recover on a judgment recovered against the defendants in France. The defendants were not domiciled in France nor subject to the jurisdiction of the French court. They had no notice nor knowledge of the proceedings, and did not appear in the action. All countries having judicial systems provide modes by which resident citizens can be bound by the judgments of its courts without personal service of the process, and. abstracts of the statutes of many States and countries will be found in Piggott on Judgments.

The motion to vacate the order for substituted service was made upon the following grounds :

First. That this court had and has no jurisdiction over the person of defendant, Horace K. Thurber, herein.
Second. That the papers upon which said order was granted were not sufficient to authorize the court or judge to grant said order.
“ Third. That the affidavits produced herein on behalf of said defendant, Horace K. Thurber, disclose the fact that the place of sojourn of said Horace K. Thurber could have been ascertained by the plaintiff or its attorneys, and for such other or further relief as to the court may seem just and proper.”

We think that the papers upon which the order was granted were entirely sufficient to authorize the court to grant it, and that the affidavits upon which the motion was heard do not disclose the fact that the place of sojourn could have been ascertained by the plaintiff or its attorneys.

The opinion upon this question, delivered at Special Term, which was the only one discussed by the learned judge, clearly shows that sufficient facts were shown by the moving affidavits to justify the order.

The orders should be affirmed, with ten dollars costs on each appeal.

Yan Brunt, P. J., and Parker, J., concurred.

The opinion delivered at Special Term is as follows:

“ Ingraham, J.:

The question to be determined on this motion is whether or not the plaintiff had made diligent efforts to serve the summons upon the defendant, and whether the plaintiff could ascertain the place of his sojourn, not whether the defendant’s intimate friends, relatives and attorney had knowledge of the defendant’s place of sojourn, and I think in this case the plaintiff did make reasonable efforts to ascertain the defendant’s place of sojourn. He called upon the defendant’s brother, and it does not appear that information was given as to the place where the defendant at that time could be found.
“ He called at his house and no information could be obtained there ; he requested an appearance from the defendant’s attorney, and was informed that there was no authority to appear; and it now appears as a fact that the defendant was at the time traveling in the ‘southwest, and it does not appear that any one at that time knew the exact place of his sojourn.
There was no intimation given to the plaintiff’s agent who had called at the defendant’s house that there was a person in the house who could give any information upon the subjeqt, nor was it intimated that there was at that time a housekeeper in the house, and there is nothing to show that any information was given to the plaintiff or his agent, nor any answer to all the inquiries that were made, by which the place of the defendant’s sojourn at the time could be ascertained.
“ It is not necessary to find that the defendant was endeavoring to conceal the place of his sojourn. It is enough to say that he left the State and remained away for several months without leaving any one behind to represent him or give any information that would enable a stranger to ascertain his whereabouts.
“ I think, therefore, the order was properly granted, and that the motion to vacate should be denied.”


author: Dykman, J.:

text:
    Frederick W. Helmke, Plaintiff, v. Henry J. Stettler, Defendant.
   Motion denied, with ten dollars costs.—

Dykman, J.:

This is a motion for a reargument of the appeal in this action. The action was for the recovery of damages resulting to the plaintiff from the kick of a horse. The appeals were from the judgment and order denying a motion for a new trial on the minutes of the court, and also from an order denying a motion for a new trial upon newly discovered evidence. The case was fully examined and an opinion was written in the case. The appeals presented no difficult questions. The verdict and judgment were in favor of the plaintiff, and were amply sustained by the testimony. The affidavits upon which this motion is based fail to make a case for a reargument. Nothing was overlooked and no principle of law has been violated, and there is nothing to induce a belief that any different conclusion could or should be reached. The motion should be denied, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J. concurred.


text:
    Lucy S. Morrison, as Administratrix, etc., Respondent, v. The Metropolitan Telephone and Telegraph Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.—

Dykman, J.:

This is an appeal from a judgment against the defendant entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial upon the minutes of the court. The case has been here before upon an appeal by the plaintiff from a judgment dismissing her complaint, and we then expressed our views of the case and decided that the dismissal of the complaint was erroneous and $iat the case was one for the jury. There has now been a new trial and a verdict for the plaintiff. Our views were fully expressed in the former opinion (69 Hun, 100), and require no further * elaboration at this time. The case of the plaintiff was somewhat strengthened upon the second trial, and the verdict meets our approbation. The judgment and order should be affirmed, with costs.

Barnard, P. J. and Pratt, J., concurred.


text:
    Ella G. Jamieson and Others, Respondents, v. The Kings County Elevated Railway Company, Appellant.
   Judgment affirmed, with costs.—

Dykman, J.:

This is an action to restrain the operation of the elevated railway of the defendant in front of the premises of the plaintiff in Fulton street in the city of Brooklyn, and for the recovery of the damage resulting from such operation to the said property. The cause was tried before a justice of this court at Special Term without a jury. The evidence sustained the allegations of the complaint and entitled the plaintiff to the relief demanded therein. The trial judge found the facts in favor of the plaintiff, and judgment was entered upon such findings irom which the defendant has appealed to this court. The case of Storck v. N E R Co. (131 N. Y. 514) is sufficiently like this to be a controlling authority in favor of the plaintiff, and the decision in that case justifies tibia judgment. That case also justifies the admission of proof of the situation and rental value of other property contiguous to that immediately involved and near the defendant’s structure. Upon the authority of that case and other similar cases in the Court of Appeals the judgment should be affirmed, with costs.

Barnard, P J., and Pratt, J., concurred.


author: Pratt, J.

text:
    Woodhaven Junction Land Company v. John Solly and Another.
   Judgment affirmed, with costs.—

Pratt, J.

The proof shows that Solly bought the land with the understanding that it could be used for business purposes. We think the court below correctly held that under that description a liquor business should be permitted. It follows that Solly could not be required to accept a deed restricting him from selling liquors. His failure to object at once was sufficiently explained. Judgment affirmed, with costs.


author: Barnard, P. J.:

text:
    The People of the State of New York ex rel. Burton v. Frederic Earl and Others.
   — Assessment reversed upon stipulation made that case abide event of the last appeal and on same defense.—

Barnard, P. J.:

The assessment must be reversed under the stipulation of the parties to the appeal that this appeal -abide the result of the case of The People ex rel. Rudiger v. Earl and Others, and on the same defense.

Dykman, J., concurred.


text:
    The People of the State of New York ex rel. Doty v. Board of Police of Yonkers.
   Writ of certiorari quashed and judgment affirmed for failure to submit according to stipulation.


text:
    Atlas Iron Construction Company, Appellant, v. George Ferguson, Respondent.
   Judgment affirmed, with costs.

Dykman, J.:

This is an appeal from a judgment entered upon the report of a referee to hear and determine. The action was brought to foreclose a mechanic’s lien for $1,250.60. The defense was a failure to perform the contract made by the plaintiff and a counterclaim. The referee reported against the plaintiff upon its principal claim for material, and in its favor for extras, four dollars and three cents, and the appeal is by the plaintiff. The questions involved were questions of fact, and the cause was fully tried and carefully examined by the referee. He wrote an opinion in which he carefully analysed the testimony and gave abundant reasons for his decision. A further examination of the evidence by us would subserve no profitable purpose, as we concur in the views of the referee and with his opinion. The appellant raises a question respecting the allowance of costs, but we think the plaintiff sustained a substantial defeat upon the merits, and there is no sufficient reason why it should not pay the costs of the litigation it so precipitated without a just claim. The judgment should he affirmed, with costs.

Barnard, R J., and Pratt, J., concurred.


text:
    The People of the State of New York ex rel. Lawrence D. Huntington and Others, Commissioners of Fisheries of the State of New York, Appellants, v. John J. Crennan, a Justice of the Peace, etc., Respondent.
   Order denying writ of mandamus affirmed, with costs.

Pratt, J.

We think the court below correctly held that the law of 1893 cannot be given a retrospective effect so as to change the title to the moneys already in the hands of the defendant. Order affirmed, with costs.


author: Dykman, J.

text:
    William C. Ackert and Another, Respondents, v. William S. Miller, Appellant.
   Judgment affirmed, with costs.

Dykman, J.

This is an appeal from a judgment entered upon the decision of a judge of this court before whom the cause was tried without a jury. The action was commenced for the recovery of money due the plaintiffs from the defendant for labor and services performed in the erection of a house and for bills paid for hauling material to the house. The claim was fully proven and the trial judge found all the facts in favor of the plaintiff, and they are amply sufficient to justify the judgment. The appeal is entirely destitute of merit, and the judgment should be affirmed, with costs.

Pratt, J., concurred.


text:
    George Duryea, Respondent, v. John Mackey and Others, Appellants.
   Judgment affirmed, with costs.—

Pratt, J.

There can be no question of the justice of the decree appealed from. The plaintiff advanced the money with the knowledge and consent of the defendants. It was used for their benefit and they still enjoy the advantages by it procured. As remarked by the trial judge, they are in no position to dispute the validity of the loan. Judgment affirmed, with costs.

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


text:
    The Bath Gas Light Company, Respondent, v. John Claffy, Appellant.
   Judgment affirmed, with costs.

Dykman, J.:

This is an appeal from a judgment entered upon the decision of a justice of this court after a trial before him without a jury. We concur in the views of the trial judge and agree to affirm the judgment upon his opinion.

Pratt, J., concurred.


text:
    Mutual Life Insurance Company, Plaintiff, v. Darius C. Newell, Defendant.
   Appeal withdrawn.


text:
    Franklin P. Riberg, Plaintiff, v. Nana N. Winne and Others, Defendants.
   Submissions withdrawn.


text:
    James B. Wright v. Guillaume A. Rensens.
   Motion for reargument denied, with leave to go to the Court of Appeals.


author: Herrick, J.:

text:
    Mary Aldrich, Respondent, v. Heman Aldrich, Appellant.
   Order affirmed, with ten dollars costs and printing and other disbursements. Appeal by the defendant, Heman Aldrich, from an order granting the plaintiff’s motion for alimony, counsel fees and expenses in the action, entered in the St. Lawrence county clerk’s office July 3,1893.—

Herrick, J.:

Orders of the kind appealed from are very largely in the discretion of the Special Term. From an examination of the affidavits upon which this order was granted, and the pleadings in the case, it does not clearly appear to me that the Special Term abused the discretion vested in it and, therefore, I think that the order appealed from should be affirmed. Let an order be entered accordingly, with ten dollars costs and printing and other disbursements.

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


author: Mayham, P. J.

text:
    Charles Smith and Patrick Hickey, Respondents, v. Hamilton A. Roblee, Samuel A. Sague and Stephen H. Richards, Appellants; William J. Hammond and Charles W. Mosher and Others, Respondents.
   Judgment affirmed, with costs. This is an appeal from a judgment in favor of the plaintiffs establishing a mechanic’s lien for $100, and also a like lien in favor of certain defendants for sixty-seven dollars and forty-one cents.—

Mayham, P. J.

On a careful examination of the facts and questions of law raised by the appellants in this case, I think that the judgment should bo affirmed, and that a written opinion is not required.

Putnam and Herrick, JJ., concurred.


text:
    Harvey Cook, Appellant, v. Saratoga Victory Manufacturing Company, Respondent.
   Judgment affirmed, with costs. Appeal by the plaintiff, Harvey Cook, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 23d day of November, 1891, upon the verdict of a jury directed by the court after a trial at the Saratoga County Circuit, and also from the order directing a verdict for the defendant and dismissing the plaintiff’s complaint upon the merits.—

Herrick, J.:

After a somewhat careful examination and consideration of the evidence in this case, I can see no reason to reverse the action of the court below. Without discussing the evidence it strikes me that the evidence as to whether the new dam was erected higher than the old one, preponderates largely in favor of the defendant, and a finding of the jury to the contrary could not be sustained. It appears to be uncontradicted that the top of the dam was five feet lower than the water of Saratoga lake; that being a fact, I do not see how the dam could cause the water to rise in Saratoga lake. It further appears that the water running over Winne’s reef, which is above the dam, and between it and the lake, has some considerable current to it, and if the water set back from the dam so as to cause the water to rise in the lake, it is difficult for' me to conceive that there would have been any perceptible current at Winne’s reef. The water above the reef appears to have been considerably higher than the water below the reef, which I cannot conceive to be possible if the erection of the dam caused the water of Fish creek to set back to Saratoga lake, so as to raise the water there; that would stop the current in the creek. While it is doubtless true that there has been a gradual rise in the waters of the lake, I fail to see that the evidence shows that the dam is responsible for it. Judgment should be affirmed, with costs. I see no reason to write an opinion.

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


text:
    Wakefield Rattan Company, Plaintiff, v. Shepherd Tappan, Defendant.
   Motion for reargument granted. No opinion.


author: Putnam, J.:

text:
    The Albany County Bank, Respondent, v. The Burton and Corey Cider and Vinegar Company, Appellant.
   Judgment affirmed, with costs.— Appeal by the defendant, the Burton and Corey Cider and Vinegar Company, from an order and a judgment of the County Court of Albany County in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 2d day of June, 1893, affirming a judgment entered in the City Court of Albany on the 5th day of August, 1892.—

Putnam, J.:

Whether or not Burton was authorized to borrow money for defendant was, under the evidence in the case, a question of fact for the trial court. On that question we are unable to hold that he did not reach a correct conclusion. (Fifth Nat. Bank of Providence v. Navassa Phosphate Co., 119 N. Y. 256 ; Marine Bank of Buffalo v. Butler Colliery Co., 23 N. Y. St. Repr. 318; 125 N. Y. 695 : Kraft v. Freeman Print. & Pub. Asso., 87 id. 628.) The liability of defendant to Van Natta, if any, arose at the time the loan was made. The fact that afterwards and after Van Natta had commenced an action against defendant, he was uncertain whether or not Burton was authorized to make the loan and accepted his money from plaintiff, does not, we think, in any manner affect the liability of defendant. At the most the transaction shows that Van Natta was in doubt as to such liability. The judgment should be affirmed, with costs.

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


text:
    Annie Taylor, Appellant, v. Stephen Taylor, Respondent.
   Judgment affirmed, with costs.— Appeal by the plaintiff, Annie Taylor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 3d day of July, 1893, upon the report of a referee dismissing the plaintiff’s complaint upon the merits and for costs.—

Herrick, J.:

I have examined the findings of the referee, and the evidence in this case, and his findings seem to be abundantly supported by the evidence. I am inclined to think that an error was committed by him in refusing to admit the evidence offered, but in view of all the testimony, it seems to me that if such evidence had been admitted, it ought not to change the result. The behavior or the plaintiff was such as to provoke harsh treatment of her by the defendant. The judgment should be affirmed, with costs.

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


text:
    The Albany County Bank, Respondent, v. Jonathan T. Rider, Appellant.
   Judgment affirmed, with costs. —

Putnam, J.:

The facts in this case are substantially the same as in the case of the same plaintiff against the same defendant already considered by this court. The order should be affirmed, with costs.

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


text:
    Charles N. Williams, Plaintiff, v. Nathaniel O. Boynton, as County Clerk, etc., Defendant.
   Motion for leave to go to the Court of Appeals granted.

No opinion.


text:
    John A. Gordon, Plaintiff, v. Abram Becker and Others, Defendants.
   Motion for leave to go to the Court of Appeals denied, without costs.

No opinion.


text:
    James J. Belden, Appellant, v. Stevenson Burke and Others, Respondents.
   Motion denied, with ten dollars costs.


text:
    Hannah Kennedy, as Administratrix, etc., Plaintiff, v. The Manhattan Railway Company, Defendant.
   Motion denied, with ten dollars costs.


text:
    Rene J. Lecomte, Plaintiff, v. Jeanne Claire Angele Langier éponse Ode, sued as Angele Ode Langier, Defendant.
   Motion dismissed.


text:
    Henry E. Wessels and Another, Respondents, v. Gustavus A. Boettcher, Appellant.
   Order reversed, with ten dollars costs and printing disbursements, and the motion to vacate the attachment granted, with ten dollars costs, unless the plaintiffs, within twenty days, pay the costs taxed in the action brought by Girard Wessels and another against the same defendant, in which case order affirmed, without costs to either party.


text:
    Jennie B. Woolley, Respondent, v. William Buhler, Jr., Appellant.
   Motion denied, with ten dollars costs.


author: Per Curiam

text:
    A. J. Seasongood and Others, Respondents, v. James A. Fleming, Appellant.
   Order reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.—

Per Curiam

The title of the action would indicate that it was brought to charge the defendant individually, but a reading of the allegations of the complaint would seemingly support a cause of action against either the Territory of Arizona or against the defendant as Treasurer of that Territory, and as the inconsistency thus created might produce confusion and injury if the election which the plaintiffs should make were left until the trial, we think it was but right that, instead of leaving the defendant to guess in what capacity he was sued, the plaintiff should be compelled to make the complaint definite by a proper allegation as to whether he intends to charge the defendant personally or officially. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    Edward A. Morrison, Appellant, v. The Metropolitan Elevated Railway Company and Others, Respondents. Actions Nos. 2, 3 and 4. George G. Moore and Others, Appellants, v. The Same Respondents.
   Order reversed, with ten dollars costs and disbursements, and the motion denied with ten dollars costs.

Per Curiam :

Section 1011 of the Code requires a reference to be ordered “ upon the consent of the parties, manifested by a written stipulation signed by their attorneys and filed with the clerk.” And rule 11 of the General Rules of Practice provides that no oral agreement entered into between the attorneys or counsel for the parties shall be binding. It is conceded that no written stipulation signed by the attorneys has been filed Here, nor do we find any agreement between the parties which is evidenced by a writing sufficient to bind them. All that appears is that negotiations were pending .looking towards a reference of these cases, and before the referee was selected, or the particular cases in which a reference was to be had was agreed upon, the plaintiffs terminated the negotiations by withdrawing their consent. Under these circumstances, whatever criticism might be indulged in as to their good faith in withdrawing it after a verbal understanding had been reached, it was the exercise of a legal right which should not, against their consent, be interfered with. Our conclusion, therefore, is that the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    Phœnix Manufacturing Corporation, Respondent, v. Everett D. Barlow, Appellant.
   Order affirmed, without opinion, with ten dollars costs and disbursements.


text:
    Annie Butler, Appellant, v. James R. Townsend and Others, Respondents.
   Order affirmed, without opinion, with ten dollars costs and disbursements.


text:
    In the Matter of the Opening of One Hundred and Twenty-seventh Street (Claim of James A. Deering).
   Order affirmed, with ten dollars costs and disbursements. —

Per Curiam

The record upon which this appeal is heard shows beyond dispute that the relation of attorney and client between Peering and James Baird never existed, and as that relation is the necessary foundation for an attorney’s lien, it follows that the attorney has no lien upon the fund. The order should be affirmed, with ten dollars costs and disbursements.

.Present — Yan Brunt, P. J., O’Brien and Follett, JJ.


text:
    Ludwig Baumann, Respondent, v. Richard de Logerot and Others, Appellants.
   Appeal from order granting judgment upon demurrer as frivolous and from the judgment entered thereon.— Order and judgment affirmed, with costs-


text:
    Ludwig Baumann, Respondent, v. Richard de Logerot and Others, Appellants.
   Appeal from order granting judgment upon demurrer as frivolous and from the judgment entered thereon. — Judgment and order affirmed, with costs. —

Per Curiam :

We are of the opinion that the order and judgment appealed from should be affirmed, with costs. Even if the plaintiff has by the use of the film name of “ Baumann Bros.” violated the provisions of section 364 of the Penal Code, and of the Laws of 1833, which we do not decide, he has not thereby become an outlaw and lost all civil rights. Judgment and order affirmed, with costs.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.


text:
    In the Matter of Bernard Tock, Deceased.
   Order modified by inserting Trust Co., and affirmed as modified, without costs.


text:
    Arthur Brichant, Appellant, v. George H. Bronwer and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Henry Winthrop Gray, as Receiver, etc., Respondent, v. Benjamin Croner and Others, Appellants.
   Order denying motion to increase undertaking on injunction affirmed, with costs. No opinion.


text:
    Benjamin J. Moses, Jr., Appellant, v. George W. Glynn, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    In the Matter of the Estate of Abner Mellen, Deceased.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Evelyn M. Trost, Respondent, v. Charles J. Hinman, Appellant.
   Judgment affirmed. No opinion,


author: Per Curiam:

text:
    Ong Sing, Respondent, v. Hom Mon Due, Appellant, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Per Curiam:

The fact that the money was loaned gives no ground of arrest. The only ground upon which this order of arrest can he sustained is that the defendant lias fraudulently disposed of his property with intent to defraud his creditors. The allegations in the affidavits wholly fail to set up any facts from which any such conclusion can be drawn, and are, therefore, wholly insufficient. The order should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Yan Brunt, P. J., O’Brien and Parker, JJ.


text:
    Eugene Smith, as Executor, etc., Respondent, v. Frederick Rentz, Appellant.
   Motion to resettle denied, with ten dollars costs.


text:
    Mary P. Brater, Respondent, v. Addison F. Andrews, Testamentary Trustee, etc., Appellant.
   Judgment affirmed, with costs.

Per Curiam:

The notice of appeal was from

the final judgment, no appeal having been taken from the interlocutory judgment. The questions sought to be varied, therefore, are not before us for review, and the judgment must he affirmed, with costs.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.


text:
    In the Matter of New York Elevated Railway Company.
   Reargument ordered.


text:
    In the Matter of E. Townsend Goldberg, an Attorney.
   Referred to Thomas P. Wickes as referee to take proof and report with his opinion.


text:
    Mary A. Browne, Appellant, v. John M. Baker and Another, as Administrators, Respondents.
   Upon payment of ten dollars costs to defendant, motion to dismiss denied.


author:
      O’BRIEN, J.:
      Yan Beunt, P. J.:

text:
    Mary Scott Rowland, Respondent, v. Margaret A. Howard and Another, as Executors, etc., of Mary H. White, Deceased, Appellants.

      Claims against a decedent, withheld during lifetime — nature of the proof required to establish them.

    The rule —that claims withheld during the life of the alleged debtor, and sought to he enforced when death has silenced his knowledge and explanation, are always to he carefully scrutinized and admitted only upon very satisfactory proof — applied to a claim against a decedent’s estate for treatment and preparations for improving the complexion, alleged to have heen furnished to the decedent under an oral agreement for a complete course of treatment, claimed to have heen completed about seven months before the decedent’s death.
    . Appeal by the defendants, Margaret A. Howard and James Brooks, as executors of the last will and testament of Mary H. White, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 20th day of October, 1893, in accordance with the report of a referee, upon an order made at Special Term confirming the report, and also from the order of confirmance and from an order denying the defendants’ motion for a new trial.

      Amasa A. HecLfield, for the appellants.

      Efstewi Brothers, for the respondent.
   O’BRIEN, J.:

This is a statutory action upon a claim against a decedent’s estate, and was commenced by tbe entry of an order of reference on the consent of both, sides. The action was brought to recover the sum of $250 on an oral agreement for professional services for a course of treatment to the complexion and skin — foods and preparations furnished by plaintiff to the defendants’ testator.

The plaintiff’s case rested wholly on the testimony of her husband, who stated that he remembered calling with his wife upon Mrs. White, the decedent; that he took no part in the conversation when the agreement now sued upon was made, and that he could only give it in fragments; that decedent spoke about being treated, but objected to the price, which the plaintiff met by saying she, would make the price one-half, and a time, namely, seven o’clock in the morning, was fixed for the visits of the decedent to plaintiff’s place for treatment. In answer to a leading and direct question as to whether the plaintiff stated that she would render her services for $250, the husband said, “ Yes, certainly,” and that it was in response to that that Mrs. White said, “All right.” He further testified to seeing his wife work on Mrs. White’s face a number of times, and when asked to fix the number he subsequently stated that he would say five or six times. This witness also said that the money was to be paid after the treatment was concluded, and in answer to a question as to whether he knew what the treatment consisted of, he summed up the whole subject of the agreement and what was done under it between the parties as follows:

“ I know what preparations she uses and what she does. I do not know just what treatment Mrs. White received. I can’t state to my own knowledge that the treatment was entirely completed. I know something was done to Mrs. White. I do not know whether the treatment was completed. Sometimes ten, sometimes twenty and sometimes thirty treatments make up a course, according to the complexion. It depends upon the work to be done and the price paid. In the majority of cases about ten o'r twelve treatments constitute a course. The agreement between my wife and Mrs. White was for a course of treatment. Of course, it was to be completed. It was understood to be completed before the money was paid, and the money was not to be paid until after it was completed. That was Mrs. White’s agreement.”

Another witness produced by plaintiff was a woman who testified that during October and November, 1891, which was the time covered by the alleged contract, she was in the employ of Mrs. White, but would not swear that she was discharged from such employment for cause. She stated that Mrs. White on one occasion said she wanted her to go and see the plaintiff and “ see if you can get her to do my face for half price, and tell her that I can send her lots of customers, and see if you can arrange it for me; you know how to manage it.” This witness stated that she called on the plaintiff, but did not state that she reported the result of her interview to Mrs. White, or that the latter ever mentioned to her the fact that she received treatment from plaintiff, and her sole knowledge of whether Mrs. White was treated or not was derived from the fact that she saw bottles of preparations which had labels belonging to and a picture of the plaintiff on them.

As against the testimony of the husband that the treatment all took place, according to agreement, between seven and eight o’clock in the morning, the defendants produced three witnesses, who were practically personal attendants upon Mrs. White during the period in question, who saw her every day, and who testify that Mrs. White never left her rooms during the hours when the plaintiff’s husband testified he had seen her undergoing treatment by his wife at her place as agreed upon.

With respect to the hour, if material, we think there is a preponderance in favor of the conclusion that the decedent was never treated by plaintiff between the hours as fixed in the husband’s testimony.

As to the dates, it is claimed that the contract sued upon was made in October, 1891, and that the course of treatment was completed in November, 1891. Mrs. White died in June, 1892, and the first information of plaintiff’s claim obtained by the executors was in a letter as follows :

“New York, Jan. 14th, 1893.
“ Mrs. M. A. Howard :
“ I enclose herewith bill for $250 against Est. Mrs. M. H. White, but as Mrs. White missed a few of her treatments, and^for the purpose of an early and amicable settlement will, if I receive check now, deduct $100 from bill; trusting this may be entirely satisfactory, I beg to remain "Very truly yours,
“MARY SCOTT ROWLAND.”

No proof was offered tending to show that, during the seven months that elapsed between the time when it is claimed the com tract was completed and Mrs. White’s death, any bill had been .rendered or any request made to her to pay ; but it does appear that Mrs. White, subsequent to the date of the supposed completion, called at the plaintiff’s office and bought and jsaid for some rouge. And it seems remarkable that the husband, who testified that he was the plaintiff’s man of business, in no way referred to the fact that she was indebted, and that nothing was said upon the subject of an obligation of Mrs. White to the plaintiff.

These circumstances to which we have adverted, create a suspicion against the good faith and validity of the claim. Such suspicions, however, should not defeat the claim if satisfactorily established, but should incline us to apply the rule, that claims withheld during the life of an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized and admitted only upon very satisfactory proof.” (Kearney v. McKeon, 85 N. Y. 139. See, also, Forbes v. Chichester, 30 N. Y. St. Repr. 370; Ulrich v. Ulrich, 60 N. Y. Super. Ct. [J. & S.] 237.)

In his opinion the learned referee in this case says : “ It is true there is no proof of the precise number of times the claimant treated the decedent’s complexion, nor as to how many visits composed the course of treatment for the decedent.” And, after adverting to the fact that the claim was sustained by the testimony solely of the husband, he continues : “ Under these circumstances, the court should be guided by the probabilities of the ease as they appear from the character of the evidence; and I cannot resist the conviction, from a careful consideration of all the evidence in this case, that the agreement for a course of treatment was substantially complied with, and that the treatment was substantially completed by the beginning of November, 1891.”

We think that the first error into which the learned referee fell was in relying on the probabilities, instead of, as he should, upon satisfactory proof, and the second was in assuming that the testimony showed that the course of treatment was substantially complied with.

We have quoted at length from the most significant portions of' fbe testimony of tlie husband, and it will be noticed that he stated that the agreement was that a completion of the course of treatment was a condition precedent to any payment being made by the decedent, and that he did not know whether or not the treatment was completed. This testimony, emphasized by the statement in the letter that the decedent had missed some visits, which was the reason assigned by plaintiff for offering to deduct $100 from a bill of $250, does not tend to establish the conclusion of the referee that the contract was either entirely or substantially completed.

• Upon the whole case, it can be said that no such satisfactory proof was offered in support of the claim as would have justified a conclusion favorable to the claimant. That the decedent visited the plaintiff’s place and may have received some treatment appears, but that there was an agreement by which the decedent undertook to pay for a complete course the sum of $250, and that in accordance with the terms thereof the plaintiff completed such agreement by giving the course of treatment, either fully or substantially, or that the amount thus due remained unpaid and owing at the time of Mrs. White’s death, is not satisfactorily established.

As against what the husband himself characterized as a fragmentary statement of- the conversation, between, the plaintiff and the decedent, and the uncertain character of the services, if any, rendered by his wife as the result of such conversation, and what services in fact were rendered, and the tunes at which they were rendered, wre have testimony, negative, it is true, in its character, yet throwing around the whole claim of plaintiff a cloud of suspicion and distrust, which should not permit a recovery unless more satisfactory evidence were presented of the validity of the claim. As was well said in Forbes v. Chichester (supra): Public policy requires that demands against deceased parties must be strictly proved, and to relax that rule wotdd give rise to evils far outweighing the inconvenience resulting from its strict enforcement — inconveniences which could be obviated by the exercise of ordinary care in procuring written or other evidence of contracts not dependent for validity upon the continuance of the life of either party.”

Our conclusion, therefore, is that the order confirming the report of the referee, and the judgment entered thereon, should be reversed, and a new trial ordered, with costs to appellants to abide event.

Yan Beunt, P. J.:

I concur. There was no proof of the terms of any contract.

Paeker, J., concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event.


author: PARKER, J. :

text:
    The People of the State of New York ex rel. The German Looking Glass Plate Company, Appellant, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments for the City of New York, Respondents.

      Corporation — assessment for taxation — verified statement of assets ineluding a statement “ the capital is worth pour ” — alleged error in the statement.

    When a corporation presents to the taxing officers having jurisdiction of it for the purpose of assessment, evidence as to the value of its assets, which is so full and complete as to establish the basic facts upon which its claim for reduction rests, and it is not contradicted by other facts within their knowledge and no good reason appears for doubting its truth, a refusal of such officers to decide in accordance with the evidence thus presented constitutes legal error.
    A foreign corporation, liable to taxation in the city of New York upon the amount invested in its business there, and having a nominal capital of $1,000,000, of which $595,000 was paid in, was assessed for general taxation on its personal estate in the sum of $500,000. The corporation claimed a 'reduction to $20,132.88, and as the basis thereof presented to the taxing officers a verified itemized statement that the amount invested in its business, less debts, was $20,132.88, but also stating “ the capital is worth par.” The taxing officers thereupon reduced the assessment to $100,000, and the corporation sued out a writ of certiorari to review- such final assessment.

      Held, that while the figures presented by the corporation would not j ustify the taxing officers in their determination, the declaration in the statement that “ the capital is worth par ” was, in effect, an admission that the estate of the corporation, being the subject of valuation for the purposes of assessment, was equal in value at least to the amount of capital paid in, and on this basis and allowing for the indebtedness given in the statement, the determination of the taxing officers was authorized by the statement itself.
    When a party has obtained from the taxing officers a reduction of -his original assessment upon a verified statement seasonably made, he is precluded from thereafter obtaining from the courts, in a proceeding by certiorari to review the final assessment, a further reduction upon an allegation, then interposed for the first time, that the statement was erroneous.
    Appeal by the relator, The German Looking Glass Plate Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 19th day of October, 1893, dismissing the relator’s writ of certiorari issued to review an assessment for the purposes of taxation.

      Ten Eyck <& Remington, for the appellant.

      George S. Oolemcm, for the respondents.
   PARKER, J. :

The relator, a foreign corporation organized under the laws of "West Virginia, and having an office in the city of New York, has a nominal capital of $1,000,000, of which $595,000 has been paid in.

It was'assessed for purposes of general taxation on its personal estate for 1892 in the sum of $500,000, the assessment being made pursuant to the provisions of chapter 37, Laws of 1855, section 1 of which provides that “ All persons and associations doing business in the State of New York, * * * and not residents of this State, shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of this State. * * * ”

The relator was notified of the assessment, and while the hooks of annual record were open for examination between the second Monday of January and the 1st day of May, 1892, it applied to have the assessed valuation reduced from $500,000 to $20,132.88, and filed with the commissioners a statement purporting to show its condition as of the second Monday of January, 1892. So much of the statement as purports to relate to the value of the estate of the corporation was as follows :

The amount of the capital it has invested in business in the city of New York, including the value of its office furniture, safe, samples, fixtures, money in bank and otherwise used in business, will not exceed the sum of $ . Importers of German looking glass plates.

“ Oasb. $30,964 78
“ Good bills receivable. 298,817 23
Open merchandise. 10,084 73
“Open accounts. 144,478 93
$484,345 67
“ Owe for mdse., including goods afloat. 464,212 79
$20,132 88
“ The capital is worth par.”

It has recently been decided in People ex rel. E. E. I. Co. v. Barker (139 N. Y. 55) that when a corporation presents to the taxing officers having jurisdiction of it for the purpose of assessment, evidence as to the value of its assets, which is so full and complete as to establish the basic facts upon which its claim for reduction rests, and it is not contradicted by other facts within their knowledge, and no good reason appears for doubting its truth, a refusal of such officers to decide in accordance with the evidence thus presented constitutes legal error. The commissioners, after making an examination of the statement which the relator presented to them, decided to reduce the assessment from $500,000 to $100,000, and the assessment was accordingly reduced. As the corrected assessment was still nearly $80,000 more than the relator insisted would be a proper assessment, we shall first inquire whether the evidence furnished by the relator justified the determination by the commissioners.

Tha. figures presented by it of course do not, but the statement contained an admission which, it seems to us, authorized the decision made.

It declares that the capital is worth par; the word “ capital ” in the connection in which it was used has a well-defined meaning, for it and “ capital stock ” are used indiscriminately to designate the estate of the corporation. Comstock, J., in People ex rel. Bank of the Commonwealth v. Commissioners (23 N. Y. 192), cited and approved in People ex rel. U. T. Co. v. Colemam, (126 id. 433). And such estate is the subject of valuation for the purposes of assessment. (People v. Colemam, supra.)

The stock of the corporation was $1,000,000, but only $595,000 liad been actually paid in, and for that amount stock bad been issued, and tbe natural meaning of the phrase employed, therefore, was, that the estate of the corporation was equal in value, at least to the amount paid in, or $595,000. Deducting from such amount relator’s debts as per its statement, $464,212.70, and a valuation for the purpose of assessment results of over $130,000, which exceeds the corrected assessment by over $30,000.

If the views expressed be correct, it follows that the commissioners were authorized in the determination made by the statement itself. In this proceeding a referee was appointed to take testimony and report to the court, and the general manager of relator, who was the only witness called, denied the truth of the admission contained in the statement. He 'did not state what its actual value was, and it seems to us that the proof otherwise offered establishes that the estate of the corporation ivas at least of the admitted value.

The testimony shows that the relator owned at the time goods not accounted for as a part of its assets in the statement made amounting to $575,000, which, added to its admitted assets of $484,345.67, made a total of $1,059,345.67; deducting from such amount its debts, $464,212.97, and we have the actual value of the estate of the corporation, which is nearly $600,000. It thus appears that the admission contained in the statement was in fact true. The relator’s reason for not including the value of the goods not accounted for was that the goods were in original packages and, therefore, exempt from taxation, its claim being that it was not only entitled to have the value of such goods deducted from the total value of the assets of the corporation for the purposes of taxation, but the indebtedness owing abroad and incurred in its purchase as well.

Whether its position in that regard be well taken, we shall not consider, because not necessary to the disposition of the case. We have referred to it because it tends to show that the admission was true, and it was likely made for that reason. Had the statement contained the facts proved here touching the amount of money invested in goods in original packages, as well as that relating to the value of its other assets and the amount of its debts, the statement would have been consistent, and tbe question, which it attempts to-present for the first time in this proceeding, would have been brought to the attention of the commissioners.

But that was not done, and if it be conceded that the evidence taken- before theweferee’ shows that such of' its ‘assets' as were subject to taxation were of less value than that placed upon it by the commissioners, it cannot avail the relator in this proceeding, for the commissioners had a right to rely on the statement made, and if it. was incorrect, the relator is without redress.

In People ex rel. Mutual Union Tel. Co. v. Commissioners (99 N. Y. 254), the deputy tax commissioner, having ascertained from the certificate of incorporation the capital of the relator, assessed it at the full amount. Afterwards notice was given that the books were open, but the relator made no application for a reduction until after the books had closed. The relator thereupon instituted a. proceeding to review the assessment under chapter 269 of the Laws of 1880, but the court held that, having failed to avail itself of the opportunity to remedy its grievance by application to the tax commissioners, its remedy was gone.

If the remedy there sought called for such a construction of the statute, clearly the court must deny redress to a party obtaining a reduction to one-fifth of the original assessment upon a verified statement.seasonably made, and who then attempts to secure a still further reduction upon an allegation that the statement was erroneous in one particular.

T-he order should be affirmed, with fifty dollars costs and disbursements.

Van Brunt, P. J., concurred.

Order affirmed, with fifty dollars costs and disbursements.


author: Parker, J.:

text:
    Robert S. Powell and Eugene L. Bennett, Formerly Comprising the Firm of Powell & Bennett, Respondents, v. Daniel D. Conover, Appellant.

      Corporation hooks of account — not per se evidence against a trustee of file corporation.

    The mere fact that a party is a trustee of a corporation does not make him chargeable with actual knowledge of its business transactions and of the entries made on its books, so as to render the books of the corporation per sc evidence against him.
    In an action brought to recover money loaned, the defendant claimed that the loan was not made to him but to a corporation of which he was an officer and of which the plaintiff was a trustee, and offered the books of the corporation in evidence, without having shown by whom they were kept, or that the entries were made at the time of the transaction, or by whose direction they were made, and without having given any proof tending to authenticate the books or to warrant an inference that the plaintiff had knowledge of their contents, and after it had been made to appear by the plaintiff’s testimony that he never saw or knew of the entries, had never examined the books, and that they were’never shown to him. The court refused to admit the books.
    Held, that in view of the evidence previously adduced, the refusal to admit the books was not erroneous.
    Appeal by tbe defendant, Daniel D. Oonover, from a judgment of the Supreme Court in favor of the plaintiffs, entered in tbe office of the clerk of tbe city and county of New York on tbe 16th day of May, 1893, upon tbe verdict of a jury rendered at tbe New York Circuit, and also from an order entered in said clerk’s office on tbe 2d day of June, 1893, denying tbe defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover money alleged to have been loaned to tbe defendant.

      E. E. Benn, for tbe appellant.

      George B. Adams for tbe respondents.
   Parker, J.:

The judgment awards to tbe plaintiffs $954.05, which was necessarily founded upon a determination by the jury that plaintiffs bad. loaned to tbe defendant tbe principal of that sum.

It -was defendant’s contention on the trial that while he received the money from the plaintiffs it was received by him as an officer of a corporation, and that it was understood and intended by plaintiffs and defendant as well, that the loan was made -to the corporation and not to the defendant.

Upon the trial, one of the plaintiffs, who represented his firm in making a loan, and the defendant testified, each sharply contradicting the other.

At the close of the testimony no motion to dismiss, or for the direction of a verdict, was made by either side, both the parties assuming that the testimony presented a question for the jury. The case was submitted in a charge by the court, to which no exception was taken, and' the jury having rendered a verdict in favor of the plaintiffs, it follows that the judgment must stand unless errors were committed during the trial which call for a reversal.

The only exception to which our attention is called by the appellant was taken to the refusal of the court to admit in evidence the books of the corporation to which the defendant claims the loan was made.

Defendant, before offering the books in evidence, did not show by whom they were kept; furnished no proof that the entries were made at the time of the transactions, nor by whose direction they were made. Indeed, there was an entire absence of proof tending to authenticate the books, or to warrant the inference that plaintiff had actual or was chargeable with constructive knowledge of their, contents. While on the other hand it had already been made to appear by the plaintiffs’ testimony that lie never saw or knew of the entries; had never examined the books, and that they were never shown to him.

How it was that defendant’s counsel was induced to be content with a simple offer of the books in evidence is apparent when we read from the record what he said to the court at the time of offering them in evidence. He said: “ I offer the books of the company for the purpose of showing that the transaction was a company transaction, and the witness, being a trustee of the company, must have been familiar with the entries in the books of the company.” It seems to be clear, therefore, that it was his view that the mere fact that one of the plaintiffs was a trustee of the corporation made him chargeable with actual knowledge of its business transactions, and of tbe entries made on its books.

But this is not the rule, and has not been, at least since Rudd v. Robinson (126 N. Y. 113). The refusal to admit them, therefore, was not, in yiew of the evidence previously adduced, error;

The judgment should be affirmed, with costs.

YaN Bruet, P. J., and O’BrieN, J"., concurred.

Judgment" affirmed, with costs.


author: Per CubiaM:

text:
    Edgar F. Hale and Another, Appellants, v. John B. Prote and Another, Respondents.

      Attachment — failure to state the ground upon which it is granted.

      An attachment -which shows upon its face that it was issued upon the ground that “ the defendants have disposed of their property, and are about to dispose of their property, with intent to cheat and defraud their creditors,” is properly vacated for the reason that it does not state the ground upon which it was granted.
    Appeal by the plaintiffs,- Edgar P. Hale and Henry Williams, from an’ order of the Supreme’ Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 20th day of September, 1893, vacating and setting aside an attachment.

      Uriah W. TompJcins, for the appellants.

      Roger Foster, for the respondents.
   Per CubiaM:

It appears upon the face of the attachment that it was issued upon the ground that the defendants have disposed of their property, and are about to dispose of their property, with intent to cheat and defraud their creditors.

It is manifest that if the defendants have disposed of their property they could not be about to dispose of it, and that the plaintiffs have not conrplied with the provision of the Code in stating the ground upon which the attachment was issued. It is impossible for us to tell upon which ground, the plaintiff intended to rely, or which ground it is claimed by him his affidavits tended to support. It would seem, therefore, if for no other reason, that this attachment should have been vacated because it did not state the ground upon which it was granted.

This is an error which has been committed before, as is evidenced by the case of Johnson v. Buckel (65 Hun, 601) and the cases there cited.

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

Present- — YaN Beukt, P. J., O’BbieN and Follett, JJ.

Order affirmed, with ten dollars costs and disbursements.


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    Thomas F. Gale, Respondent, v. George Roll, Appellant.

      Sale of realty — commissions — proof of employment and of procuring the sale.

    In an action brought to recover commissions alleged to have been earned by the plaintiff in effecting- a sale oí real estate for the defendant, the burden is upon the plaintiff to establish, by a preponderance of evidence, that he was employed by the defendant and that he was the procuring cause of the sale.
    In such an action for commissions, brought against the person in whose name the legal title to the property stood at the time of the sale, the fact that at the time of the sale a third party was the beneficial owner of the property, which was being advertised for sale in his name, and that it was actually sold from his office, in which the plaintiff was then employed, renders testimony of the plainriff, that the defendant employed him to sell the property, highly improbable.
    Appeal by the defendant, George Roll, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 10th day of April, 1893, upon the verdict of a jury rendered at the New York Circuit, and also from an order entered in said clerk’s office on the 5th day of April, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      August Kohn, for the appellant.

      J. II. K. Blwmelt, for the respondent.
   Per Curiam :

This action' was brought to recover commissions alleged to have been earned in effecting a sale of No. 40 "West End avenue in August, 1891. In and prior to August, 1891, John Ruck was the •owner of a block of sixty-four houses bounded by Tenth avenue, Eleventh avenue, Sixty-sixth street and Sixty-seventh street. He had an office in Sixty-sixth street near Tenth avenue, at which he rented his property, collected rents and made sales when advantageous terms were offered. The plaintiff had been in the employ of Mr. Ruck* for-a year-or more-prior To August,'1891, and was engaged in collecting rents, letting rooms and apartments and showing the houses to intending purchasers.

At some time prior to August 1, 1891 (the date not appearing), Mr. Ruck conveyed No. 40 West End avenue and other houses in the block to George Roll, as security for a loan. Roll never took possession of the property or assumed its management, but it was managed by Mr. Ruck as before the conveyance, who advertised it for sale in his own name in the Herald, Tribune, Sun and other newspapers.

On the fifteenth of August Ruck signed for defendant a contract to sell the house to Samuel H. Denton for $35,000. A day or two afterwards Roll executed the contract, and, September 1, 1891, the house was conveyed by Roll to Denton pursuant to the contract. The foregoing facts are conceded.

The plaintiff alleged in his complaint and testified that the defendant employed him to sell this house and agreed to pay him a commission of one per cent if a sale were effected. The defendant denied this, and testified that he never employed the plaintiff to effect a sale of the property, but told him that Mr. Ruck controlled the property and that, although they wished to sell it, he had no right to pay a commission because the house belonged to Mr. Ruck.

The plaintiff testified that early in August, 1891, he met Mr. Denton in the street (never having spoken with him before), asked him if he wished to buy a house, and, after some conversation, they examined No. 40 West End avenue; that a few days afterwards Denton came to John Ruck’s office, in which plaintiff was employed, for the purpose of purchasing the property, and that he referred Mr. Denton to Mr. John M. Ruck, the attorney for the defendant, and that a contract was entered into.

Mr. Denton testified that he had no such interview with the plaintiff ; that he learned that the house was for sale through an advertisement in the Herald ; that he went to Roll’s office, where he saw Gale, and was by him shown the property ; that when he next went to the office, the plaintiff introduced him to John M. Ruck, who went with him to see the defendant, and that the plaintiff had no other connection with the sale of the property.

The undisputed facts in this case are that, at the time of the sale, Ruck was the beneficial owner of the property which was being advertised for sale in his name, and that it was actually sold from his office, in which the plaintiff was then employed, and these facts render the testimony of the plaintiff, that the defendant employed him to sell this property on commission, highly improbable, hi addition to this, Denton, the purchaser, testified that his attention was called to the property by the advertisement in the Herald; that he went to Ruck’s office and there saw the plaintiff for the first time, and went with him from the office to examine the property, .and a few days afterwards returned to the office and contracted for the property with John M. Ruck, the attorney for Roll, and the son of John Ruck.

The burden was on the plaintiff to establish by a preponderance of evidence (1) that he was employed by the defendant to sell the house, and (2) that he was the procuring cause of the sale. Me think that he failed to establish either proposition by a fair preponderance of evidence, and that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Present — VaN Brunt, P. J., O’Brien and Follett, JJ.

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


author: O’Brien, J. :

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    Catharine King, Respondent, v. Second Avenue Railroad Company, Appellant.

      Evidence — statement as to what another “tried" to do —opinion as to another’s health — ascertaining the positiveness of onds own witness.

    An error, in a witness’ stating what a person “tried” to do, instead of stating what he did, is cured and rendered harmless by the court’s ordering a like statement stricken out, on its repetition by the witness after he had been instructed to confine his statement to what the person did and to omit stating what he tried to do.
    An opinion whether a person is apparently in Better or worse health does not require any medical skill or-training, but the competency thus to characterize another’s condition is gained by ordinary experience and observation. '
    When a witness on cross-examination, from present recollection and accompanied with the statement that he cannot recollect whether he so testified on a previous occasion, testifies that some years ago the party who called him as a witness made a statement to him different from that testified to by other witnesses on the same side, it is competent for the party who called him to show by him, on redirect examination, how certain or fixed his recollection is, and as to whether or not he wishes to be understood positively or as giving, after-some years, his best recollection.
    The admission of such competent testimony is not rendered erroneous by the fact that it was permitted to be elicited by a question which was objectionable in • form as leading.
    Appeal by tbe defendant, the Second Avenue Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the city and county of New York on the 6th day of June, 1893, upon the verdict of a jury rendered at the New York Circuit, and also from an order entered in said clerk’s office on the 14th day of June, 1893, denying the defendant’s motion for a new trial made upon the mimites.

      JPayson Merrill, for the appellant.
    ' George II. Hart, for the respondent.
   O’Brien, J. :

This action was brought to recover damages for personal injuries to plaintiff, claimed to have been suffered by reason of an assault made upon her by one of the defendant’s conductors while she was riding as a passenger upon one of its cars. The plaintiff’s evidence tended to show that the conductor, without any cause and while under the influence of licpior, first insulted and they, assaulted the plaintiff, while that of the defendant tended to show that at the time of the occurrence plaintiff was excited by liquor, and that when the car stopped she would not get off, but remained standing in the car talking, and that when it started she fell over onto the seat. "Witnesses were examined to support these respective contentions, and the jury having determined in plaintiff’s favor upon sufficient evidence, their verdict is conclusive.

The defendant, however, strenuously urges upon this appeal that the result was reached by erroneous rulings made by the trial judge in admitting and excluding evidence.

During the course of her narrative the plaintiff testified as follows: “ He (the conductor) came around and grabbed me by both arms and dragged me to my feet, and tried to throw me off the car.” When she had concluded her story a motion was made to strike out the statement above quoted, which was denied. Though the exception to this ruling be held good, we think the error was cured by what immediately thereafter occurred. The witness was instructed to state what the conductor did, and to omit stating what he tried to do; and upon the witness again narrating the occurrence, using the same language about the conductor trying to pull her off the car, and upon the defendant’s counsel moving to strike out the words, the motion was granted. Thus the jury’s attention was called to the fact that such evidence was not proper, and by the judge’s rulings were apprised of the fact that it was out of the case and not to be considered.

The next error claimed relates to a question asked by defendant’s counsel on cross-examination of plaintiff, which it is insisted should have been allowed. The plaintiff was being cross-examined as to whether or not she permitted those who occupied her house as lodgers or tenants to bring liquor therein, and after this had been fully gone into, and she had stated that she did not allow it if she knew it, the following question was asked : “ Did you endeavor to stop it on the night when Mrs. Julia Ward O’Connell was killed ? ” It had been shown prior to this question being asked, that a woman named O’Connell had'died in plaintiff’s house, which it appears was fitted up in furnished rooms' and thus occupied by tenants. An inquiry as to what occurred on the night when Mrs. O’Connell was killed was entirely irrelevant and immaterial. Plaintiff was in no way connected with that occurrence beyond the fact that she had rented her rooms to O’Connell and his wife, and that while they so occupied them the latter had died, as it would appear, at the hands of her husband, who was subsequently imprisoned, being held responsible in some way for her death.

A witness for plaintiff, on her direct examination upon the subject of what she observed subsequent to the injury as to the physical condition of the plaintiff, after stating that she complained and moaned all night, went on to say that upon the next and the day thereafter the plaintiff was worse. While this to some extent may be regarded as a statement of a conclusion by the witness, it was after all but the expression on the witness’ part of what she observed, and we do not think that the admission of such testimony, appearing as it did in the course of a statement by the witness of what she observed as to the condition of the plaintiff during the two or three days succeeding the occurrence, was prejudicial error, because the opinion whether one is apparently better or worse does not require any medical skill or training, but the competency thus to characterize another’s condition is gained by ordinary experience and observation.

The next exception, and which is the one upon which most stress is placed by- the appellant, is to the allowance over objection of a question put by plaintiff’s counsel upon the redirect examination of Dr. Milne, who was plaintiff’s attending physician, and was being examined as a witness on her behalf. Upon cross-examination this witness had been asked to state what he was told as to the place where the foetus after the miscarriage had been deposited ; and he had stated that plaintiff had told him that the miscarriage had occurred while sitting in the closet previous to his arrival. He further stated, however, that it was some years since the occurrence, and that he could not remember whether he gave the same testimony at the police court, but that he was testifying from present recollection. On the other hand, all the plaintiff’s witnesses, except this doctor, had testified that it had occurred in the room. Upon the redirect the doctor was asked if he might not have been told by plaintiff that it was deposited in a vessel and afterwards taken into the closet. Having in mind his previous testimony that lie was not very positive, it was entirely competent to show how certain or fixed was the doctor’s recollection, and as to whether or not he wished to be understood as testifying positively, or as giving after some years his best recollection. While the objection to the form of the question as leading was good, we think that as the testimony itself was competent, and it was the right of the plaintiff to have elicited the fact as to how fixed or positive was the doctor’s recollection, and as the form itself is always a matter in the discretion of the trial judge, the exception must fall.

Another ruling brought in question is the admission over defendant’s objection of the question to one of the physicians as to whether in his opinion the plaintiff would ever be able to bear children, to which he answered no; and this was followed by another question to state whether or not with reasonable certainty the condition of the plaintiff would improve. The doctor, in answer to this latter question, gave the facts upon which his opinion on the first question was based, by saying that the plaintiff in some respects would not improve, because she “ has begun to pass the change of life caused by the constriction or the want of blood to the organs at that time,” and that such change is called the grand climacteric, which term the doctor fully explained to the jury. It being shown, therefore, that, although the question itself called for an opinion, the doctor stated fully the facts upon which such opinion was based, and spoke on a subject concerning which a medical man could testify with reasonable certainty. '

The final error assigned is to the exclusion of a question asked one of plaintiff’s witnesses on cross-examination. Another witness for the plaintiff had testified that the conductor approached the plaintiff by the westerly running board of the car, while the witness then being examined had stated that the conductor was on the easterly running board. He was then asked if he had heard the other witness testify directly contrary to his own statement, to which objection was made and the question excluded. have frequently had occasion to say that the extent to which cross-examination shall be permitted is within the discretion of the trial judge, and we do not think, after both witnesses had given their recollection as to tbe position of tbe conductor, it made any material difference whether tbe witness on tbe stand bad beard another witness testify directly to tbe contrary or not. It is true it might have some bearing upon the question of credibility, and ordinarily some latitude is allowed for tbe purpose of testing the same. But in the state of this record we can say, in concluding, what applies with respect to this objection and to all tbe others which we have examined at the request of the appellant, that none of them is so serious or meritorious as to require of us a reversal of this verdict, involving, as it would, the labor, expense and delay of a new trial, when it is not made to appear that any prejudice or injury has resulted to the defendant, and where the verdict in other respects appears to be right.

We are of opinion, therefore, that the judgment should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.