author: Putnam, J.:

text:
    In the Matter of the Goods, Chattels and Credits of Robert Stewart, Deceased.

      Code of Civil Procedure, §§ 2707, 2708 and 2709 do not cn'eate a procedwre to collect debts — proceedings thereunder, when unauthorized.

    Sections 2707, 2708 and 2709 of the Code of Civil Procedure are intended to authorize a summary mode of discovering and reaching property of a deceased party in the hands of third persons. They are not intended to create a procedure to collect debts.
    Prior to the death of one Stewart, he delivered to Slocum W. Lake the sum of fifty-seven dollars and ninety-two cents, with directions to use the same in payment of his (Stewart’s) debts, and for suitable clothing and bedding for laying out his remains. Lake paid out the said sum as directed, but the sum of twenty-two dollars and ninety-two cents thereof was paid out after the death of Stewart.
    Proceedings were taken by the administrator of the estate of Stewart under sections 2707, 2708 and 2709 of the Code of Civil Procedure, which resulted in an order being made by the surrogate, holding that the payment by the said Lake of such sum of twenty-two dollars and ninety-two cents after the death of Stewart was unauthorized and wrongful, and directing the payment by Lake of such sum to the administrator of Stewart’s estate.

      Held, that such order should be reversed; that if Lake owed the estate the sum of twenty-two dollars and ninety-two cents an action should be brought therefor;
    That if the administrator of Stewart was entitled to any order it was against the parties to whom the money received from the deceased had been wrongfully paid by Lake.
    Appeal by Slocum W. Lake - from a decree of the Surrogate’s Court of the county of "Washington, entered on the 8th day of April, 1893, commanding him to deliver to the administrator of the goods, chattels and credits of Robert Stewart, deceased, the sum of twenty-two dollars and ninety-two cents besides costs and stenographer’s fees.

      Frederick Fraser, for the appellant.

      Abner Robertson, for the administrator, respondent.
   Putnam, J.:

This is an appeal from an order made by the surrogate of Washington county in a proceeding instituted' by Solomon W. Russell, Jr., as administrator, etc., of Robert Stewart, deceased, under the provisions of sections 2707, 2708 and 2709 of the Code of Civil Procedure,-to discover property of the said deceased.

It appears that shortly before the death of said Stewart he delivered to the appellant, Slocum W. Lake, fifty-seven dollars and ninety-two cents with directions to use the same in payment of his (Stewart’s) debts, and for suitable clothing and bedding for laying out the remains of said deceased. That Lake paid out all of said sum as directed, but that twenty-two dollars and ninety-two cents thereof was so paid after the death of said Stewart.

The appellant, in his answer to the petition, alleged that he received said fifty-seven dollars and ninety-two cents from deceased and had paid out the same pursuant to his directions. lie did not allege that he was the owner of said twenty-two dollars and ninety-two cents, or entitled to the possession thereof by virtue of a lien thereon, or especial' property therein (Code Civ. Proc. § 2709), but alleged that he had no property of deceased in his possession and did not withhold any such property from the petitioner.

The surrogate held that the payment by Lake of said sum of twenty-two dollars and ninety-two cents after the death of Stewart was unauthorized and wrongful, and as appellant in his answer had not claimed to be the owner or entitled to the possession thereof, that the surrogate was authorized, under the above-cited provisions of the Code of Civil Procedure, to direct the payment by said Lake of said sum to the administrator.

We are unable to agree with the conclusion reached by the learned surrogate. The sections of the Code of Civil Procedure above referred to are intended to authorize a summary mode of discovering and reaching property of a deceased party in the hands of third persons. They are not intended to create a procedure to collect debts. Section 2709 provides that “Where it appears to the surrogate * * * that there is reason to suspect that property of the decedent is withheld or concealed by the person cited he must * * * make a decree, reciting the ground of making it, and requiring the person cited to deliver possession of the property to the petitioner. The decree must specify the .sum of money or describe the other property.”

The evidence in this case shows that appellant, when this proceeding was instituted, had no property or money of deceased in his possession. The twenty-two dollars and ninety-two cents had (probably wrongfully) been paid out as directed by deceased, although after his death. The appellant then owed the said sum of twenty-two dollars and ninety-two cents to the administrator, and in a proper action could have been made liable therefor. The claim of the administrator for said sum was for a debt of appellant to the estate. If the respondent was entitled to any order under section 2109 (supra) it was rather against the parties to whom the money received from deceased had been wrongfully paid by Lake than against the latter.

In Matter of Cunard (21 N. Y. St. Repr. 128, 129) it was held that the object of the statute was to provide a summary means of discovery, and in case of a mere naked possession of decedent’s “money or other personal property” to compel delivery to the legal representative. In the case of money it must be a specific sum tortiously withheld; not- merely money due and belonging to the deceased in the sense of an indebtedness. When this proceeding was begun, as above stated, appellant had, pursuant to the direction of the deceased, but after his death, paid out the money in question. It was not in his hands. In consequence of such payment he became a debtor of the estate for the amount so paid out. The sum could have been collected of him by action. (See Matter of Nay, 19 N. Y. St. Repr. 259; Matter of Knittel, 5 Dem. 371.)

We think, therefore, that the order of the surrogate should be reversed, with costs, and the proceeding dismissed.

Matham, P. J., concurred; Herrick, L, concurred in the result.

Order of surrogate reversed and proceedings dismissed, with costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    Frederick Hall, Appellant, v. Adeline Campbell and Others, Respondents.

      Action of partition — when the complaint should he amended and a supplemental, summons issue— Code of Oiwl Procedw'e, §§ 723 and 452.
    Where the plaintiff in an action of partition has commenced his action in good faith and has been regular in his practice, but without any fault on his part has omitted to make certain parties defendants, it is in furtherance of justice to grant his motion for leave to amend his complaint, and to issue a supplemental summons, and he is entitled to such relief under the provisions of sections 723 and 452 of the Code of Civil Procedure.
    Appeal by the plaintiff, Frederick Hall, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 19th day of December, 1893, denying the plaintiff’s motion that one Ida Hall be brought in and made a party defendant; that a supplemental summons issue to her; that the names of certain defendants be dropped from the title of the action; that the complaint be amended, and that a supplemental complaint be served.

      Peter A, Stephens, for the appellant.

      George W. Stedancm, for the respondents.
   Putnam, J.:

This action was commenced on the 14th day of July, 1893, for the partition of certain real estate described in the complaint of which one Ozias Hall died seized. The plaintiff, one of the heirs of Ozias, made all the other heirs of said deceased parties defendant, they and said plaintiff appearing to be the only persons who had any interest in the land sought to be partitioned.

Plaintiff, in his complaint, alleged that Willis Hall and Sharon Hall, two of the defendants, were each seized of an undivided ninth part of the premises in question. In fact, prior to the commencement of the action, Willis had conveyed his interest therein to Sharon, so that Willis was an unnecessary party, and the interest of Shai’on was two-ninths instead of one-ninth as alleged in the complaint. The deed from Willis to Sharon was not put on record until after tbe commencement of tbe action and its existence was unknown to plaintiff.

The complaint also alleged that one George Hall, a son of said Ozias, died nearly three years before this action was commenced, intestate, leaving five children, who were made parties. In fact, however, said George left a will, which was admitted to probate on August 3,1893, after the commencement of the action. In the will he bequeathed his interest in the real estate in question to his widow, Ida Hall, who was not a party and who at once commenced an action to partition said land, making the proper parties defendants. Plaintiff did not know of the existence of said will when he served his complaint. He moved to be allowed to serve an amended and supplemental summons and complaint in which the names of the said heirs of George Hall and the name of said Willis Hall shall be omitted as defendants and the name of Ida Hall inserted in the title thereof, and appropriate amendments made to the complaint showing the interest of Ida and said Sharon Hall in said premises. The motion was denied, and the plaintiff appeals.

It is impossible to find any fault with the procedure of the plaintiff. He made all the parties defendants who, when he commenced the action, appeared to have any interest in the premises. The mistake made was not due to any laches or neglect on his part. It arose from the fact that the deed from Willis to Sharon Hall had not been placed on record and that the will of George Hall had not been admitted to probate, although nearly three years had elapsed since his death. The mistake of plaintiff was unavoidable. He appears to have commenced his action in good faith and to have been regular in his practice, and having, without fault on his part, -omitted to make Ida Hall a party defendant, I think it would have been “ in furtherance of justice ” to have granted his motion. Under the provisions of sections 723 and 452, Code of Civil Procedure, he was entitled to the relief he asked for.

The fact that Ida Hall had also commenced an action to procure the partition or sale of the same premises need not be now considered. The plaintiff’s action was first commenced, and under the ■circumstances, he — having by a mistake not attributable to any want ■of care on his j>art, omitted a necessary party defendant — should have, under the provisions of the above-cited sections of the Code of Civil Procedure, the amendment he asks for. When the amendment is made the court can properly determine whether or not the two actions shall proceed further, and if not, which action shall be stayed.

It is suggested by respondents that the parties are unable to defray the expenses of two partition actions. This expense could have been avoided had Ida Hall made an application under the provisions of section 452 {sttpra) to be made a party defendant in the first action. But, doubtless, the court on a proper application and when all the parties interested are before it, will make an order staying the further prosecution of one of the actions. (Kimball et al. v. Mapes et al., 19 Wkly. Dig. 481; 98 N. Y. 629; Burlingame v. Parce, 12 Hun, 149; McCarthy v. Peake, 18 How. 138; Dolbeer v. Stout, 46 N. Y. St. Repr. 858; N. Y., L. E. & W. R. R. Co. v. Robinson, 15 id. 237.)

I think the order should be reversed, with costs and disbursements, and motion granted, without costs in the court below.

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

Order of Special Term reversed, with costs and printing and other disbursements, and motion granted, without costs in the court below.


text:
    Mary J. Mowell, Respondent, v. Augustus H. Van Buren, as Administrator, etc., of Nicholas E. Brodhead, Deceased, Appellant.

      A statutory reference of a disputed claim is a special prroceeding — amendment of pleadings — communication lyy a client to Ms attorney — when privileged.

    A proceeding hy reference under the statute to determine a disputed claim against the estate of a decedent is a special proceeding and not an action, and the provisions of the Code of Civil Procedure in regard to amendments of pleadings do not apply to such proceeding.'
    A claim was presented to the administrator of an. estate for money loaned to the decedent in the amount of $5,000. The claim was verified in the usual manner and was rejected, and was thereafter referred under the statute. Upon the trial the referee found that the defendant’s intestate had received'money from the plaintiff for the purpose of investment for her in the amount of §3,000, and that the plaintiff had loaned the defendant’s intestate the sum of §2,000, and judgment was rendered in favor of the plaintiff for §5,000.

      Held, that the judgment for the plaintiff, as to the §3,000 deposited with the decedent for investment, was improper.
    Any communication made by a client to his legal adviser for the purpose of obtaining advice is privileged, although no fee is asked for or paid and no action is pending or contemplated. All that is necessary to render such a communication privileged is that the relation of attorney and client shall exist and that the latter shall ask legal advice from the former. But a communication made to an attorney is no more privileged than if made to any other person, unless made in reference to some matter in which the attorney is employed, or for the purpose of obtaining his advice, or when such communication is drawn out in consequence of the relation of the parties as attorney and client.
    The burden is upon the party objecting to the evidence of an attorney as privileged to show that the admission of the client to the attorney sought to be proved was confidential.
    Appeal by tbe defendant, Augustus H. Yan Burén, as administrator, etc., of Nicholas E. Brodhead, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 19th day of July, 1893, upon the report of a referee.

      John J. Idnson, for the appellant.

      E. Fowler, for the respondent.
   Putnam, J.:

Plaintiff, on or about December 13, 1892, presented the following bill to defendant, as administrator of the estate of N. E. Brodhead, deceased:

“ Kingston, N. Y., Deo. 13, 1892.
“ Estate of N. E. Brodhead, Dr.
“ To Mrs. M. J. Mowell.
“ July 18, 1892, To money loaned N. E. Brodhead at different times before this date, $5,000.”

The bill so presented had the usual verification. It was rejected by the defendant, and thereupon the parties, by written stipulation, agreed upon a reference to a referee therein named. The approval of the surrogate was obtained and the usual order of reference of the Supreme Court entered.

The referee, after hearing the testimony offered by the parties, made, anxong others, the following findings:

“ II. That prior t,o the first day of January, 1892, the defendant’s intestate had and received at divers times money from the plaintiff for the purpose of investment for her, which, on that day, aggregated in amount three thousand dollars.
III. That defendant’s intestate never invested such money for the jdaintiff, and left among his assets no secuiities or other papers representing any poi’tion of siidi money.
“ IY. That on the $oth day of June, 1892, the defendant’s intestate made his promissory note, whereby on demand after date ho promised to pay to the plaintiff two thousand dollars, and delivered such note to the plaintiff. That the consideration of such note was money lent by the plaintiff to the defendant’s intestate. And the plaintiff is the owner and holder of said note.”
And I find as conclusions of law:
“I. That at the time of his death Nicholas E. Bi-odhead was-justly indebted to the plaintiff in the sum of five thousand dollars,, 'with interest on three thousand dollars from the 1st day of January, 1892, and on two thousand dollars from the 25th day of June, 1892.”'
“ II. That the plaintiff is entitled to recover of the defendant in this action five thousand dollars, with interest as stated in the foregoing finding.”

In his opinion the referee says: “ The bill of the plaintiff presented to the administrator consists of but one item, and that for money loaned; but this does not conclude her.

“As in the case of formal pleadings, the bill, which is in the nature of a complaint, must be conformed to the facts proved upon the trial.”

The learned referee evidently assumed that on a reference under the statute, on the presentation of a claim to an administrator of a deceased party and the rejection thereof, the referee has the same power of allowing an amendment as a referee in cm action under the provisions of the Code of Civil Procedure. We think his conclusion in this regard cannot be sustained. A proceeding by reference under the statute to detei-mine a disputed claim against the estate of a deceased party is a special proceeding and not an action. (Roe v. Boyle et al., 81 N. Y. 305.)

The provisions of the Code of Civil Procedure in regard to amend' ments of pleadings do not apply in such a proceeding. (3 Rumsey’s Pr. 295; Townsend v. N. Y. L. Ins. Co., 4 N. Y. Civ. Proc. Rep. 398 [Ct. of App.]; Eldred v. Eames, 26 N. Y. St. Repr. 277 [Ct. of App.].)

In this case the claim presented to defendant was for $5,000, money loaned. The claim as allowed by the referee was for $2,000, money loaned, and $3,000, money advanced to the deceased to invest, and which he had failed to invest.

In Townsend v. N. Y. L. Ins. Co. (supra) the plaintiff, an attorney, presented a bill as follows :

“The N. Y. Life Insurance and Trust Co., Adm’rs, etc., of, Mrs. Charlotte Brinckerhoff,
“ To John J. Townsend, Dr.
'“1873.
“Api. 21. Por my services in aiding in the care and protection of the estate of Mrs. Brinckerhoff, from Nov. 1, 1868, to date, and for advice in transactions relating thereto.............$6,000 ”

The referee allowed the plaintiff for the general care of the estate $5,026.30, and also a further sum of $350 for professional Services of the plaintiff as an attorney. The Court of Appeals, however, held that the charge in the bill for “ services in aiding in the care and protection of the estate ” did not cover a claim for the services of plaintiff as attorney. That “ services rendered by reason of a special relation would naturally be the subject of a distinct and specific statement.” That the referee erred in allowing for professional services. That no claim therefor was referred to him. The charge for “services in aiding in the care and protection of the estate * * * and for advice in transactions relating thereto,” in the ■case cited, as much embraces a claim for attorneys’ services performed in the care and protection of such estate as the claim presented in this case for money loaned covers a demand for money deposited with deceased to invest and which remained uninvested.

A demand for money advanced for the purpose of investment is entirely different from one for money loaned. The plaintiff never presented to defendant a claim for money advanced or deposited for investment. She never verified such a bill, and no consent was ever given by the defendant to refer such a claim. If a demand had been presented to defendant for money advanced to invest, he might not have consented to a reference, preferring to contest the same in an ordinary action, where he could have had the benefit of a trial by jury. If the judgment appealed from is allowed to remain, defendant is deprived, without his consent, of the right of trial by jury. In Eldred v. Eames (supra), where a referee had assumed to allow an amendment of a claim presented, the court used the following language, which we quote as applicable to this case: “ The exercise of such a power by the referee would enable a claimant to obtain a reference of his claims against an estate without the consent of the defendant or the approval of the surrogate, which is made by the statute the condition of such a proceeding. It is the claim which is rejected by the executor that may be referred, and none other.

“ If tho power of amendment is allowed, the whole subject of the controversy may be changed during the trial, to the manifest detriment of the defendant and in violation of statutory authority to order a reference. The trial might thus be had upon claims that were not presented to or rejected by the executor and whose reference was never approved by the surrogate. These conditions are made by the statute essential to the power to refer, and cannot be dispensed with or subverted.”

Under the above-cited authorities, we think the referee, under an order of reference on the bill presented to defendant for money loaned, could not properly direct judgment in favor of the plaintiff on a demand for money advanced by plaintiff to deceased to invest. There was no agreement to refer such a claim and no reference thereof. The referee in passing upon such a claim acted beyond his powers. When such a demand is properly presented to the defendant, he may elect to refer it or to litigate the matter in an action. He has the right to elect which course he will pursue. He cannot be compelled to try the matter before a referee unless he consents so to do.

The defendant urges that the referee erred in receiving the evidence of the witness Prime, an attorney, as to admissions made to him by deceased. Such admissions, he claims, were those of a client to his attorney in the course of a professional employment of the latter. As there may be another trial, we will briefly consider the position of defendant.

Of course, it is well settled that any communication made by a client to his legal adviser for the purpose of obtaining advice is privileged. This is so, although no fee is asked for or paid, and no action is pending or contemplated. All that is necessary to render ■such a communication privileged is that the relation of attorney and client shall exist and that the latter shall ask. legal advice from the former. (Bacon v. Frisbie, 80 N. Y. 394; Bank of Utica v. Mersereau, 3 Barb. Ch. 528-595; Williams v. Fitch, 18 N. Y. 546-551; Root v. Wright, 84 id. 72.)

But a communication made by a party to an attorney is no more privileged than if made to any other person unless made in reference to some matter in which the attorney is employed or for the purpose of obtaining his advice, or such communication, it may be ■supposed, was drawn out in consequence of the relation in which the parties stand as attorney and client. (Marsh v. Howe, 36 Barb. 649; Riggs v. Denniston, 3 Johns. Cas. 198; Caroll v. Sprague, 59 Cal. 655.)

The burden is upon the party objecting to the evidence of an ■attorney as privileged to show that the admission of the client to the attorney sought to be proved was confidential. (Sharon v. Sharon, 79 Cal. 633-636.)

Although the relation of attorney and client exists at the time, an ■admission made by the latter to the former is not confidential unless made in a matter in which the attorney is acting for the client or having some relation thereto, or made to the attorney for the purpose of obtaining his advice. (1 Greenl. Ev. § 244; The State v. Mewherter, 46 Iowa, 88-94.)

The admissions of Brodhead, proved by the witness Prime, were made at the December interview at Kingston and at a subsequent meeting in July. The witness swears that such admissions were not made in reference to any matter in which he was employed; that his advice was not sought or given; that he made a suggestion to. deceased, but gave no advice. After a careful examination of the testimony of the witness we are forced to the conclusion that the defendant failed to show that the communications of Brodhead to Prime, to which he objects, were confidential, or other than mere casual remarks of deceased to the witness,, having no reference whatever to the matters in which Prime was employed as an attorney and not calling for any advice on the part of the attorney.

The cases cited by appellant are not parallel. In Bacon v. Frisbie (supra) the client on a statement made by him to the attorney asked the advice of the latter. The communication was made to the attorney for the purpose of obtaining such advice. It was the statement so made to the attorney for the purpose of procuring legal advice that the Court of Appeals held could not be proved by him. In Root v. Wright (supra) the information derived by the attorney was from communications of his clients while he was engaged in transacting their business, and which was necessarily made to enable him to do so. So, in the other cases to which we are referred by appellant, the communications sought to be proved were made to an attorney in the course of his professional employment and relating thereto, and hence are not like the case under consideration, where the only evidence we have shows that the admissions of deceased to Prime had no relation to or connection with any professional employment, and that no advice was asked or given in relation thereto. We, therefore, think that the referee on the evidence submitted to him could properly find that the conversations between deceased and the witness Prime in reference to the money in question were not confidential, and hence he did not err in overruling the objections of appellant to the evidence of the witness relating to the aforesaid admissions of deceased.

We do not deem it necessary to discuss the other questions raised in the case.

Por the reason first above stated the judgment should be reversed, a new trial granted and the referee discharged, with costs to abide the event.

Mayham, P. J., and Herrick, J., concurred in the result.

Judgment reversed, referee discharged, costs to abide the event.


author: Per Curiam :

text:
    Julia Benoit, by Peter Benoit, her Guardian ad Litem, etc. Plaintiff, v. The Troy and Lansingburgh Railroad Company, Defendant.

      Liability of the owner of vicious animals — damages caused, by a runaway — the character of the horses and vehicle is, a question for the jury — what justifies a finding that certain horses were vicious and their owner negligent.

    The owner of dangerous or vicious animals, who has notice of their vicious ' character, is liable for damage done by them.
    In an action brought to recover damages for injuries alleged to have been sustained through the running away of the defendant’s team of horses, where it was shown upon the trial that the horses, before the accident, had run away 'on one occasion, of which fact the superintendent of the defendant had notice* it is proper to submit to the jury the question whether the horses were vicious or dangerous in character.
    The jury in such an action may properly find that a team, which became frightened and uncontrollable at a very ordinary occurrence on a public street, was dangerous and vicious, and that its owner, having notice of the character of the horses, was negligent in again sending them with the same driver and with the same sled to the same place where they had before been frightened.
    It is a proper question for the consideration of the jury in such an action whether the sled, used by the defendant as a vehicle before which to drive such team, was a safe one for the purpose.
    Motion by the plaintiff, Julia Benoit, by Peter Benoit, her guardian ad litem, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, after a "judgment of nonsuit rendered at the Albany Circuit on the 3d day of May, 1893.

      Jamies F. Crawford and Calen H. Hitt, for the plaintiff.

      JEt. A. Farmenter, for the defendant.
   Per Curiam :

Plaintiff, an infant seven years of age, was injured by a span of horses belonging to defendant, while they were running away on Ontario street in the city of Cohoes. The complaint alleges that the horses were addicted to running away, to defendant’s knowledge, and also that the sled or vehicle before which they were being driven at the time of the accident was defective, not affording sufficient means to control them, and hence that the injury to plaintiff resulted 'from negligence on the part of defendant.

The trial judge nonsuited the plaintiff."

The only matter for our consideration is whether on the evidence given, the question of the defendant’s negligence should have been submitted to the jury. It is not denied that the owner of dangerous or vicious animals, with notice, is liable for damages done by them. ( Van Leuven v. Lyke, 1 Comst. 515; Dickson v. McCoy, 39 N. Y. 400-403.)

ITad this case been submitted to the jury, they could have found from the testimony that the team which injured the plaintiff had run away twice before the injury. ’ If, however, it had been made to appear that the horses, before the accident, had run away only on one occasion, of which fact it was shown that the superintendent of defendant had notice, we think that a submission to the jury of the question as to the vicious or dangeróus character of the horses would have been proper. (Helmke v. Stetler, 52 N. Y. St. Repr. 528; Kittredge v. Elliott, 16 N. H. 77; Arnold v. Norton, 25 Conn. 92.)

The jury, if allowed to pass on the questions of fact raised by the pleadings, therefore, would have been justified in finding that a week before the injury to plaintiff, the same horses which caused the injury, in passing some school children “snow balling” in the street — one of the horses being struck by a snow ball — became frightened and unmanageable, so that the driver was unable to control -them; that with knowledge of this fact defendant, on the occasion of the injury to plaintiff, allowed the same team, driven before the same sled by the same driver, to go over the same route and by the same school where the team was frightened as before, and again became uncontrollable and ran away, causing the injury to this plaintiff for which this action was brought.

"We think that the evidence was such that the case should have gone to the jury. The jury could have properly found that a team which became frightened and uncontrollable at a very ordinary occurrence in a public street was dangerous and vicious — and that defendant, having notice of the character of the horses, was negligent-in again sending them with the same driver and sled, and on. the same route where they were before frightened. ’

We also think that it was a question proper for the consideration of the jury whether the sled used by defendant as a vehicle before which to drive the team to the barn, was a safe one for the purpose. There should be a new trial, with costs to abide the event.

Present — Mayham, P. J., Putnam and Herrick, JJ.

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


text:
    George Hamilton, Appellant, v. John Forsyth, Respondent.

      Plaintiff called as a witness for defendant — defendant mazy not go to the jury on the question of plaintiff’s credibility.

    The defendant in an action made the plaintiff his witness in regard to the transactions connected with a check, and proved hy him what the check was given for, and that the check and the transactions connected with it were not material to the issues formed by the pleadings, and the evidence of the plaintiff in that respect was not contradicted.

      -2eld, that the justice before whom the action was pending was authorized to sustain the plaintiff’s objection to the introduction of the check in evidence, and that the defendant had no right to go to the jury on the question as to the credibility of the plaintiff’s testimony.
    Appeal by the plaintiff, George Hamilton, from a judgment of the County Court of Ulster county in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 10th day of January, 1894, rendered upon the decision of the court reversing the judgment of a justice of the peace of the city of Kingston, Ulster county.

      John D. Eckert, for the appellant.

      Charles F. Ca/ntine, for the respondent.
   Putnam, J.:

The respondent claims that the judgment of the justice was properly reversed by the County Court on account of the alleged error of the justice in excluding the check for four dollars and fifty cents, dated March 26, 1891, offered in evidence by the defendant on the trial. That if said check had been received .it would have shown a payment of four dollars and fifty cents by defendant to plaintiff on March 26, 1891 —and a cash payment of twenty-five dollars in the same month being admitted — such payments would have tended to show that plaintiff’s claim that he commenced work for the defendant on March 9, 1891, was untrue, as in that case, no sum would have become due to plaintiff until April 9, 1891.

But the only evidence in the case in regard to the check was that introduced by defendant. He proved by plaintiff, whom he (defendant) made his witness in that regard, that the check in question was given for three days’ work done prior to March 9, 1891. The defendant was afterwards sworn and did not contradict plaintiff’s testimony, but rather corroborated it. Hence, the defendant proved that the check in question was for work done prior to the alleged hiring, and such being the case it was properly excluded by the justice.

Had the defendant in the first instance proved the check in question by another witness than the plaintiff, and the latter as a witness ■on his own account had testified that said check was given for work done prior to March 9, 1891, doubtless the defendant would have had the ^ight to go to the jury as to the credibility of plaintiff’s testimony, even if such statement of the plaintiff had not been denied on' the trial. But defendant chose to make the plaintiff his own witness in regard to the check, and proved by him what the check was given for, and that it was not material to the issues formed by the pleadings, and his evidence not being contradicted, the justice was authorized to sustain plaintiff’s objection to the introduction of the paper.

But were it otherwise, it may be doubted whether the error of the justice, if any error there was, in excluding the paper in question, was one which in any manner harmed the defendant. The facts that the check would have shown, if introduced, seem to have been proved by the evidence in the case. The plaintiff testified: “ This check was given to me for day’s work done before March 9, 1891, for Mr. Forsyth; for three days’ work at $1.50 per day.” Defendant testified: This check of March 26, 1891, is for three days’ work at $1.50 per day.” The above-quoted testimony was not stricken out, but remained in the case, and showed that on March 26, 1891, defendant gave to plaintiff a check for three days’ work, at one dollar and fifty oents per day. The check if introduced would have shown no more.

The judgment of the County Court should be reversed, with costs..

Mayham, P. J., and Heebioe, J., concurred.

Judgment of County Court reversed, and judgment of Justice’s Court affirmed, with costs of appeal to the County Court and to this court, with printing and other disbursements.


author: PutNAm, J.:

text:
    Sarah A. Tyler, Plaintiff, v. Timothy P. Hildreth and Another, Appellants, Impleaded with Alfred G. Peck and Others, Respondents.

      Judgment against a principal and surety — subrogation of the surety upon its payment by him, — decision of a motion upon conflicting affldamits, not disturbed on. appeal — relief to the surety by motion or action discretiona/ry with the court — costs of motion.

      A. surety, on tlie payment of a judgment, on which lie, together with the principal, is liable, is entitled to he subrogated to the rights of the judgment creditor, and can compel an assignment of the judgment to himself or to some one named by him.
    The decision of a motion made upon conflicting af&davits at a Special Term will not be disturbed by the appellate court, where a disputed question of fact is involved therein.
    It is discretionary with the Special Term whether to entertain a motion made by a surety to compel the assignment to him of a judgment which he has been compelled to pay, orto decline to hearit, and to compel the surety to resort to an action to obtain the relief asked for, and where the motion is opposed, the imposition of costs is in the discretion of the Special Term.
    It has long been a common, and not an improper procedure, for a surety to apply to the court by motion to compel the assignment of securities which he has been compelled to pay, and when the moving papers upon such'au application show an offer by, and the readiness of, the surety to pay a-judgment recovered against him and his principal on obtaining an assignment thereof, it is within the discretion of the Special Term to direct the assignment of the judgment to the surety upon its payment by him.
    Appeal by tlie defendants, Timothy P. Hildreth and another, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on the 2Ith day of November, 1893, ordering, among other things, an assignment of the judgment recovered in this action to the defendant Alfred G-. Peck or his appointee.
    The order appealed from contained, among others, the following provisions:
    “ Ordered, that the said Robert H. Mott, Esq., be, and hereby is, directed, upon payment to him' of the amount of the principal sum and interest owing on the judgment obtained in above-entitled action against the defendants, and all the costs of said action, and upon presentation of an assignment thereof, to execute to said Alfred G. Peck, or to such person as he may name and appoint, an assignment of said judgment, and also to deliver to said Peck, or his appointee, the assignment of said judgment made by the plaintiff to one Abner J’. Griffin, and the assignment thereof made by the latter to said Mott, provided the same have not been recorded ; it is further
    “ Ordered, that the sheriff of Albany county, upon presentation to him of a certified copy hereof, and proof of the execution and delivery of the assignment of judgment hereby ordered, and the payment to him of his fees earned in execution up to time of service of order staying proceedings thereon, release from the lien of the execution in his hands issued on said judgment, the personal property of Alfred G. Peck, heretofore levied upon by virtue of said execution.”

      Chas. F. Doyle, for the appellants.

      B. F. De Groot, for Alfred G. Peck, respondent.
   PutNAm, J.:

This is an appeal by the defendant Timothy P. Hildreth, and by Robert H. Mott, from an order directing the latter, as assignee of the judgment obtained in the above action, to assign it to the defendant Alfred G. Peck or his appointee. The notice of motion was. directed to Robert II. Mott. On its return the defendant Timothy P. Hildreth appeared and made himself a party to the proceeding.

It is well settled in this State that a surety on the payment of a judgment on which he is liable, together with the principal, is entitled to be subrogated. And he can compel an assignment of the judgment to himself or to some one named by him. (Town send v. Whitney, 75 N. Y. 425; Twombly v. Cassidy et al., 82 id, 155.)

Clearly respondent in this case was entitled to the order obtained at Special Term, if the facts were as set out in his moving papers. But the appellant read several affidavits on the hearing of the motion to the effect, that although respondent on the note in question appeared to be the last indorser, yet it was agreed when the note was made between him and appellant, that they should be equally liable thereon, each liable to pay $500 if .the principals of the note failed to pay it. These affidavits were squarely denied by those read on the part of respondent. Hence, a question of fact was presented to the court below on conflicting affidavits, and we cannot properly overrule the decision made thereon by that court. It has been frequently and properly held, that the decision on a motion by a Special Term, on conflicting affidavits, will not be disturbed by the appellate court on a disputed fact involved therein, (Henderson v. Jackson, 2 Sweeny, 603; Lane v. The Town of Hancock, 29 N. Y. St. Repr. 635.)

It is claimed by appellant that the affidavits read on the motion being conflicting, and raising a sharp contested question of fact, the motion should have been denied and the respondent compelled to seek relief by action. It does not appear that this position was taken at Special Term. As far as the papers show the appellant voluntarily submitted the question raised by the affidavits to the decision of that court. It was discretionary with the court below whether to entertain the motion or to decline to hear it and compel respondent to resort to an action. See Cole v. Malcolm, 66 N. Y. 363.)

The court below having in its discretion entertained and heard the motion on its merits, under the circumstances, we cannot properly hold that it erred in so doing. It has long been a common, and not deemed an improper procedure, for ¡sureties to apply to the court by motion to compel the assignment of securities which they have been compelled to pay. (Cole v. Malcolm, supra; Twombly v. Cassidy et al., supra; Gifford v. Rising, 35 N. Y. St. Repr. 849; Dundee Nat. Bank v. Wood et al., 30 id. 607.)

Had the papers shown that in the court below the appellant, instead of voluntarily submitting his case on the merits, objected to the proceedings on the ground that the affidavits raised a question of fact which could be determined in an action, we perhaps might have reached a different conclusion.

It is suggested that the respondent was not entitled to the order he obtained until he had actually paid the judgment. "We are of opinion, however, that the papers showing the offer by, and the readiness of defendant Peck to pay the judgment on obtaining an assignment thereof, it was within the discretion of the court below to make the order from which the appeal is taken.

The matter of granting costs was also discretionary. It appears by the recitals in the order that appellants Mott and Hildreth appeared by their counsel and opposed the application of respondent. Hence it was discretionary with the court whether or not to direct the payment of costs by them.

The order must be affirmed, with costs.

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

Order affirmed, with costs.


author: PuTNAM, J.:

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    Mary M. Carney, Appellant, v. Miner Brome, Respondent.

      Oattle trespassing — use of a dog to drive them off— abuse of such cattle — one of two causes of injury — preponderance of proof required.

    Where one person’s cattle come upon another’s premises, the latter has the right to drive them therefrom into the highway, and if he does so in a proper manner, he is not liable for any injury occasioned to the animals, and in an action to recover damages for injuries alleged to have been sustained by such cattle, it is for the owner of the cattle to show that such person, in exercising the right to drive them off his premises, in some manner abused or ill-treated them.
    It is not a wrongful act for a person driving cattle of another from his premises to chase them twice around his farm, unless they were so chased unnecessarily, nor is it wrongful for him to use a pitchfork to separate the cattle, unless he uses it in a wrongful way.
    A farmer may, under certain circumstances, use a dog, if not ugly, to aid him in driving trespassing cattle from his premises.
    When in an action brought to recover damages for injuries to personal property it is justas probable that the injury came from one cause as another, theplaintiff cannot recover, because he is bound to make out his case by preponderance of evidence, and the jury must not be left to a mere conjecture or to act on a bare possibility.

      Appeal by the plaintiff, Mary M. Carney, from a judgment of the County Court of Sullivan county in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the '29th day of December, 1892, upon the decision of the court reversing the judgment of a justice of the peace of the town of Thompson, Sullivan county.

      M. JET. Couch, for the appellant.

      Charles H. Stage, Peter E. Palen and T. F. Bush, for the respondent.
   PuTNAM, J.:

I have entertained considerable doubt as to the proper disposition of this case. My first impression was that the evidence presented a fair question of fact for the jury in the trial court, and that the judgment entered on the verdict rendered therein should not have been disturbed, for the reasons stated and under the authorities cited by the learned counsel for the appellant. But a careful examination and consideration of the facts of the case has led me, although with some hesitation, to concur in the conclusion reached by the learned county judge.

It seems the plaintiff’s cattle came upon defendant’s premises. The latter had the right to drive them therefrom into the highway, and, if he did so in a proper manner, is not liable for any injury to the animals. It was for the plaintiff to show that the defendant, in exercising the right he had to drive the cattle off his premises, in some manner abused or ill-treated them.

It was shown by the admission of the defendant that he chased the cattle twice around his farm. But there was not a scintilla of evidence showing any fault on his part in this regard. It-is not to be inferred that he would voluntarily or unnecessarily drive the animals twice around his farm. The presumption is rather that they were wild and ran as they did, despite his efforts to prevent them. Defendant admitted that he set his dog on the cattle. In the absence of any proof of the circumstances, or that the dog was an ugly one, that fact does not show any abuse of the cattle. A farmer may use a dog, if not ugly, under certain circumstances to aid him in driving trespassing cattle from his premises. Defendant also said be used a pitchfork to separate the cattle, but it was not sliown that any injury resulted to the plaintiff’s animals therefrom, or that he used the pitchfork on them, or in fact in what way he did use it.

I fail, therefore, to find any evidence showing abuse of the animals by defendant while they were on his premises. Had there been, a submission of the case to the jury was proper; but in the absence of such evidence it was improper to allow the jury to imagine that the defendant ill-treated the cattle. I, therefore, agree with the views stated by the learned county judge. It was not a wrongful act on the part of the defendant to drive plaintiff’s cattle from his premises. It was not wrongful for him to chase them twice around his farm, unless they were so chased unnecessarily, and this was not shown. It was not wrongful to use a pitchfork to sej>arate the cattle, unless he used it in a wrongful way and on plaintiff’s cattle, and these facts were not proved. It was not wrongful to set the dog on the cattle under certain circumstances, and it does not appear under what circumstances he used the dog to aid in driving the cattle, or to' what extent the dog chased the cattle or that he in any manner injured them.

It is claimed, however, that in driving the cattle towards plaintiff’s premises along the highway, defendant’s hired man, Ered Ernie, ran and abused them. It appears that. after defendant succeeded in getting the cattle into the highway, he directed Ernie to drive them to and into the road leading to plaintiff’s house. As suggested on the argument, this direction evinced a neighborly and friendly spirit on the part of the defendant, and the absence of an intent to injure the plaintiff.

’While Ernie was driving the cattle towards plaintiff’s premises, it was shown that they were running rapidly, followed by Ernie and a dog owned by one Dutcher. It does not appear that Ernie called the dog or set him on the cattle, or had any control over him, nor whether he caused the cattle to run or whether they voluntarily ran, lie being compelled to do likewise to keep up with them, or whether they were started by the dog. Dutcher testified that the cattle ran by his place. He saw his dog running down by them. The cattle were running fast. He judged his dog caused the running.

It appears, therefore, that defendant was doing a neighborly act, sending plaintiff’s cattle home. On the way they were shown to have run rapidly. But it does not appear by any satisfactory evidence whether the running was caused by defendant’s servant or by the dog, or was in consequence of the cattle being wild. The jury were not at liberty to imagine that Ernie abused the animals by running them, in the absence of any satisfactory proof that he was responsible therefor. It was for the plaintiff to establish her cause of action, and if the running of the animals under the testimony could as well be attributed to the act of the dog as to that of Ernie the jury had no right to guess that it was caused by him. It is hardly to he presumed that Ernie at such a season of the year would willingly have driven the cattle at a rate of speed rendering it necessary for him to run rapidly to keep up with them. Doubtless the evidence was sufficient to establish the fact that the injury to plaintiff’s cattle was caused by running, but it was not to show whether such running was caused by a wrongful act on the part of defendant or by some other cause for which defendant was not responsible. It was just as likely to have been owing to the latter as the former cause. As was said (although not in a similar case) in Taylor v. The City of Yonkers (105 N. Y. 202-209): The plaintiff must fail “ if it is just as probable that the injury came from one cause as the other, because he is bound to make out his case by jxreponderance of evidence, and the jury must not be left to a mere conjecture or to act on a bare possibility.”

Ve think that the plaintiff failed to show any abuse of the cattle by the defendant while they were being driven along the highway at the time in question.

On the whole case we conclude that the plaintiff failed to show any wrongful act on the part of the defendant as charged in the complaint, and, hence, that the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    John R. Myers and Others, Appellants, v. Josephine Polhemus, Respondent.

      Dismissal of a complaint by a referee — equivalent to a nonsuit — when sustained.

    The action of a referee in granting the motion of a defendant, made at the close of the plaintiffs’ evidence, without any announcement that the defendant had rested his case, to dismiss the complaint upon the merits, is equivalent to granting a nonsuit, and to maintain the judgment rendered thereon the defendant is hound to show that there was no material question of fact in dispute which, , upon a trial hy a jury, should have heen submitted to the jury, and that upon the undisputed evidence he was entitled to judgment.
    Appeal by the plaintiffs, John R. Myers and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 10th day of April, 1893, upon the report of a referee dismissing the complaint upon the merits and for costs.

      Wilmer II. Dxmn, for the appellants.

      P. Q. Eckerson, for the respondent.
   Putnam, J.:

On the trial before the referee the defendant did not offer any testimony or rest his case, but at the close of plaintiff’s evidence moved to dismiss the complaint on the ground, among others, that the plaintiffs had failed to make out a cause of action. As far as the record discloses, no other proceedings were had in the action until the referee dismissed the complaint upon the merits, with costs. Had the referee denied the motion to dismiss, the defendant would have had the right to offer evidence in her own behalf upon the issues raised by the pleadings.

It will be seen that the case is like that of Place v. Hayward (117 N. Y. 487). In that case, on the close of the plaintiff’s evidence, defendant, without announcing that he rested his case, moved for a dismissal of the complaint on the merits, and the motion was granted. It was held that the action of the referee was equivalent to granting a nonsuit, and that to maintain the judgment defendant was bound.to show that there was no disputed material questions of fact which upon a jury trial would have been required to be submitted to the jury, and that upon the undisputed evidence he was entitled to judgment. (See, also, Forbes v. Chichester, 125 N. Y. 769.) Hence, to sustain the judgment it must appear that the evidence failed to raise any questions of fact that if the trial had been at Circuit the court would have been compelled to submit to the jury.

We do not desire to criticize the findings of the learned referee or to express an opinion that such findings were not sustained by the evidence, but we think it quite clear that, on the evidence given on the trial, the referee would have been authorized to find that the plaintiff sold and delivered the ice, for which the action was brought, to the defendant.

It was shown that the ice in question was contracted for by Charles W. Polhemus, the conceded manager of defendant’s business and her agent. When he contracted for the ice it does not appear that he mentioned any person as a purchaser, or stated for whom he purchased it. He was authorized to purchase ice for the defendant. The ice was taken by defendant’s wagons and teams, and afterwards Anderson, agent of the plaintiffs, went to defendant’s office and brought liis book containing the items of the ice delivered and compared the same with the book there kept and found that the books agreed. Here was a sale of ice to defendant’s manager and agent, the name of the purchaser not being mentioned, a delivery of the ice to defendant and an entry of the ice so delivered on defendant’s book. Of course, there is evidence tending to show that defendant was not the purchaser, such as the draft, the bill, and the testimony of Charles W. Polhemus, who swore that in addition to working for his mother, the defendant, he carried on an independent business as a wholesale dealer in ice, and bought the ice in question on his own account and resold it to defendant before it was delivered. Under the circumstances of the case, however, it was a question for a court or jury as to what credit should be .given to his testimony.

Prom the'above statement it is evident that a question of fact was raised in the case to be passed upon by the referee, and that from such evidence the court could have found that defendant was the purchaser of the -ice specified in the complaint, and, hence, within Place v. Hayward (supra) a judgment of dismissal of the complaint, which, under the circumstances, was a judgment of non-suit, was not authorized.

Had a dismissal of the complaint been proper, however, such dismissal should not have been on the merits. (Terry v. Horne et al., 37 N. Y. St. Repr. 58.)

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

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

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


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    Edward J. McAleer, Respondent, v. Willis H. Warren and Another, Appellants.

      Verdict in favor of the plaintiff’s assignor, not a party to the action — a judgment thereon for the plaintiff, sustained,.

    In an action tried before a justice of the peace in which Edward J. McAleer was> plaintiff and one Warren and another were defendants, the record on appeal stated the title of the cause and gave a history of the proceedings had and a statement of the testimony given on the trial, and further stated that the jury rendered a verdict in favor of “ Godson&Son” (the plaintiff’s assignors), and judgment was thereupon given in favor of the plaintiffs for damages and costs.
    There was no change of parties made by the justice and the record disclosed no change in the title of the action. Godson & Son were not parties to the action, never appeared therein and were not before the court.

      Held, that such judgment must be deemed to have been one in favor of the plaintiff against the defendants.
    Appeal' by the defendants, Willis H. Warren and another, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 29th day of July, 1892, upon the decision of the court modifying a judgment of a justice of the peace of the town of Lansingburgh, Rensselaer county, with notice of an intention to bring up for review on such appeal the order of affirmance and rulings, findings and decision of the Justice’s Court.

      Hw/met H. Akin, for the appellants.

      Jamies G. Patton, for the respondent.
   Putnam, J.:

It seems to have been, assumed by both parties that the judgment rendered in this action in the Justice’s Court was not one in favor •of plaintiff, but was in favor of Godson & Son,” his assignors. In this assumption, we think, the parties were mistaken. The trial before the justice was in an action in which Edward J. McAleer was plaintiff and Willis II. Warren and William H. Buckley were defendants. The record starts with the title of the cause and gives a history of the proceedings and a statement of the testimony given on the trial, and states that the jury rendered a verdict in favor of Godson & Son,” instead of plaintiff, and then follows the judgment for thirty dollars damages and five dollars and twenty-five cents costs, in all thirty-five dollars and twenty-five cents.

No change of parties was made by the justice. The record discloses no change of the title of the action. The suit on trial, and tried, was one in which Edward J. McAleer was plaintiff. At the end of the trial judgment was entered as above. Such judgment must be deemed to have been one in favor of plaintiff and against defendants. It is difficult to see how it could be regarded as a judgment in .favor of “ Godson & Son,” who are not parties to the action, had never appeared therein, and were not before the court.

Of course, the plaintiff on the trial, on the reception of the verdict, should have requested the justice to direct the jury to correct the evident mistake they made in their verdict in .rendering it in favor of plaintiff’s assignors instead of plaintiff. But failing to do so, the verdict remained in favor of “ Godson & Son,” and the judgment in favor of plaintiff.

The defendants probably could have successfully appealed from the judgment on the ground that it was unsupported by any verdict. But they have not taken an aj>peal from the judgment rendered by the justice, and such being the case it should be allowed to stand.

It appears, therefore, that it was not necessary for the plaintiff to take an appeal. The judgment rendered was one in his favor. Nor was it necessary- for the County Court to modify the judgment. But it was modified, without costs, and as it assumes to change the judgment from one in favor of “ Godson & Son ” to one in favor of plaintiff, although the judgment was in fact rendered by the justice in favor of plaintiff, defendants were not injured in any manner by the order of the County Court.

Under the peculiar circumstances of the case, the defendants not béing injured by an order which does not in any way change the. situation of the parties, we think that a proper disposition of the case is to affirm the order or judgment of the County Court, without costs.

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

Judgment of County Court affirmed, without costs to either party.


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    George Kautz, Appellant, v. Harry Vandenburgh, Respondent.

      Papers considered on appeal — not the remarks of the county judge — offer of judgment and answer served the same day — priority of the respective services — effect of an offer, how determined — costs.
    Upon an appeal to the General Term from an order of a County Court, directing the retaxation of the costs in an action, only the papers used on the motion for the retaxation can he considered.
    The remarks of a county judge in his certificate, as to an affidavit attempted to he used upon a motion and excluded hy the court, cannot he considered hy the General Term upon an appeal from the order rendered upon such motion, where the same are not embraced in the order appealed from.
    Although both papers are served upon the same day, an oiler of judgment may he' deemed to have been served before or together with an answer, according to the intention of the parties serving the same.
    The effect of an offer of judgment must he determined hy the state of the pleadings when it is served, and the acceptance thereof will not extinguish a counterclaim in an answer, subsequently served, although such acceptance was made after the service of such answer.
    After the service of a complaint the defendant in an action served an offer to allow the plaintiff to take judgment for a specified sum, and on the same day served an answer setting up two counterclaims. The offer was not accepted. The action was tried and a judgment recovered hy the plaintiff, less in amount (excluding interest) than the sum for which the defendant offered to allow him to take judgment. The clerk of the court taxed the costs of the action in favor of the plaintiff.

      Held, that such taxation was proper, as the amount of the defendant’s counterclaim, added to the amount of the plaintiff’s recovery, was greater than the amount for which the defendant offered to allow the plaintiff to take judgment.

      Appeal by the plaintiff, George Kautz, from that portion of an order of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 18th day of December, 1893, which vacates and sets aside the taxation of costs in the action, made by the county clerk of Albany county, and directs the taxation of a bill of costs in favor of the defendant, with notice of an intention to bring up for review on such appeal such order except that portion of it which directs that the judgment and order entered by the defendant be vacated.

      George W. 8tedmcm, for the appellant.

      James O. Matthews and Marls Cohn, for the respondent.
   Putnam, J.:

The action was brought to recover for work and materials. The complaint, served May 2, 1893, set up one cause of action and demanded judgment for $179.61. On the first day of June defendant, pursuant to section 738 of the Code of Civil Procedure, served an offer to allow a judgment for $105 and costs, and on the same day served an answer denying plaintiff’s cause of action and setting up two counterclaims. The offer was not accepted. Afterwards plaintiff served an amended complaint setting up an additional cause of action and demanded judgment for $216.51. The defendant served an answer to the amended complaint, denying plaintiff’s cause of action, and set up the same counterclaims and demanded judgment for the dismissal of the complaint. The offer to allow judgment was not renewed after service of the amended complaint and the answer thereto.

Plaintiff on the trial recovered a sum (excluding interest) less than the amount the defendant offered. He claimed costs, however, on the ground that, by the judgment, the counterclaims set up in defendant’s answer were extinguished, and the amount of such counterclaims and the sum recovered being larger than the offer of defendant, the judgment was more favorable than the offer. The county clerk took that view of the case, and taxed costs in favor of the plaintiff. This taxation was, however, overruled by the Albany County Court. Said court directed the clerk to set aside the taxation of plaintiff’s costs and to allow defendant the costs of the action. The plaintiff appeals.

This being an appeal from tlie order of tlie County Court, we can only consider the papers used before it on the motion for retaxation. An affidavit of James 0. Matthews was attempted to be read by defendant, but was excluded by the court on the ground that a copy thereof had not been served. The county judge, in his discretion, could have allowed the affidavit to be used, or could have postponed the hearing so that a copy of such affidavit could have been properly served. But such a course was not taken, and, the affidavit having been excluded by the Albany county judge, we cannot consider it on the appeal.

Nor can we properly give any force to the remarks of the county judge in his certificate as to tlie said affidavit of Matthews, that it was unnecessary to consider said affidavit, as the statements made by counsel for defendant and plaintiff showed that as a fact, the service of the offer of judgment and answer was one transaction made at tlie same time and on the same day, the offer of judgment being handed to the attorney for tlie plaintiff first and the answer next and immediately after the offer of judgment.”

If such remarks of the county judge had been embraced in the order appealed from, it might have been deemed that he acted on tlie oral admissions of the parties before him, and such remarks might have been regarded by us. But contained in the certificate, said statements of the court below must be deemed like an opinion of the county judge and cannot properly influence our judgment formed on papers before us.

From the papers before us it then appears, by the affidavit of George W. Stedman, that tlie offer of judgment in the case wa^ served before the service of the answer, although it is admitted that such service of both papers was made on the same day. Said affidavit is not contradicted. The admission of service made by plaintiff’s attorneys on the back of the offer of judgment and answer, show a service of the two papers on the same day, but do not contradict tlie statement that the offer was served before the answer.

We have no doubt but wliat an offer of judgment can be deemed served before an answer, although both papers are served on the same day. This was held in Ruggles & Others v. Fogg (7 How. 324) by Harris, J. This case was cited in Schneider v. Jacobie (1 Duer, 694, 695) and approved in Tompkins v. Ives (3 Abb. [N. S.] 267, 268, 269, Ct. of App.).

An offer and answer served the same day might be deemed served together or at different times according to the intention of the parties serving them. Here, in the papers we are at liberty to examine, it appears by the undisputed affidavit of an intelligent and reputable attorney that the offer was first served. It is to be regretted that the attorney of respondent did not take proper means to read an affidavit before the County Court stating his view of the facts of the case.

The papers then showing that the offer in question was first served, the contention of the appellant, that the judgment obtained was more favorable than the offer, should have been sustained. It is settled in such a case that the effect of an offer must be determined by the state of the pleadings when it is served, and the acceptance thereof will not extinguish a counterclaim in an answer subsequently served, although such acceptance were made after service of such answer. (Tompkins v. Ives, 3 Abb. [N. S.] 267, 268; Fieldings v. Mills, 2 Bosw. 489.)

The papers presented to us, therefore, show that defendant’s answer was served subsequently to the offer of judgment, and, hence, it appearing that the plaintiff has obtained a judgment extinguishing defendant’s counterclaim, which would not otherwise have been extinguished, we think the judgment obtained was more favorable than the offer, and, hence, that the plaintiff was entitled to the costs of the action.

0The order of the County Court should be reversed, with costs, and the motion denied.

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

Order of County Court reversed, with costs and printing and other disbursements, and motion denied.


author: Mayham, P. J.:

text:
    Frank H. Pettee, Respondent, v. Mary H. Pettee, Appellant.

      Action for divorce — procurement of, or connivance at a wife’s adultery — inadmissible evidence received on a trial and thereafter stricken out — explanation of evidence — adjournment during trial.

    While the law very justly condemns any act on the part of a husband, by which he voluntarily leads his wife into temptation, or in any way connives at, or procures her defilement, it does not prevent him from scrutinizing her conduct, or detecting her in her voluntary violation of the sanctity of the marriage relation.
    Where the suspicions of a husband have been aroused, and he seeks to detect his wife’s infidelity if it exists, and takes no steps to prevent her carrying out her manifest purpose of meeting the man whom he suspects as being, and who proves to be, her paramour, leaving her to her own volition, his acts in so doing do not amount to the procurement of or'connivance at his wife’s adultery under section 1758 of the Code of Civil Procedure.
    Where, upon the trial of an action, the evidence of the plaintiff, inadmissible under section 831 of the Code of Civil Procedure, has been improperly taken, notwithstanding proper objection by the defendant, and has been subsequently voluntarily stricken out on motion of the plaintiff without objection, no error has been committed justifying the reversal .of a judgment rendered against the defendant.
    When in an action of divorce the defendant'made the plaintiff her witness, and proved by him with great particularity all the facts relating to his conduct and hers, claimed by her to bear upon her charge of conspiracy and' connivance on the part of the plaintiff, the plaintiff is properly allowed to explain such evidence.
    The granting of an adjournment while a trial is in progress is largely a matter of discretion, and nothing short of an abuse of discretion will justify an appellate court in reversing a judgment because of the refusal of a referee to grant an adjournment during a trial.
    Appeal by the defendant, Mary H. Pettee, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 5th day of July, 1893, upon the report of a referee granting the plaintiff an absolute divorce from the defendant, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 5th day of July, 1893.

      G. B. MeBaughlin, for the appellant.

      S. H. Bevins and Braméis A. Smith, for the respondent.
   Mayham, P. J.:

The fact that the defendant was guilty of the adultery charged in the complaint is not apparently controverted by the appellant, and cannot, we think, under the evidence be successfully denied.

The real question, therefore,, to be considered on this appeal is whether the learned referee and judge at Special Term erred in refusing to find and decide that such adultery was committed with the knowledge, privity or consent of the plaintiff, and in finding and deciding that such adultery was committed without the knowledge, privity or consent, connivance or procurement of the plaintiff.

By section 1758 of the Code of Civil Procedure it is provided as follows: “ In either of the following cases the plaintiff is not entitled to a- divorce, although the adultery is established:

First. "Where the offense was committed by the procurement or with the connivance of the plaintiff.”

This branch of the case was exhaustively examined by the learned referee in a well-considered and elaborate opinion, reaching the conclusion that the plaintiff did not conspire with the co-respondent, Owens, or any other person or persons, to cause or promote the adulterous intercourse complained of, and that the adultery was not committed by the procurement or with the connivance of the plaintiff. , ' '

It is insisted by the learned counsel for the defendant that the facts as found by the referee do not justify the conclusion reached by him.

A careful analysis of the finding of fact by the referee fails to disclose anything in the employment of the co-respondent Owens by the plaintiff or in plaintiff’s continuing to board him after he concluded his service; nor can any legitimate inference adverse to the plaintiff be drawn from the sale and conveyance of his hotel property or the storing of a ¡portion, of his furniture with his mother, Mrs. Bissell, where Owens was subsequently employed and boarded and lodged. The referee finds that up to the 18th of July, 1891, the defendant had not committed adultery "with Owens, but that on the thirteenth of July of that year, plaintiff was informed by Mrs. Bissell of her suspicions of improper intimacy between the defendant and Owens, and that the defendant would desire to come to Bissell’s the next- Saturday, and if "she came and the plaintiff would follow her, he could verify the suspicions expressed by Mrs. Bissell.

The report finds that the defendant did request permission of the plaintiff to visit Bissell’s on the Saturday night referred to, and that such permission was granted, and the plaintiff then arranged with friends to assist him in watching the movements of the defendant, and thus detect her infidelity with Owens if any occurred.

It is to be observed that the evidence does not disclose, nor does the referee find, that the plaintiff- took any affirmative steps to bring about a meeting between the defendant and Owens, at the time of the occurrence of the alleged adulterous intercourse. It is true that his suspicions had been aroused, and he sought to detect her infidelity if it existed, and took no steps to prevent the defendant carrying out her manifest purpose of meeting the man whom he suspected as being and who proved to be her paramour. But he left her to her own volition. This we think he had a right to do; any other rule would compel a husband to impose upon his wife undue restraint, and might often lead to the utterance of unfounded suspicions well calculated to disturb the harmony of domestic relations.

"While the law very justly condemns any act on the part of the husband, by which he voluntarily leads his wife into temptation, or in any way connives at or procures her defilement, it does not prevent him from scrutinizing her conduct or detecting her in her voluntary violation of the sanctity of the marriage relation.

But it is insisted by the defendant that the learned referee erred in allowing the plaintiff in this case to be sworn, and give evidence in his own behalf, under the objection that such evidence is inadmissible under section 831 of the Code.

If this testimony had not been voluntarily stricken out on motion of the plaintiff without objection, we think it would have been error for which this judgment should be reversed.

But as all of the plaintiff’s direct examination was stricken out by the court on motion of the plaintiff without objection from the defendant we think that the same is out of this case, and can, therefore, do the defendant no harm. The defendant, therefore, having made the plaintiff her own witness, and proved by him with great particularity all the facts relating to his conduct and that of the defendant claimed by the defendant to bear upon the charge of conspiracy and connivance of the plaintiff, she cannot object to the explanations to that evidence given by the plaintiff on a redirect examination of the plaintiff.

Nor do we think the referee erred in refusing to grant an adjournment, as asked for by the defendant to procure the attendance of the witness Sibley. The granting of an adjournment while a trial is in progress is largely a matter of discretion, and nothing short of an abuse of that discretion would justify the court on appeal in reversing for such refusal.

We see no error committed by the referee in his findings of fact, conclusions of law or rulings upon the trial for which this judgment should be reversed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


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    John F. Davis, Respondent, v. Anna R. Kling, Appellant.

      Money paid by mistake — recoveiy of — -accord and satisfaction — account stated and settled — voluntary payment.

    Under the terms of a continuing contract, extending for one year, the price which the person who furnished milk thereunder was to receive for the first six months could not be determined until the expiration of nine months from the time of such contract's going into operation. The person to whom the milk was furnished was, however, obliged to make monthly payments under the contract, and made them at the maximum price mentioned in the agreement until the end of nine months, when it was found that she had, for the first six months, paid a larger sum than the person who furnished the milk was entitled to.

      Held, that the over-payments should be allowed in reduction of subsequent payments coming due under the contract, and that the monthly payments made amounted neither to a monthly accord and satisfaction nor to an account stated and settled, nor to a voluntary payment.
    An account stated exists where the parties settle, and are deemed to intend to settle and state their accounts.
    Voluntary payments are those made when one knowingly pays and intends to pay an illegal or unfounded claim, with full knowledge of its illegality or groundlessness.

      Money paid under a ipistake of fact may be recovered back, and such is the case, although the party making the payment, if vigilant and careful, co-uld have avoided the mistake, and there may be a mistake as to a fact expected to happen as well as to one deemed already to have occurred.
    Appeal by the defendant, Anna B. Kling, from a judgment of the County Court of Sullivan, county in. favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 12th day of July, 1893, upon the verdict of a jury directed by the court, and also from an order denying the defendant’s motion for a new trial made on the nfinutes.

      J. 1. Curtis and T. F. Lush, for the appellant.

      John F. Anderson and Lewis F. Cwrr, for the respondent.
   Putnam, J.:

This action was brought to recover for milk sold and delivered during the months of February and March, 1892, under the provisr ions of a written contract between the parties, which took effect on April 1, 1891, and continued until April 1, 1892, and by which plaintiff during said period agreed to deliver milk to defendant. The latter was to pay on the fifteenth of each month for the milk delivered the prior month. In pursuance of the contract plaintiff delivered milk from April 1, 1891, to April 1, 1892, and following the delivery of each month defendant made the payments required by the contract by checks. The check of May, 1891, is as follows:

“ Jersey City,’ N. J., JCay 12, 1891.
“ First National Bank :
“ Pay to the order of A. Davis, twenty-five and 2-100 dollars.
“ Paid in full to May 1st, ’91.
'“125.02-100. ANNA B.'KLING.”

Each month thereafter up to February, 1892, defendant paid for the milk delivered the previous month by a similar check. It is conceded that the milk delivered in February and March, 1892, has not been settled for. There is no dispute about the amount delivered, and its value at the contract price was forty-three dollars and ninety cents, the sum for which the county judge directed the. jury to render a verdict in favor of plaintiff. The only question in the case arises out of tlie claim of defendant, that in making the payments for the months of April, May, June, July, August and September she overpaid plaintiff the sum of twenty-seven dollars and forty-five cents, which should be allowed on the demand for milk delivered in February and March, 1892, leaving due plaintiff the sum of sixteen dollars and fifty-two cents instead of forty-three dollars and ninety cents. It was provided in the written contract that if plaintiff, and others who executed the sanie agreement with him, should deliver as much milk in November, December and January of the year embraced in said contract as they shall deliver in May, June and July of said year, the defendant would pay for the months of April, May, June, July, August and September one-half of one cent per quart less than the price made by the New York Milk Exchange. But if plaintiff shall fail to deliver as much milk in November, December and January as in May, June and July of said year then defendant would pay for the milk delivered in April, May, June, July, August and September three-quarters of one >cent per quart less than the price made by the New York Milk Exchange. As above suggested, the contract provided that on the fifteenth of each month during its continuance the milk delivered the prior month should be paid for. "Whether, however, the plaintiff should be entitled the first six months to be paid at the rate of one-half of one cent or three-quarters of one cent less per quart than the price made by the New York Milk Exchange, could not be determined until after the following months of November, December and January, as until then it could not he known whether plaintiff would or would not furnish in those months as much milk as he had in May, June and July. In making the payment for the first six months of the year, defendant apparently assumed that plaintiff in November, December and January thereafter would deliver the same quantity of milk which he did in May, June and July, and paid for the milk delivered one-half of one cent per quart less than the price made by the New York Milk Exchange. In fact, plaintiff in November, December and January did not furnish the same quantity of milk as in May, June and July, and, hence, plaintiff was only entitled to receive for inilk delivered the first six months a sum three-quarters of one cent less per quart than the price made by the New York Milk Exchange. The defendant, therefore, overpaid for said first six months of the contract, such over-payment amounting to twenty-seven dollars and forty-live cents.

There was no dispute as to the facts, the amount of milk delivered, the sums paid by defendant, and that she had for the months above specified made an over-payment which plaintiff was not entitled to under the contract.

The court below directed a verdict for the plaintiff for the amount claimed, holding that the conceded over-payments made during the first six months of the contract by defendant'could not be allowed her. We cannot concur in the view of the case taken by the County Court. We can see no satisfactory reason why all sums paid by defendant for milk delivered by plaintiff should not be allowed.

As above suggested, the milk was delivered and payments made under a continuing contract extending from April 1, 1891, to April 1, ,1892. The price which plaintiff should receive for the first six months could not, foi reasons above stated, be determined until the expiration of nine months from the time of its going into operation. This being so, defendant being obligated to make monthly payments, made them at the maximum price mentioned in the agreement. When it was found at the end of nine months that she had for the first six months paid a larger sum than plaintiff was entitled to, we can see no reason whatever why the over-payment should not be allowed on subsequent payments becoming due. She made the over-payments, when it was uncertain what the amount of the monthly jiayments should be, at the maximum rate. When fit turned out that she paid more than was due for the first six months, it is but just that the excess should be applied on the subsequent payments becoming due on the contract. No sufficient reason is stated by counsel for the respondent why the over-payments should not be sc applied.

The monthly payments by defendant to plaintiff above referred to did not make a monthly accord and satisfaction as suggested by the learned counsel for respondent. There was never any dispute or controversy between the parties. There is nothing in the transactions in question like an accord and satisfaction.

Nor can the giving of the check each month be deemed an account stated as to the milk delivered the prior month. The monthly payments in question did not effect an account stated because they were made at a time when it'-was impossible to determine the true amount that should be paid plaintiff. An account stated is where the parties settle and are deemed to intend to settle and state their accounts; the parties here under the plain provisions of the contract could not, when the monthly checks were given, settle the amount due the plaintiff. They could not make an account stated. Nor does the evidence in the case show any intent to make an account stated by any agreement or settlement between the parties. Nor can the over-payments made by defendant be deemed voluntary payments.” What are called voluntary payments are when one knowingly, pays and intends to pay an illegal or unfounded claim with full knowledge of its illegality or groundlessness. As, for instance, had plaintiff at the termination of the contract demanded of defendant as the sum due him forty-three dollars and ninety cents, being the amount for which he obtained judgment, and had defendant paid him what he demanded voluntarily with the knowledge óf all the facts which she now knows, this would have been deemed a voluntary payment and defendant could not have recovered the over-payment. (See N. Y. Life Ins. & Trust Co. v. Manning, 3 Sandf. Ch. 58; Ritter v. Phillips & Ors., 53 N. Y. 586; Bennett v. Bates & Ors., 94 id. 354; Cox v. Mayor, etc., of N. Y., 103 id. 519; Redmond v. Mayor, etc., 125 id. 632.)

Many other cases to the same effect might be cited. These authorities show that a voluntary payment ” is one made with full knowledge of the facts — a voluntary payment of an unfounded or illegal claim. It does not appear in this case that defendant intended to pay any sum in excess of the amount due on the contract. She made payments in advance of the time when she was bound to make them; larger monthly payments than, as it now appears, the contract called for. But when she made them the proper amount to pay was uncertain. The over-payments made by defendant in said months were not in pursuance of any demand of plaintiff. It does not appear that there was airy settlement between the parties or that plaintiff asserted any claim for the sums paid. All that the case discloses is that at the end of each of the first six months the price per quart for the milk which plaintiff would, in the end, be entitled to, under the contract, being uncertain, the defendant paid him the highest sum he could receive thereunder. She' paid on the contract in advance, but it does not appear that she intended to pay, in the end, on the contract, a greater sum than plaintiff was legally entitled to. Therefore, there was no voluntary payment” of the over-payment in question, no intent being shown (and none will be presumed on the part of defendant to pay plaintiff more than the contract price for the milk delivered).

We think that the over-payments made by defendant during the six months in question might be deemed paid under a mistake of fact. The payments were apparently made and received on the assumption that plaintiff would furnish the same quantity of milk in November, December and January as in May, June and July. There was a mistaken assumption. We suppose that there may be a mistake as to a fact expected to happen, as well as to one deemed already to have occurred. It is well settled that money paid under a mistake of fact may be recovered. (Thompson v. Otis & Ors., 42 Barb. 461; Tinslar v. May, 8 Wend. 561; Bank of Commerce v. The Union Bank, 3 N. Y. 230; Boyer v. Pack, 2 Den. 107; Renard v. Fiedler, 3 Duer, 318.)

And this is the case, although the party making the payment, if vigilant and careful, could have avoided the mistake. (The Kingston Bank v. Eltinge, 40 N. Y. 391; Waite v. Leggett, 8 Cow. 195.)

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

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

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


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    Asa Gillett, Respondent, v. The Trustees of the Village of Kinderhook, Appellant.

      Judgment reversed in the absence of exceptions — measure of damage for injury to real estate by flooding.

    Where a case has heen submitted to the jury at a Circuit Court upon a theory which is wholly erroneous, the General Term has the power, and it is its duty, to grant a new trial because of such erroneous instruction, although no exception was taken thereto.
    On the trial of an action brought against the trustees of a village to recover damages alleged to have been sustained by the plaintiff by reason of the defendant’s wrongful act in collecting and throwing on his premises the sewage and surface water from its streets, the rule of damages, as stated by the court, was the difference in value of the plaintiff’s premises before the flooding and at the time of the trial.

      Meld, that such rule of damages was erroneous:
    That the plaintiff was entitled to recover the loss in the rental value of his premises up to the time of the commencement of the action or the value of the hay destroyed, and that had it been made to appear that any permanent injury to the premises was occasioned by such flooding he could recover the damages resulting from such iniury,
    Appeal by the defendant. The Trustees of the Tillage of Kinder-hook, from a -judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 4th day of March, 1893, upon the verdict of a jury rendered on a trial at the Columbia Circuit, and also from an order entered in said clerk’s office on the 23d day of August, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      J. Newton Fie.ro, for the appellant.

      A. II Farrar, for the respondent.
   Putnam, J.:

We are of opinion that on the testimony in this case the jury ■could properly have rendered a verdict for the plaintiff for whatever damage he was shown to have sustained by reason of defendant’s wrongful act in collecting and throwing on his premises the sewage and surface water from its streets.

The principle decided in Urquhart v. The City of Ogdensburg (91 N. Y. 67) does not apply to sucli a case as this. The liability of the defendant is not so much on account of the grade of its streets and its sewers therein as of its negligent act in failing to provide a proper outlet for the discharge of the sewage. The doctrine held in Noonon v. City of Albany (79 N. Y. 470); Chapman v. City of Rochester (110 id. 273); Stoddard v. The Village of Saratoga Springs (127 id. 261-268), and Schriver v. The Village of Johnstown (71 Hun, 232), applies to this case. Without attempting to discuss the evidence, the jury could very well find therefrom a failure on the part of defendant to take proper measures to discharge the surface water and sewage from its streets into the creek.

Rut we have reluctantly come to the conclusion that a new trial should he granted, for the reason that during the trial and on the submission of the case to the jury an improper rule of damages was. adopted.

In the court below no exceptions were taken by defendant which require discussion, and no objections appear to have been made to the rule of damages adopted. There are cases, however, holding “When a case has been submitted at a Circuit to a jury upon a theory which is wholly erroneous, the. General Term has power and it is its duty to grant a new trial because of the erroneous, instruction, though an exception was not taken.” (Whittaker v. D. & H. C. Co., 49 Hun, 400-405; Mandeville v. Marvin, 30 id. 282; Lattimer v. Hill, 8 id. 171, 172; Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25-27.)

The rule of damage adopted on the trial was the difference in value of the plaintiff’s premises before the flooding and at the time of the trial. It is true that there was.some evidence given showing the destruction in several years of a quantity of hay on the plaintiff’s farm, in consequence of the same being flooded, but the evidence in this regard was not sufficient to sustain the verdict of the jury. The case was evidently tried and submitted on the theory that plaintiff was entitled to recover the difference in value of his farm before it was flooded b]r defendant’s sewer in 1884 and the value at the time of the trial. This theory was clearly not correct. Plaintiff was entitled to recover the loss in the rental value of his premises up to the time of the commencement of the action. Or he could have recovered the value of the hay destroyed, and had it been made to appear that any permanent injury to tbe premises was occasioned by the flooding he could have recovered for that injury. As suggested in Hartman v. Tully Pipe Line Co. (71 Hun, 367, 368), the case was tried on the theory that the flooding of plaintiff’s premises would last forever, and that, hence, plaintiff in this action could recover the total and permanent depreciation which it caused in the market value of his land. But the plaintiff, after collecting the judgment in this action, might commence another action against defendant and obtain a perpetual injunction. Or he could in a subsequent action recover damages since the date of the commencement of the first action. And if the rule of damages adopted on the triai was correct he couid again recover in such subsequent action the same damages, the difference in value between the plaintiff’s premises before being flooded and at the time of the trial.

Note.— The rest of the cases of this term will he found in the next volume (78) Hun.— [Rep.

It is evident that the rule of damages adopted on the trial was not the proper one; (Hartman v. Tully Pipe Line Co., 71 Hun, 367; Reichert v. Backenstross, Id. 516; Colrick v. Swinburne, 105 N. Y. 503; Duryea v. Mayor, 26 Hun, 120; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98-116; Covert v. Valentine, 50 N. Y. St. Repr. 516.)

It seems, therefore, that the Special Term should have granted defendant’s motion for a new trial. The judgment was unsupported by any sufficient evidence. As above stated, it could not be sustained for the amount rendered, on the testimony produced by plaintiff showing the destruction of a quantity of hay in consequence of the premises being flooded, and the jury could not properly base a verdict on the testimony produced as to the difference in value between the plaintiff’s farm in 1884 and at the time of the trial.

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

Matham, P. J., and Herrick, J., concurred.

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


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    Jhon E. Thomas, Respondent, v. George A. Davis, Appellant.
   Judgment and order appealed from affirmed. Lewis, J., not sitting.


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    Frederick Beuerlein, Jr., Respondent, v. Cornelius O'Leary, Appellant.
   Judgment appealed from affirmed, with costs.


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    Mary K. Gibbs, Respondent, v. George A. Carnahan, as Executor, etc., Appellant.
   Judgment and order appealed from affirmed.


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    Annie Mitchell, Respondent, v. The Rochester Railway Company, Appellant.
   Order granting new trial appealed from affirmed, with costs on opinion of Rumsey, J., at Circuit.


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    George G. Manning and Others, Respondents, v. Lewis P. Beck and Others, Appellants.
   Judgment appealed from affirmed, with costs.