author: O’Brien, J.: Foulett, J.

text:
    David Gideon, Respondent, v. Philip J. Dwyer, Appellant.

      Action for slander — when special damage must be alleged — when unnecessary — complaint alleging changes of “ turf frauds” — words actionable from extrinsic facts — words actionable per se.

    Defamatory language, without proof of special damage, is not, as a rule, a sufcient statement of a cause of action for slander.
    An action of slander may be maintained without proof of special damage if any injurous imputation he made affecting the plaintiff therein in his office, profession or business, and words are actionable, without proof of special damage, which directly tend to the prejudice of any one in his office, profession, trade or business.
    Where the words, alleged to have been spoken in the complaint in an action for slander, derive their actionable quality from their relation to facts and circumstances extrinsic the words themselves, the plaintiff must state those facts and circumstances ; then aver that the words spoken related to those facts and circumstances by laying a colloquium, and, lastly, by innuendoes, connect such words as need explanation with the facts and circumstances previously stated in the declaration.
    The complaint, in an action brought to recover damages for slander, alleged that the plaintiff was the owner and breeder of thoroughbred horses for racing purposes ; that his business was the selling of such horses and running the same in races lawfully conducted; that under the rules of certain racing associations, in order to entitle an owner of horses to enter them for prizes, it was necessary that he should not have been guilty oí or concerned in any fraudulent practices on the turf, and that any dishonesty or “ crookedness” in racing by any owner at the track of any association would tend to disqualify such owner from making entries, and lead to the disqualification for racing purposes of all the horses owned by him, and thereby render his property valueless for racing purposes; that, in racing parlance, such disqualification is known as being “ ruled off the turf.”
    That the defendant, at a, specified time and place, in the presence of witnesses, uttered the following words to the plaintiff, in substance : “You areno sportsman. You had to leave Nashville on account of a turf fraud you committed there. President Clark, of the Louisville Jockey Club, wanted to rule you off for your crooked practices there, and warned you off the turf there, and you had to leave town.”
    That, by reason of such facts, the plaintiff was injured in his good name, fame, reputation, character and business. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      Held, that the words were actionable per se; that they were not confined to the plaintiff’s character as a sportsman, but also charged him with the commission of turf frauds, and clearly defamed him in his business of raising and selling horses and entering and running them in races lawfully conducted;
    That, as the language would have a tendency to prejudice the plaintiff in his whole business, regardless of the consideration whether racing horses for money was or was not, at common law, a lawful employment, it was unneces^ sary for him to allege special damage in order to maintain the action.
    Follett, J., dissenting.
    Appeal by the defendant, Philip J. Dwyer, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of January, 1895, upon the decision of the court rendered at the New York Special Term overruling the defendant’s demurrer to the plaintiff’s amended complaint.
    P. H. McCarren, for the appellant.

      Otto Horwitz, for the respondent.
   O’Brien, J.:

This action is for slander. The complaint alleges that plaintiff is an owner and breeder of thoroughbred horses for racing purposes; that lie owns a stock farm where horses are raised and bred; that his business is and has been for many years the selling of such horses and entering and running the same in races lawfully conducted and carried on by various associations in this State and elsewhere, and that he has always enjoyed and maintained a good and honorable name and reputation for honesty, fair dealing and straightforwardness in all transactions connected with his said business; that under the rules of the various racing associations aforesaid, nearly all of which are controlled by a single central association, in order to entitle an owner of horses to enter them for prizes, it is necessary that he shall not have been guilty of or concerned in any fraudulent practices on the turf in this or any other country; that any dishonesty or “ crookedness ” in racing by any owner at the track of any association would be taken cognizance of by the central organization, and would tend to disqualify such owner from making entries and lead to the disqualification for racing purposes of all horses owned by him, and thereby render his property valueless for racing purposes; that in racing parlance such disqualification is known as being “ruled off the turf;” that on June 30, 1894, at a racecourse, in the presence and hearing of a number of persons, the defendant spoke of and concerning and to the plaintiff and concerning his said business, in a loud and offensive voice, the following false and defamatory words in substance: “You areno sportsman. You had to leave Nashville on account of a turf fraud you committed there. President Clark, of the Louisville Jockey Club, wanted to rule you off for your crooked practices there, and warned you off the turf there, and you had to leave town.” And that by reason of the premises the plaintiff was prejudiced and injured in his good name, fame, reputation, character and business. The defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action.

The defendant contends that the words were not, of themselves, actionable, and that, therefore, the plaintiff cannot recover without proof of special damage, which is not alleged. The question, therefore, underlying the demurrer is: Were the words thus spoken of and concerning the plaintiff actionable per se ? The general rule is, that defamatory language without proof of special damage is not a sufficient statement of a cause of action except in certain specified instances, all of which it is not necessary here to enumerate, it being-sufficient to confine ourselves to the one exception which relates to words spoken of one in' relation to his office, profession or trade. As said in Folkard’s Starkie on Libel and Slander (Wood’s Notes, p. 105): “An action of slander may be maintained without proof of special damage in tlie following cases: “ * * Third. If any injurious imputation be made affecting the plaintiff in his office, profession or business.” And at page 177: “ To enumerate the different decisions upon this subject would be tedious, and to reconcile them impossible, yet they seem to yield a general rule sufficiently simple and unembarrassed, namely, that words are actionable without proof of special damage which directly tend to the prejudice of any one in his office, profession, trade or business.”

In Moore v. Francis (121 N. Y. 199) Judge Andrews, in the course of the opinion reviewing the authorities, says (p. 203): “ Defamatory words, in common parlance, are such as impute some moral delinquency, or some disreputable conduct to the person of whom they are spoken. Actions of slander for the most part are founded upon such imputations, but the action lies in some cases where the words impute no criminal offense, where no attack is made upon the moral character, nor any charge of yiersonal dishonor. The first and larger class of actions are those brought for the vindication of reputation in its strict sense against damaging and calumnious aspersions. The other class fall for the most pai’t at least, within the third specification in the opinion of Chief Justice De Grey, of words which tend to injure one in his trade or occupation. The case of words affecting the credit of a trader, such as imputing bankruptcy or insolvency, is an illustration. The action is maintainable in such a case although no fraud or dishonesty is charged, and although the words were spoken without actual malice. The law allows this form of action, not only to protect a man’s character as such, but to protect him in his occupation also against injurious imputations. It recognizes the right of a man to live and the necessity of labor, and will not permit one to assail by words the pecuniary credit of another, except at the peril, in case they are untrue, of answering in damages. The principle is clearly stated by Bayley, J., in Whittaker v. Bradley (7 D. & R 649): ‘ Whatever words have a tendency to hurt or are calculated to prejudice a man who seeks his livelihood by any trade or business are actionable.’ When proved to have been spoken in relation thereto the action is supported, and unless the defendant shows, a lawful excuse the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words and resulting damage are presumed.”

The defendant does not contend against these elementary principles of the law of slander, but claims that the words themselves clearly show that they were spoken of the plaintiff, not as a business man, but as a sportsman or patron of the turf, and, therefore, are not in themselves actionable. We cannot, however, agree with the defendant in this contention. As well said by the learned judge below: “ The defamatory words were not confined to the plaintiff’s character as a sportsman. They also charged him with the commission of turf frauds. Now it is distinctly averred that the plaintiff is engaged in the business of raising and .selling horses, and of entering and running horses in races lawfully conducted by various racing associations in this State and elsewhere. To say of such a man that he had committed turf frauds, and that he was warned off the turf for crooked practices thereon, is clearly to defame him in the business thus set out. They tended to prejudice him therein. To use the language of the books, ‘ they touched him in his business.’” We think this a correct expression of the law; and while the language, if used with reference to one not engaged in the occupation of raising and racing horses, or concerning whom it was not alleged in the complaint that he was so engaged, might not be slanderous per se, we think that not only under our Code pleading, but under the stricter system of pleading that prevailed prior to its adoption, the complaint stated a good cause of action — the introduction and explanation showing the business of the plaintiff and the meaning of the words, thus definitely connecting the words spoken with the plaintiff’s business. What was said in Kinney v. Nash (3 N. Y. 182) is here applicable: “ The words spoken as alleged in this case derive their actionable quality from their relation to facts and circumstances extrinsic of the words themselves. In such case the plaintiff must, as he has done here, by way of introduction or inducement, state those facts and circumstances; then aver that the words spoken related to those facts and circumstances by laying a colloquium, as it is called, and lastly by innuendoes connect such of the words as need explanation with the facts and circumstances previously stated in the declaration.” Without observing this formal or technical order of stating the facts, the plaintiff here has stated the facts and circumstances, and clearly and definitely, by proper explanations of the meaning of the words and by a statement of the character of his business, lias connected the facts and circumstances with the words used, and in addition alleged (but which without such allegation would be inferred) that they tended to injure and prejudice him in his business.

With the light thus afforded by “ facts and circumstances extrinsic of the words themselves,” accompanied by a statement as to the place and persons in whose hearing they were uttered, we think the conclusion follows that they were certain to be accepted by those who heard them, not simply as meaning that the plaintiff was a mere “ patron of the turf,” without any business connection with it, who was to be shunned or avoided, but as directly and seriously reflecting upon his reputation for honesty on the turf, i. e., in the way of his occupation or profession of horse racing. The complaint alleges that, at the time the words were spoken, the plaintiff carried on such profession or trade, and the words tended to prejudice him therein. It was not necessary, therefore, to show special damage.

In the case of Greville v. Chapman (8 Jur. 189; S. C., 5 Q. B. 731) the defendant imputed to the plaintiff that he had entered a horse for certain stakes at Epsom, and had afterwards fraudulently withdrawn the horse for the purpose'of obtaining an unfair advantage over other persons with whom he had made heavy wagers on the result; held, that the action would lie, and this whether or not the transactions in which the declaration showed the plaintiff to be engaged were legal.

In Yrisarri v. Clement (3 Bing. 432; S. C., 11 Moore, 308) it was held that an action does not lie for anything that may be said of the plaintiff’s conduct in an illegal transaction, but for misconduct imputed to him in any matter independently of the illegal transaction, though the slanderous words arise out of it, an action for slander would lie. And in Foulger v. Newcomb (L. R., 2 Ex. 327) it is said that words spoken imputing to a man misconduct in his office or trade are actionable, although the office or trade is one of which the court cannot take judicial notice.

Here, the plaintiff alleges that he was engaged in raising and selling horses, and also in racing them for stakes and purses; and we have referred to the above cases for the purpose of showing that, although a discussion might be provoked as to whether racing horses for money was a lawful occupation, this, though resolved against the plaintiff, would not be conclusive, because that was but one part of his business, which consisted also in the breeding and raising of race horses, which might or might not be entered in races by him, and might or might not engage in races for money or in an illegal way. And as the language would have a tendency to prejudice him in his whole business, we think that, regardless of this consideration of whether racing horses for money is or is not at common law a lawful employment, the plaintiff has made a showing that the words used were slanderous per se, and it was not necessary, therefore, to allege special damages.

As, in our opinion, a good cause of action was stated in the complaint, the judgment overruling the demurrer thereto should be affirmed, with costs, but with leave to defendant to answer over within twenty days on payment of costs.

Van Brunt, P. J., concurred.

Foulett, J.

(dissenting):

By this action damages are sought to be recovered', because the defendant on the 30th of June, 1894, on a race track, in this State, said in the hearing of divers persons that the plaintiff had on a particular occasion violated the ethics of a racecourse at Nashville, in the State of Tennessee. The words complained of are : “ You are no sportsman. You had to leave Nashville on account of a turf fraud you committed there. President Clark, of the Louisville Jockey Club, wanted to rule you off for your crooked practices there and warned you off the turf there, and you had to leave town.” The words uttered are not slanderous ver se, and it is not alleged that the plaintiff sustained special damages by reason of the words spoken. It is urged that the words are slanderous because they touched the plaintiff in his business and injured his business reputation. To say of a person in the presence of others, “You are no sportsman ” is not slanderous as tending to injure the person in his business, trade or calling, because no such occupation is recognized by the law of this State. The words uttered do not relate to tlie appellant’s business aá a breeder or seller of horses, but solely to his conduct on a racecourse at Nashville, Temí. Is the running of horses on racecourses recognized by the law of this State as a legal business or occupation ? If it is not, the pLintifE cannot recover damages for words derogatory of his conduct in racing horses. Since the enactment of chapter 44 of the Laws of 1802 the racing of horses for bets or stakes, in money or property, has been generally condemned as gambling, and punished as a crime. This statute was continued by the Revised Laws of 1813 (Yol. 1, p. 222). To this general statute there was no exception until the passage of chapter 193 of the Laws of 1821, which provides : “ That from and after the passing of this act, the training, pacing, trotting and running of horses, upon regulated courses, and upon private property, in the county of Queens, is hereby declared to be exempted and freed, for and during the period of five years from the passing of this act, from the provisions and penalties of the act entitled ‘An act to prevent horse racing and for other purposes.’ ” (Chap. 44, Laws of 1802.) By chapter 108, Laws of 1826, this act was continued in force until March 30, 1836, and by chapter 73, Laws of 1834, it was continued in force until March 30, 1851.

In 1828 the provisions of the Revised Laws, slightly changed, became a part of the Revised Statutes. Chapter 44, Laws of 1802, was repealed by chapter 21, Laws of 1828 (2d meeting), § 69. (1 R. S. 672, § 55.) The following is a copy of the section:

“ § 55. All running, trotting or pacing of horses, or any other animals, for any bet or stakes in money, goods or other valuable thing, or for any reward to be given to the owner or rider of any animal which shall excel in speed, excepting such as are by special laws for that purpose expressly allowed, shall be deemed racing within the.meaning of this Article, and are hereby declared to be common and public nuisances and misdemeanors; and all parties concerned therein, either as authors, betters, stakers, stakeholders, judges to determine the speed of the animals, riders, contrivers or abettors thereof, shall be deemed guilty of a misdemeanor, and shall be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding one year.”

It will be observed that races conducted under special laws were not deemed to be within, the section. While chapter 193, Laws of 1821, and the Revised Statutes were in force two- cases arose over the validity of contracts entered into in respect to the racing of horses in Queens county, and it was held that chapter 193 did not validate racing track contracts, but simply exempted the parties engaged in racing from the operation of the criminal law. (Gibbons v. Gouverneur, 1 Den. 170; Ruckman v. Bryan, 3 id. 340.)

In Harris v. White (81 N. Y. 532), decided in 1880, it was held that the term “bet or stakes” used in the Revised Statutes, did not include “ purses, prizes or premiums ” as these words are now communally understood, and that one who had contracted to drive the horses of another for purses, prizes or premiums on racecourses could recover his wages. The Penal Code took effect December 1, 1882, and contains the following provision:

“ § 352. Racing of animals for stake.— All racing or trial of speed between horses or other animals for any bet, stake or reward, except such as is allowed by special laws, is a public nuisance; and every person acting or aiding therein, or making or being interested in any such bet, stake or rev-ard, is guilty of a misdemeanor; and, in addition to the penalty prescribed therefor, he forfeits to the people of this State all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other property betted or staked upon the result thereof.”

This section superseded section 55 of the Revised Statutes, which was expressly repealed by chapter 593, Laws of 1886. In 1887 the so-called Ives’ Pooling Law was passed (Chap. 479, Laws of 1887), section 4 of which provides :

“ § 4. The number of days upon which races may be conducted upon any race track or grounds is limited to thirty days in each year, and during that number of days only races shall be authorized and allowed upon such tracks or grounds, during which time the same may be kept open for the admission of the public, subject to the conditions and limitations prescribed by the acts or the several amendments thereto under which the said associations were incorporated, and the provisions of sections three hundred and fifty-one and three hundred and fifty-two of the Penal Code shall not apply to the grounds of' such associations during the number of days in each year during which the said races are hereby authorized; that sucli racing and all pool selling in this State shall be confined to the period between the fifteenth day of May and the fifteenth day of October in each year, and all pool selling shall be confined to the tracks where the races take place, and on the days when the races take place.”

So far as this statute authorizes poolselling it has been held to be unconstitutional by the General Term of Common Pleas (Irving v. Britton, 8 Misc. Rep. 201), and constitutional by the General Term of the fourth department. (Reilly v. Gray, 11 Hun, 402.)

In 1890 a case arose in which the plaintiff’ sought to recover the amount of his winnings on pool tickets purchased from a racing association, and it was held that under chapter 479, Laws of 1887, such contracts were validated and a recovery could be had. (Brennan v. Brighton Beach Racing Association, 56 Hun, 188.)

In Corrigan v. Coney Island Jockey Club (40 N. Y. St. Repr. 142) a mandatory injunction was granted compelling the defendant to perforin its contract and permit the plaintiff’s horses to run for a prize in a particular race.

I am unable to discover any difference in principle between chapter 479, Laws of 1887, and chapter 193, Laws of 1821, under which Gibbons v. Gouverneur (supra) and Ruckman v. Bryan (supra) were decided. These cases are not expressly overruled in 56 Hun, 188, and 40 New York State Reporter, 142, nor were they referred to in 56 Hun, 188. It seems to me that the only effect of the Ives’ Pooling Law is to suspend the operation of the penal provisions of the Code during a limited period, and that it does not and was not intended to validate racing contracts or to recognize horse racing for bets, wagers, purses, prizes, rewards or premiums as a legal business or occupation.

The winning or losing of less than twenty-five dollars within the space of twenty-four hours is not a misdemeanor (Penal Code, § 341), but it has never been held that so winning or losing is not gambling, or that contracts made in such games can be enforced.

Por a further reason a cause of action is not stated in the complaint. The words alleged to be actionable are, “ You are no sportsman,” “A turf fraud you committed there” and “Your crooked practices there.” These terms are ambiguous, and no court, I think, will take judicial notice of the meaning of any one of them. The word “ there ” in one instance refers to a transaction on a racecourse at Nashville, and in another instance probably to a race at Louisville, Ky., conducted by the Louisville Jockey Club. Before a court could take judicial notice of the local meaning of these terms it would have to be familiar with the rules and regulations of the Nashville racecourse and of the Louisville Jockey Club, and I assume that the judges of this State are not so familiar with the rules of those distant racing associations as to be able to determine what acts are crooked practices ” or turf frauds ” under those rules. When words of a foreign language or ambiguous words are alleged to be defamatory their meaning must be averred in the complaint by an appropriate innuendo. (Pike v. Van Wormer, 5 How. Pr. 171; Fry v. Bennett, 5 Sandf. 54, 66; Moak’s Van Sant. Pldgs. 209.) I think if the meaning of those terms had been alleged in the complaint that it would be beneath the dignity of the Supreme Court to engage in an investigation of the rules of racecourses for the purposes of determining whether or not the plaintiff had been guilty of crooked practices ” or of “ turf frauds ” under their rules.

Sportsmen wrongfully charged on race tracks with unsportsmanlike conduct, or with turf frauds, in violation of the rules of racecourses, should be content with such remedies as are provided by the rules of the turf.

The judgment should be reversed, the demurrer sustained and a final judgment entered dismissing the complaint, with costs.

Judgment affirmed, with costs, but with leave to defendant to answer over in twenty days on payment of costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    Adolph Lewisohn, Respondent, v. The Kent & Stanley Company, Defendant. William G. McGrath, Appellant.

      Attachment — sufficiency of the affidavit — -apromissory note to the “estate of D. ff. Littlefield" has a fictitious payee — statute km of another State — the original papers only considered on a motion to vacate an attachment.

    In an action brought to recover the amount due on an alleged promissory note it is enough, where a warrant of attachment has been granted, as regards the existence of a cause of action, that the plaintiff shows that he has a good cause of action on contract, and that he is entitled to recover a sum stated over and above all counterclaims known to him.
    Where this essential proof is made the particular form of the contract obligation, is immaterial.
    A promissory note made “to the order of Estate of D. G. Littlefield” is a promissory note with a fictitious payee, and where it has been negotiated by the maker is deemed as against him to be a note payable to the bearer.
    An affidavit to procure an attachment in which the plaintiff alleges that such a note was delivered to him, and that he is the owner and holder thereof, is a sufficient statement of a cause of action.
    There is a presumption that the common law of the several States of the United States is similar, but no such presumption is indulged relative to the statute law of different States.
    Where a motion to vacate an attachment is founded only upon the papers upon which the warrant was granted, no other papers can be used by the plaintiff to supply defects in the original papers. Hence it is erroneous to allow the plaintiff to read, upon the motion to vacate, a judgment roll into which the attachment has been merged.
    Appeal by William G. McGrath, a subsequent lienor and junior attaching creditor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1895, denying his motion to vacate an attachment granted in this action and vacating and setting aside a stay

      Britton Havens, for the appellant.

      James F. Horan, for the respondent.
   O’Brien, J.:

A motion was made by a subsequent lienor and junior attaching creditor to vacate, upon the papers on which it was granted, a warrant of attachment issued in plaintiffs favor against defendant. The plaintiff, against objection, was permitted to read in opposition the judgment roll showing that his attachment had merged into a judgment. The two grounds urged upon this appeal for reversal are that it was error to permit the plaintiff in opposition to the motion to vacate to read and present the judgment roll in this action; and, second, that the affidavit upon which the warrant of attachment was granted was insufficient as not setting forth facts sufficient to establish a cause of action against the defendant.

In considering this second objection it is necessary to refer at length to the affidavit upon which the attachment attacked was based. After reciting the residence of the plaintiff and the non-residence of the defendant, and that the latter was indebted in a certain sum over and above all counterclaims, it reads as follows:

“ The said indebtedness arose as follows: In the city of Pawtucket, Phode Island, on or about the twelfth day of May, 1894, the defendant, for value received, made its certain promissory note in writing, dated on said day, wherein and whereby the defendant promised to pay, four months after the date thereof, to the order of Estate of D. G. Littlefield, the sum of ten thousand dollars, at First National Bank of Pawtucket, Phode Island, and thereafter, before maturity, for u valuable consideration, duly delivered the said note to the said estate of D. G. Littlefield, which said estate thereafter duly indorsed the same, but without recourse as against the said estate of D. G. Littlefield, and for a valuable consideration delivered the same to James C. McCoy, who thereafter duly Indorsed the same, but without recourse as against the said James C. McCoy, and for a valuable consideration delivered the same to the plaintiff herein, who is still the lawful owner and holder thereof.” Then, omitting a statement as to where the second instrument was made, it in similar language states that defendant made its certain other promissory note.

It will thus be seen that the plaintiff bases his right to recover the sums specified from the defendant upon two alleged promissoiy notes made'by the defendant to the order of the estate of E. G. Littlefield and delivered to the said estate, which said estate thereafter duly indorsed the same and delivered them to James C. McCoy, who thereafter duly indorsed and delivered the same to the plaintiff. It is insisted that as there is no such legal entity as the estate of D. G. Littlefield, the alleged notes could not have been delivered to it, or indorsed or delivered by it, and that for this reason the instruments set forth are not promissory notes, they could not have been “indorsed,” and such a statement without other facts is not an allegation of assignment of them to the plaintiff, nor would the title so pass to Minus to enable him to recover upon them against the maker upon the facts alleged.

There is undoubted conflict in the authorities as to whether an instrument such as is here described is or is not a promissory note. ’Thus in Daniel on Negotiable Instruments (§ 100) it is said: “ Where the writing ran, ‘ I owe the estate of A. B. $190,’ it was held that no payee was sufficiently designated, and it was inferred under the circumstances to be a mere memorandum of a balance due. But it has been held that a note regular in form, payable ‘to tire estate of T. A. Thornton,’ might be sued on by Thornton’s persona] representative. The contrary view, however, has been taken.” But it is unnecessary for us to determine this conflict, because there are other considerations which we deem controlling as to the sufficiency of the affidavit.

The plaintiff was not bound to show that he had a cause of action upon the promissory note, but he was obliged to show that he had an action upon a contract; and in this connection it is immaterial whether an instrument is described in the affidavit as a promissory note, if sufficient facts are otherwise presented to justify the conclusion that the plaintiff had a good cause of action, and, therefore, it is unnecessary to determine whether the instrument is a promissory note, or an evidence of indebtedness, or an assignment of a contract to pay, the question being: Is there furnished evidence of a prim,a faoie right in the plaintiff to recover as against the defendant? If the instrument described is a promissory note, then there is no question but that a good cause of action is set forth. If, however, we take the view most favorable to the appellant, that there is no such legal entity as the “ Estate of D. G. Littlefield,” it being alleged that the defendant, as the maker of the instrument described, for a valuable consideration, duly delivered said note to the said estate of D. G. Littlefield, which said estate thereafter duly indorsed the .same, then we think it was a promissory note with a fictitious payee.

The question then presented is, what is the binding nature of such an instrument? Under our Revised Statutes it is provided that notes made payable to the order of a fictitious person shall, if negotiated by the maker, have the same effect * * * as against the maker * * * as if payable to bearer.” (4 R. S. [8th ed.] p. 2499, § 5.) It appearing, however, that this was an instrument made in Rhode Island aud payable there, it is to be construed under the Rhode Island law, and in the absence of proof to that effect it will not be presumed that the statute law in that State and this is the same, though there is a presumption that the common law is the same in both States. An examination of the common law of this State on the subject, prior to the enactment of the provisions of the Revised Statutes quoted, will show that the statute but expresses such common law, and in accordance with the presumption that may be indulged in as to the similarity of the common law of both States, we think that thereunder a note payable to the order of a fictitious person, if negotiated by the maker, as against him, is equally as binding as though payable to bearer. That such is the construction to be given to such an instrument as the one under consideration we think is sustained, not only by decisions, but also by the best text writers. Thus, it is said in Daniel on Negotiable Instruments (§ 93): “ By executing a promissory note, the maker engages to pay the amount therein named to the bearer, if it be payable to bearer ; to the payee or order, if it be payable to a particular person or order. By the very act of engaging to pay to a particular payee he acknowledges his capacity to receive the money and also his capacity to order it to be paid to another. And, therefore, if the maker is sued by an indorsee of the payee he cannot defend himself on the ground that the payee had no capacity to indorse it by reason of being an infant, a married woman, a bankrupt, a fictitious person, a corporation without legal existence,” etc. (See, also, Scott v. Parker, 5 N. Y. Supp. 753).

We think, therefore, that the instrument was a promissory note payable to a fictitious payee, and having been negotiated by the maker, was payable to bearer; and there being an allegation that it was delivered to the plaintiff and that he is the owner and holder thereof, we think there was a sufficient statement of a cause of action. But even if the question should be raised as to the validity of the instrument as a promissory note, this, as stated, would not be fatal to the plaintiff’s right to the attachment. As correctly urged by the respondent, considerations which are important only in connection with questions turning upon the negotiability of a note can have no hearing upon questions dealing wholly with the debt upon which the note is based ; and, though we should regard it as neither a promissory note nor negotiable, there is a statement in the affidavit of the existence of a valid indebtedness in favor of the plaintiff and against the defendant.

We have examined the cases upon the authority of which the appellant insists that if the instrument is not negotiable it could not be assigned or transferred by indorsement, and we .find that no such question was therein determined. Richards v. Warring (1 Keyes, 576) and Cromwell v. Hewitt (40 N. Y. 491) are not authorities for the claim advanced by appellant, that the instruments, if not negotiable, could not have been indorsed, and that such a statement, without other facts, is not an assignment of them to the plaintiff, nor would the title to them so pass to him. In those cases the question was whether one who writes his name upon the back of a nou-negotiable note was to be held by the holder as the guarantor or maker, and as to whether he was entitled to notice of demand or non-payment ; and they are authority for the proposition that if the person so sued was not an indorser of a negotiable note but could be held as guarantor or maker, a recovery could be had against him without notice of demand or non-payment. Under our Code of Civil Procedure (§ 534), where one claims upon an instrument for the payment of money only, all that is necessary is to set forth a copy of the instrument and state the amount due thereon; such an allegation is equivalent to setting forth the instrument according to its legal effect. Here the plaintiff not only describes the instrument, but goes further and shows that it was negotiated by the maker for value, what payments were made thereon, the amount now due, and that plaintiff is now the lawful owner and holder thereof. We think, therefore, that the affidavit on which the warrant was granted afforded prima facie legal evidence of the existence of a cause of action on a contract.

As to the presentation and reading of the judgment roll in opposition to the motion, -since we attach no importance to the fact and as no injury was done the appellant, because, in our view, the-original affidavit upon which the warrant was based was sufficient,, the question need not be discussed, further than to say that the contention of the appellant, that because the motion was founded only upon the papers on which the warrant was granted, no other papers could be employed to supply defects in the original papers, is supported not only by the cases in the Court of Appeals of Trow's Printing, etc., Co. v. Hart (85 N. Y. 500); Steuben Co. Bank v. Alberger (75 id. 179), and Yates v. North (44 id. 271), but also by the cases in this court of Smith v. Arnold (33 Hun, 484), and Kahle v. Muller (57 id. 144), and by the case of Ladenburg v. Commercial Bank, herewith handed down.

The order, therefore, should be affirmed, with ten dollars costs- and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Judicial Settlement of the Account of Henry Heuser, as Administrator, etc., of Magdalena Heuser, Deceased. Henry Heuser, as Administrator, etc., Appellant; Frederick Heuser and Others, Infant Heirs, Respondents; Kittie K. Heyward, Respondent.

      Surrogate’s Court — an administrator’s account and the objections filed establish the issues — further objections demand a rehearing.

    Where proceedings are taken to settle the accounts of an administrator, the-account filed and the objections to the account, also filed, represent the pleadings of the parties and determine the issues.
    When an administrator has filed his account, and no objection has been filed alleging that he has omitted from his account any assets of the deceased, it is-improper to allow him to be cross-examined upon the final hearing as to transactions between himself and the deceased tending to show further assets, of the-estate in his hands. The proper practice in such case is to file the new objection and to have a rehearing of the account, the administrator being given further time to prepare his defense to the new objection.

      Appeal by Henry Heuser, as administrator of the goods, chattels and credits of Magdalena Heuser, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 14th day of November, 1894, settling and adjusting his accounts as such administrator, and also from an order entered in said office on the 17th day of April, 1894, denying his application for a new trial upon the ground of newly-discovered evidence.

      Leonard Bronner, for administrator, appellant.

      Porte V. Ransom, special guardian, for infant heirs, respondents.

      Marshall B. Clarke, for Kittie K. Heywood, respondent.
   O’Brien, J.:

Magdalena Heuser died intestate on the 23d of October, 1885, leaving her surviving her husband, the present administrator, and four children, three of whom were minors. In February, 1893, the administrator filed his petition for a voluntary accounting with his accountant vouchers, from which it appeared that the deceased was possessed at the time of her death of the sum of $3,000, which was then on deposit in the German Savings Bank, with which sum, together with $368.78, interest thereon, the administrator charged himself, and as against such amount credited himself with the sum of $1,501.65, which he claimed to have paid out for funeral expenses and other disbursements in connection with his administration, leaving the sum of $1,867.13 to be distributed by the administrator among those entitled thereto, subject to the deduction of commissions and the expenses of the accounting. The special guardian filed objections to the account, which related solely and exclusively to items and matters set forth and contained in such account.

On the 31st of May, 1893, the hearing upon the objections came on before the surrogate, and the special guardian having expressed a wish to examine the administrator as to the objections filed, what followed is thus set forth in the record: Addressing the surrogate, the special guardian said: I should like to examine the administrator. [The surrogate] : With reference to the fourth objection ?' [The special guardian] : Yes, sir.”

The administrator was then placed upon the stand and examined at length as to when he became acquainted with the deceased, the date of his marriage wjth her, and his relations to the business which at the time of the marriage was being carried on by the deceased. From such testimony it appeared that the administrator became acquainted with the deceased some time in June, 1874, and married her on the 20th of March, 1878 ; that during that time and up to about May 1, 1879, she was engaged in carrying on the liquor business at No. 302 East Thirty-fourth street, when she moved to No. 321 East Thirty-fourth street, and there she remained continuing the liquor business until October 24, 1879, when she sold her business for the sum of $275 in cash. On October 14, 1879, purchase was made of a saloon and boarding house at No. 905 Third avenue for the sum of $500, of which $300 was paid in cash, and a purchase-money mortgage for the balance of x$200 was advanced by the brewer, and this business was continued down to the death of the wife and, subsequent thereto until the 31st of August, 1889. The money was paid by the husband and the title taken in his name, but whether this business was owned by the administrator personally, or was conducted in his name as agent for the wife, was a question which, upon the testimony, the special guardian insisted should be resolved in the wife’s favor, and in this the learned surrogate agreed, charging the administrator with the income from the Third avenue saloon at the rate of twenty-five dollars a month from October 23, 1885, the date of the death of Magdalena Heuser, to February 3, 1893, the date of the filing of the account, together with the value of the fixtures, good will and stock and license of the saloon. The hearing before the surrogate was commenced and completed on May 31, 1893, and while findings were proposed in July of that year, the entry of a decree was adjourned over from time to time and, as entered, bears date November 14, 1894. Feeling aggrieved at the conclusion reached as to the ownership of the Third avenue business, and prior to the making of any order or decree by the surrogate, the administrator applied for a new trial on the ground of newly-discovered evidence and surprise, which was denied, and it is from the decree and the order denying a new trial that this appeal is taken.

It has been many times held in these proceedings that the account filed and the objections thereto represent the pleadings of the parties, and that the issues to be tried are to be determined therefrom. The procedure adopted and the result he2-e show, we think, the wisdom of adhering to the rule. Though no ohjection was filed to the account claiming that the administrator should be charged with anything more than the amount left hy the deceased and which was on deposit in the savings bank, he was examined at the request of the special guardian, not as to matters connected with the objections filed, but in regard to his relations to the business carried on by him or by his wife or both of them jointly, and without any notice or intimation that such a claim would be made, he was held liable to account for the profits, good will, stock and fixtures of the Third avenue business. We think the administrator was entitled to some notice that such a claim would be advanced upon his accounting, and the orderly way of doing this would have been to file a proper objection. Without this being done, however, the adminis-' trator, as stated, was examined at length in regard to his business for many years back. That he did not know the purpose of the inquiry and was not prepared to maintain his claim to the ownership of the business appears from the record, wherein, in respect to transactions that took place some years prior to the date of his examination he gave answers which were not only inconsistent but at times not intelligible; and the reason for this, in addition to the lapse of time, is shown by the affidavits presented upon the motion for a new trial, from which it appears that the administrator is somewhat deaf, not over intelligent, and failed to apprehend the meaning of many of the questions put to him. It was also shown upon such motion that written documents connected with the purchase of the Third avenue store were in the possession of the administrator, which, had he been in any way apprised of the claim to be made, he could have produced, and which would seemingly have a tendency to establish the claim advanced by him upon the motion, that he was able to prove that the Third avenue business belonged to him individually, and not to the deceased.

We think that the situation wap one which required that the discretion vested in the surrogate to grant a rehearing should have been exercised in favor of the administrator. Were it not for the conclusion reached that the administrator had appropriated and failed to account for property belonging to the deceased, there would be no valid reason for depriving him of his commissions and-charging him personally with the expenses of the accounting, which in connection with the other terms of the decree bore most rigorously against the administrator. It may be that the same conclusion will be reached after a thorough and proper examination has-been had; but we think that the interests of justice and the-proper and orderly procedure which should be observed, require-that those opposed should file proper objections, and then the administrator should be permitted, if he can, to sustain his claim-.

So much of the decree, therefore, as charges the administrator with the net income, good will, etc., of the Third avenue business,, and the order denying a rehearing on that question, should be reversed, without costs upon this appeal, and leaving all questions as-to costs and allowances to be awarded and the commissions of the administrator for the consideration and determination of the surrogate upon the retrial hereby ordered.

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

Decree and order denying rehearing reversed, without costs,, leaving all questions as to costs, allowances and commissions to be-determined by surrogate upon the retrial hereby ordered.


author: Van Brunt, P. J.:

text:
    Joseph Mitchell, an Infant, by Emily Mitchell, his Guardian ad Litem, Respondent, v. Sara J. Keene, Appellant.

      Negligence —personal injuries on an elevator — facts establishing negligence.

    A messenger boy with, telegrams to be delivered at a hotel showed them to the elevator man and stepped into the elevator at such hotel; the elevator man handed the telegrams back, pulled the rope and let the elevator go up and stopped it at the third floor; there were no other persons in the elevator and the elevator man knew the persons whom the messenger boy desired to see for the purpose of delivering the dispatches.

      Held, that the boy had the right to assume, when the elevator stopped, that he had arrived at the floor upon which he was to alight;
    That it was not negligence upon his part to place himself in a position to leave the elevator as soon as the door of the shaft should be opened;

      That after such stoppage it was the duty of the elevator man, before starting the car again, to see that there was no danger in starting the car, or to give the boy some notice that he had not arrived at his destination;
    That the failure to do so and the starting of the car, which had no door to protect-the persons riding therein, by means of which the hoy’s foot was caught and crushed, justified the assumption by a jury, in an action brought to recover' damages for the personal injuries so sustained, of negligence on the part of the person in charge of the elevator and of the absence of negligence on the part of the boy.
    Appeal by the defendant, Sara J. Keene, from a judgment of the Supreme Court in favor of 'the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January,. 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made on the 27th day of February, 1895, and entered in said clerk’s office denying the defend- • ant’s motion for a new trial.

      de Lagnel Berier, for the appellant.

      G. A. Moses, for the respondent.
   Van Brunt, P. J.:

The evidence upon the part of the plaintiff shows that he was a messenger boy working for the American District Telegraph Company ; that the premises in question were known as the Windemere Flats or the Windemere Hotel, situated on the southwest corner of Fifty-seventh street and Ninth avenue; that the plaintiff on the sixth of June had two telegrams to deliver to persons who were resident in said flats. There was an elevator in the building, and upon entering the building the plaintiff went to and stepped into-the elevator. The man in charge of the elevator was there; the boy handed him the telegrams and he took them and then handed them back. When he had handed the telegrams back he pulled the rope and let the elevator go up, and it stopped at the third floor. The boy approached the doorway of the elevator and stood with his left foot out waiting for the door to be opened. The elevator man then pulled the rope again, giving no notice to the boy, the elevator went up and the boy’s foot was caught between the floor of the elevator and the top of the door of the elevator shaft and injured.

Upon these facts the jury found a verdict in favor of the plaintiff, and from the judgment thereupon entered and from the order denying motion for new trial this appeal is taken.

It is claimed the complaint should have been dismissed because no negligence had been proven against the defendant. It is urged that the stoppage of the elevator by the elevator man without saying anything, or having said a word to intimate that it was the floor at which the plaintiff was to alight, and without opening the door of the elevator shaft, should not and could not have been considered by the plaintiff as an intimation that he had arrived at the floor at which he was to get out of the elevator. We think, however, this is error. There were no other persons in the elevator; the elevator man knew the persons whom the plaintiff desired to see for the purpose of delivering the dispatches; and when he stopped the elevator the plaintiff had a right to assume that he had arrived at the floor upon which he was to alight. It was not negligence upon his part to place himself in a position to leave the elevator -as soon as the door of the shaft should be opened. After such stoppage it was the duty of the elevator man, before starting the car again, to see that there was no danger in starting the car, or to give the plaintiff some notice that he had not arrived at his destination. This he utterly failed to do. He started the car, the car itself having no door to protect the parties who were riding in it; the plaintiff’s foot was caught and crushed.

We think the jury had a right from these facts to infer negligence upon the part of the person in charge of the elevator and a want of negligence upon the part of the plaintiff.

The judgment and order appealed from should be affirméd, with costs.

O’Brien and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Adolph Ladenburg and Others, Respondents, v. The Commercial Bank of Newfoundland, Defendant. New York Produce Exchange Bank, Appellant.

      Warrant of attachment against a foreign corporation — jurisdictional facts — constitutional jurisdiction of the Supreme Court — residence of the plaintiff must be alleged — presumptions not indulged in to sustain attachments — motion to vacate an attachment — upon what papers heard — insufficiency of allegations on information and belief based on a cablegram.

    Unless the jurisdictional facts appear in the papers upon which a warrant of attachment, is granted against a foreign corporation, the attachment must he set aside ; it is the plain meaning of the Code of Civil Procedure that it must appear hy affidavit, to the satisfaction of the judge granting the warrant of attachment, that a cause of action exists of which the court has jurisdiction.
    Ordinarily jurisdiction in a court of general jurisdiction need not be alleged, but where the provisions of the law are that the court shall have jurisdiction of a certain class of cases, only where certain facts exist, it is necessary to allege, in order to show that a cause of action exists, that the facts essential to such jurisdiction are present.
    The provision of the Code of Civil Procedure in relation to actions against foreign corporations is not a restriction of the jurisdiction of the Supreme Court, but is rather an enlargement thereof and cannot be held to infringe in any way upon the constitutional provisions as to the jurisdiction of the Supreme Court.
    In an action brought against a foreign corporation commenced by attachment, where the cause of action arose without the State of New York, the Supreme Court has no jurisdiction unless the plaintiffs are residents of the State of New York.
    An allegation contained in an affidavit upon which a warrant of attachment is based, that the plaintiffs are a firm doing business as bankers in the city of New York, is not equivalent to an allegation that the plaintiffs are residents of the State of New York.
    Presumptions cannot be indulged in to sustain a warrant of attachment; the facts necessary to sustain an attachment must be proved by affidavits to the satisfaction of the judge granting the same.
    Where a motion is made to vacate an attachment upon the papers upon which it was granted, the attachment must stand or fall according to the sufficiency of those papers.
    Allegations contained in an affidavit on which a warrant of attachment was granted, that the source of deponent’s information and belief, as to the presentation and protest of a certain note and the giving of notice, is founded upon a cablegram received from the correspondent of the deponent’s firm in London, are wholly insufficient to form any basis for judicial action.

      The judge granting a warrant of attachment must be satisfied by the affidavits presented, and he cannot be satisfied by the satisfaction of the affiant. It is not the plaintiff in the action that is to be satisfied, it is the judge granting the attachment, and there is no judicial reason for the judge’s satisfaction simply because the plaintiff is satisfied.
    Where a party alleges in an affidavit certain facts upon information and belief, and states that the sources of his information are certain writings, the court is entitled to know what the writings are in order to see whether the affiant is justified in his belief or not.
    Upon an application for a warrant of attachment it is necessary that there should be presented to the court, upon the face of the papers, facts establishing a reasonably certain right of recovery, and where the existence of certain facts is necessary to a recovery, unless such facts are shown, there is presented no right to recover nor is any cause of action shown to exist.
    Appeal by the New York Produce Exchange Bank, a junior attaching creditor, from an order of the Supreme Court, made at the New York Special Term on the 18th day of February, 1895, and entered in the office of the clerk of the county of New York, denying the appellant’s motion to vacate a warrant of attachment, and also from an order made at the New York Special Term and entered in said clerk’s office on the 25th day of February, 1895, denying the appellant’s motion to resettle the order of February 18, 1895, with notice of an intention to bring up for review upon such appeal an order made by a justice of the Supreme Court on the 18th day of February, 1895, permitting the plaintiffs to file additional affidavits nunc jpro t%mc as of December 10, 1891, so far as the same affects the rights of the appellant already acquired.

      J. A. Mapes, for the appellant.

      Jacob Steinhart, for the respondents.
   Van Brunt, P. J.:

This is an appeal from an order made upon a motion by a subsequent attaching creditor to set aside a prior attachment upon the papers upon which it was granted. No question is presented as to the status of the moving party, and the only points brought up for review are those arising on the papers upon which the first attachment was granted, and the right of the court after the making of the motion to set the same aside upon the papers upon which it was granted to allow the introduction of amendatory affidavits.

The attachment sought to be set aside was granted upon the affidavit of one of the plaintiffs, which alleged that the defendant was a foreign corporation organized and existing under the laws of the Dominion of Canada doing business at St. Johns, Newfoundland; that a cause of action existed in favor of the plaintiffs against the defendant to recover a sum of money of the character mentioned in the act authorizing attachment; that the plaintiffs were bankers in the city of New York and the defendant was a banking corporation, .and that on the 19th of November, 1894, at St. Johns, Newfoundland, the defendant made certain bills of exchange dated on that day and directed the same to the London and 'Westminster Bank of London, and by said draft required said London and Westminster Bank to pay to the order of themselves (evidently meaning the drawers of the drafts) sixty days after sight a certain sum of money. The affidavit further stated that thereupon the said defendant indorsed and delivered said bills of exchange to the National Bank of the Republic of the city of New York, who sold the same to the plaintiffs.

The affidavit then alleges upon information and belief that said bills of exchange were thereupon presented to the London and Westminster Bank at London for acceptance on or about the 7th day of December, 1894, but the same were not accepted and were thereupon duly protested for non-acceptance, of all of which due notice was given to the defendant, and payment of the defendant was thereupon demanded. The affidavit further alleges that the sources of the deponent’s information and belief were a cable received from the correspondent of deponent’s firm in London, and that no part of said acceptance had been paid, and there was then due from the defendant to the plaintiffs a certain sum over and above all counterclaims.

The ground winch was insisted upon in the court below for the vacation of the attachment was that it appearing that the defendant was a foreign corporation, and that the cause of action arose out of this State, and it not appearing that the plaintiffs or any of thpm were residents of this State, this court had no jurisdiction to entertain the action. It has been held repeatedly in this department that unless the jurisdictional facts appear in the papers upon which .an attachment is granted against a foreign corporation the attachment must be set aside, and that the plain meaning of the Code is that it must appear by affidavit that a cause of action of which the court has jurisdiction exists to the satisfaction of the judge granting the warrant. It is undoubtedly true that ordinarily jurisdiction in a court of general jurisdiction need not be alleged. But where the provisions of the law are that a court shall have jurisdiction of a certain class of cases only where certain facts exist, it is necessary to allege, in order to show that a cause of action exists against such a defendant, that the facts essential to jurisdiction are present. It would be idle to require the establishment by affidavit of the existence of a cause of action of which the court had no jurisdiction as a prerequisite to the issuing of this extreme remedy. As has already been shown, it was the intention of the Code, before the issuing of the writ, to require that the judge called upon to issue the same should be satisfied that there was a right of recovery. And in an action' against a foreign corporation no right of recovery exists unless the jurisdictional facts are shown.

It has been suggested that the Legislature had no power to limit the jurisdiction of the Supreme Court by the alleged restrictions which it has placed upon it by the provisions of the Code. An examination of the law, however, seems to establish the fact that every provision of the statute, instead of being a restriction of jurisdiction, has been an extension thereof. The Supreme Court, prior to the provisions contained in the Revised Statutes (Vol. 2, p. 459, § 15), had no jurisdiction against foreign corporations unless it could obtain jurisdiction of the persons of such corporations. Then this jurisdiction was enlarged by the enactment in question, which provided that suits brought in the Supreme Court by a resident of this State against any corporation created by or under the laws of any other State, government or country for the recovery of any debt, claim or demand, might be commenced by attachment. This seems to have been the first legislation authorizing a proceeding m rem against a foreign corporation, and then such proceedings could only be instituted by a resident of the State. In 1849, by chapter 107, the 15th section of the Revised Statutes was amended as follows: “ Suits may be brought [in the Supreme Court, in the Superior Court of the city of New York, and in the Court of Common Pleas in and for the city and county of New York] against any corporation created by or under the laws of any other State, government or country for the recovery of any debt or damages, whether liquidated or not, arising upon contract made, executed or delivered within this State, or upon any cause of action arising therein. Such suits may be commenced by complaint aud summons, together with an attachment as now provided by law,” etc.

By this legislation the jurisdiction of the Supreme Court ivas extended to all causes of action arising within this State. In the same year section 427 was added to the Code of Procedure, which gave the courts above mentioned jurisdiction in actions against foreign corporations in cases where such action was brought by a resident of this State for any cause of action, and in cases where such action was brought by a non-resident of this State when the cause of action should have arisen or the subject of the action should be situated within the State; again increasing the jurisdiction of the courts in actions against foreign corporations.

This jurisdiction remained in this condition until the enactment of section 1780 of the Code of Civil Procedure, where it was provided that an action against a foreign corporation might be maintained by a resident of the State or by a domestic corporation for any cause of action, and that an action against a foreign corporation might be maintained by another foreign corporation or by a nonresident in one of the following cases only :

1. "Where the action is brought to recover damages for the breach of a contract made within the State, or relating to property situated within the State at the time of the making thereof.

2. Where it is brought to recover real property situated within the State, or a chattel which is replevied within the State.

8. Where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated without the State.

It will thus be seen that by the legislation which has taken place there has been no restriction of jurisdiction, but rather an enlargement thereof. Such being the case, such legislation cannot be held to have in any way infringed upon the constitutional protection of the jurisdiction of the Supreme Court; and, therefore, in the case at bar, the cause of action having arisen out of this State, the Supreme Court has no jurisdiction unless the plaintiffs are residents.

It is urged upon the part of the respondents that the allegations in the affidavit state that the plaintiffs are residents of the State of New York. An examination of this affidavit, however, will show that it contains no such allegations. All that it alleges is that the plaintiffs are a firm doing business as bankers in the city of New York. They may have resided in New Jersey, in Connecticut or in Europe, and yet this allegation be perfectly true. It is urged that no case can be found in the books that any similar statement is held to be an insufficient allegation of residence in the absence of express contradictory evidence. It may possibly be that no such case can be found, because it never before, perhaps, had been claimed that such an allegation is equivalent to an allegation of residence. In fact, we find in the provisions of the law in regard to supplementary proceedings an express provision recognizing the fact that doing business in a location is not residence; because an execution to form the foundation for the examination of a debtor in such proceedings may be issued to the sheriff of the county where the judgment debtor has, at the time of the commencement of the proceeding, a place for the regular transaction of business in person, or to the sheriff of the county where he resides, if he is a resident of the State. It is apparent, therefore, that an allegation that a party is doing business is by no means an allegation of residence.

Our attention is called to cases where presumptions have been indulged in for the purpose of establishing residence. But presumptions cannot be indulged in to sustain an attachment, because the facts necessary to sustain the attachment must be proved by affidavit to the satisfaction of the judge granting the same ; not by presumption, but by affidavit. It would seem, therefore, that the allegations contained in these papers were insufficient to establish residence.

We then come to consider the question as to whether additional papers could be allowed to be filed nunc pro tunc for the purpose of sustaining the attachment. The rule seems to be thoroughly well settled that where a motion is made to vacate an attachment upon the papers upon which it was granted, the attachment must stand or fall according to the sufficiency of those papers. (Trow’s Printing, etc., Co. v. Hart, 85 N. Y. 500 ; Steuben Comity Bank v. Alberger, 75 id. 179; Yates v. Worth, 44 id. 271; Smith v. Arnold, 33 Hun, 484; Kahle v. Muller, 57 id. 144.)

There is another defect in the papers presented which, although attention has not been called to it by the counsel for the appellant, in view of the conclusion at which we have arrived upon the other branch of the case, we do not think should be passed unnoticed. The allegation is that the source of deponent’s information and belief as to the presentation and protest of the note in question and the giving of notice is founded upon a cable received from the correspondent of the deponent’s firm in London. This is wholly insufficient-to form any basis of judicial action. The judge granting the attachment must be satisfied by the evidence presented, and he cannot be satisfied by the satisfaction of the affiant. It is not the plaintiff that is to be satisfied; it is the judge granting the attachment; and there is no judicial reason for the judge’s satisfaction simply because the plaintiff is satisfied, which is all that such an allegation amounts to. The affiant is satisfied of the fact because of the cable; but what is in the cable the court is not informed, and it is impossible for it to tell whether the affiant’s satisfaction is justified by the cable or not. Being a party interested he may have been satisfied and have believed without the slightest foundation for any such satisfaction or belief. Where a party alleges upon information and belief, and states that the sources of his information are certain writings, the court is entitled to know what the writings are in order to see whether the affiant is justified in his belief or not. In other words, on these applications facts, not inferences, must be presented. Steuben County Bank v. Alberger (78 N. Y. 252); McCulloh v. Aeby & Co. (31 N. Y. St. Repr. 125), and other cases might be cited.

To sum up tiie whole matter, it would seem that it is necessary that there should be presented to the court, upon the face of the papers, facts establishing a reasonably certain right of recovery, and Avhere the existence of certain facts is necessary to a recovery, unless such facts are shown, there is presented no right to recover, nor is any cause of action shown to exist.

Notwithstanding that the main question involved on this appeal has been determined by this court repeatedly, in view of the magnitude of the interests involved, and the interesting argument presented upon the part of the appellant, it has been thought necessary to amplify somewhat in order that the position of the court might be clearly understood.

The orders appealed from should be reversed, with costs, and the motion to vacate thé attachment granted, with costs.

O’Brien and Follett, JJ., concurred.

Orders reversed, with costs, and motion to vacate attachment granted, with costs.


text:
    The Harlem Bridge, Morrisania and Fordham Railway Company, Appellant, v. The Town Board of the Town of Westchester and Others, Respondents.

      Production of records for the first time upon the argument of an appeal.

    An appellate tribunal may permit a record to be produced for the first time on argument in that court.
    This was formerly allowed only for the purpose of sustaining a judgment, and was never permitted for the purpose of reversing one; it may now be received for either purpose.
    These appeals were heard pursuant to a judgment and order of the Court of Appeals (made the judgment and order of the Supreme Court) directing that a previous order of the General Term be reversed and that the case be remitted to the General Term of the Supreme Court for a hearing upon said appeals from the Special Term of the Supreme Court to the said General Term.
    The appeals from the Special Term were taken by the plaintiff, The Harlem Bridge, Morrisania and Fordham Railway Company, from two orders of the Supreme Court, each made at the New York Special Term and entered in the office of the clerk of the countyof New York on the 29th day of May, 1893, granting the respective defendants’ respective motions for leave to renew motions for extra allowances on the discontinuance of the action, and granting such allowances to the amount of $500 by each order.

      W. N. Cohen, for the appellant.

      A. B. Cruikshank, for the respondents.
   Van Brunt, P. J.:

This action was begun in June, 1892, for the purpose of obtaining an injunction to restrain the defendants from interfering with the plaintiff in building and. operating a street surface railroad, etc. A preliminary injunction was granted at the coinmencement of the action pending the hearing of a motion to continue the same pendente lite. Upon argument this motion was granted,- and an order continuing the injunction during the pendency of the action was entered. An appeal from such order was taken to the General Term. Issues of fact were joined by the service of answers of all the defendants except two, who demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. Subsequently a motion for discontinuance was made by the plaintiff and would seem to have been granted by an order dated February 27, 1893, which does not appear to be contained in the record. On the 7th of March, 1893, an order was -entered reciting that, upon reading the order of February 27, 1893, and upon reading another order of the 7th of March, 1893, vacating the injunction order (which last-mentioned order is also conspicuous for its absence from the record), and upon reading and filing two certain bills of costs adjusted upon notice, and the receipt by defendants’ attorneys of the due payments by plaintiff’s attorneys of said costs, and reciting that it appeared that the terms imposed by one of the jn-evious orders had in all respects been duly complied with by said plaintiff, except as to the extra allowance to be thereafter disposed of, and that the plaintiff was under the provisions of said order entitled to the final order of discontinuance therein, it was ordered that the action be discontinued without further costs to either party as against the other. The defendants thereupon moved for extra allowances, and such motions were denied and orders entered thereon. An application was subsequently made to the justice who had decided the motions to resettle the orders so as to contain leave to renew the motions, which was denied. It does not appear that any order was entered upon such motion. The defendants then moved for leave to renew the original motion upon additional affidavits and also for the relief originally asked for. Leave to renew was granted and the motion for an extra allowance was also granted. From the orders granting the allowance the plaintiff appealed to the General Term. These orders were reversed by the General Term on the ground that the court had no power to grant an extra allowance after the action • had been discontinued. An appeal from the order of the General Term was thereupon taken to •the Court of Appeals, and to the return to the Court of Appeals was annexed a stipulation which did not appear in the record upon the hearing before the General.Term and was not presented to the General Term, which facts appear upon the face of said return to the Court of Appeals. The Court of Appeals held that the judgment of the General Term upon the record and facts before it was correct; but because of the existence of this stipulation, which did not appear in the record before the General Term and was not presented to such court, its judgment was reversed. (143 N. Y. 59.)

It has long been the settled rule in our State that an appellate tribunal may permit a record to be produced on argument in the appellate court, but this was allowed only for the purpose of sustaining a judgment and was never permitted for the purpose of reversing one. (Stilwell v. Carpenter, 62 N. Y. 639; Porter v. Waring, 69 id. 255; Day v. Town of New Lots, 107 id. 157; Dunham v. Townshend, 118 id. 286.)

This authority also seems to have been limited to the receipt of records, such as records of judgment, bankrupt discharges and certificates of naturalization; and evidence of this character was received by the appellate court for the reason that, being in its nature uncontrovertible, it would be idle to send the case back for a new trial for the sole purpose of admitting it. There does not seem to have been any authority whatever for the admission of evidence of any other character; and in the case of Porter v. Waring (supra) such a limitation seems to have been specially noticed.

In the case at bar, for the purpose of reversing the judgment of the General Term, the appellate court has received a stipulation which was not in the record before the General Term, which was not recited in the order of discontinuance which was the foundation of the judgment of the General Term, "of which, therefore, the General Term could have no knowledge, and which it could not consider. This seems to have established a different rule from that which has heretofore obtained in this State in respect to the receipt of evidence by an appellate tribunal. Not only is evidence received of a character essentially different from that to which this privilege has hitherto been confined, but it is also admitted, not for the purpose of supporting a judgment, as has heretofore been the rule, but' for the reversal of such judgment.

In view of the conclusion arrived at by the Court of Appeals upon the previous appeal, we think that the orders appealed from must be affirmed, with costs.

Follett, J., concurred.

Orders affirmed, with costs.


author: Follett, J.:

text:
    Empire City Subway Company (Limited), Appellant, v. Broadway and Seventh Avenue Railroad Company and Another, Respondents.

      Electrical subways in New Torh city — not an exclusive right — who may sue for the violation of a public statute — right of a street railroad company to maintain a subway — basis for an extra, allowance.

    As a rule neither an individual nor a private corporation can maintain an equitable action to restrain the violation of a statute enacted for the protection of the public unless it appears that an injury will be done to the person or property of the plaintiff by the violation of the statute.
    No exclusive right to maintain subways and conduits for electrical conductors in streets of the city of New York has been acquired by the Empire City Subway Company of the city of New York, either by statute or by contract with the city authorities.
    A street surface railroad company lawfully using a Cable for motive power in said city, and which as a condition of such use is under obligation to the Railroad Commission of the State of New York to use every provision that ingenuity can suggest to operate the cable with safety, particularly in the form of grip and in the system of signaling to the central house to stop the engines in case of accident, may lawfully construct upon its roadbed, and use an iron pipe containing electrical wires for use in communicating between its power house and its signal boxes intelligence relating to the operation of the road, and in order to stop the cable in case of an accident upon its line.
    Where a private corporation brings an action to restrain a street railroad company from maintaining such a conduit, and to restrain it from using any electrical conductor not placed in' the subways of the private corporation, and proof is made that the corporation charges 8700 per mile for the use of such conductors as the railroad company requires, and that the value of the subway, the ñght to maintain which is in dispute, is $60,000, a sufficient basis is laid for an extra allowance.

      Appeal by the plaintiff, the Empire City Subway Company (Limited), from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of October, 1894, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 2d clay of October, 1894, granting to the defendants an extra allowance.
    This action was begun July" 11, 1893, to enjoin the defendants from maintaining a conduit for the reception and operation of a telegraphic and telephonic conductor on the line of the defendants’ road and to restrain them from using any electrical conductor not placed in the plaintiff’s subways and conduits.
    The defendants were incorporated under chapter 252 of the Laws of 1884 for the purpose of constructing, maintaining and operating surface railroads in certain streets of the city of New York. The Broadway and Seventh Avenue Railroad Company owns the road extending from South ferry through Whitehall street, Broadway and Seventh avenue to Central Bark, at the intersection of that avenue and Fifty-ninth street.
    Formerly the Broadway and Seventh Avenue road was operated with horses, but, by chapter 531 of the Laws of 1889, it was antliorized, upon obtaining certain consents, to move its cars by a cable and make such changes in its road and the bed thereof as should be necessary so to operate its line. Afterwards the consents of the owners of more than one-half in value of the property on this line were obtained that the corporation might substitute a cable for horse power, and, November 12, 1889, the common council of the city consented that the corporation.might operate the road by a cable, on terms and conditions agreed on, which were expressed in a preamble and resolutions adopted on that day stud approved by the mayor November 13, 1889.
    By chapter 259 of the Laws of 1890, the aforesaid acts of the authorities of the city were validated and confirmed.
    On the 13th of May, 1890, the roads owned by the Broadway and Seventh Avenue Railroad Company were leased to the Houston, West Street and Bavonia Ferry Railroad Company, since which date the leased lines have been operated by the lessee.

      On the 31st of July, 1890, the Board of Railroad Commissioners of this State approved of the proposed change of power and of the terms and conditions agreed to between the city and the corporation and imposed certain other conditions which were expressed in their determination on file in the office of said board, among which is the following:

      “ The counsel of the company agreed that every provision that ingenuity could suggest would be adopted to operate the cable with safety to the traveling public, particularly in the form of grip, and system of signaling to the eentral house to stop the engi/nes in case of accident.”

    Pursuant to the authority so obtained, cable power was substituted for horse power for propelling the cars. To effect the change, a central or power house was erected, where power was generated and applied to the cable, and a subway constructed in the roadbed for the cable, and an iron pipe, two and one-half inches in diameter, was laid, wherein were placed electrical wires for the purpose of transmitting signals between the power house and signal boxes placed along the line and about 600 feet apart. These wires are used solely for communicating between the power house and the various signal boxes intelligence relating to the operation of the road, and especially for the purpose of stopping the movement of the cable in case of an accident on the line.
    Prior to July, 1886, the Consolidated Telegraphic and Electrical Subway Company was incorporated under the laws of this State for the purpose of building and maintaining subways in the city of New York and renting space in such ways to the owners of electrical conductors. In July, 1886, and in April, 1887, the board of commissioners of electrical subways entered into contracts with the Consolidated Telegraphic and Electrical Subway Company by which this corporation ivas granted the right to const™ ct subways in accordance with plans thereafter to be agreed on, manage and operate the same, and charge and receive compensation for the use of space in such subways. By chapter 716 of the Laws of 1887, the board of electrical control in the city of New York was created and invested with the power previously conferred upon the board of commissioners of electrical subways in said city, and by the 6th section of the act, the contracts of July, 1886, and of April 1887, were ratified and confirmed.
    On the 26th of April, 1890, the Empire City Subway Company, Limited (the plaintiff), was incorporated, pursuant to chapter 611 of the Laws of 1875, and the acts amendatory thereof and supplemental thereto, for the purpose of constructing, maintaining and operating electrical conductors, subways and conduits, and to lease space in the subways and conduits so .constructed to persons and corporations having the right to operate electrical conductors in this city.
    In December, 1890, the'Consolidated Telegraphic and Electrical Subway Company, with the consent of the city, conveyed to the plaintiff all subways and conduits for telegraphic and telephonic conductors and for the conductors o'f the Edison Electric Illuminating Company of New York. May 15, 1891, the board of electrical control and the plaintiff entered into a contract by which the latter agreed to construct, equip, maintain and operate subways, conduits and ducts for telegraphic and telephonic conductors, and for low-tension electrical light and power conductors of the Edison Electric Illuminating Company in certain streets and avenues in the city of New York. By the fourth article of this contract it is provided: This contract to be without prejudice to the right of the parties of the first part (the city authorities) to enter into such other, further or different contracts as shall be necessary to carry out the intent and purpose of chapter 716, Laws of 1887.” The fifteenth article of this contract contains this provision : “ Nothing in this contract shall be construed as granting to the party of the second part (the plaintiff) any exclusive privileges, immunity or franchise whatsoever.”
    Pursuant to the statutes and contracts referred to the plaintiff has constructed and maintained subways and conduits for electrical conductors in the streets occupied by the defendants’ roads, and is engaged in renting space to the owners of such conductors.

      Melville Egleston and Edward Lauterbach, for the appellant.

      Elihu Root, for the respondents.
   Follett, J.:

It is a general rule, subject to few exceptions, that an individual cannot maintain a suit in equity to restrain the violation of a statute enacted for the protection of the public, unless he shows that he has been or will be injured in person or property by the violation of the statute. It must be shown that the plaintiff has sustained or will sustain special damage. The same rule is applicable to private corporations, and this plaintiff is not within any of the exceptions to the rule. A concession that the defendants have violated the subway statutes, and that the city or the commissioners of electrical control might .maintain an action to restrain the defendants from continuing such violation would not constitute a cause of action in favor of the plaintiff, unless it could be shown that some right of property had been injured by the violation. (Woodruff v. Paddock, 130 N. Y. 618; Smith v. Lockwood, 13 Barb. 209.) The authorities holding that an action to restrain the defendants could be maintained by the People or by the municipal authorities are not in point and need not be considered. The only theory upon which this action can be maintained is that the plaintiff has acquired an exclusive right to maintain subways and conduits for electrical conductors in certain streets in this city, and that all persons and corporations using such conductors must place them in their subways and pay rent for the privilege. Such a right can be acquired only by contract or by statute. No contractual relations have ever existed between the litigants, and the plaintiff has acquired no right as against the defendants by virtue of any contract with them. This brings us to the question whether the plaintiff has acquired by statute or by grant from the city, pursuant to some statute, an exclusive right to maintain subways and conduits for electrical conductors.

Our attention has not been called to any statute conferring an exclusive franchise on the plaintiff or on its grantor, and upon an examination of the statutes relating to the subject we find no provision from which it can be inferred that the Legislature intended to confer an exclusive right upon any corporation, nor do we find any statute authorizing the authorities of the city or the Board of Railroad Commissioners of the State to grant such a franchise. But apart from the question of authority it is manifest that the authorities of the city and the Board of Railroad Commissioners did not grant or intend to grant to this plaintiff an exclusive right to construct, maintain and operate subways and conduits in which all electrical conductors must be placed. By the fifteenth article of the contract of May 15, 1891, entered into with this plaintiff, it is expressly provided : “Nothing in this contract shall be construed as granting to the party of the second part (the plaintiff) any exclusive privileges, immunity or franchise whatsoever.” By the fourth article of the same contract it is provided : “ This contract to be without prejudice to the right of the parties of the first part (the city authorities) to enter into such other, further or different contracts as shall be necessary to carry out the intent and purpose of chapter 716, Laws of 1887.” Under these limited grants there is no ground upon which it can be successfully contended that this plaintiff has any exclusive right to maintain subways and conduits for electrical conductors.

The Board of Railroad Commissioners, in approving of the proposed change of power for the operation of the defendants’ road, expressly provided that it should adopt and use a “ system of signaling to the central house to stop the engines in case of accident.” There is no provision in the statutes which makes it obligatory upon the defendants to place their wires forming a part of their signal system in the conduits owned by the plaintiff, nor is there any provision preventing the defendants from constructing and using conduits of their own. If the construction of the subway statutes contended for by the plaintiff is to prevail it would be impossible for a surface road to be operated on many of the streets by electricity, as authorized by chapter 531 of the Laws of 1889, unless its conductors were placed in the plaintiff’s subways.

On dismissing the complaint the court granted an extra allowance of $750, which is at the rate of five per cent on $15,000. Upon the application for this allowance it was shown that the annual rent charged by the plaintiff for the use of such conductors as are used by the defendants would be $700 per mile, and that the value of the subway, the right to maintain which was in controversy, was at least $60,000. These facts are not disputed, and they are quite sufficient to sustain the allowance granted.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment and order affirmed, with costs.


text:
    The Reliance Marine Insurance Company (Limited), Respondent, v. Henry L. Herbert and Another, Appellants.

      Opinion or charge of the trial judge — when admissible in evidence.

    When a question arises as to what issues were submitted to and determined by a jury, and the charge of the court discloses the questions of fact submitted, the charge is competent evidence upon that question.
    For the purpose of determining the issues passed upon by the court on a trial, without a jury, its opinion upon disposing of the issues is sometimes competent; but the opinion of the court, delivered in an action upon a question of fact, is not competent evidence upon a trial of the same question of fact arising in a subsequent action between different parties.
    Appeal by the defendants, Henry L. Herbert and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of November, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit.

      Anson B. Stewart, for the appellants.

      William, W. MacFarland, for the respondent.
   Follett, J.:

The plaintiff is an insurance corporation organized under the laws of the United Kingdom of Great Britain and Ireland, and the defendants are partners under the firm name of H. L. Herbert & Co., and engaged in the business of buying, shipping and selling coal. The Lehigh and Wilkesbarre Coal Company is a Pennsylvania corporation engaged in mining, shipping and selling coal. March 5, 1891, the plaintiff by an open policy insured the Lehigh and Wilkesbarre Coal Company “ on coal to be laden on vessels, boats or barges sailing on and after March 5th, 1891, against perils of the seas and all other perils, losses and misfortunes that might come to the hurt, detriment or damage of the said coal.” November 5, 1891, the Lehigh and Wilkesbarre Coal Company shipped at Port Johnston, in the State of New Jersey, on board the barge Macy 461 tons of anthracite coal to be carried to the foot of Fifty-third street on East river in the city of New York, there to be delivered to the defendants. November 6, 1891, the plaintiff entered in a pass book, accompanying said policy and forming a part of it, an insurance on said cargo of coal of $1,900. On the same day the Macy was taken by a tug to be towed across the bay of New York to her destination, and on the voyage the Macy was capsized and all of the coal on board, except thirty-four and eighteen-twentieths tons, was lost.

On March 2, 1892, the Lehigh and Wilkesbarre Coal Company made proof that the value of the coal lost was $1,756.14, and on the same day the plaintiff paid to said coal company said sum and received an assignment of all of its interest in said coal and of all causes of action arising out of its loss. Afterwards the coal company paid the sum so received to the defendants herein. In April, 1892, the plaintiff in this action filed a libel against the Macy in the District Court of the United States for the southern district of New York to recover its damages, alleging that the loss was not caused by any of the dangers insured against, but by the carelessness and neglect of the persons in charge of the boat. Charles Tice appeared in that action, alleged that lie was the owner of the Macy, and, among other defenses, alleged that the Macy was, when loaded and wrecked, under the direction, control and in the possession of said H. L. Herbert & Co., the owners of said cargo. On the trial of the action the libel was dismissed on the ground that H. L. Herbert & Co. were, at the time of the loss, in possession and control of the Macy, were in the situation of owners joro hac vice ; that the captain of the barge was their agent, and that H. L. Herbert & Co. could not sue the barge or the owner thereof for the neglect of the captain in overloading; that they had no maritime lien on the barge for the loss of its cargo, and the plaintiff had acquired no oaiise of action by subrogation. On the 4th of January, 1893, this action was begun to recover from the defendants the amount paid by the plaintiff to the Lehigh and Wilkesbarre Coal Company, and by it paid to the defendants on account of the loss. As grounds of recovery it is alleged in the complaint: (1) That the coal was not lost by sea perils, but because the Macy had been improperly loaded by the defendants, and that the loss occurred by their neglect, and by the neglect of their agents and employees in the management and navigation of the barge. (2) That, by a contract between the owner of the barge and the defendants, they had assumed the management and control thereof, and were carrying their own coal on. their own account, and that by said contract the cause of action that would have existed in favor of the owners of the coal, against the owners of the barge, for the loss of the coal, was cut off, and that the plaintiff’s right to be subrogated to H. L. Herbert & Co.’s right of action against the barge was lost. (3) That the plaintiff j>aid the insurance without knowing that defendants were in control of the barge, and in the belief that a cause of action existed in their favor against it, and that the plaintiff would be subrogated to a right of action against the barge.

On the trial of this action two questions of fact were submitted to the jury: (1) Was the coal lost by the negligence of the defendants, or their servants or agents ? (2) Did the plaintiff pay the loss in ignorance of the facts ? Both of these questions were found in favor of the plaintiff. On the trial the judgment roll in the libel action was read in evidence. Annexed to the roll was the opinion of the district judge, which was also admitted in evidence, over the objection and exception of the defendants. In that opinion the learned judge stated that the accident was caused by overloading the boat. The opinion of the district judge upon the issue of fact in that case was not competent evidence in this case upon the issue whether the accident was caused by the neglect of the defendants in overloading the barge. When a question arises as to what issues were submitted to and determined by a jury, and the charge of the court discloses the question of fact submitted, the charge is competent on that question, and so for the purpose of determining- the issues passed on by the court on a trial without a jury its opinion upon disposing of the issues is sometimes competent. But the opinion of the court, delivered in an action upon a question of fact, is not competent evidence upon a trial of the same question of fact arising in a subsequent action between different parties. The opinion of the District Court upon this vital question of fact was well calculated to influence the jury in its determination of the same question on this trial. For this error the judgment must be reversed and a new trial granted, with costs to the appellants to abide the event.

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

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