text:
    John A. Knox, Appellant, v. William M. Chandler, Respondent.
    Judgment and order affirmed, with costs.
   Dykman, J.:

This is an appeal by the defendant from a judgment in favor of the plaintiff entered upon the verdict of a jury after a trial at the Circuit. The action was for malicious prosecution. As the testimony was substantially uncontradicted, or at least such that but one conclusion could be fairly reached upon the question, the trial judge determined that there was not probable cause for the prosecution, and left the question of damages to the jury. There was no error committed upon the trial and the judgment must be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    John McAvoy v. The County of Kings and the County of Queens.
    Judgment affirmed, with costs.
   Dykman, J.:

The counsel for the respective parties to this action have stipulated that the issues involved in the appeal in this action are identical with the issues involved in the case of Ahern v. The Counties of Kings & Queens (ante, page 148) and requested the General Term to dispose of the appeal in this action in the same way as it may dispose of the appeal in the case of Ahern. As the judgment in the action of Ahern has been affirmed at this term, so the judgment in this action of McAvoy must he affirmed according to the stipulation, with costs.

Brown, P. J., and Pratt, J., concurred.


text:
    Herman Bradshaw, Respondent, v. Clement C. Moore, Appellant.
   Judgment modified so .as to provide that defendant, his agents and servants are enjoined from taking possession of the property, etc., “ except in accordance with the terms of the lease as determined by the court in its second finding,” and as so modified, affirmed, with costs-. No opinion.

All concur.


text:
    Julia B. Shearwood, as Executrix, etc., of Jacob B. Shearwood, Deceased, Appellant, v. Eleanor Shearwood, Respondent.
    Judgment affirmed, with costs.—
   Dykman, J.:

This is an appeal from a judgment in favor of the defendant, entered upon the dismissal of the complaint at the Trial Terra, and from an order denying a motion for a new trial on the minutes of the court. The action was brought to recover the sum of $2,000 upon an allegation that in the year 1891 the defendant promised to give the plaintiff’s testator, Jacob B. Shearwood, the sum of $3,000 out of the money received by her from her mother in consideration of services which he had performed for the defendant and for her mother prior to her death, and for services which he promised to perform, and did thereafter perform, and for other good and valuable considerations. The answer denied the promise and the other material allegations in the complaint. The case was tried at the Circuit before a jury, and at the close of the testimony on the part of the plaintiff the complaint was dismissed on the ground of failure to prove the promise upon which the action was based, and further because there was no consideration for such promise. The dismissal was right. The case is destitute of proof of any promise to pay any specific sum, and the law will not imply a promise to pay for the services on account of relationship of the parties. The judgment and order denying a new trial should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.


text:
    William M. Sherwood, Appellant, v. Tjark J. Hartman, Respondent.
    Judgment and order affirmed, with costs.—
   Dykman, J.:

This is an appeal by the plaintiff from a judgment of the County Court of Kings county, in an action tried before the county judge and a jury. The action was originally commenced in a Court of a Justice of the Peace, where the plaintiff recovered a judgment. Upon the appeal to the County Court, a new trial was had, and the plaintiff again recovered a judgment. Upon an appeal to the Supreme Court, that judgment was reversed and anew trial ordered, on the ground that the verdict was not warranted by the evidence. Upon the second trial in the County Court, the evidence was substantially the same as on the first trial and the county judge directed a verdict for the defendant. From the judgment eritered on that verdict, and from the order denying a motion for a new trial on the minutes of the court, the plaintiff has appealed. When this case was before us upon the former appeal, decided that the plaintiff was not entitled to recover. As the testimony upon the second trial was substantially the same as upon the first, we take the same view of the case as we did before when we decided that the plaintiff was not entitled to recover. The judgment and order denying a motion for a new trial must be affirmed, with costs.

Brown P. J., dissents on ground that case was for jury.


author: Herrick, J.:

text:
    Sarah G. Smith, Appellant, v. John B. Smith, Respondent.
   Judgment, in so far as it grants a decree in favor of the defendant and against the plaintiff, reversed, and that portion thereof refusing a decree in favor of the plaintiff against the defendant affirmed, without costs to either party.—

Mem. by

Herrick, J.:

I concur in the conclusion arrived at by the referee that the evidence in this case is not sufficient to warrant a finding that the defendant had been guilty of the acts of infidelity charged against him, but I cannot concur in his conclusion that the evidence warrants the finding that the plaintiff had been guilty of the acts charged against her by the defendant. Charges of this kind are only to be established by clear and convincing evidence; they are so serious in their character, and the results so grave, that a court should hesitate before making a finding of guilty except when thoroughly satisfied of the truth of the charge. While I have great reluctance in refusing to concur in a finding of fact upon conflicting evidence, made by a referee of the ability of the one in this case, who has had the witnesses before him, still, after reading and rereading the testimony in this case, my mind refuses to reach the conclusion that the charge made against the plaintiff is sufficiently established. There is no direct evidence of the commission of the act alleged against her, but only evidence of circumstances which, if no defense had been offered, might he sufficient to warrant an inference of guilty conduct, but not only is a defense made in this case by the plaintiff, and the acts charged against her denied, but the evidence to establish the facts from which the unfavorable inferences are to be drawn, is controverted by -witnesses on behalf of the plaintiff, who seem to be at least entitled to as much credit as those sworn on behalf of the defendant. Without reviewing the testimony at length, it is sufficient to say that I cannot concur in the view of this branch of the case taken by the referee, and that, therefore, I think the decision arrived at by him in refusing to allow a judgment and aeci’ee in favor of the plaintiff and against the defendant should be sustained, and that portion of his decision wherein he allows a judgment and decree in favor of the defendant and against the plaintiff, should be reversed, without costs or disbursements of this appeal to either party.

Putnam, J., concurred.


text:
    George E. Beardsley v. Willis G. Pope.
   Motion for leave to go to the Oourt of Appeals denied, with ten dollars costs.


text:
    The Standard Fertilizer Company v. Edward D. Cleary.
   Motion for leave to go to the Court or Appeals denied, with ten dollars costs.


text:
    Betsey Ketchum v. James A. Holden, Administrator.
   Motion for reargument or leave to go to the Court of Appeals denied, with ten dollars costs.


text:
    Bridget Moran v. Harris Friedman.
   Motion to correct order made July sixth granted, without costs.


text:
    Harry S. Minchen v. Charles Gardiner and Others.
   Order reversed and motion granted, with ten dollars costs and disbursements, and ten dollars costs of Special Term.


text:
    Robert Ferguson, Respondent, v. Perfection Thermometer and Novelty Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Thomas Simpson, Appellant, v. Abram Kling, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    The American Distributing Company, Appellant, v. Edward W. Ashley, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    The Rochester Lamp Company, Appellant, v. John H. Brigham, Respondent.
   Order reversed, with ten dollars costs and disbursements, and defendant ordered to appear for examination. No opinion.


text:
    Kate B. West, Appellant, v. J. Adriance Bush and Another, Respondents.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Adolph Ladenberg and Others, Appellants, v. Commercial Bank of Newfoundland, Defendant; The Merchants’ Bank of Canada, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Silas F. Overton, Respondent, v. Annie E. Barclay, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


author: Per Curiam:

text:
    Silas F. Overton, Respondent, v. Emily F. Barclay and Others, Defendants; William H. Hall (Purchaser), Appellant.
    Order affirmed, with ten dollars costs and disbursements.—
   Per Curiam:

The purchaser’s objection to taking title is founded on the claim that service of the order, appointing a guardian ad l tem for the defendant, an infant over fourteen years of age, unless within twenty days she should procure one to be appointed, was not made. The order was not personally served upon her because she could not be found, and subsequently the plaintiff caused a petition to be presented to the court, in wnich it was stated, among other things, that the infant secreted herself to avoid service. Thereupon an order for substituted service was made. And the purchaser argues that the provisions of the order in respect to manner of service were not complied with. That it required two things to be done: "First, that the order appointing the guardian and the order for substituted service should both be left at the residence of the infant with some person of proper age. Second, that copies oi both orders be deposited in the post office. ” It is true that the orders were not deposited in the post office, and if the purchaser is right in his claim that the order required it to be done his position would be well taken. But we do not so read it. The provision for service of the order upon a person of proper age at the residence of the infant was by the order made sufficient. Only in the event of the failure to make such service was the alternative of affixing the orders to the outer door and mailing them provided for. The papers were served at the residence of the infant upon her mother, and thus the order was complied with. The order should be affirmed, with ten dollars costs and printing disbursements.

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


text:
    Patrick C. O’Rourke, Appellant, v. Margaretha Hanchett, Respondent.
    Exceptions overruled and judgment ordered upon verdict, with costs.
   Per Curiam:

Although the record in this case contains no evidence of an absolute promise to pay, yet if it did, it not appearing that such promise was made with full knowledge of the fact that the defendant had not been charged as indorser, it would he insufficient to create a liability. (Myer v. Hibsher, 47 N. Y. 265.) The rule laid down in that case is as follows: “A promise, to work a waiver, mustbe made with full knowledge of all the facts.” The exceptions should be overruled and judgment ordered upon the verdict with costs.

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


text:
    William A. Copp, as Executor, etc., Appellant, v. The Home Insurance Company, Respondent.
    Judgment and order affirmed, with costs.
   Per Curiam:

The facts are undisputed, and from them it appears that tbe dwelling house which the defendant insured was vacant and unoccupied for a period of more than ten days prior to its burning.' A clause in the policy of insurance upon which this action is founded provides that in such event the policy shall be void. The complaint was, therefore, properly dismissed. The judgment and order sliould be affirmed, with costs.

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


text:
    Mark H. Eisner, Appellant, v. Joseph Stern, as Executor, etc., Respondent, Impleaded, etc.
    — Order affirmed, with ten dollars costs and disbursements.—
   Per Curiam:

For the reasons stated in the case of Eisner v. Eisner, herewith handed down (reported ante, p. 480), the order should be affirmed, with ten dollars costs and disbursements.

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


text:
    Oliver M. Arkenburgh, Respondent, v. Robert H. Arkenburgh, Appellant.
   Motion to dismiss appeal denied.


text:
    John Heerdegen, Respondent, v. Alexander E. Schnee, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    The People of the State of New York ex rel. The Commercial Mutual Insurance Company, Respondent, v. Michael Coleman and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Frederick L. Colwell, Appellant, v. Genevieve R. Colwell, Respondent.
    Order modified as directed in opinion, and affirmed as modified, without costs.—
   Per Curiam:

The allowance for alimony and costs made by the Special Term we regard as excessive. The order should be modified so as to award to tbe defendant $50 a month for alimony, $200 for alimony prior to May 8, 1895, and $100 for counsel fee. Order modified accordingly, and affirmed as modified, without costs.

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


text:
    New York Bank Note Company, Appellant, v. The Hamilton Bank Note Engraving and Printing Company, Respondent.
    Order affirmed, with ten dollars costs and disbursements.—
   Per Curiam:

The questions are the same as those presented upon the former appeal, and though the plaintiffs position is apparently strengthened by the affidavit of Edge-comb, who upon the former application made an affidavit which cannot be entirely reconciled with the one now presented, the same reasons that are enumerated in the opinions upon the former appeal still exist for refusing to determine the questions upon affidavits, and for deferring them until a trial can be had. The facts now relied upon are the same as those formerly presented, the difference consisting in additional evidence now offered in support of plaintiff’s view of knowledge on the part of the defendant. No suggestion as to the irresponsibility of the defendant is made. We think, if the same diligence had been exercised, in endeavoring to bring the case to trial as has been shown for the purpose of obtaining an adjudication which would determine the merits of the controversy upon affidavits, the rights of the parties should ere this have been adjudged. Our conclusion is that the order appealed from should be affirmed, with ten dollars costs and disbursements.

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


text:
    In the Matter of Thomas Simpson, Appellant, v. Abram Kling, Respondent.
   Motion to dismiss appeal granted.


text:
    Matter of Selina Shaw.
   Motion granted.


text:
    David Thomson, as Trustee, etc., v. Lorenzo Goodwin and Others.
   Motion granted, with ten dollars costs.


text:
    The People of the State of New York ex rel. Thomas H. Lynch v. James J. Martin and Others.
   Writ dismissed, with costs. No opinion.


text:
    The People of the State of New York ex rel. Joseph Flynn v. Theodore Roosevelt and Others.
   Writ dismissed, with costs. No opinion.


text:
    The People of the State of New York v. Vitella Bruder.
   Judgment reversed. No opinion.


text:
    The People of the State of New York v. Thomas Curran.
   Motion granted.


text:
    David O’Neill and Others, Appellants. In the Matter of Addison D. O’Neill, Executor of Agnes L. Jones, Deceased, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Maurice B. Mendham, Appellant, v. Russell A. Alger, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Rose Meyers, Appellant, v. Leon M. Hirsch, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Henry Lange and Others, Respondents, v. Manhattan Railway Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Kaspar Muller and Another, Respondents, v. Manhattan Railway Company, Appellant.
   Judgment modified by reducing fee damage to $1,000 and past damages to $250 and by striking out allowance, and as modified affirmed, without costs. No opinion.


text:
    Charles Hadden, Individually, etc., Appellant, v. Metropolitan Elevated Railway Company, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Adolph Kleine, as Administrator, etc., Respondent, v. The Mayor, etc., of the City of New York, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    First National Bank of Jersey City, Respondent, v. George W. Martin, Appellant, Impleaded, etc.
   Judgment and order affirmed, with costs. No opinion.


author: Parker, J.:

text:
    Edward D. C. McKay, Appellant, v. Donald McKay and Others, Respondents.
    Judgment affirmed, with costs.—
   Parker, J.:

An examination of the evidence, presented by the record, leads us to concur in the decision of the trial court that the defendants have not in their possession any bonds belonging to the plaintiff, nor the proceeds of any such bonds for which they have not accounted to the plaintiff. The complaint alleges the deposit by the plaintiff with the defendants in September, 1869, of certain bonds of the face value of $45,000 and their sale by the defendants during the months of October and December following, for a sum exceeding $55,000. During the years 1869,1870 and 1871 the defendants purchased and sold stock for the account of the plaintiff and rendered to him an account of such transactions onthe27thof October, 1871, by which there appeared to be due to defendants the sum of $15,800.74, which sum the plaintiff paid by his check, at the same time receiving a transfer of the stocks then held by the defendants for his account. After-wards, the plaintiff complained of certain charges in the account for interest and commissions, which led to a further settlement, by which the defendants agreed to, and did pay to the plaintiff the sum of $1,017, for which he gave a receipt reading as follows:

“New York, Sept. 12,1872.
“Received of Vermilye & Co. their check to my order for sixteen hundred and seventeen dollars ($1,617), in full of all claim, against said Vermilye & Co.
Witness: “ E. D. C. McKAY*
“ Geo. C. Lyman,
“Donald McKay.’’

From the time of the first settlement in 1871 r to the year 1891, no claim was made against the defendants on account of these bonds. In the meantime, the head of defendants’ firm died, and their books covering .this period were destroyed. The facts to which we have referred, together with the presumption of payment, raised by the lapse of twenty years, between the date of the first settlement, and the demand for a return of the bonds (Bean v. Tonnele, 94 N. Y. 381), justify the finding-of the court. The discussion of the facts at, Special Term makes it unnecessary to further refer to them on this review. The judgment should be affirmed, with costs.

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


text:
    Nathan Corwith, Jr., and Others, Appellants, v. Frederick M. Stetler and Another, Respondents.
    Judgment affirmed, with-costs.—
   Per Curiam:

October 5, 1888, the five carloads of lead in question reached the station. of the Delaware, Lackawanna and Western Railroad Company at Hoboken, which corporation had brought it from the west. It is conceded that when the load arrived it was owned by Nathan Corwith & Co. The only question presented on this appeal is one-of fact. Was Gurden Corwith authorized by Nathan Corwith & Co. to sell the lead ? The learned trial court found this issue of fact in favor of the defendants and upon evidence which permits no other answer to the question. The senior member of the firm of Nathan Corwith & Co. was in the city of New York. The firm received the usual notice of the arrival of the lead and turned that notice over to Gurden Corwith, who had long acted as the broker of the firm. The evidence shows that he had on many occasions stored lead and received warehouse receipts in his own name and sold the lead. In regard to this particular shipment the evidence justifies the conclusion that Nathan Corwith & Co. authorized this very disposition to he made of this lead. None of the appellants established any legal or equitable claim to the property. None of the rulings of the learned trial judge upon the admission or exclusion of evidence are challenged, and no question was argued at the bar of this court or upon the briefs of counsel, except this single question of fact which was well decided. The judgment should be affirmed, with costs.

Present — Van Brunt), P. J., Follett and Parker, JJ.


text:
    Alpheus P. Ralph, Appellant, v. The Industrial Manufacturing Company, Respondent,
   Order reversed, with ten dollars costs and disbursements} and with leave to renew motion. No opinion.


text:
    The Bank of British North America, Respondent, v. William L. Boyle, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted upon payment of costs and disbursements of action subsequent to answer. No opinion.


author: Pm Curiam:

text:
    Thomas J. Churchill, Appellant, v. Frederick Loeser and Others, Respondents
    Order reversed and application granted, with ten dollars costs ana disbursements.—
   Pm Curiam:

The reasons governing applications of this kind are fully stated in the opinions of the Special Term and of this General Term in Veiller v. Oppenheim (75 Hun, 22). Upon that authority, assuming the application to be made in good faith, it should have been granted. It is not seriously claimed that the papers used on the motion disclose any evidence of had faith. It is true that accounts were rendered by the defendants to plaintiff at the time the stock was taken in each year, showing the aggregate amount of profits and losses in the departments in which the plaintiff was employed, and in the profits of which, if any hadbeenmade, he would have been entitled to a percentage. These, however, only give the aggregate amount of profits and losses, without any details of how such totals were reached; ana, claiming that they are incorrect, plaintiff says that an inspection of the books will be necessary to show the incorrectness of such statements, and to enable him to frame his complaint. The suggestion that he is bound by the accounts so rendered by failing to return or object to them is met by his sworn statement that he did object when they were rendered and was promised an inspection of the books from year to year, which, however, was never accorded him. Whether the rendering of such accounts constituted an account stated between the parties should not be determined upon motion, but is a matter to be disposed of at the trial. We do not see that any great hardship can be inflicted upon the defendants by permitting the inspection, it being within their option either to deposit the books with the clerk of the court, or to submit them for inspection at their office during such hours and days as will cause them the least inconvenience. The order appealed from should be reversed and the application granted, with ten dollars costs and disbursements.

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


text:
    In the Matter of Department of Public Parks, Twenty-third and Twenty-fourth Wards.
   Application denied. See Mem.


text:
    In the Matter of Horace Anderson and Others.
   —Motion to confirm report denied. See Mem.


author: Per Curiam :

text:
    Thomas Crimmins, Respondent, v. Metropolitan Elevated Railway Company and Another, Appellants.
    Judgment reversed, new trial ordered, with costs to appellants to abide event.—
   Per Curiam :

We see no way in which a reversal of this judgment can be avoided because of the failure to show any devolution of the title of the first lessor upon the last lessors. The attention of the counsel was pointedly drawn to that point upon the trial but without showing the slightest connection between the lessors in the two leases. A recovery is sought upon the ground that the second lease is a renewal of the first. It is true that the second lease recites that it is a renewal of the old lease, but the lessors are different and there is no proof of how the lessors of the so-called renewal lease acquired title, if any they had. We do not see how we can avoid this objection. The case seems to have been tried in all other respects, but the point argued is fatal. Judgment reversed, and new trial ordered, with costs to appellants. to. abide event.

Present — Van Brunt, P. J., and Parker, J.


text:
    The East River Gas Company of Long Island City, Respondent, v. John F. Ahern, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. No opinion.


author: Bradley, J.:

text:
    Daniel Hurley, as Administrator, etc., of George F. Dever, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Negligence — failure to use the best judgment in 'an emergency not contributory

    Upon the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate caused through the alleged negligence of the defendant, a railroad corporation, it appeared that the deceased was driving a vehicle containing passengers upon a city street, running east and west, across the tracks of the defendant which crossed the street in a diagonal direction; that he first stopped upon a signal from a flagman to allow an engine to pass; that the. flagman then signaled him to proceed and he went forward to the tracks of the defendant and was there struck by an engine belonging to the defendant and killed. It did not appear that any signal -by bell or whistle was given to. announce the approach of the train, and there was evidence that the deceased looked both ways before he attempted to cross. It further appeared that the engine of the train had a headlight, and that there were gates at the crossing, but that the gates were out of repair and a flagman was stationed at the place.

      Held, that the questions of negligence and contributory negligence were properly submitted to the jury.
    Some of the passengers in the vehicle saw the headlight of the approaching engine just as the horses were going upon the track and jumped out before the collision, but the deceased remained in the vehicle.

      Held, that as he had been placed in a situation of emergency by the negligence of the railroad company, he was not responsible for a failure to use the best and most accurate judgment, which might seem best calculated to extricate himself from bis perilous position.

      Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th day of September, 1894, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 6th day of September, 1894, denying the defendant’s motion for a new trial made upon a case and exceptions.

      James Fraser Gluelc, for the appellant.

      John Ouneen, for the respondent.
   Bradley, J.:

In the evening of November 19,1891, the plaintiff’s intestate while driving a carette on Seneca street, in the city of Buffalo, ivas killed by a train upon the defendant’s road, which crossed the street diagonally in a northeasterly and southwqgterly direction. The line of the street is nearly east and west. The deceased was driving east, and had passed over the tracks of the Western New York and Pennsylvania Railroad, and stopped between them and the tracks of the defendant’s road, for an engine moving westerly to pass, and after it had passed he drove forward on to the track of the defendant, and his vehicle was struck by a train going northeasterly on the defendant’s road, causing his death. The inference was warranted by the evidence that no signal by bell or whistle was given of the approach of the train. The jury were permitted to find that the defendant was chargeable with negligence. The burden was with the plaintiff to prove that his intestate was free from contributory negligence. There was evidence tending to prove that he looked'both ways to see whether he could safely cross the track before he drove upon it. The engine of the train had a headlight, and while it does not very clearly appear that he could not have seen it if he had carefully and continuously looked, there is evidence of circumstances which may reasonably have led him to suppose that he could safely cross when he sought to do so, until- he had so far proceeded as to relieve him from the imputation of negligence in entering upon the track. The street is a business one ; it is crossed by the Western New York and Pennsylvania Railroad tracks westerly of and parallel with those of the defendant. The gates at the crossing were and had been for two or three days out of repair, and not operated, and a flagman was stationed there. The evidence on the part of the plaintiff is to the efEect that when the deceased had driven across the tracks of the Western New York and Pennsylvania Railroad, the flagman gave a signal for him to stop, which he did between it and that of defendant, and that immmediately after the engine going west passed, the flagman gave a signal for him to proceed, and he did so with the unfortunate result. The signal to proceed may bo deemed to have been something of an invitation to the deceased to go forward, and such assurance as it could furnish that it was safe to do so.

Three passengers in the carette saw the headlight of the approaching engine just as the horses were going upon the track, and jumped from the vehicle before the collision, two of them without and the other with some personal injury occasioned by it. The plaintiff’s intestate, having charge of the team, did not abandon the carette. It is evident that lie was in a position to see the train momentarily, as did the passengers, before the collision. But at the time his situation was an emergent one; he had so far proceeded that his position was perilous, and he may not have used the best judgment for his personal safety. He probably might, by the abandonment of liis rig, have jumped from the carette and saved himself. But the conclusion was permitted that the emergency in which he was placed by the negligence of the defendant was such that he was not responsible for failure to use the best and most accurate judgment which may seem to have been available to extricate himself from his perilous position. (Took v. N. C. Ry. Co., 75 N. Y. 320 ; Twomley v. C. P. N. c& E. R. R. Co., 69 id. 158; Dyer v. Erie Ry. Co., 71 id. 228; Roll v. N. C. Ry. Co., 15 Hun, 496 ; 80 N. Y. 647.)

The questions of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff’s intestate were those of fact upon the evidence, and were fairly submitted by the learned trial court to- the jury, and it is not seen that the questions arising upon the conflict of the evidence were not properly disposed of by the verdict.

None of the exceptions were well taken.

The judgment and order should be affirmed.

Davy, Ward and Lewis, JJ., concurred.

Judgment and order affirmed.


text:
    Burton J. Hopkins, Respondent, v. Frank W. Clark, as Administrator with the Will Annexed of John Clark, Deceased, Appellant.

      Services — declarations of, and transactions with a decedent ■ — -proof of value ■ — ■ interest.

    Where an elderly and feeble man induced his adopted daughter and her husband to move from their farm to his own, promising to provide for them by his will and to allow the husband to work the farm on shares, and thereafter failed tc make any provisions in his will for the adopted daughter, the husband can recover for the value of bis services and those of bis wife.
    Where, in order to establish a counterclaim, the defendant in an action, an administrator, proves by the plaintiff the execution of a note made by the plaintiff to the decedent and held by the estate oi the testator, the plaintiff may, on his own behalf, state the consideration of the note.
    Where an action is brought by a husband to recover for services rendered to a decedent by himself and his wife, the wife may testify to conversations which took place between her husband and the decedent in which she took part, for the reason that, while the husband is entitled to charge for his wife’s services, he does not derive his claim to them from or under her.
    Declarations of a decedent, not made in the presence of the plaintiff, of his purpose in inducing the plaintiff to come and stay upon the decedent’s farm, constitute no proof of such an arrangement, hut are admissible in corroboration of the facts in that regard which appear from other evidence in the case. Where an action is brought to recover for the services of the plaintiff and his wife, and she has described certain services rendered, it is proper to receive evidence as to the value of those services provided the estimate is based upon her description of them alone. A question thus framed is in the nature of a hypothetical question.
    In such an action the plaintiff is entitled to interest from the time of the commencement thereof.
    Appeal by the defendant, Frank W. Clark, as administrator, etc., of John Clark, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the.office of the clerk of the county of Wayne on the 3d day of October, 1894, upon the report of a referee.

      II. Ii. Durfee, for the appellant.

      M. Hojphins, for the respondent.
   Bradley, J.:

The defendant’s testator died about September 1, 1883. This action was commenced May 8, 1885. Its main purpose was to recover for alleged services of the plaintiff, his wife and other members of his family performed for the decedent from in April, -1877j to the time of his death, including the expense of removing plaintiff’s furniture and other personal property from his premises to those of the testator, in the spring of 1877. The defendant was the adopted son of John Clark, and after his marriage, until the spring of 1877, he resided in a house upon the farm of his foster father, and worked the farm.

The latter also resided in another house upon the farm. Early in that year the defendant concluded to leave the farm, and go into business elsewhere. Thereupon the plaintiff, who owned and occupied a small farm a few miles distant, was requested by the testator to move on to the farm of the latter, occupy the house to be vacated by the deféndant, work the farm, etc. The plaintiff’s wife was the adopted daughter of the decedent, and there is evidence tending to prove that he stated that she would be remembered by him in his will, and that he would, do as well by her as he did by Frank. This expectation may have been some inducem :nt to the plaintiff to go on to Clark’s farm when and as he did. At all events such inference is permitted by the evidence. As i; finally turned out the testator gave by his will nothing to the plaintiff’s wife, but by it gave his property to Frank "W. Clark, the defendant. The decedent was advanced in years, and the evidence tends to prove that he was quite feeble a considerable portion of the time the plaintiff was on the farm; that the plaintiff and his wife, and more especially the latter, assisted in waiting upon and taking care of him; that she also performed other services in Mr. Clark’s family; that the plaintiff’s boys also performed services by way of doing chores for the decedent, and that those services were worth $100 per year for six years, making $600. This is the amount charged by the plaintiff for such services in his statement presented to the defendant before he commenced the action. It does not very clearly appear upon what specific arrangement the plaintiff worked the farm. But the fact that he and Clark each had a share of the crops tends to prove that he operated it on shares. The plaintiff charges by his complaint that the defendant’s testator became indebted to him for services, other than those before mentioned, in the sum of $150, and gave evidence to the effect that he built new fences on the farm, cleared some of the land of underbrush and stone, made an open and a blind ditch, trimmed the orchard, repaired the barn and stables, built a hog pen and drew Mr. Clark’s firewood and coal. While the plaintiff gave evidence tending to prove that the value of those services exceeded $200, the evidence as a whole, in view of the statement of claim made and submitted by the plaintiff to defendant before the suit, and of his relation to the farm in working it, does not fairly justify the allowance of that sum, but does permit him to charge for those services the sum of $101.50.

There is evidence tending to prove that Mr. Clai’k, to induce the plaintiff to come on to and work his farm, promised to pay his expenses in moving, which his evidence fends to prove amounted to seventy-eight dollars. But the recovery of this, as an independent claim, seems to have been barred by the Statute of Limitations, which was pleaded as a defense. Nothing appears to take it out of the operation of the statute. That claim must, therefore, be excluded from the recovery. The claim as here allowed amounts to $701.50. The defendant’s counterclaim established, as found by the referee, is $182.18, leaving a balance of $519.32, which, with interest from the time of the commencement of the action to the time of the entry of the judgment, $293.19, amounts to $812.51.

Numerous objections and exceptions were taken to the introduction of evidence, and in many instances the questions raised by the objections were reserved, some with and others without consent. This method of disposing of objections to evidence has hitherto been disapproved by the courts, and it is not allowable in practice to reserve questions arising upon objections to the introduction of evidence without consent. (Sharpe v. Freeman, 15 N. Y. 802 ; Lathrop v. Bramhall, 64 id. 365; Wright v. Reusens, 133 id. 298.)

The defendant’s counsel took exceptions to’the rulings finally made upon such objections. In the present case the defendant was not prejudiced by the reservations so far as they may be deemed made without consent. And much of the evidence to the introduction of which exceptions were taken was rendered harmless by the fact that the subjects to which such evidence related were not considered by the referee in the final determination made by him as appears by his report.

The defendant alleged as a counterclaim the making and delivery by the plaintiff of his promiss02’y note to the defendant’s testator of date April 11, 1883, for sixty-five dollars, and read the note in evidence. The plaiutiff in reply, as a witness in his own behalf, was asked to state the consideration of the note. The objection interposed by the defendant’s counsel on the ground that the evidence offered related to a personal transaction with the decedent .and was within the inhibition of section 829 of the Code, was overruled and exception taken. The witness stated that the consideration of the note was the price of certain personal property purchased by him of the defendant’s testator.

The proof of the consideration was important for the plaintiff to prove in order to repel the presumption which otherwise might have arisen that the note was made and taken in settlement of matters then existing between the parties to it. (Lake v. Tysen, 6 N. Y. 461.)

But if the plaintiff had been examined by the defendant to prove the making of the note, he was at liberty, in his own behalf, to state the entire transaction relating to the making of it. (Nay v. Curley, 113 N. Y. 575.) When the note was offered and put in evidence, it was described as “-the paper identified by the plaintiff as having been signed by him.” This imports, as appears by the evidence, that on his previous examination by the defendant the fact that he had made the note was proven, which rendered competent the testimony so given by him after the introduction of the note in evidence.

The exceptions were not well taken to the reception of the testimony of the plaintiff’s wife concerning conversations between the plaintiff and the decedent in which she took part, and to her testimony as to the value of the services rendered by her. His relation as husband enabled the plaintiff to charge for the services of his wife. He does not derive the alleged claim arising for her services from her. (Porter v. Dunn, 131 N. Y. 314.)

While the declarations of the decedent, not in the presence of or to the plaintiff, of his purpose to induce him to come and stay upon his farm, furnish no evidence of any arrangement with the plaintiff to do so, they were admissible as corroborative of the facts in that respect appearing.by other evidence. It seems that shortly prior to the time the declarations, to the evidence of which, objections were taken, were made, the decedent had been advised of the purpose of Frank W. Clark to leave the farm, and had through another communicated that fact to the plaintiff, and his desire to have him and his family move on to the farm and succeed Frank in his relation to it and to the affairs of the testator.

Although the plaintiff was not in the presence of the decedent at the time of^the conversation, he was in another room and within hearing of what was said. Whether his evidence of it was admissible within the spirit of the provisions of section 829 of the Code, may be questionable. (Holcomb v. Holcomb, 95N. Y. 316; Matter, etc., of Dunham, 121 id. 575; Matter of Bernsee, 141 id. 389.) But as his evidence did not substantially differ from that of the three witnesses who were present, and as the only material facts to which those declarations of the decedent related were dependent upon, and appeared by evidence other than that of those declarations, it is deemed unnecessary to consider the question of the admissibility of the plaintiff’s testimony concerning that conversation. The reception of evidence of the value of certain services as described by the plaintiff’s wife, and based upon her description alone of them, was not error. The question thus put to the witness was in the nature of a hypothetical question. (McCollum v. Seward, 62 N. Y. 316; Seymour v. Fellows, 77 id. 178.) It would have been otherwise if the inquiry had not thus been restricted. (Reynolds v. Robinson, 64 N. Y. 589 ; Matter, etc., of Snelling, 136 id. 515.)

It is urged with much force on the part of the defendant that there was no liability of the decedent to the plaintiff on account of any of the matters alleged by the plaintiff, and that whatever they treated as matter of claim of either against the other were from time to time adjusted, settled and jiaid.

It is not deemed necessary here to amplify by statement the facts which the evidence tended to prove. But having made a careful examination of the evidence it is sufficient to say that the inferences fairly derivable from the evidence warranted the conclusion of the referee that the plaintiff was entitled to recover the amount herein-before mentioned.

The plaintiff was entitled to recover interest from the time of the commencement of the action. (Mansfield v. N. Y. C. & II. R. R. R. Co., 114 N. Y. 331.)

The judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery, exclusive of costs, to the sum of $812.51, and in that event the judgment be so modified, and as modified be affirmed, without costs of this appeal to either party.

Lewis, "Ward and Davy, JJ., concurred.

Judgment reversed and new trial granted before another referee, costs to abide the event, unless the plaintiff stipulates to reduce the recovery, exclusive of costs, to $812.51, and in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party


text:
    Geneva and Waterloo Railway Company, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Steam railroad — order directing its intersection by a street railroad —statutory regulation of corporate franchises — title to railroad lands • — •public easement.

    The statute known as the " Railroad Law ” (Chap. 565 of the Laws of 1890), under which a street surface railroad may cross a railroad operated by steam, does not make the right to an order directing the crossing and intersection dependent upon the appointment of commissioners, but declares the right of the petitioner to such order when an answer to the petition has been interposed.
    The purpose of the statute in permitting an application for such order at the time when an answer is interposed to the petition is to enable a street railroad company to avoid the delay in laying its tracks which would otherwise result from the raising of issues for trial; and, in order to vacate such an order, the defendant must show by affidavit or otherwise that the proceedings have been in some respect irregular or not authorized by the statute.
    'The intersection made pursuant to an order made on such petition is for the time being provisional, and its permanency depends upon the result of the pending-proceedings.
    The reserved power of the State to alter, suspend or repeal the charter of a corporation subjects its franchise to legislative regulation. Such a corporation may be required by statute to assume burdens in relation to the operation of its road with a view to the safety or convenience of the public; and it may be required without compensation to allow streets and highways to bo laid out, opened and used by the public across the land occupied by its tracks.
    The title to land taken for railroad purposes is limited to its use by the corporation for a railroad and-amounts, therefore, to a limitation for a public use, and

      the exercise of legislative power over it for the public benefit is not to be deemed taking of property, within the meaning of the Constitution, so as to require compensation to be made therefor.
    Where a railroad corporation has laid its tracks across a highway, it nas there only an easement to be enjoyed in common with the public, and the mtersec tion of its tracks by those of a street railroad is an act in the interest of the public and does not in any substantial manner interfere with the use of the highway by the railroad which first laid its tracks thereon.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at tlie Monroe Special Term and entered in tire office of tlie clerk of tlie county of Seneca on tlie 20tli day of March, 1895, denying tlie defendant’s motion to vacate an order permitting tlie plaintiff to lay the tracks of its railroad across the roadbed and tracks of the defendant’s railroad.

      Albert II. Ilcoms, for tlie appellant.

      Charles A. Ilawley, for the respondent.
   Bradley, J.:

Tlie plaintiff, a corporation created and organized pursuant to tlie “ Railroad Law” (Chap. 565 of tlie Laws of 1890) to construct and operate a street surface railroad in North street, and the highway which .is a continuation thereof, from the village of Geneva into the village of Waterloo, obtained the requisite consents of the abutting property owners and proceeded to lay its tracks in such street and highway. Tlie completion of its railway required tlie intersection of the defendant’s railroad which crosses that nigh way. The plain tiff, being unable to agree with the defendant as to the manner of or compensation for the crossing, applied, upon petition, to the court for the appointment of commissioners.

The defendant thereupon, by answer to the petition, raised issues which were sent to a referee for trial. Thereafter upon application of the petitioner, the court, by order, permitted it to lay its tracks across and to intersect, upon the surface of sucli highway, the roadbed and tracks of tlie defendant, and directed tlie iattei to aLow it to be done, and approved the petitioner’s bond and sureties in. that behalf. This order and tlie bond so approved were made pursuant to, and in compliance with, the statute. (Laws 1893, chap. 239.)

The question whether it was within the legislative power to grant such right to a street surface railway company -was determined in the affirmative by the court in Buffalo, etc., R. R. Co. v. N. Y., L. E. & W. R. R. Co. (72 Hun, 587). So far as that case is applicable to the present case it is authoritative here.

The fact that commissioners had been appointed in that case and not in the one at bar when the order was made is a distinction urged as constitutionally vital, for the reason that in the one case there had been a judicial recognition of the right of the plaintiff to construct a street railway for a public purpose, while in the present, case there had been no judicial action to that effect, but that the question in that respect was still an open one, and the legitimacy of' the purpose remained a matter for controversion by the defendant on the trial of the issues raised by its answer.

The statute, however, does not make the i;ight to the order directing the crossing and intersection dependent upon the appointment, oí commissioners, but declares the right of the petitioner to the order when an answer to the petition is interposed. Before occasion can arise for obtaining such an order the street surface railway company must have become a corporation organized for the purpose of the construction and operation of its railroad, and must have served its petition with notice of the application for the appointment of commissioners, pursuant to the statute. The defendant railroad company is thus brought within the jurisdiction of the court, and subject to such proceedings as the statute permits the petitioner to take, amongst which is the application in the event, there mentioned, for the order giving the right to make the intersection by laying the tracks of the petitioner’s street railroad, the route of which is described in the petition, corresponding in length and termini with the description in that respect in the certificate of incorporation. And, so far as ajipears here, the organization of the petitioner as a corporation, and the preliminary proceedings following it, were regular and valid. It may be seen that its purpose is legitimate. The stage of the proceeding, lawfully conducted, at which the granting of such an order as that in question may be authorized, after the defendant by such proceeding is brought by it into the jurisdiction of the court, is not important, so far as relates, to the question of legislative power. We are not advised of the matters alleged in the answer. The issues, whatever they are, do not defeat the petitioner’s right given by the statute to the order. The purpose of the statute in permitting the application for it when an answer is interposed to the petition, evidently was to enable a street railroad company to avoid the delay in laying its tracks, which ■otherwise would be consequent upon thus raising issues for trial. And to vacate the order in such case it is essential that the defendant make it appear by affidavit or otherwise that the proceeding has been in some respect irregular or not authorized by the statute. Nothing whatever to that effect was made to appear in the papers upon which the .motion to vacate the order in question was made. We are not dealing with the -wisdom of legislation, but with its power. And in that respect there is no apparent reason for the distinction before mentioned.

The intersection made pursuant to such an order in either case is, for the time being, provisional, and its permanency is dependent upon the result of the pending proceeding of the petitioner. By the reserved power to alter, suspend or repeal the charter of a corporation (1 E. S. 600, § 8; Const. art. 8, § 1) its franchise is subject to legislative regulation. The relation of railroad corporations to the public is such that they may in its behalf be by statute required to assume burdens having relation to the operation of their roads and with a view to the safety or convenience of the public. (Laws 1874, chap. 648; People ex rel. Kimball v. B. & A. R. R. Co., 70 N. Y. 569.)

And by legislative enactment they may be required, without com- • pensation, to allow streets and highways to be laid out, opened and used by the public across the land occupied by their tracks. (Laws 1853, chap. 62; Albany N. R. R. Co. v. Brownell, 24 N. Y. 345; Boston & A. R. R. Co. v. Village of Greenbush, 52 id. 510; D. & H. C. Co. v. Village of Whitehall, 90 id. 21.)

The statute last cited and others having the support of judicial •authority, illustrate somewhat the limitations applicable to the tenure ■of lands taken by a railroad corporation and upon which its tracks are laid. The title so taken is limited to the use of the corporation for the purpose of its railroad, and that is a public use. And the ■exercise of the legislative power to which such corporation is subject for the benefit of the public may not be deemed the taking of property in the sense which requires provision for compensation for contitutional support. Such was the case of The Albany Northern R. R. Co. v. Brownell, where Judge Denio said: “ The property of the railroad is not taken away from the proprietors, who are still allowed to use it for all the purposes for which it was acquired from the original owner. Nor is there anything unlawful in obliging the railroad company to make the necessary excavations or embankments for taking the highway across the railroad.”

The question in the present case has relation to the right of the petitioner derived from the statute to lay its tracks on the surface of a public highway across the land occupied by the defendant’s tracks, also laid on the surface of the highway. The defendant to that extent has there an easement in common with the public. The intersection and contemplated use by the petitioner, as authorized by the statute, are for the benefit of the public and are consistent with the continued use by the defendant of its railroad and without any substantial interference with such use by it.

It is unnecessary to further consider the question whether the intersection of the defendant’s road by that of the petitioner as authorized by the statute and directed by the order, h a taking of property of the defendant in the constitutional sense of the term, since it was held by the court in Buffalo, etc., R. R. Co. v. N. Y., L. E & W. R. R. Co. (72 Hun, 587) that it was within the legislative power to permit such intersection and crossing without the allowance of compensation, and for that reason it is in this, as it was in that case, held that the question whether or not the statutory provision for security for the payment of compensation furnishes the requisite certainty for that purpose, does not necessarily arise for consideration.

The order should be affirmed.

Davy, Ward and Lewis, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Levis, J.:

text:
    Mary Bates Griffith, Respondent, v. Charles E. Dickinson and Cora E. Dickinson, Appellants, Impleaded with Others.

      ¡Error in stenographer’s minutes misleading the trial court — when a judgment will he reversed therefor ■ — question as to a division line.

    Upon tlie trial of an action brought to compel the determination of a claim to real estate it appeared that the plaintiff, who was the owner of two lots of land, conveyed one of them to the defendant Charles E. Dickinson. The land so conveyed was fenced at the time of the sale, and Dickinson testified that the husband of the plaintiff, who acted as her agent in the matter, represented to him that the lot consisted of the land lying between the two fences, and was fifty feet wide; the plaintiff claimed that Dickinson was entitled to but forty-nine feet and three inches.
    It further appeared that the plaintiff, before she conveyed to Dickinson, had constructed a,house upon her lot, which encroached upon that of the defendant, in that the eaves of her house extended slightly over the line, as claimed by Dickinson.
    ■Owing to an error in the stenographer’s minutes of the trial it was made to appear to the trial justice that the plaintiff had built her house after Dickinson purchased instead of before, and the trial justice, relying upon such minutes, and understanding that the plaintiff’s house was built with Dickinson’s knowledge and without objection’on his part, accordingly held that'the defendant was estopped from thereafter claiming that the plaintiff’s house encroached upon his land.

      Held, that this was so serious an error in the minutes as to require the granting of a new trial.
    Appeal by the" defendants, Charles E. Dickinson 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 Monroe on the 3d -day of December, 1894, upon the decision of the court rendered ■■after a trial at the Monroe Equity Term.

      George F. Feoma/n, for the appellants.
    TI illiam F. Hale, for the respondent.
   Levis, J.:

The plaintiff and the defendant Charles E. Dickinson own adjoining lots, situate upon the westerly side of Lake avenue in the city of Rochester. Both lots formerly belonged to the plain■>tiff, and she conveyed to the defendant Dickinson the lot he now owns and occupies. The negotiations leading to the sale were conducted on the part of the plaintiff by her husband, who died prior to the commencement of this action.

A controversy arose between the plaintiff and the defendant Charles E. Dickinson as to the true location of the line between their lots, a strip of land about nine inches in width being claimed by each of the parties. Dickinson’s lot was fenced upon both sides at the time he purchased it of the plaintiff. He testified upon the trial that the plaintiff’s husband, while negotiating the sale, represented to him that the lot consisted of the land lying between these fences, and that the lot was fifty feet wide. He further testified that he relied upon these representations, and made the purchase without having the lot surveyed or measured. Soon after Dickinson purchased his lot, by an arrangement between him and the plaintiff, the front portion of the fence between their lots was removed and the ground sodded over. The precise location of this piece of fence at the time the defendant Dickinson purchased the lot was a matter litigated upon the trial, and the evidence was somewhat conflicting.

Dickinson’s lot between his northerly fence and the line, as now claimed by the plaintiff, is but forty-nine feet and three inches in width, and the plaintiff’s lot is a foot or more wider than her title deeds call for. The preponderance of evidence, as it impresses us, was rather with the defendants’ contention, but not so much so perhaps as to justify a reversal of the judgment for that reason.

The plaintiff, a short time before she conveyed to Dickinson his premises, had constructed a house upon her portion of the land not conveyed to Dickinson, which very slightly encroaches upon his lot, as the line is claimed by him. The encroachment consists of the eaves of her house extending over the line very slightly.

It appears from the opinion of the trial justice, which is printed in the case, that he understood, when considering and deciding the case, that it was established by the evidence that the plaintiff built her house after she had conveyed the lot to Dickinson, and that he, while the house was being built , resided in the house upon his lot, and must have been aware of the location of plaintiff's house, and made no objection or complaint that it was encroaching upon his land. This fact, if true, was very important evidence against the defendants, and justified the trial court in holding that Dickinson was estopped from thereafter claiming that the plaintiffs house encroached upon his land.

It is a conceded fact that the plaintiffs house was built before Dickinson purchased his place, and that he was entirely ignorant, so far as it appeared upon the trial, of the fact, when lie purchased his premises, that any portion of plaintiff’s house extended over the line, as now claimed by him. The trial justice was misled, as to the time the house was actually built by an error in the stenographer’s minutes of the testimony, the stenographer having erroneously written the word “ after ” when it should have been “ before,”' and thus made it appear that the house was constructed after Dickinson purchased his lot.

This, as stated, was an important piece of evidence, if true. How much it influenced the mind of the trial justice we cannot know.

Had the plaintiff brought an action of ejectment to recover possession of the strip of land, the defendants would have been entitled to a new trial under the statute.

Justice demands, we think, that the case should be retried, so that this im]3ortant and significant error in the evidence can bo eliminated from the case.

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

Dwight, P. J., and "Ward, J., concurred; Bradley, J., not voting.

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


author: Lewis, J. :

text:
    Henry C. Freck and Charles G. Freck, Respondents, v. William B. Hughes, as Sheriff of Cattaraugus County, and Thomas R. Aldrich, Appellants.

      Cornersion — title to lumber — when a question for the jury.

    In an action brought against a sheriff for the conversion of lumber sold by him, as he alleged, under an execution against a corporation known as the Standard Lumber Company, the plaintiffs, upon the trial, did not prove the source of their title, but relied upon the .presumption of ownership arising from their

      possession. It appeared that the plaintiffs had agreed to saw a large quantity of logs for the Allegany Lumber Company, and that while they were engaged in doing so the assets and rights of that lumber company, including the plaintiffs’ contract, passed to the Standard Lumber Company, and that thereafter the plaintiffs continued the performance of the contract for the Standard Lumber Company; that while so engaged they purchased of the Standard Lumber Company what remained of the logs unsawed; that at a subsequent date the Standard Lumber Company sold the same logs to the firm of Stewart & Co., and that Stewart & Co. in turn, and upon the same day, sold the identical logs to plaintiffs, who agreed to pay for them the sum of 85,000.
    It further appeared that the plaintiffs were present when the lumber alleged to have been manufactured from these logs was sold by the sheriff, and that they did not protest against the sale, but did claim compensation for sawing the lumber.

      Held, that the questions whether the lumber sold was actually sawed from the logs in suit, and whether, in fact, the plaintiffs ever had any title in the logs or to the resulting lumber, should have been submitted to the jury, and that it was erroneous to direct a verdict for.the plaintiffs.
    Appeal by tbe defendants, William B. Hughes, as sheriff of Cattaraugus county, and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Cattaraugus on the 26th day of February, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Cattaraugus Circuit, and also from the order of the court directing said judgment.

      Hudson Ansley and T. H Dowd, for the appellants.

      William H. Henderson, for the respondents.
   Lewis, J. :

This action was brought against the defendant Hughes, as sheriff of Cattaraugus county, and Thomas R. Aldrich, deputy sheriff, for the conversion by them of some 200,000 feet of hemlock lumber. The defendants interposed an answer to the effect that, on or about the 24th day of March, 1892, the First National Bank of Salamanca commenced an action in the Supreme Court of the State of New York against an incorporated company, known as the Standard Lumber Company, and on that day obtained a warrant of attachment, which was delivered to the defendants, as sheriff and deputy sheriff of Cattaraugus county; that by virtue thereof they attached a quantity of logs on the twenty-sixth day of said month, and that thereafter a judgment was recovered in said action against the lumber company and an execution was issued, and that thereafter another action was commenced against said lumber company in favor of Anna M. Stickle and others as plaintiffs, and an attachment in said action was issued to the defendants as sheriff and under sheriff, by virtue of which they attached the said logs, and thereafter a judgment was obtained by the plaintiffs in said action, and an execution was issued; that intermediate the levying of the said attachments and the issuing of the executions, the present plaintiffs, with knowledge that the logs had been so attached, sawed them into lumber ; that, by virtue of the executions, the defendants levied upon and sold said lpmber as the property of said lumber company. At the close of the evidence a verdict was directed by the court for the plaintiffs for the conceded value of the lumber.

Plaintiffs in making their case did not prove the source of their title to the lumber in question, but relied upon the presumption of ownership arising from their possession.

Upon their cross-examination as witnesses it was made to appear that in the early fall of 1891 they entered into a contract with a corporation known as the Allegany Lumber Company to saw a large quantity of logs into lumber. The logs were lying, at the time of the making of said contract, in and along two streams of water in the town of Red House, Cattaraugus county. One of said streams was known as Quaker run.

Upon this stream the plaintiffs’ saw mill was situated. The other stream was known as Stoney brook, which entered into Quaker run a mile or so above the plaintiffs’ mill. Plaintiffs entered upon the performance of their contract, and while so engaged the Standard Lumber Company was incorporated and the assets and property of the Allegany Lumber Company, including the contract with the plaintiffs, were transferred to the Standard Company. The plaintiffs thereafter continued the sawing of the logs for the Standard Company under the contract mentioned.

The officers and stockholders of both companies appear to have been the same, and probably the only real change was in the name of the corporation.

The plaintiffs testified that in the latter part of December, 1891, while they were engaged in sawing the logs, they purchased 'of the Standard Company what remained of the logs unsawed; that they were, at the time, frozen in the streams mentioned. Not much information was elicited upon the trial as to the terms of this purchase.

The contract of sale was in writing. Plaintiffs’ counsel announced upon the trial that he had it in his possession, but did not offer it in evidence, neither did the defendants ask that it be produced.

The defendants introduced evidence showing the commencement of the actions mentioned against the Standard Company, the issuing of the attachments and the levy upon the logs under the first attachment on the 30th of April, 1892. On the 28th day of March, 1892, the Standard Lumber Company made a written bill of sale of these logs to a firm by the name of Stewart & Co., and on the same day, and probably as a part of the same transaction, the plaintiffs purchased these identical logs of" Stewart & Co. and agreed, so they testified, to pay therefor the sum of $5,000.- No explanation was offered upon the trial by the plaintiffs of these transfers. It did not appear that they expressed any surprise when they were informed that the lumber company had assumed to dispose of property which the plaintiffs now claim they were the owners of at the time. Neither did they in any way account for their agreeing to pay to Stewart & Co. $5,000 for property which as they claimed upon the trial they owned and had possession of. The plaintiffs, after the logs were attached by the defendants, continued to manufacture them into lumber, piling the lumber in separate piles in their mill yard. They pointed out these piles to the defendants as lumber manufactured from the logs which the defendants had attached. The plaintiffs were present at the sale of the lumber by the defendants, and did not, in any manner, protest against it. They did make a claim for compensation for sawing the lumber.

Whether the lumber sold under the execution was manufactured from the same logs that’ were attached by the defendants was left in some considerable doubt upon the trial. The plaintiff Henry C. Freck, however, did testify that the lumber sold by the defendants came from logs purchased by the plaintiffs of the Standard Lumber Company.

We think there was sufficient evidence tending to identify the logs attached, and that the lumber sold was sawed from them, to make it a question which should have been submitted to the jury. And we think it was a question of so much doubt whether the plaintiffs ever had any title to the lumber in question, and whether it was not, in fact, the property of the defendant in the executions, the Standard Lumber Company, as to make that also a question for the jury. The evidence relied upon by the plaintiffs to make their cause of action came from the plaintiffs themselves, who were interested witnesses. The circumstances attending these alleged transfers tended to throw considerable doubt as to their being bona fide sales.

It is altogether improbable that the plaintiffs would have recognized Stewart & Co. and consented to pay them for the logs if they, in fact, at the time had any title to them.

While the defendants were somewhat unfortunate in getting their defense before the court, we are of the opinion that there were questions of fact which should have been submitted to the jury.

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

Bradley and Ward, JJ., concurred.

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


text:
    Patrick Conly, Respondent, v. Charles C. Clay, Appellant.

      Exemption from toll — action to recover a penalty — no presumption indulged in, to sustain it.

    Where an action is brought to recover a statutory penalty an appellate court is not at liberty to indulge in any presumptions in order to sustain the judgment.
    Where a person claims exemption from the payment of toll upon a plank road under section 130, chapter 566, Laws of 1890, he must establish not only the fact that he “lived within one mile of the gate by the most usually traveled road,” but, also, that at the time when toll was exacted of him he was “not engaged in the transportation of other persons or property.”
    Appeal by the defendant, Charles C. Clay, from a judgment of the County Court of Erie county, entered in the office of the clerk of the county of Erie on the 27th day of March, 1893, upon the decision of the court affirming the judgment of a justice of the peace.

      Frcmle M. Whaley, for the appellant.

      Willimi H. Clarh, for the respondent.
   Lewis, J. :

The defendant was a toll gatherer on the road of the East Aurora and Spring Broolc Plank Boad Company, a company incorporated in May, 1885, under the laws of the State of New York. As such toll gatherer the defendant, on three different occasions in the year 1892, required the plaintiff to pay toll as a condition of passing the gate with a team. ,

The plaintiff, claiming that he was exempt from the payment of toll under section 130 of chapter 566 of the Laws of 1890, entitled “ An act in relation to transportation corporations excepting railroads,” brought this action against the defendant in a J ustice’s Court to recover three penalties of five dollars each under section 131 of said act.

He recovered judgment for the three penalties, amounting to fifteen dollars, and the justice’s judgment was affirmed in the County Court, and from the judgment of the County Court an appeal was taken to this court.

Section 130 of said act provides that toll shall not be charged or collected at any gate upon a turnpike or plank road of persons living within one mile of the gate, by the most usually traveled road, when they are not engaged in the transportation of other persons or property.

It is provided by section 131 that any toll gatherer who shall demand or receive from any person more toll than he is authorized by law to collect shall forfeit to such person the sum of five dollars for every offense.

The plaintiff was required to prove, before he was entitled to recover penalties under this section, facts bringing himself within the exemptions mentioned in section 130. The plaintiff was the only witness called. He testified that he resided on the East Aurora and Spring Brook plank road.; that there was a gate maintained upon the road, which wras situated about one-half a mile from his house; the defendant was the toll gatherer; that he had occasion to pass the toll gate on the 6th day of March, 1892; he was on his way with a team to North Star Hotel to see a man about some grape plants.

The defendant’s son was at the gate and demanded toll from him. The defendant was in the toll house at the time. Plaintiff stated that he was exempt from paying toll. In reply to a question by the son whether he was going to church, he said he was not. He. was required to and did pay toll and passed on through the gate. On two other occasions during- that month he paid toll at the gate, once to the defendant personally..

This was the substance of the evidence. In this class of actions especially we are not at liberty to indulge in presumptions in order to sustain a judgment.

Plaintiff is asking to recover of the defendant penalties which he claims to be entitled to under a statute, and we must find, in order to sustain this judgment, evidence that he was entitled to drive over this plank road and pass the gate without ¡laying the usual toll which the company was entitled to demand of persons generally who desired to pass through the gate with a team.

The plaintiff was required to show that he lived within one mile of the gate by the most usually traveled road.

It appears by the articles of incorporation of the Plank Boad Company that its road is four miles in length, and from the line of its road as described it may be fairly claimed that the plaintiff established that he was living within one mile of the gate by the most usually traveled road, but it was also incumbent upon him to show, in order to be entitled to exemption from paying toll, that he was not engaged at the times in question in the transportation of other persons or of the property of others. There was, pex-haps, sufficient evidence to justify the conclusion by the justice, that on the occasion when the plaintiff was going to the North Star Hotel to see a man about some grape plants, he was xxot engaged in transportixxg other pex-sons, or the px-operty of othex-s, but there is axx absence of any evidence tending to show that on the two other occasions he was not so engaged.

The burden of proof was upon the plaintiff to prove that he was not so engaged, and having failed so to do, he was entitled to x-ecover, at the most, but one penalty.

The judgment of the County Coux-t should be modified by reducing plaintiff’s recovery to the sum of five dollars and the costs in the Justice’s Court as of the time of its entry in that court; in other respects the judgment of the County Court should be reversed, without costs to either party.

Bradley, Ward and Davy, JJ., coxxcurred.

So ox-dered.


text:
    The County of Allegany, Plaintiff, v. The Town of Wellsville, Defendant.

      Excise moneys — belong to towns — a resolution of the board of supervisors is not ‘ ‘ a special or local law.”

    A board of supervisors iu 1830 abolished by resolution the distinction between county and town poor, and declared that thereafter,all should be considered county paupers.
    Under the “ Town" Law ” (§ 181, chap. 569, Laws of 1890) excise moneys were made subject to the control of the boards of supervisors in those counties where the poor are a county charge.
    By chapter 401 of the Laws of 1892 (the general Excise Law) the method of disposition of excise moneys was changed, and they are payable to the town in which they are collected, to be used for its ordinary expenditures, “ unless otherwise provided by a special or localdaw.”
    Upon the submission of a 'controversy between a county and a town relative to the disposition of excise moneys,

      Held, that the resolution of the board of supervisors was not, within the meaning of chapter 401 of the Laws of 1892, “a special or local law” entitling the county to claim such moneys for the support of'the county poor.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of tlie Code of Civil Procedure.
    The facts agreed upon were in part as follows:
    “ That during the years 1892, 1893 and 1891, and for many years prior thereto, the support of the poor within Allegany county has been a county charge after the town in which such poor persons reside has expended the sum of ten dollars for the support of such poor persons; that is to say, that under resolution of the Board of Supervisors of the plaintiff, passed November 13,1830, each town was liable in the first instance for the support of its resident poor in the sum of ten dollars, and that after the expenditure of said ten dollars by said town for the support of said resident poor person, then such poor person became a county charge and such rule or regulation is now in force in said county of Allegany.
    “ That during the year 1892 and after May 1st the supervisor of the defendant received the sum of $717.50 for licenses that had been granted by the excise commissioners of the defendant to various persons for the sale of strong and spirituous liquors under the excise'law of the State of New York.

      “ That during the year 1893 the supervisor of the defendant received the sum of $700 for licenses that had been granted by the excise commissioners of the defendant to various persons for the sale of strong and spirituous liquors.
    “ That during the year 1894 the supervisor of the defendant received the sum of $710 for licenses that had been granted by the excise commissioners of the defendant to various persons for the sale of strong and spirituous liquors.
    “ That at the regular adjourned session and.meeting of the board of supervisors of said Allegany county, held December 13, 1892, the Allegany county treasurer reported to said board that the towns of Grove, Hume, Andover and Willing had, after the passage of chapter 401, Laws of 1892, the Excise Act of 1892, paid to him as such treasurer, excise moneys amounting to the sum of $575.28, reported by him to said board as belonging to said towns, and upon the coming in of said report before said board and upon said 13th day of December, 1892, the said board by resolution directed that orders be drawn payable from the contingent fund of said county to the supervisors of the said towns, to which such moneys belong, and they were thereafter so drawn and paid said towns.”

      Charles Ii. Brown, for the plaintiff.

      Clarence A. Farnum, for the defendant.
   Lewis, J. :

Both parties claim to be entitled to the money in question. The defendant concedes that but for the passage of chapter 401 of the Laws of 1892, entitled “An act to revise and consolidate the laws regulating the sale of intoxicating liquors,” the plaintiff would be entitled to the funds in question.

It is the contention of defendant’s counsel that the law as it had theretofore existed was so changed by the act of 1892 that his client is entitled to the fund.

Power was given to the various boards of supervisors of the State by chapter 155 of the Laws of 1828 to abolish by resolution all distinction between the county and town poor in their counties respectively and to have the expense of maintaining them, made a county charge. Such determination, duly certified by the clerk of the board, was required to be filed with the county clerk.

Pursuant to the power thus conferred, plaintiff’s supervisors in the year 1830 passed the following resolution : “ Resolved, to abolish all distinction between county and town poor, and that from this time forward they may be considered county paupers.”

This resolution was properly certified and filed as required by law.

Chapter 569 of the Laws of 1890, known as the “Town Law,” was in force at the time of the passage of the act of 1892.

Section 181 of the former act reads as follows: “ Excise moneys, how disposed of.— All excise moneys shall be disposed of as directed by the town board of the town in which such moneys are paid, except in those counties where the support of the poor is a county charge, in which case such moneys shall be paid into the county treasury, subject to the control of the board of supervisors.”

A similar provision was contained in chapter 444 of the Laws of 1874. By section 15 of the act of 1892 it was provided that “ every board of excise and every commissioner of excise of a town shall within ten days after the receipt of any money by such board or commissioner pay such money or cause’ it to be paid to the supervisor of such town. Such moneys shall be applied to the payment of the ordinary expenditures payable from the general fund of the city or town respectively, unless otherwise provided by a special or local law.”

It is conceded by the plaintiff’s counsel that were it not for the concluding clause of this section, to wit, “ unless otherwise provided by a special or local law,” the town would be entitled to retain these moneys.

It is his contention that the resolution of the board of supervisors heretofore referred to answers the description of a special or local law within the meaning of said act.

We assume that the promoters of the act of 1892 had in mind to effect thereby some change in the law as it had theretofore existed. They provided that thereafter all excise moneys should go to the town authorities unless otherwise provided by a special or local law. It is altogether improbable that the Legislature when using such explicit language had in mind to provide that the disposition to be made of such moneys was to depend upon the action of boards of supervisors, for, as we have seen, prior to the passage of that act, whether the excise moneys went to the town or county depended upon the action of the supervisors of the county. If they took no-action the town was entitled to the money.

If a resolution of the board answers the description of a special or local law within the meaning of the act (Laws of 1892, chap. 401),, then no practical change in the law as it had theretofore existed was-effected, for the power to determine where the moneys should go-was still left with the supervisors.

It was provided by section 5 of chapter 628 of the Laws of 1857 that all excise moneys should be paid to the county treasurer for the use of the poor of the county. This was a general law affecting the whole State.

After the passage of this act, local and special laws were from time to time passed exenrpting different counties from the effect of this act of 1857, and making special provisions for the disposition of excise moneys of the various localities. These acts were upon the statute books unrepealed at the time of the passage of the act of 1892.

It was such acts, we think, that the lawmakers had in mind, the special and local bills provided for by sections 16 and 18 of article 3 of the Constitution, and not mere resolutions of boards of supervisors.

Section 1 of the act of 1892 repealed all special and local laws in conflict with its provisions, and -were it not for the concluding words of section 15, unless otherwise provided by a special or local law,” there would be no room for doubt.

The towns of our State provide the machinery and pay the expenses of the collection of -excise moneys, and there is a propriety in their having the direct benefit of the moneys arising from granting licenses.

The act of 1892, as will be seen by an examination of its provisions, bears evidence that its promoters were not unfriendly to-the traffic in intoxicating liquors.

Section 40» of said act makes a radical change in what is known as the Civil Damage,Act. Some of its (the Civil Damage Act) features, which were considered severe and harsh by those engaged in the sale of intoxicating liquors, were modified in the interest of the business.

The general policy of the legislation of the State prior to the passage of tbe act of 1892, had been to devote excise moneys to the support of the poor, thereby associating the traffic in liquor with pauperism. The act of 1892 expressly requires that such moneys shall be applied to the payment of the ordinary expenditures of the city or town respectively.

The effect of giving the town the direct benefit of the moneys, arising from the granting of licenses would probably be to promote the granting of licenses. If the excise money goes into the county treasury, a no-license town derives equal benefit from it with the town which grants licenses. If the money is to go directly to the town, its electors would naturally look with more favor upon the ' traffic than if the money is to go into the treasury of the county.

We are of the opinion that the Legislature had in mind, in'passing the act of 1892, to effect a change in the law as it had theretofore existed, and provide that without regard to whether the poor are a town or county charge, the excise moneys should be paid to. and belong to the town unless there was a local or special State law making a different disposition thereof.

It follows that the defendant is entitled to judgment, awarding to it the money in question.

Bradley and Ward, J"J., concurred.

Judgment directed for the defendant, without costs.


author: Lewis, J.:

text:
    Samuel C. Dey, Appellant, v. Minnie Prentice, Respondent.

      Covenant to build line fences running with the land —proof thereof under a general denial• — designation by. fence viewers, not an estoppel.

    Where the owner of certain premises conveys a portion thereof by a deed in which the grantee covenants to build and repair all line fences between his lot and the lots of the grantor, the covenant runs with the land and binds subsequent purchasers.
    Whether or not, in an action brought to recover the expense of building the-defendant’s share of a division fence, the defendant can, under a general denial, introduce a deed showing a covenant running with the plaintiff’s land and binding him to build the whole fence, the objection to such proof cannot be-raised for the first time upon appeal.

      The fact that, by consent of the parties, fence viewers hád designated the portion of a division fence which should be built by each of the adjoining owners and had required the defendant to build his part, does not estop the defendant from interposing a defense arising from a covenant by which the plaintiff was bound to build the whole fence.
    Appeal by the plaintiff, Samuel C. Dey, from a judgment of the County Court of Allegany county in favor of the defendant, entered in the office of the clerk of the county of Allegany on the 19th day of December, 1892, upon the verdict of a jury rendered by direction of the court after a trial at the Allegany County Court upon an appeal by the defendant from a judgment in favor of the plaintiff rendered by a justice of the peace, and also from an order entered in said clerk’s office on the 21st day of June, 1893, denying plaintiff’s motion for a new trial.

      G-. W. Hardvng, for the appellant.

      JET. II. Melya, for the respondent.
   Lewis, J.:

This action was brought to recover pay for building the defendant’s portion of a division fence between the lands of the parties, situate in the town of Hume, Allegany county.

It was originally tried in a Justice’s Court, where the plaintiff obtained a verdict. The defendant appealed and the case was tried in the County Court, where a verdict was directed for the defendant of no cause of action. It was alleged in the plaintiff’s complaint that the parties owned adjoining lands; that they agreed upon the portion of the line fence between their lands which each should build; that the defendant neglected and refused to build her portion of the fence for the period of more than one month after being requested so to do by the plaintiff; that the plaintiff thereafter built the same at an expense of twelve dollars and eighty-three cents, and that hy virtue of the statutes relating to division fences the defendant became liable to pay him said sum of money. Among other, ■defenses interposed by the defendant was a general denial.

It appeared upon the trial that the lands of the parties formerly belonged to one Daniel Seaver.

Seaver obtained his title by a deed from one Austin Patridge in the year 1855, and entered into possession thereof.

Out of the land so conveyed to him by Patridge, Seaver deeded the plaintiff’s premises of about four acres to one Joseph Luckey by deed dated March 1, 1863. The deed to Luckey contained the following covenant: “ And the said Luckey is to build and keep in repair all line fences between said lot and lots adjoining owned now by said Daniel Seaver.”

Luckey entered into possession and occupied the land so conveyed to him many years and until he died.

Defendant’s lot was a part of the farm not conveyed to Luckey by Seaver, and it adjoined the piece of land conveyed to Luckey. Luckey built and maintained, up to the time of his death, the line fence between his lot and the land now owned by the defendant.

A Mr. "Weaver occupied plaintiff’s lot for ten or twelve years after the death of Luckey under a deed from one Charles Flenagin. "Weaver built and maintained the line fences in question while he was in possession. From whom Flenagin got the title does not appear. "Weaver’s title deed was shown to be in the possession of the plaintiff at the time of the trial, but it was not put in evidence.

Although a complete chain of title from Seaver to the plaintiff was not shown upon the trial, the presumption is that his title came through Seaver, as did also that of the defendant.

Under the evidence the burden, we think, was upon the plaintiff to show that his lot had in some way been released from the burden imposed upon it by the Seaver deed. This he failed to do.

"We agree with the County Court that the covenant in the Seaver deed requiring the grantee, Luckey, to build and keep in repair the line fence in question, runs with the land.

It was a covenant inserted in the deed for the benefit of the grantor, as owner of the adjoining land not conveyed, and which is now owmed hy the defendant.

It released the defendant’s lot from the burden of thereafter building or maintaining a portion of the line fence between these lots.

The distinction between covenants running with the land and collateral covenants, which do not run with the land, is very clearly pointed out in the cases of Allen v. Culver (3 Den. 284-297); Aikin v. Albany, Vermont & Canada Railroad Company (26 Barb. 289); Countryman v. Deck (13 Abb. N. C. 110).

Tlie appellant’s counsel contends that the defendant was not entitled to avail herself of this defense for the reason that she had failed to plead it. The deed from Seaver containing the covenant mentioned was put in evidence by the defendant without the objection being made that the defense was not pleaded.

It is too late to raise the question upon appeal. Had it been raised at the trial the answer might have been amended if deemed necessary. "Whether, under the general denial, the defendant would not have been entitled to the evidence, we are not called upon to decide.

At the suggestion of the plaintiff, and by consent of the defendant, fence viewers were called upon to apportion the line fence between the lands in question. They designated the part each should build, requiring the defendant to build that portion of the line fence, for the building of which this action was brought. This fact is relied upon by the plaintiff as estopping the defendant from claiming the exemption mentioned. The case of Adams v. Van Alstyne (25 N. Y. 236) would seem to have settled that question against the plaintiff’s contention.

The judgment and order appealed from should be affirmed.

Bradley, Ward and Davy, JJ., concurred.

Judgment and order affirmed.